The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA19-521
Filed: 4 February 2020
Sampson County, No. 16 CRS 243
STATE OF NORTH CAROLINA
v.
BRANDON ALAN PARKER
Appeal by defendant from judgment entered 12 June 2018 by Judge Ebern T.
Watson, III in Sampson County Superior Court. Heard in the Court of Appeals 8
January 2020.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Michael
T. Wood, for the State.
Michael E. Casterline for defendant-appellant.
TYSON, Judge.
Brandon Alan Parker (“Defendant”) appeals from a jury’s verdict convicting
him of possession of a firearm by a felon. We find no error.
I. Background
Four men from Jacksonville, North Carolina drove to Garland, North Carolina
on the morning of 5 March 2015 intending to purchase marijuana. Michael Harbin
drove his mother’s black Toyota Camry vehicle, with Carlos James and Derrick
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Opinion of the Court
Copeland as passengers. A fourth man followed Harbin, driving a Ford Explorer
vehicle. Copeland had set up the drug purchase from Jafa McKoy in Garland.
The men arrived in Garland between 10:00 and 10:30 a.m. The driver of the
Explorer parked at a nearby apartment complex and stayed with that vehicle.
Harbin, James, and Copeland drove down a side road to a house located at 90 Sugar
Hill Lane, in an area of Garland with a reputation for drug trafficking. They observed
two men. Copeland recognized McKoy standing in front of the porch, while another
man was observed sitting on the porch. McKoy introduced the other man as “P.”
Neither Copeland nor Harbin knew or had met “P.”
McKoy told the three men the marijuana was not present, so they went to buy
cigarettes at a nearby gas station. They left the gas station at 11:13 a.m. and
returned to Sugar Hill Lane, after a quick stop at the Explorer. They again saw
McKoy and “P,” but also saw a compact car and a third man, not previously present.
McKoy told Copeland the marijuana was inside the compact car. Copeland
gestured to Harbin to accompany him and both men started walking towards the
compact car. As they walked, Harbin turned and saw the unknown third man behind
him.
James was left inside Harbin’s mother’s Camry with its keys. “P” jumped off
the porch holding a revolver and moved towards the Camry. McKoy held a gun,
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Opinion of the Court
turned towards Copeland and Harbin, and shot at them. Copeland and Harbin
escaped by running into the woods, without knowing what had happened to James.
Copeland and Harbin returned to the Explorer, still parked with its driver at
the nearby apartment complex, and the three men rode back to Sugar Hill Lane
looking for James. They could not find him and returned to the gas station at 11:49
a.m. After trying to contact James by phone and failing to reach him, Harbin called
the police at 12:24 p.m.
Freddie Stokes, a resident of the house at 90 Sugar Hill Lane, returned home
around 12:30 p.m. He saw a body in his driveway and a parked black vehicle beside
the body. Stokes called the police around 12:33 p.m. The police found James laying
on his back. He had been shot once in the back of the head and was dead. The police
found no money in James’ pockets or in his wallet.
Police showed Harbin two photographic line-ups of eight photos at the police
station that afternoon. Harbin identified McKoy in the first set of photos. Harbin
was unable to identify a suspect from the second set of photos.
Copeland’s probation officer showed him a photographic line-up of eight photos
four days after James’ murder on 9 March 2015. He identified Defendant’s
photograph as a suspect for the man introduced by McKoy as “P” with 85 to 90 percent
confidence. He also identified another man’s photograph as a suspect with 60 percent
confidence.
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North Carolina State Bureau of Investigation Agent William Brady (“Agent
Brady”) interviewed Defendant nearly two weeks after James’ death on 18 March
2015 at the request of the Sampson County Sheriff’s Office. Defendant was provided
his Miranda rights and initially told Agent Brady he was not present at Sugar Hill
Lane in Garland on 5 March 2015. Approximately seventeen minutes into the
interview, Defendant admitted he was present at that address on that morning.
Defendant told Agent Brady he had arrived at 90 Sugar Hill Lane, which he called
“the dope hole,” early in the morning, but asserted he had left by 8:30 or 9:00 a.m.
that morning.
