State Carolina v. Iii

715 S.E.2d 896

STATE of North Carolina

v.Levy JONES III.

No. COA11–149.

Court of Appeals of North Carolina.

Oct. 4, 2011.

Appeal by defendant from judgments entered 4 February 2010 by Judge Wayland J. Sermons, Jr., in Martin County Superior Court. Heard in the Court of Appeals 31 August 2011.

Attorney General Roy Cooper, by Assistant Attorney General Jane L. Oliver, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate Defenders Mary Cook and Kristen L. Todd, for defendant appellant.

McCULLOUGH, Judge.

On 4 February 2010, a jury convicted defendant Levy Jones III (“defendant”) of misdemeanor breaking and entering, assault on a female, and assault on a child under the age of twelve years. On appeal, defendant contends the trial court committed plain error in allowing photo identification evidence, alleging that such evidence violated his right to due process. Defendant also contends he was denied effective assistance of trial counsel. We find no error.

I. Background

On 8 September 2008, Phyllis Ore (“Ore”) was living in a house in Hamilton, North Carolina, with her five children. Ore's oldest daughter Shanta (“Shanta”) was eighteen years old and attending Roanoke High School at the time. Two of Shanta's younger siblings, R.P. and B.O., were thirteen years old and five years old at the time, respectively.

That afternoon, Ore left the house with a friend to run an errand and placed Shanta in charge of her younger siblings. As Ore was leaving the house, she noticed a yellow-gold pickup truck driving down the street in front of her house. Ore saw that a black male was driving the vehicle, but she did not recognize the driver or the truck.

After their mother left, Shanta and her siblings went into their bedrooms to change their clothes and begin their homework. While working on her homework, Shanta heard a strange squeaking noise coming from the front window of the house. Shanta initially ignored the noise, but she went to investigate after hearing the noise again. Upon entering the living room, Shanta saw a man attempting to come into the house through a window accessible from the front porch. Shanta tried to push the man back outside through the window, but the man managed to get in through the window and into the living room.

Once inside the living room, the man sat on the couch and began to talk to Shanta. Although Shanta did not know the man at the time, the man called Shanta by name and told her that he knew how old she was, where she lived, and where she attended school. The man's face was not covered during the encounter. The man was wearing a gray silk shirt, black pants, and black boots. After approximately thirty minutes, Shanta asked the man to leave and went back to her bedroom. Five or ten minutes later, Shanta returned to check the living room. Shanta saw that the man was gone but that he had left the living room window open, so she went over to close it before rejoining her younger siblings.

Sometime thereafter, Shanta heard the sound of a foot stomping on the floor coming from the living room. Shanta then ran to the living room and saw the same man inside the house again. R.P. followed her sister into the living room. The man stated that his chest was hurting, and he tried to get Shanta to come to him and sit on his chest. He grabbed for Shanta's arm and held her by the wrist, instructing her to touch his chest. Shanta tried to pull away from the man, and R.P. yelled at the man to leave her sister alone. The man asked R.P. to leave, but R.P. stated she would not leave her sister alone with him. The man then grabbed R.P. by the arms and attempted to force her to touch his chest. Although Shanta managed not to touch the man, he forced R.P.'s hand up and touched it to his chest after lifting his shirt. B.O. then came into the living room to help her sisters. B.O. tried to grab Shanta and pull her away from the man, then began pushing and shoving the man to try to get him away from her sisters. The man pushed B.O. away with his hand, knocking her to the floor. Shanta and R.P. were able to pull away from the man, and all three girls retreated to the hallway.

The man then told the girls that his name was “Jones.” He said he knew the girls' mother and that he had known Shanta when she was a baby. The man asked Shanta not to tell anyone about the incident, promising her money and clothes if she did not tell anyone about what had happened. The man then went into the kitchen, rumbled through some kitchen drawers, and wrote a telephone number on a piece of paper. The man gave the piece of paper to R.P. and told her to give it to their mother. Shanta again asked the man to leave, and the man then left the house, driving away in a yellow-gold truck. The second encounter with the man lasted for approximately forty minutes.

