Daniels Erick by KHsXIX5

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									COA06-282                                          FOURTEENTH DISTRICT

                   NORTH CAROLINA COURT OF APPEALS
                   *******************************

STATE OF NORTH CAROLINA,        )
                                )
            vs.                 )    From Durham County
                                )    No. 01 CRS 6233-34
ERICK DANIELS,                  )
                                )
            Defendant.          )

                   *******************************

                     DEFENDANT-APPELLANT’S BRIEF

                   *******************************
                              -ii-

TABLE OF CASES AND AUTHORITIES..................................v

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE...........................................1

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW...................3

INTRODUCTION AND SUMMARY........................................3

STATEMENT OF THE FACTS..........................................5

ARGUMENT.......................................................11

I.   THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS AN
     IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE PRE-TRIAL
     PHOTO IDENTIFICATION IN VIOLATION OF DEFENDANT’S
     RIGHT TO DUE PROCESS OF LAW...............................11

     A.   REVIEW OF THE LAW GOVERNING PRE-TRIAL
          PHOTO LINEUPS........................................12

     B.   THE PRE-TRIAL PHOTO LINEUP IN THIS CASE WAS
          IMPERMISSIBLY SUGGESTIVE.............................13

          1.   The sixth-grade yearbook photos contained
               a single suspect with dark thick eyebrows,
               were not representative of the victim’s
               description of the first suspect, and
               were of poor quality............................14

          2.   Investigator West impermissibly suggested
               to Ms. Brown that Defendant was the
               first suspect...................................16

     C.   A SUBSTANTIAL LIKELIHOOD EXISTS THAT DEFENDANT
          WAS IRREPARABLY MISIDENTIFIED BECAUSE OF
          THE SUGGESTIVE PHOTO LINEUP..........................19

          1.   Ruth Brown had minimal opportunity to
               observe the first suspect, paid little
               attention to his appearance, and described
               a man who did not look like Defendant...........20

          2.   Ms. Brown was uncertain about her
               identification which occurred weeks
               after the crime.................................24
                                -iii-

      D.    THE RECORD IS DEVOID OF CLEAR AND CONVINCING
            EVIDENCE THAT THE IN-COURT IDENTIFICATION OF
            DEFENDANT WAS NOT TAINTED BY THE
            UNCONSTITUTIONAL PHOTO LINEUP........................25

II.   THE TRIAL COURT COMMITTED PLAIN ERROR BY
      ALLOWING TESTIMONY ABOUT DEFENDANT’S JUVENILE
      RECORD, PRIOR MARIJUANA USE, AND GUNSHOT WOUND
      DURING RANDOM GANG VIOLENCE IN A HIGH-CRIME AREA..........26

      A.    TESTIMONY THAT DEFENDANT COMMITTED CRIMES
            AS A MINOR, WAS INVOLVED IN THE JUVENILE
            COURT SYSTEM, AND USED MARIJUANA IN THE
            PAST WAS IRRELEVANT, PREJUDICIAL AND
            OTHERWISE NOT ADMISSIBLE.............................27

      B.    TESTIMONY THAT DEFENDANT SUFFERED A GUNSHOT
            WOUND DURING A RANDOM GANG SHOOTING IN A
            HIGH-CRIME AREA WAS IRRELEVANT AND
            PREJUDICIAL CHARACTER EVIDENCE. .....................30

III. DEFENDANT RECEIVED THE INEFFECTIVE ASSISTANCE
     OF COUNSEL AT TRIAL IN VIOLATION OF HIS SIXTH
     AMENDMENT RIGHTS..........................................33

CONCLUSION.....................................................35

CERTIFICATE OF SERVICE.........................................37

APPENDIX:

      Probable Cause Testimony of Ruth Brown...................1-8

      Argument and Ruling on Motion to Suppress..................9

      Trial Testimony of Ruth Brown..........................10-47

      Trial Testimony of Investigator Delois West............48-63

      Trial Testimony of Karen Daniel........................64-71

      Trial Testimony of Ruth Brown..........................72-75

      Trial Testimony of Erick Daniels.......................76-87

      Trial Testimony of Erika Daniels.......................88-95

      Trial Testimony of Keith Patterson.....................96-99
                         -iv-

Trial Testimony of Officer Darryl Macaluso............100-06

Trial Exhibits........................................107-13

State v. Abdallah, 01 CRS 41153-54 (Durham County)....114-17

North Carolina Actual Innocence Commission,
Recommendations for Eyewitness Identification.........118-23