Defendant denied seeing a black car while there but did see a gray car among
several cars with people coming to and going from the area. He denied any knowledge
of the men from Jacksonville or of the drug deal Copeland had arranged with McKoy.
Defendant also repeatedly denied killing anyone or being present when
someone was killed. At some point during the interview, Defendant admitted to
Agent Brady: “Maybe they saw me on the porch.” Defendant told Agent Brady he
drove north to his cousin’s house in Newton Grove after he had left Sugar Hill Lane.
Defendant was indicted for first-degree murder, possession of a firearm by a
felon, two counts of assault with a deadly weapon with intent to kill, robbery with a
deadly weapon, two counts of attempted robbery with a deadly weapon, and attaining
habitual felon status.
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At trial, the State presented testimony from Jane Peterson, who had been
dating Defendant at or about the time of James’ death. Peterson described
Defendant’s appearance at the time: he “had a beard, cut close” and had a tattoo on
his arm and one on his face.
During Peterson’s voir dire testimony, while the jury was not present, the trial
court heard arguments about a photograph of Defendant which the State sought to
have admitted for illustrative purposes. The State argued for its admission into
evidence:
Your Honor, I have just asked Ms. Peterson how Mr.
Parker appeared back in March of 2015 as opposed to how
he appears today or any other time, and she’s described
him as having a beard, tattoos. Your Honor, other
witnesses have described the man on the porch having a
beard. A witness testified that he -- the man on the porch
had a tattoo on his chest. Your Honor, and, as I have said,
it would illustrate her testimony.
The State could not specify who took the photograph or when it was taken but
gave the court assurances that Peterson had verified it was a fair and accurate
representation of how Defendant had appeared in March 2015. Defendant objected
on several grounds, including the lack of a proper foundation and that the photograph
was more prejudicial than probative under N.C. R. Evid. 403.
The trial court conducted a voir dire of Peterson’s testimony and ruled the
photograph would be admissible for illustrative purposes only. The State moved to
admit the evidence upon the jury’s return. Defendant objected and the trial court
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overruled Defendant’s standing objection and admitted the photograph for
illustrative purposes only. The State asked Peterson to show the photograph to the
jury and confirm it was consistent with Defendant’s appearance in March 2015.
The State obtained a probable cause search warrant for Defendant’s cell phone
records on 18 March 2015. The State tendered and the trial court accepted a Federal
Bureau of Investigation special agent, Michael Sutton (“FBI Agent Sutton”), as an
expert witness on historical cell site analysis and cellular technology. FBI Agent
Sutton testified Defendant’s phone was being used in an area of Garland which
includes Sugar Hill Lane from approximately 8:09 to 9:57 a.m. on 5 March 2015.
From 9:57 to approximately 11:38 a.m., Defendant’s phone was not in use and no
location could be identified.
Defendant’s phone was once again located by the same cell tower in Garland
at 11:38 a.m., but was then north/northwest of its previous location, towards Clinton.
By 11:49 a.m., Defendant’s phone was located in Clinton, not Newton Grove. FBI
Agent Sutton testified he did not analyze Defendant’s cell site records past 11:49 a.m.
Defendant moved to dismiss all charges for insufficiency of the evidence at the
close of the State’s presentation of its case. The trial court found the State had
presented insufficient evidence tending to show Defendant possessed the specific
intent to kill under a theory of acting in concert and dismissed the counts of assault
with a deadly weapon with intent to kill. The trial court denied Defendant’s motion
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Opinion of the Court
to dismiss the remaining charges. Defendant did not testify or present any evidence
at trial.
The jury found Defendant guilty of possession of a firearm by a felon. The jury
found Defendant not guilty of the remaining charges. Defendant stipulated and pled
guilty to attaining habitual felon status. The trial court determined Defendant was
a Prior Record Level V offender and sentenced Defendant as a habitual felon to an
active term of 105 to 138 months in prison. Defendant gave notice of appeal in open
court.
