State v. Parker

269 N.C.App. 629

839 S.E.2d 83

STATE of North Carolina

v.Brandon Alan PARKER

No. COA19-521

Court of Appeals of North Carolina.

Filed: February 4, 2020

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

Michael E. Casterline, Asheville, 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 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, 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.

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.

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 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 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 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...