National Institute of Justice, Eyewitness Evidence:
A Guide for Law Enforcement(1999).....................124-34
                               -v-

                 TABLE OF CASES AND AUTHORITIES

UNITED STATES SUPREME COURT CASES

United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967)......16

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977)........20

Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375 (1972).............20

Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932).............35

Strickland v. Washington, 466 U.S. 668,
     104 S.Ct. 2052 (1984).................................33- 34

NORTH CAROLINA CASES

State v. Bagley, 321 N.C. 201, 362 S.E.2d 244 (1987)...........12

State v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).........33

State v. Fair, 354 N.C. 131, 557 S.E.2d 500 (2001)

State v. Flowers, 318 N.C. 208, 347 S.E.2d 773 (1986)..........19

State v. Freeman, 313 N.C. 539, 330 S.E.2d 465 (1985)......11, 32

State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983)............13

State v. Hammond, 307 N.C. 662, 300 S.E.2d 361 (1983)..........25

State v. Haskins, 104 N.C. App. 675, 411 S.E.2d 376 (1991).....34

State v. Hayes, 350 N.C. 79, 511 S.E.2d 302 (1999).............12

State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978)...........13

State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974),
     judgment vacated in part by, 428 U.S. 902,
     96 S.Ct. 3302 (1976)......................................11

State v. Logner, 148 N.C. App. 135, 557 S.E.2d 191 (2001)......12

State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989),
     review denied by, 326 N.C. 53, 389 S.E.2d 83 (1990).......29

State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986)........32
                               -vi-

State v. Parker, 350 N.C. 411, 516 S.E.2d 106 (1999)...........12

State v. Pigott, 320 N.C. 96, 357 S.E.2d 631 (1987)........13, 19

State v. Rowland, 89 N.C. App. 372, 366 S.E.2d 550,
     review dismissed by, 323 N.C. 619,
     374 S.E.2d 116 (1988).....................................30

State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003).......12

State v. Thompson, 303 N.C. 169, 277 S.E.2d 431 (1981).........25

State v. Wilson, 118 N.C. App. 616,
     456 S.E.2d 870(1995) .................................29, 30

State v. Williams, 164 N.C. App. 638, 596 S.E.2d 313,
     review denied by, 358 N.C. 738,
     600 S.E.2d 857 (2004).....................................32

State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977)...........25

OTHER JURISDICTIONS

People v. Parrott, 40 Ill. App.3d 328,
     352 N.E.2d 299 (1976).....................................32

STATUTES AND APPELLATE RULES

N.C. Gen. Stat. §8C-1, Rule 103(a)(2)(2005)....................12

N.C. Gen. Stat. §8C-1, Rules 401-403, 404(b)(2005)..........28-29

N.C. Gen. Stat. §8C-1, Rule 608(b)(2005).......................28

N.C. Gen. Stat. §8C-1, Rule 609(d)(2005).......................28

N.C. R. App. P. Rule 10(c)(4)(2005)............................12
NO. COA06-282                                      FOURTEENTH DISTRICT

                   NORTH CAROLINA COURT OF APPEALS
                   *******************************

STATE OF NORTH CAROLINA,        )
                                )
         vs.                    )    From Durham County
                                )    No. 01 CRS 6233-34
ERICK DANIELS,                  )
                                )
         Defendant.             )

                   *******************************

                     DEFENDANT-APPELLANT’S BRIEF

                   *******************************

                        QUESTIONS PRESENTED:

    1.   WHETHER THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS
         AN IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE PRE-TRIAL
         PHOTO IDENTIFICATION IN VIOLATION OF DEFENDANT’S RIGHT
         TO DUE PROCESS OF LAW?

    2.   WHETHER THE TRIAL COURT PLAINLY ERRED BY ALLOWING THE
         STATE TO OFFER TESTIMONY ABOUT DEFENDANT’S JUVENILE
         RECORD, PRIOR MARIJUANA USE, AND GUNSHOT WOUND DURING
         RANDOM GANG VIOLENCE IN A HIGH-CRIME AREA?

    3.   WHETHER DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF

         COUNSEL AT TRIAL IN VIOLATION OF HIS SIXTH AMENDMENT

         RIGHTS?