II. Jurisdiction
This Court possesses jurisdiction over Defendant’s appeal from judgment as a
matter of right pursuant to N.C. Gen. Stat. §§ 7A-27(b)(1) and 15A-1444(a) (2019).
III. Issues
Defendant argues the trial court erred by denying his motion to dismiss the
charge of possession of a firearm by a felon for insufficient evidence. Defendant also
argues the State misrepresented evidence before the trial court and made false and
misleading statements to the jury during closing arguments, which deprived him of
a fair trial.
IV. Motion to Dismiss
A. Standard of Review
The standard for ruling on a motion to dismiss is whether
there is substantial evidence (1) of each essential element
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of the offense charged and (2) that defendant is the
perpetrator of the offense. Substantial evidence is relevant
evidence which a reasonable mind might accept as
adequate to support a conclusion. In ruling on a motion to
dismiss, the trial court must consider all of the evidence in
the light most favorable to the State, and the State is
entitled to all reasonable inferences which may be drawn
from the evidence.
State v. Weakley, 176 N.C. App. 642, 651, 627 S.E.2d 315, 321 (2006) (citation
omitted).
B. Analysis
Defendant argues the trial court erred in denying his motion to dismiss all
charges for insufficient evidence. The State’s eyewitnesses did not provide a positive
identification of Defendant at trial. Defendant asserts the other evidence connecting
him to James’ death was circumstantial and insufficient. Viewing the evidence in the
light most favorable to the State, we disagree.
Defendant argues the State offered insufficient direct evidence, and the State’s
circumstantial evidence raised only conjecture that Defendant was the same man
McKoy had identified as “P.” This argument discounts the materiality of
circumstantial evidence on a trial court’s ruling on a motion to dismiss and our
standard of review on appeal.
The test for sufficiency of the evidence is the same whether
the evidence is direct or circumstantial, or both.
Circumstantial evidence may withstand a motion to
dismiss and support a conviction even when the evidence
does not rule out every hypothesis of innocence. If a
reasonable inference of defendant’s guilt may be drawn
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from the circumstances, then it is for the jury to decide
whether the facts, taken singly or in combination, satisfy it
beyond a reasonable doubt that the defendant is actually
guilty.
State v. McDaniel, 372 N.C. 594, 603-04, 831 S.E.2d 283, 290 (2019) (emphasis
supplied) (citations, alterations, and internal quotation marks omitted).
Presuming, arguendo, but without deciding the State offered no direct evidence
that Defendant was the man identified by McKoy as “P,” the State’s case survives a
motion to dismiss with sufficient circumstantial evidence to support a reasonable
inference of Defendant’s guilt. See id.
To support the trial court’s denial of Defendant’s motion to dismiss the
remaining charges, Defendant voluntarily admitted he was present at 90 Sugar Hill
Lane on the morning of James’ death, and that he might have been seen by Copeland,
Harbin, and James on the porch with McKoy. Defendant’s cell phone was located in
Garland near the scene close to the approximate time of the incident.
Copeland identified Defendant from a photo array as the armed suspect on the
porch and present at the scene with “85 to 90 percent” confidence. Copeland testified
“P” had a “beard, brown skin, [and a] tattoo on the upper cheek,” and estimated he
was about 6’2” tall and weighed about 240 pounds. Harbin testified “P” was wearing
a hat, had a beard, and “was like a burley dude, like a kind of bigger dude.”
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The State also presented testimony from Jane Peterson, Defendant’s girlfriend
at the time of the incident. She described Defendant’s appearance at the time: he
“had a beard, cut close” and had one tattoo “on his arms and one on his face.”
Although this evidence may not rule out every hypothesis of Defendant’s
innocence, that is not the State’s burden on Defendant’s motion to dismiss. Id. at
604, 831 S.E.2d at 290. The evidence is sufficient to support a reasonable inference
of Defendant’s guilt, when viewed in the light most favorable to the State. See id.
The trial court correctly ruled the State presented sufficient evidence to submit the
remaining charges to the jury. Defendant’s argument is overruled.