Shortly after the man left, Ore returned home. The children were screaming and crying and immediately told their mother about the incident. Ore then called 911 to report the incident. Investigator Brent Council (“Investigator Council”) with the Martin County Sheriff's Office responded to the call. Ore informed Investigator Council that a man had broken into her home while she was out and the children were home alone. She gave the piece of paper with the phone number on it to Investigator Council and stated that she did not recognize the handwriting or the phone number. Investigator Council inspected the window where the break-in had occurred and noted that the screen had been removed. Investigator Council was unable to check for fingerprints, however, due to the amount of dust on the front window. Investigator Council then interviewed both Shanta and R.P. Shanta described the man as wearing a silk gray shirt, black pants and black boots. Shanta stated the man appeared to be between 40 and 50 years old and that he was bald, except on the sides of his head. Shanta informed Investigator Council that the man had said his name was “John Jones.” R.P. described the man as having black and gray hair with a bald spot, and he was wearing black pants, black shoes, and a silver shirt.

The following day, the children returned to school. While at school, Shanta began to feel scared and started crying. Shanta's teacher then called Ore to inform her that Shanta was upset. Ore then came to the school with R.P. to pick up Shanta. William Dennis Hart, Jr., principal at Roanoke High School (“Principal Hart”), saw that Shanta was upset and that she was leaving school early. Principal Hart asked Shanta what was wrong, and Shanta responded that someone had broken into their house the previous afternoon. Principal Hart then took Ore, Shanta, and R.P. into his office and proceeded to show them a series of photographs of different individuals. Principal Hart had obtained the images from the North Carolina Sex Offender Registry Website. The two girls indicated that the first two photos they were shown were not the man who entered the house on the previous afternoon. Principal Hart then showed the girls a photo of defendant, and both girls immediately reacted, stating that was the man who had broken into their home. Both girls appeared visibly upset upon seeing the photograph. Principal Hart then showed the girls a few more photos of other individuals, but the girls stated that none of those other individuals were the man who had broken into their house, coming back to the photograph of defendant and stating that he was the man who had broken in. Principal Hart then gave Ore the photograph and information from the North Carolina Sex Offender Registry and advised her to give the photograph and other information to law enforcement.

Ore contacted Investigator Council and told him that Shanta and R.P. had identified a picture of the man who had broken into their home the previous day. Ore then went to the Sheriff's office and gave the picture and information to Investigator Council. Investigator Council asked both girls “were they sure, one hundred percent positive, that [this] was the person.” Both girls responded that they were positive the man in the photograph was the perpetrator. Investigator Council then obtained an arrest warrant for defendant based on the eyewitness identifications.

Upon his arrest, defendant declined to give a statement, but he informed Investigator Council that on 8 September 2008, he was with a friend named Xavier Brown (“Brown”). Investigator Council later questioned Brown, and Brown confirmed that he and defendant had been together on that day. Brown told Investigator Council that he and defendant had driven to Roanoke High School to deliver an instrument for band practice on the afternoon in question. However, upon speaking with the school's band director, the band director informed Investigator Council that the band did not hold practice on the date of the incident.

Upon checking with the Department of Motor Vehicles, Investigator Council learned that neither defendant nor Brown owned a truck matching the description given by the girls. Investigator Council also spoke with some of Ore's neighbors, but none could provide any information about an individual in a yellow-gold truck. Investigator Council did not conduct any further investigation.

On 30 March 2009, defendant was indicted on one count each of breaking and entering, indecent liberties with a child, assault on a female, and assault on a child under twelve years of age. Defendant was then tried before a jury beginning 3 February 2010. During the trial, both Shanta and R.P. identified defendant in court as the man who had broken into their home. Defendant did not present any evidence at trial. On 4 February 2010, the State dismissed the charge of indecent liberties with a child. That same day, the jury returned a verdict of guilty on the three remaining charges. Defendant was sentenced to two consecutive terms of 150 days' imprisonment, but the trial court suspended the second sentence and...