                        STATEMENT OF THE CASE

    On October 10, 2000, two juvenile petitions for delinquency

were issued against Defendant-Appellant Erick Daniels

(hereinafter referred to as “Defendant”for the crimes of first-

degree burglary and robbery with a dangerous weapon.      (Id.)
                                                  -2-

            On October 30, 2000, the Honorable Richard G. Chaney

conducted a probable cause hearing on these charges.                                    At the

close of the evidence, Defendant moved to suppress a photo

identification and an in-court identification of Defendant by the

prosecuting witness.                (JT. pp. 46-48)1            Judge Chaney denied the

motion in open court and issued an Order finding that probable

cause existed for the charges.                      (JT. p. 48; R. pp. 7-8)                  Judge

Chaney then ordered that Defendant’s case be transferred to

Superior Court.            (R. pp. 9-10)

        On December 5, 2001, Defendant’s case was called for trial

before the Honorable W. Osmond Smith, III.                              (R. p. 3; T. p. 1)

On December 7, 2001, the jury rendered a verdict finding

Defendant guilty of first degree burglary and robbery with a

dangerous weapon.              (R. pp. 16-17)            Judge Smith entered Judgment

on each charge and sentenced Defendant to two consecutive terms

of 64-86 months in prison.                   (R. pp. 19-22)

        On December 7, 2001, Defendant gave notice of appeal in open

court to the Judgments.                 (R. pp. 23-24; T-II pp. 13-14)

        On November 2, 2005, the Honorable Orlando F. Hudson, Jr.

issued an Order appointing the Appellate Defender to represent

Defendant on appeal.                The undersigned counsel was then appointed

by the Appellate Defender on the following day.                                 (R. pp. 26-27)


        1
          In this Brief, the trial transcript will be referred to as “T”, the jury verdict transcript will
be referred to as “T-II”, and the juvenile transcript will be referred to as “JT”.
                                  -3-

       On December 14, 2005, the Honorable John H. Connell issued

an Order allowing Defendant to serve the proposed record on

appeal on or before January 13, 2006.    (R. p. 28)

       On February 24, 2006, the settled record was filed with this

Court.    (R. p. 3)   It was subsequently docketed on March 7, 2006

and the printed record was mailed on March 10, 2006.

            STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

       Defendant appeals from a final judgment of the trial court

convicting him on the charges of first degree burglary and

robbery with a dangerous weapon.    This Court has jurisdiction

over Defendant’s appeal under North Carolina General Statutes

§§7A-27(b), 7B-2602, and 15A-1444.

                       INTRODUCTION AND SUMMARY

       Defendant was convicted of first-degree burglary and armed

robbery as a result of a crime that occurred when he was 14 years

old.    The only evidence which linked him to the crime was the

prosecuting witness’s pre-trial and in-court identification of

him.    Defendant denied the accusations and presented an alibi in

his defense.    However, his credibility was unfairly attacked by

the State’s improper cross-examination of his juvenile record,

past marijuana use, and gunshot injury during a random gang

shooting at a high-crime public housing project.

       The pre-trial identification occurred as a result of an

impermissibly suggestive photo lineup.    Defendant stood out in
                                -4-

the lineup because he was the only individual with dark thick

eyebrows as described by the witness.   The lineup was

administered by a police detective who worked with the

prosecuting witness and believed Defendant to be the suspect.

The photo lineup was so suggestive that a substantial likelihood

exists that Defendant was irreparably misidentified.     The trial

court committed plain error by failing to suppress the photo

identification as well as the subsequent in-court identification

of him.

    With respect to the impeachment evidence, the trial court

plainly erred by allowing this type of questioning at trial.     The

testimony was prejudicial and not relevant to the charges.     The

State offered the evidence in order to improperly attack

Defendant’s credibility, undermine his alibi, and convict him by

innuendo.   A strong probability exists that if this evidence had

been excluded, the jury would have acquitted him of the charges.

    Defendant was further prejudiced and deprived of a fair

trial due to the ineffective assistance of counsel.

    Defendant requests that the Court of Appeals vacate the

Judgments against him and remand the matter for a new trial.    In

the alternative, Defendant requests that the Court remand this

matter without a final determination so that the trial court may

issue an appropriate ruling on his motion to suppress the

identification testimony.
                                 -5-




                       STATEMENT OF THE FACTS

    At approximately 8:15 p.m. on September 21, 2000, Defendant,

age 14, was traveling in a taxi to the YMCA on Lakewood Road in

Durham, North Carolina.   (T. p. 184)    He was accompanied by his

older sister Erika and her boyfriend Willie Lewis.     They were

traveling to the YMCA because Mr. Lewis had a basketball

scrimmage.   (T. pp. 184-85; 208-09)     When the scrimmage ended,

they returned by taxi to Defendant’s home on Fidelity Street in

Durham by 9:45 p.m.   (T. pp. 159-60; 209)     Unbeknownst to

Defendant, a crime occurred at Ruth Brown’s home on North Hoover

Street in Durham while he was at the YMCA.