V. Prosecutorial Misconduct
Defendant argues he is entitled to a new trial because prosecutorial
misconduct denied him a fair trial. Defendant argues the State made false
statements about testimonial evidence on four occasions during the trial: once while
arguing for the admission of the photograph of Defendant for illustrative purposes,
and three times during closing argument.
Arguing for the admission of the photograph, the prosecution stated, “a witness
testified that he -- the man on the porch had a tattoo on his chest.” Although
Defendant’s girlfriend, Peterson, had just testified to this fact about Defendant, no
witness had testified to this description of “P.” The prosecution mentioned witness’
testimony that “P” had a chest tattoo three more times during closing arguments.
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Opinion of the Court
The prosecution twice attributed this alleged testimony to Copeland, who never
testified that “P” had a chest tattoo.
A. Constitutional Right to a Fair Trial
Our Supreme Court has stated the Fourteenth Amendment to the Constitution
of the United States guarantees that “[e]very person charged with a crime has an
absolute right to a fair trial. . . . It is the duty of both the court and the prosecuting
attorney to see that this right is sustained.” State v. Williams, 362 N.C. 628, 638, 669
S.E.2d 290, 298 (2008) (citation omitted). “The district attorney owes honesty and
fervor to the State and fairness to the defendant in the performance of his duties as
a prosecutor.” State v. Britt, 288 N.C. 699, 710, 220 S.E.2d 283, 290 (1975).
However, “a constitutional question which is not raised and passed upon in the
trial court will not ordinarily be considered on appeal.” State v. Hunter, 305 N.C. 106,
112, 286 S.E.2d 535, 539 (1982); see also N.C. R. App. P. 10(a). Defendant did not
raise a constitutional objection to any of the prosecutor’s misstatements that a
witness testified “the man on the porch had a tattoo on his chest.”
Defendant’s counsel objected to the admissibility of the photograph on multiple
grounds during arguments outside the presence of the jury but made no
constitutional arguments. Defendant argued the State had not laid a proper
foundation for the photograph, and the danger of prejudice to Defendant by its
admission substantially outweighed its probative value under N.C. R. Evid. 403.
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Defendant’s counsel did not object on any grounds, constitutional or otherwise, to the
prosecutor’s statement to the court outside the presence of the jury that a “witness
testified that . . . the man on the porch had a tattoo on his chest.”
Defendant failed to object to any statements made during the State’s closing
arguments. Defendant’s constitutional argument was not “raised and passed upon
in the trial court” and so we do not consider this asserted basis on appeal. Id. Because
Defendant’s arguments also raise the distinct issue of improper closing arguments,
we proceed to review that issue separately.
B. Closing Argument
1. Standard of Review
The standard of review for assessing alleged improper
closing arguments that fail to provoke timely objection
from opposing counsel is whether the remarks were so
grossly improper that the trial court committed reversible
error by failing to intervene ex mero motu. In other words,
the reviewing court must determine whether the argument
in question strayed far enough from the parameters of
propriety that the trial court, in order to protect the rights
of the parties and the sanctity of the proceedings, should
have intervened on its own accord and: (1) precluded other
similar remarks from the offending attorney; and/or (2)
instructed the jury to disregard the improper comments
already made.
State v. Jones, 355 N.C. 117, 133, 558 S.E.2d 97, 107 (2002) (citation omitted).
Prosecutors’ arguments must be devoid of appeals to passion or prejudice. Id. at 135,
558 S.E.2d at 108.
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Our Supreme Court also cautioned that an appellate court should “not review
the exercise of this discretion unless there be such gross impropriety in the argument
as would be likely to influence the verdict of the jury.” State v. Covington, 290 N.C.
313, 328, 226 S.E.2d 629, 640 (1976). “[F]or an inappropriate prosecutorial comment
to justify a new trial, it must be sufficiently grave that it is prejudicial error.” State
v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88 (1992) (citation and internal
quotation marks omitted).
2. Analysis
In North Carolina it is well settled that counsel is allowed
wide latitude in the argument to the jury. Even so, counsel
may not, by argument or cross-examination, place before
the jury incompetent and prejudicial matters by injecting
his own knowledge, beliefs, and personal opinions not
supported by the evidence. A prosecutor must present the
State’s case vigorously while at the same time guarding
against statements which might prejudice the defendant’s
right to a fair trial.
