State v. Harris

1

STATE OF NORTH CAROLINA v. CARLTON HARRIS, Defendant.

No. COA22-728

Court of Appeals of North Carolina

May 16, 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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 25 April 2023.

Appeal by defendant from judgment entered 26 January 2022 by Judge Paul C. Ridgeway in Wake County No. 19CRS220756 Superior Court.

Attorney General Joshua H. Stein, by Special Deputy Attorney General Thomas O. Lawton, III, for the State-appellee.

Widenhouse Law, by M. Gordon Widenhouse, Jr., for defendant-appellant.

GORE Judge

Defendant Carlton Harris, appeals from judgment entered upon his conviction for first-degree murder and sentence imposed of life imprisonment without parole.

I.

Defendant and Spencer Sellers co-owned a tattoo business, Nine19 Ink Gallery, in which they also rented booths to three additional tattoo artists, Antonio Early, Darryl Collier, and Thorne Pasillas. On 8 November 2019, defendant, Pasillas, Collier, and Early were all working at the tattoo shop. Defendant's cousin, Drew Smith was also at the shop. The victim, Early, brought his two young daughters to play in the lobby while he worked. Smith went into the lobby area and told Early's daughters to clean up their mess, and Early quickly told Smith to only talk to him rather than his daughters. Soon after, Smith saw Early's daughters using soap to clean the windows, and intervened to have them use Windex, which frustrated Early.

At this point, Smith and Early went outside and began fighting. Defendant and Collier also went outside and after arguing with Early, defendant ultimately fired Early. Early returned to the shop to gather his things and his daughters to leave. Collier reiterated to Early that he must leave; Early took out his gun and walked out to his vehicle and placed the gun in the vehicle.

Early went back into the shop and began arguing with defendant and Smith once again. Defendant removed his pistol from his coat pocket and held it by his side. Early was not dissuaded and continued to argue with defendant making statements such as, "I'll beat you up with your gun." After a few moments, Early walked out of the shop, but defendant followed him and shot Early multiple times. According to Pasillas's, Collier's, and a detective's testimony, after shooting Early, defendant dropped his gun, walked past the victim, removed Early's gun from his car to eject unfired bullets, and drove away in a car with Smith.

Police officer J.A. Posthumus was in a nearby location and heard the gunshots.

He drove toward the sound of the gunshots while radio assistance provided the exact location. Upon arrival, Officer Posthumus saw Early on the ground and discovered the body had multiple gun wounds, including a gunshot wound to the head. Medical assistance and additional police officers arrived at the scene shortly after Officer Posthumus. Officer Posthumus investigated the scene and noticed security cameras around the shop.

Posthumus spoke with both Collier and Pasillas and learned they were both tattoo artists at the tattoo shop. Upon request, Pasillas took Officer Posthumus into the shop and into the room where the surveillance system was located. At first, Pasillas attempted to access the system, but he was unable to discern the password. Pasillas called Sellers, the co-owner of the tattoo shop, to get the password and Sellers told him possible passwords to access the video footage. Pasillas testified he signed a consent form from Officer Posthumus to give access, through the owner, to seize the surveillance system. After a few attempts, Pasillas and Officer Posthumus determined the password and accessed the footage.

Defendant pled not guilty to the indictment for first degree murder and the case came on for jury trial on 18 January 2022. Prior to the hearing, defendant sought to suppress the video footage seized, but the trial court denied the motion to suppress. Defendant renewed his objection to the admission of the video footage at trial.

Additionally, during the trial, defendant called an expert witness in forensic psychiatry, Dr. Bellard. The expert witness testified he diagnosed defendant with Post-Traumatic Stress Disorder ("PTSD") after interviewing defendant. The expert witness testified that three prior life events caused defendant's PTSD. The expert testified that defendant was stabbed outside of a club, defendant was robbed at gun point a few years later, and defendant's house was burglarized just months before this present case. Defendant sought admission of the expert witness's report, but the trial court denied it on hearsay grounds, and instead allowed defendant to question the expert witness extensively.

The jury returned a guilty verdict for first degree murder and defendant was convicted and sentenced to life imprisonment without parole. Defendant timely appealed in open court pursuant to section 7A-27(b).

II.

Defendant raises three issues for review: (1) whether the trial court erred by excluding the expert witness's psychological report ("report"); (2) whether the trial court erred by denying defendant's motion to suppress the surveillance video footage seized during a warrantless search; and (3) whether the trial court erred by not intervening ex mero motu during the prosecution's closing argument.

A.

Defendant first argues the trial court erred by excluding the report of defendant's expert witness, Dr. Bellard. The State argues defendant failed to preserve the report, because defendant gave no offer of proof when the trial court sustained the objection to exclude the report, and the report was not included in the record. Defendant supplemented the record through Rule 9(b)(5) and argued the parties agreed all exhibits, including those denied by the trial court are "a necessary part of the Record on Appeal."

The necessity for preservation of potential errors is a well-established rule under the North Carolina Rules for Appellate Procedure. Rule 10(a)(1) requires the party asserting the error to have made "a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." N.C. R. App. P. 10(a)(1). "The specificity requirement in Rule 10(a)(1) prevents unnecessary retrials by calling possible error to the attention of the trial court so that the presiding judge may take corrective action if it is required." State v. Bursell, 372 N.C. 196, 199, 827 S.E.2d 302, 305 (2019). Furthermore, "[i]t is well settled that an error . . . that defendant does not bring to the trial court's attention is waived and will not be considered on appeal." Id.

Defendant made no offer of proof once the trial court ruled to exclude the report over the State's objection as to portions of the report it believed was inadmissible hearsay within the report. Defendant argued he sought to admit the report "[t]o show what my - - my client was going through psychologically at the time of this." Based upon defendant's specified grounds, the trial court sustained the objection and excluded the report but allowed defendant to thoroughly question the expert witness.

Later, defendant objected when the State asked the expert witness questions about what defendant told him from the report and argued, "I thought those reports should come in," which the court overruled. Defendant then revisited the court's ruling to exclude the report by asking why the State could cross examine the expert witness about the report, and the trial court stated it was for a non-hearsay purpose, impeachment. Defendant once again clarified with the court for the purpose of preservation, the basis for the trial court's ruling. The trial court stated,

Because the report is hearsay. . . . Yes, it was - the purpose for offering it, as I asked you, was to reflect his opinions, which is - therefore, it was being offered for the truth of the matter it asserted, and it is not. So it is, by definition, hearsay and does not fall under an exception.

The trial court requested any case law to challenge the ruling and defendant provided none.

It is difficult to ascertain what defendant would have used the report for given the trial court provided opportunity for defendant to fully examine the expert witness on his opinion of defendant's mental state and the bases for this opinion. At trial, defendant argued he sought to admit the report to show defendant's psychological state, yet on appeal defendant argues the report should have been admitted because it is nonhearsay as prior consistent statements of the expert witness; it is admissible as a report that show the bases of the expert's opinion under Rule 703; and it was admissible under the completeness doctrine of Rule 106.

Looking to the context of defendant's objections within the transcript, only defendant's latter objection under the completeness doctrine is "apparent from the context" of defendant's colloquy with the trial court. N.C. R. App. P. 10(a)(1). Accordingly, on appeal, we only consider the specific legal errors raised by defendant at the trial court. See Bursell, 372 N.C. at 200, 827 S.E.2d at 305 (discussing how the defense objected but failed to reference the constitutional grounds for his objection and "[a]s a result, defendant failed to object . . . with the requisite specificity, thereby waiving the ability to raise that issue on appeal").

Defendant argues the entire report should have been admissible once the State examined the expert about a portion of the...