    At approximately 8:15, Ms. Brown, a Durham Police Department

property room technician, was sitting on the sofa in her living

room braiding her daughter’s hair.     (T. pp. 44, 48-49, 51-52)

The living room was lit by a single lamp on an end table next to

the sofa.    (JT. pp. 8-9; T. Ex. 4)    As it was just getting dark,

she heard a knock at the front door.     (T. pp. 51-53; JT. p. 8)

Ms. Brown went to the door, but didn’t see anyone outside.       (T.

pp. 52-53)   Before she could return to the sofa, she heard a

clumping sound at the door.   (T. p. 53)    She walked back toward

the door and turned on the porch light.     Ms. Brown was then

startled to see that a man (hereinafter referred to as the “first
                                             -6-

suspect”) had entered her house. (Id.)

       The first suspect wore light brown boots, dark blue jeans, a

yellow t-shirt with white writing, and a blue and white

bandanna.2       (T. p. 59)       The bandanna was positioned at the bridge

of his nose and covered the bottom half of his face.                           (T. pp. 59,

85, Ex. 1)       He was black, had a medium complexion, and corn row

hair braids.        (T. pp. 59-60, 91-92, 112)               The man was either

5'1"-5'2" or 5'4"-5'5" tall, medium weight, and stocky.                              (JT. p.

17, T. p. 60-61, 81)            Ms. Brown described the first suspect as

18-19 years old with a hard voice.                  (T. pp. 62, 112)           Her

neighbor, Bruce Chase, described him as 19-25 years old and 5'6"-

5'8" tall.       (T. p. 243)

       Ms. Brown initially thought that the first suspect was her

brother Chris because of the position and thickness of his

eyebrows.       (T. p. 54, 108, 154)            Chris is also black, short, and

has a medium complexion.              (T. p. 108)        Although Chris is 30 years

old, he has a baby face and looks much younger.                         (T. pp. 61-62)




       2
        Ms. Brown’s written statement, dated September 22, 2000, said that the first suspect
was wearing “dark clothing.” (T. p. 85, Ex. 1)
                                              -7-

       When Ms. Brown saw the first suspect, he pulled a gun and

placed it in the middle of her forehead saying “[g]ive it up,

give it up.”3         (T. p. 54)        In response, she moved backwards and

bumped into the sofa.             She landed on the sofa on her side.                     (Id.)

 The first suspect moved closer to her and stuck the gun to her

temple.       (T. p. 55)

       As Ms. Brown was lying on her side on the sofa, a second man

(hereinafter referred to as the “second suspect”) entered the

home carrying a gun.             (T. pp. 55, 66-67, 98)              Both suspects began

shouting, “Where’s your pocketbook” and Ms. Brown told them,

“It’s over there, it’s over there.”                    (T. pp. 55-56)          The second

suspect walked around the room looking for the pocketbook until

he realized that she was lying on it.                     (T. p. 56-57)          He

approached the sofa and pulled the pocketbook out from underneath

her.       He then stood in the room holding the pocketbook asking the

first suspect, “Is this it?                Is this it?”         (T. p. 57)        They then

ran out the door.           (T. pp. 57-58)          The incident lasted ten

minutes.       (JT. p. 18)

       At the time of the incident, Ms. Brown had a gray pouch in

her pocketbook which contained $6,000 in cash.                          (T. p. 67)        She

received this money as overtime income from working 130 hours at

a police auction.           The money was in $20, $50, and $100


       3
         Her written statement says that both suspects entered at the same time pointing a gun at
her and yelling “where is your purse, where is your purse.” (T. p. 85, Ex. 1)
                                  -8-

denominations and was from a special fund which she referred to

as a “residual income”.     (T. pp. 67-69, 71-72)    Two days before

the robbery, her brother Chris and his friend Kam Russell saw her

counting the $6,000 in the kitchen at her mother’s home.       (T. p.

70-71)    The pocketbook was the only item taken from Ms. Brown or

her home on the evening of September 21, 2000 and no one was

hurt.

    Throughout the incident, Ms. Brown was lying on her side

with a gun to her temple.    (T. pp. 97-98)    Whenever she tried to

look up, the first suspect shouted “Don’t look at me.”       On each

occasion, she replied, “I’m not looking at you.       I’m not looking

at you.”    (T. p. 56, Ex. 1; JT. pp. 12-13)    The first suspect

poked the gun into her temple multiple times.       Each time she was

poked, Ms. Brown flinched and closed her eyes in fear.       (T. pp.