State v. Hill, 311 N.C. 465, 472-73, 319 S.E.2d 163, 168 (1984) (citations and internal
quotation marks omitted).
Later that year after the opinion in Hill was filed, our Supreme Court in State
v. Huffstetler further expounded: “Arguments of counsel are largely in the control and
discretion of the trial court. The appellate courts ordinarily will not review the
exercise of that discretion unless the impropriety of counsel’s remarks is extreme and
is clearly calculated to prejudice the jury.” State v. Huffstetler, 312 N.C. 92, 111, 322
S.E.2d 110, 122 (1984).
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“The prosecuting attorney should use every honorable means to secure a
conviction, but it is his duty to exercise proper restraint so as to avoid misconduct,
unfair methods or overzealous partisanship which would result in taking unfair
advantage of the accused.” State v. Holmes, 296 N.C. 47, 50, 249 S.E.2d 380, 382
(1978).
If Defendant or his counsel believes the State’s argument is improper, they are
obliged to speak and object to preserve the error for appellate review. Our Supreme
Court cautioned:
When [a] defendant does not object to comments made by
the prosecutor during closing arguments, only an extreme
impropriety on the part of the prosecutor will compel this
Court to hold that the trial judge abused his discretion in
not recognizing and correcting ex mero motu an argument
that defense counsel apparently did not believe was
prejudicial when originally spoken.
State v. Richardson, 342 N.C. 772, 786, 467 S.E.2d 685, 693 (1996).
Here, the State argued to the jury on three occasions during closing arguments
that eyewitness testimony described “P” as having a chest tattoo, when the only
testimony at trial about a chest tattoo had been in reference to Defendant. Defendant
argues the State’s case was “exceedingly thin” and was based solely on Copeland’s
and Harbin’s identifications of Defendant as “P.” As such, Defendant asserts these
three misstatements rise to the level of prejudicial error to award a new trial.
Defendant correctly quotes the State’s closing argument as stating the “bottom
line in this case” was: “Who is the man on the porch?” Defendant has not carried the
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burden of showing the repeated, mistaken invocation of supposed eyewitness
testimony that “P” had a chest tattoo was so grossly improper “as would be likely to
influence the verdict of the jury.” Covington, 290 N.C. at 328, 226 S.E.2d at 640. The
chest tattoo was not the sole characteristic the State relied on to identify Defendant
as “P.” The eyewitness testimony describing “P” was also consistent with Defendant’s
height, frame, skin color, beard, and other tattoos. The State’s misstatements may
have given the jury greater confidence in identifying Defendant as “P,” but Defendant
has failed to show that the jury would have reached a different verdict without the
three misstatements.
As noted, the prosecution’s comments erroneously summarized the evidence
and were improper. However, Defendant has also failed to show the remarks were
so grossly or extremely improper for us to conclude the trial judge “abused his
discretion in not recognizing and correcting ex mero motu an argument that defense
counsel apparently did not believe was prejudicial when originally spoken.”
Richardson, 342 N.C. at 786, 467 S.E.2d at 693. Defendant’s arguments are
overruled.
VI. Conclusion
When viewed in the light most favorable to the State, including the reasonable
inferences thereon, the State presented sufficient evidence for all the remaining
charges including possession of a firearm by a felon to be submitted to the jury. The
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trial court properly denied Defendant’s motion to dismiss the charges submitted to
the jury.
Defendant failed to raise a constitutional question or object at trial with
respect to the prosecution’s misstatements about eyewitness testimony. Without
objection from Defendant, the State’s closing argument was not prejudicial error to
award a new trial. Defendant has also failed to show any error in the trial court’s
discretionary and asserted failure to intervene ex mero motu.
Defendant received a fair trial, free from prejudicial errors he preserved and
argued. We find no prejudicial error in the jury’s verdict or in the judgment entered
thereon. It is so ordered.
NO ERROR.
Judges DILLON and MURPHY concur.
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