State v. Alex

1

STATE OF NORTH CAROLINA v. SHERWOOD DALE ALEX

No. COA 23-133

Court of Appeals of North Carolina

November 7, 2023

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

Heard in the Court of Appeals 23 August 2023.

Appeal by Defendant from judgment entered 5 August 2021 by Judge Karen Eady-Williams in Mecklenburg County Nos. 20 CRS 14501 20 CRS 206326-27, 20 CRS 206329 Superior Court.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Michael Bulleri, for the State.

Appellate Defender Glenn Gerding, by Assistant Appellate Defender Kathryn L. VandenBerg, for the Defendant.

WOOD Judge.

Sherwood Alex ("Defendant") appeals from a judgment entered upon a jury verdict of guilty of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon and possession of a firearm by a convicted felon. After careful review of the record and applicable law, we hold Defendant received a fair trial free of error.

I. Factual and Procedural Background

On 13 February 2020 at 9:37 p.m., two men wearing masks entered the front door of a Little Caesars pizza restaurant in Charlotte, North Carolina. The first man wore a blue zip-up hooded sweatshirt and carried a shotgun. He had his face covered and wore a glove on his right hand. The second man also had his face covered and wore socks on both hands. The second man locked the front door and both men entered the back room where three employees were working. The two men ordered the three employees to lay on the floor. The employees were told by the man holding the shotgun that if they moved, he would shoot them.

The second man then took one of the employees to the front of the store to extract money from the restaurant safe. The store employee opened the safe and gave the man money, and the man also took money from a cash register. Meanwhile in the backroom, the man with the shotgun searched an employee, taking his wallet and cell phone. By 9:40 p.m., the two men had exited the restaurant through the backdoor with money taken from the safe and cash register, the three employee's phones, and an employee's wallet. The 911 call center received two calls related to the robbery, one at 9:41 p.m. and another at 9:43 p.m. A patrol officer responded to the 911 calls. The employees attempted to locate their phones with a "Find My iPhone" app, and all the phones pinged nearby.

On 2 March 2020, a grand jury indicted Defendant on charges of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a convicted felon. On 19 October 2020, a grand jury indicted Defendant on having attained habitual felon status. On 19 April 2021, Defendant gave notice of his intent to offer an alibi defense at trial. On 14 June 2021, the grand jury issued a superseding habitual felon indictment after making corrections to the original indictment.

At trial, Officer Simpson of the Charlotte Mecklenburg Police Department testified to the events which occurred on the night of the robbery. Officer Simpson arrived at the restaurant with his K-9, Levi, between 9:40 to 9:45 p.m. and observed a car parked in a lane of travel on the same road as the restaurant. Officer Simpson deployed K-9 Officer Levi. During the course of their track, they discovered money and clothing on the ground consistent with the robbery and a flight path from the parked car.

Officer Cierpial, a crime scene investigator for the Charlotte Mecklenburg Police Department, testified regarding her collection of evidence related to the robbery. Officer Cierpial photographed the crime scene at the Little Caesars and photographed and collected evidence discovered by officers along the suspects' flight path. Officer Cierpial testified that she photographed the money discovered on the flight path and then returned it to the store. Additionally, she photographed and collected along the flight path a glove, a pair of socks, a bandana, and a long sleeve blue shirt. She also photographed two of the store employee's phones found on the ground and returned them to the victims.

Officer Cierpial collected evidence from the car parked in the lane of travel and found a store employee's wallet on the driver's seat of the car. A second wallet located on the rear left floorboard contained Defendant's North Carolina driver's license, social security card, and American Express card. Additionally, Officer Cierpial discovered six cell phones in the car, but was unable to collect any fingerprints that could be used for comparison to those taken from inside the car.

Detective Freeman of the Charlotte Mecklenburg Police Department testified regarding his investigation of the robbery. He identified the owner of the vehicle as Shanta Harris ("Ms. Harris"), who had reported the car stolen the morning after the robbery. Detective Freeman met Ms. Harris at her house located near the restaurant, at 11:30 a.m. on 14 February 2020.

Detective Freeman observed Defendant at Ms. Harris' home when he arrived. On direct examination, the Detective testified he noticed Defendant fit the description of the suspect who carried the shotgun. According to the Detective, Ms. Harris stated to him the last time she had seen her car was around 9:00 p.m. the prior night, and she still was in possession of the car's single set of keys. Ms. Harris' car had been towed to the impound lot after the robbery. Detective Freeman later went to the impound lot to inspect the vehicle but did not observe any damage.

When asked by the prosecutor if he had "any reason to believe that the car had been stolen," the following exchange occurred:

[FREEMAN]: No I didn't.

[PROSECUTOR]: Why not?

[FREEMAN]: Based on my training and experience with stolen vehicles, and the fact that Ms. Harris had the keys, the time frame of when she called 911, the state of the vehicle, it didn't make sense.

Officers arrested Defendant at Ms. Harris' home on 19 February 2020, and Ms. Harris consented to Detective Freeman conducting a search of her home. During the search, the Detective located a pair of plaid pants, gray long john underwear, and a backpack in one of the bedrooms and photographed each. After comparing the photos of the plaid pants and long johns found in Ms. Harris' home to the clothing shown in the restaurant's security camera video, Detective Freeman testified, "I believe they were the same pants" and the "same long john underwear."

Detective Freeman testified that the second suspect, Jovante McKenzie ("McKenzie"), was identified by DNA analysis approximately six months after the robbery and was subsequently arrested and charged. When asked about McKenzie the following exchange occurred between the trial prosecutor and the Detective:

Q. Did anything happen after arresting and interviewing Jovante McKenzie to change your opinion about [D]efendant's role in this robbery?

A. No.

Evidence presented at trial established DNA samples taken from the clothing items located along the suspects' flight path matched the DNA profiles from both Defendant and McKenzie.

Officer Patterson, a digital forensic analyst with the police department, gave testimony addressing his forensic examination of Defendant's cell phone. His examination showed that on the date in question, Defendant had nineteen phone calls with a contact named "Li'l Joe" prior to the robbery, and two after the fact. Defendant also placed a call to Ms. Harris at 9:42 p.m. and received nine calls from her between 9:44 p.m. and 10:00 p.m. Officer Patterson recovered a photo taken on 19 January 2020 showing Defendant wearing a blue zip-up hooded sweatshirt with a polo player logo, identical to the sweatshirt worn by one of the suspects during the robbery.

On 4 August 2021, the jury returned guilty verdicts on the charges of robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, and possession of a firearm by a convicted felon. The next day, Defendant pleaded guilty to having attained habitual felon status pursuant to a plea agreement with the State. In accordance with the plea agreement, the trial court sentenced Defendant to 117 to 153 months imprisonment for robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon, and 117 to 153 months imprisonment for possession of a firearm by a convicted felon to be served at the expiration of the preceding sentence. Defendant filed written notice of appeal on 11 August 2021.

II. Standard of Review

This Court reviews preserved challenges to the admission of opinion testimony by expert and lay witnesses under an abuse of discretion standard. State v. Faulkner, 180 N.C.App. 499, 512, 638 S.E.2d 18, 27 (2006). "Abuse of discretion results where the court's ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision." State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 527 (1988) (citation omitted).

However where the defendant fails to preserve a challenge to the admission of testimony through timely objection at trial, it is subject to plain error review. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). Plain error arises when the error is "so basic, so prejudicial, so lacking in its elements that justice cannot have been done." State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). Under the plain error standard, Defendant bears the burden of showing that absent the error, it was probable that the jury would have reached a different conclusion. ...