56-57, 109)    Her daughter was crying during the incident and Ms.

Brown tried to comfort her from the sofa.      (T. p. 55-56)   When

the police arrived at the scene, Ms. Brown was also crying and

upset.    She was so upset that she could only give Officer Darryl

Macaluso, the investigating officer, a very vague description of

the suspects and a vague account of what happened.       (T. pp. 128,

234-35)    According to Ms. Brown, she “did not have time to get a

good look at the second individual” at the scene. (JT. pp. 30-31)

    The police did not make any arrests or find any physical

evidence on the night of the crime.     The following day,
                                               -9-

Investigator Delois West of the Durham Police Department was

assigned the case and she met with Ms. Brown.                           (T. pp. 78-79,

121)       At that time, Investigator West had known Ruth Brown for a

couple years and they both had offices in the same police

building.       (T. pp. 79, 122)

       As a result of her interview with Ms. Brown, Investigator

West considered Kam Russell to be a likely suspect because he had

seen Ms. Brown counting the $6000 in cash.                         He was also well

known to the Durham police.                 (T. pp. 76-77, 123-25)               However, she

was unable to find any evidence against Mr. Russell and he was

never charged with a crime.                 (T. pp. 131, 236-38)              Investigator

West then received information from an unknown person that

“Little E” was involved in this crime.4                       (T. pp. 129, 148)

Investigator West contacted a housing officer who indicated that

he knew a “Little E” named Erick Daniels who hung out with Mr.

Russell.       (T. p. 149)

       Based upon this information, Investigator West determined

that she “had the suspect - - or who I thought to be the

suspect....” (T. p. 133)                West then contacted Ms. Brown and told

her that she had a suspect and that she was assembling a photo

lineup.       (T. pp. 86-87)          Investigator West obtained Defendant’s


       4
          At the juvenile hearing, Investigator West testified that she “received information that
one of the suspects possibly could be a young man by the name of - - went by the name of ‘E’,
who frequented Few Gardens.” (JT. p. 35) At trial, she insisted that she received the name
“Little E” and not “E”. (T. p. 148)
                                -10-

photograph from a sixth-grade yearbook and scanned it along with

three pages from the yearbook into a computer.     (T. pp. 132-33,

184, 192)    The photographs were head and shoulder pictures of

sixth graders.    (T. Ex. 2)

       On October 9, 2000, Ms. Brown reviewed the photos in the

presence of Investigator West at the police department.      (T. pp.

86-87, 133-34)    The photos were black and white, dark, grainy,

and distorted.    (T. pp. 173, 181, Ex. 2)    According to Ms. Brown,

she looked at them collectively for approximately 30 minutes.

(T. pp. 88-89, 182)    She then asked Investigator West whether the

photographs could be lightened up because she was 80-90% certain

that Defendant’s photo was the first suspect.     (JT. p. 24; T. p.

180)    West was satisfied with her identification and had Ms.

Brown sign a photograph identification affidavit.      (T. Ex. 2-3)

       The following day, two juvenile petitions for delinquency

were issued for Defendant and Investigator West served him with

the petitions on October 11, 2000.     (T. pp. 136-37, 141, 188-91)

 When Defendant was served, he was short in height, had a small

build, and did not have corn row braids in his hair.     (T. pp.

150-151)    Defendant has never had braids.   (T. pp. 160, 211, 225)

       At trial, Defendant took the stand and testified that he was

at a YMCA scrimmage when the crime occurred at Ms. Brown’s home.

 He denied that he was involved in the crime.     (T. pp. 184-85,

187-88, 189-92)
                                 -11-

       The State’s evidence consisted of Ms. Brown’s photo

identification of Defendant and her in-court identification of

him.    (T. pp. 89-91)   The State offered no physical evidence or

corroborating testimony which linked Defendant to the crimes at

Ms. Brown’s home.    (T. pp. 148, 151-52)

       In cross-examining Defendant and his witnesses at trial, the

State impeached Defendant by offering testimony about his

juvenile adjudications, experience in the juvenile court system,

 marijuana use, and a gunshot injury which he suffered during

random gang violence.    (T. pp. 164-66, 193-96, 212-16, 226-27)

                               ARGUMENT

I.     THE TRIAL COURT ERRONEOUSLY FAILED TO SUPPRESS AN
       IMPERMISSIBLY SUGGESTIVE AND UNRELIABLE PRE-TRIAL PHOTO
       IDENTIFICATION IN VIOLATION OF DEFENDANT’S RIGHT TO DUE
       PROCESS OF LAW.

       ASSIGNMENTS OF ERROR NO. 1 AND 6
       (JT. pp. 46-48; T. p. 86, line 18 - p. 90, line 24; T. p.
       132, line 8 - p. 136, line 5)

       At the juvenile probable cause hearing, Defendant moved to

suppress Ms. Brown’s photo identification on the grounds that the

procedure was suggestive and unfair.      Defendant also moved to

suppress the in-court identification on the grounds that it was

tainted by the suggestive photo lineup.      (JT. pp. 4-5, 46-48)

When a defendant moves to suppress pre-trial identification

testimony or an in-court identification, the trial court must

conduct a hearing and make findings of fact to support the
                                 -12-

court’s conclusion of law and ruling as to the admissibility of

the evidence.   State v. Freeman, 313 N.C. 539, 330 S.E.2d 465

(1985); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974),

judgment vacated in part by, 428 U.S. 902, 96 S.Ct. 3302

(1976)(citations omitted).     Appellate review of the denial of a

motion to suppress is limited to determining whether the trial

court’s findings of fact are supported by competent evidence and

whether the findings support the trial court’s conclusion of law.

 State v. Smith, 160 N.C. App. 107, 584 S.E.2d 830 (2003); State

v. Logner, 148 N.C. App. 135, 557 S.E.2d 191 (2001).

    In this case, the trial court denied Defendant’s motion in

open court without making any findings of fact or explaining the

basis for the court’s ruling.    (JT. p. 48)   After the motion to

suppress was denied, the State offered at trial the prosecuting

witness’s photo identification followed by her in-court

identification of Defendant.    Defendant acknowledges that his

counsel failed to object to this evidence when it was tendered at

trial.   State v. Hayes, 350 N.C. 79, 511 S.E.2d 302 (1999), but

see, N.C. Gen. Stat. §8C-1, Rule 103(a)(2)(2005).     Nevertheless,

a question which was not preserved by objection may be reviewed

if the judicial action amounts to plain error.    N.C. R. App. P.

Rule 10(c)(4) (2005).   Plain error is an error that is “so

fundamental as to amount to a miscarriage of justice or which

probably resulted in the jury reaching a different verdict that
                                 -13-

it otherwise would have reached.”       State v. Parker, 350 N.C. 411,

427, 516 S.E.2d 106, 118 (1999)(quoting, State v. Bagley, 321

N.C. 201, 213, 362 S.E.2d 244, 251 (1987).

    A.   REVIEW OF THE LAW GOVERNING PRE-TRIAL PHOTO LINEUPS.

    It is well-established that “[i]dentification evidence must

be excluded as violating a defendant’s right to due process where

the facts reveal a pretrial identification procedure so

impermissibly suggestive that there is a very substantial

likelihood of irreparable misidentification.”      State v. Harris,

308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983)(citations omitted);

State v. Pigott, 320 N.C. 96, 99, 357 S.E.2d 631, 633 (1987).      In

examining whether a pre-trial photo identification violated a

defendant’s due process rights, the court must determine:

(1) whether an impermissibly suggestive procedure was used in

obtaining the identification, and if the answer is yes, then

(2) whether, under the totality of the circumstances, the

suggestive procedure gave rise to a substantial likelihood of

irreparable misidentification.    State v. Headen, 295 N.C. 437,

439, 245 S.E.2d 706, 708 (1978) (citations omitted).

    B.   THE PRE-TRIAL PHOTO LINEUP IN THIS CASE WAS
         IMPERMISSIBLY SUGGESTIVE.

    In determining whether an identification procedure was

impermissibly suggestive, the court must examine the composition

of the photo lineup and the interactions that occurred between

the police and the witness before and at the time of the
                               -14-

identification.   See, Pigott, 320 N.C. at 99, 357 S.E.2d at 633

(Holding that a photo lineup was unnecessarily suggestive when

six out of the ten photographs were virtually unidentifiable and

only two of the photographs were reasonably similar to the

victim’s description); Headen, 295 N.C. at 441, 245 S.E.2d at 709

(Holding that a pre-trial identification was impermissibly

suggestive when the witness knew the defendant’s name, had seen

his picture, knew that he was a participant in the crime, and had

the suspect’s identity confirmed by the investigating officer

following a tentative identification).   In this case, the

evidence shows that the photo lineup was impermissibly suggestive

due to the nature and quality of the photos and the way that the

lineup was conducted.

          1.   The sixth-grade yearbook photos contained a single
               suspect with dark thick eyebrows, were not
               representative of the victim’s description of the
               first suspect, and were of poor quality.

    Ruth Brown described the first suspect in the following

manner:

    •     Black male, (T. p. 60);

    •     medium complexion, (Id.);

    •     medium weight and stocky, (T. p. 81);

    •     5'1"-5'2" or 5'4"-5'5" tall, (JT. p. 17; T. p.61);

    •     hard voice, (T. p. 61, 112);

    •     18-19 years old, (T. p. 62);

    •     corn row hair braids, (T. pp. 59-60);
                                               -15-

       •       unknown eye color;             (T. p. 112); and

       •       dark thick eyebrows like her brother Chris,                           (T. p. 54,

108, 153).5        Because the man had a bandanna over the bridge of

his nose, the only head and facial features that Ms. Brown saw

were his corn row hair braids and dark thick eyebrows.                                 (T. pp.

59, 85, Ex. 1)

       The photo lineup in this case consisted of 105 pictures of

sixth-grade children.              (T. Ex. 2)         42 of those pictures were of

black boys.         None of the sixth-grade boys had corn row hair

braids as described by Ms. Brown.                     With respect to their

eyebrows, only Defendant stood out as having dark thick eyebrows.

 The lack of photographs of other men or boys with similar

eyebrows unfairly suggested to the witness that Defendant was the

suspect.

       The photographs were also not representative of the person

described by Ms. Brown as the first suspect.                           The lineup

consisted solely of children between the ages of 11 and 13.

There were no photographs of 18-19 year-old men as described by

Ms. Brown.        The small black-and-white photos were head and

shoulder shots which did not meaningfully show the eye

characteristics, height, weight, or build of each individual.                                     In

addition, the quality of the photographs was poor.                              They were


       5
          Her neighbor, Bruce Chase, told police that the first suspect was 5'6" - 5'8" tall and 19-
25 years old. (T. p. 243)
                                  -16-

dark, grainy, distorted, and did not accurately depict the

person’s complexion.      (T. pp. 173, 180-81, Ex. 2)   Due to the

nature and quality of the photos, Ms. Brown primarily focused on

the boys’ eyebrows.      (T. p. 182)   The improper photo lineup

caused her to identify Defendant as the suspect because he was

the only boy in the photos with dark thick eyebrows.



            2.    Investigator West impermissibly suggested to Ms.

                  Brown that Defendant was the first suspect.

    The United States Supreme Court observed nearly forty years

ago that:

       A major factor contributing to the high incidence
       of miscarriage of justice from mistaken
       identification has been the degree of suggestion
       inherent in the manner in which the prosecution
       presents the suspect to witnesses for pretrial
       identification. ... Suggestion can be created
       intentionally or unintentionally in many subtle
       ways. And the dangers for the suspect are
       particularly grave when the witness’ opportunity
       for observation was insubstantial, and thus his
       susceptibility to suggestion the greatest.

United States v. Wade, 388 U.S. 218, 228-29, 87 S.Ct. 1926, 1933

(1967)(footnotes and citations omitted).       The issue of

suggestibility in police lineups is still a concern today.

Recently, the North Carolina Actual Innocence Commission

published its recommendations for eyewitness identification

procedures.      The Commission recommended, in part, that lineups

should be presented sequentially, that the individual conducting
                                             -17-

the photo lineup should not know the identity of the actual

suspect,6 that witnesses should be instructed that the suspect

may or may not be in the lineup, and that witnesses should not

receive any feedback during or after the identification process.

 Recommendations for Eyewitness Identification at pp. 1-2 (App.

at 118-23)

       In this case, Investigator West used an identification

procedure which was suggestive to the witness.                          Investigator West

had known Ruth Brown for a couple years and they both worked in

the same building for the Durham Police Department.                            (T. pp. 79,

122)       During the two weeks which preceded the lineup, West kept

Ms. Brown informed about the leads that she was pursuing.                               Ms.

Brown placed her faith in Investigator West’s ability to find the

perpetrators and “didn’t want to stand in her way to keep her

from doing her job, knowing that I work for a police department.”

 (T. p. 86)

       Before the lineup happened, Investigator West told Ms. Brown

that she had a suspect and that she was assembling photographs

for her to examine.            (T. pp. 86-87)          On October 9, 2000, West

administered the photo lineup without anyone else present.                                (T.

pp. 86-87, 133-34)            The photographs were shown to the witness at

the same time and she was allowed to compare the pictures for at


       6
          The National Institute of Justice has noted that an “investigator’s unintentional cues
(e.g., body language, tone of voice) may negatively impact the reliability of eyewitness
evidence.” Eyewitness Evidence: A Guide for Law Enforcement at p. 9 (1999)(App. at 124-34)
                                 -18-

least thirty minutes.    (T. pp. 88-89, 182, Ex. 2)    Investigator

West did not tell Ms. Brown that the suspect might not be in the

lineup.   (T. Ex. 3)    Rather, she conveyed to the witness that the

suspect’s photo was in fact present.

    After thirty minutes elapsed, Ms. Brown asked Investigator

West whether the photographs were distorted in any way and

whether they could be lightened up.     (T. p. 180-81; JT. p. 24)

They then began talking about the quality of the pictures.     (T.

p. 180, JT. p. 24)     At some point during this conversation, Ms.

Brown referred to Defendant’s photo and Investigator West asked,

“on a scale from 1 to 10 based on the individual that you’re

looking at, how do you feel about the individual that you picked,

you know, that you picked out?”    (Id.)    Ms. Brown replied that

“‘if this picture was a little bit lighter....     I said, ‘Right

now it stands between 8 and 9, but if this picture was a little

bit lighter, it would be a 10.’” (Id.)      Investigator West failed

to document this conversation or any other conversations that she

had with Ms. Brown during the lineup.      At trial, West attempted

to cover up the manner in which the identification occurred by

erroneously testifying that Ms. Brown identified Defendant after

“a short period of time” and that Brown told her that “she was

100% sure that that was him.”    (T. pp. 134-35)

    Ms. Brown was open to suggestive influence during the lineup

due to her familiarity with Investigator West, her employment
                                -19-

with the police department, and her desire to find the

perpetrators.   As a result, she looked to the Investigator for

help and guidance in identifying a suspect in the photos.    It is

reasonable to assume that during the lineup Ms. Brown noticed

Investigator West’s interest in Defendant’s photograph and

identified him because of her cues.

    The record shows that the composition of the photo lineup

was unfair to Defendant.    The record also shows that the manner

in which it was conducted failed to ensure an impartial and

accurate identification.    Investigator West was confident that

Defendant was “the suspect” and as a result composed and

conducted a lineup which guaranteed that he would be identified.

 (T. p. 133)    The trial court plainly erred by failing to find

that Defendant’s identification occurred as a result of an

impermissibly suggestive photo lineup.

    C.   A SUBSTANTIAL LIKELIHOOD EXISTS THAT DEFENDANT WAS

         IRREPARABLY MISIDENTIFIED BECAUSE OF THE SUGGESTIVE

         PHOTO LINEUP.

    The identification of a defendant at an impermissibly

suggestive photo lineup is inadmissible if the court determines

that “the procedure employed was so suggestive that there is a

substantial likelihood of irreparable misidentification.”

Pigott, at 99, 357 S.E.2d at 633 (citing, State v. Flowers, 318

N.C. 208, 220, 347 S.E.2d 773, 781 (1986)).    “Whether there is a
                                  -20-

substantial likelihood of misidentification depends upon the

totality of the circumstances.”     Id.   In making this

determination, a court must consider the following factors:

      1.   The opportunity of the witness to view the
           criminal at the time of the crime;

      2.   The witness’s degree of attention;

      3.   The accuracy of her prior description of the
           criminal;

      4.   The level of certainty demonstrated at the
           identification; and,

      5.   The time between the crime and identification.

Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253

(1977)(citing, Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct.

375, 382 (1972)).   The court must also weigh the corrupting

effect of the suggestive identification against these factors.

Id.   Reliability is the linchpin in determining the admissibility

of pre-trial identification testimony.      Id.

           1.   Ruth Brown had minimal opportunity to observe the

                first suspect, paid little attention to his

                appearance, and described a man who did not look

                like Defendant.

      The crime in this case occurred as it was just getting dark.

Ms. Brown was sitting on the sofa in her living room braiding her

daughter’s hair when she heard a knock at the door.        (T. pp. 51-

52)   Ms. Brown described the lighting in her living room at that
                                      -21-

time as follows:

      Q.   Okay. And in your home, can you tell me about
           what kind of lighting - - lights you had on at
           that point?

      A.   I had the living room light on at that time. I
           want to go back to me hearing the knock on the
           door.

      Q.   Okay.

      A.   I had my living room light on because, of course,
           I was doing my daughter’s hair. I asked, “Who is
           it?” I didn’t hear anything. So I asked, “Who is
           it?” again. I still didn’t hear anything.

(JT. p. 8-9)   The lamp was positioned on an end table in the

living room next to the front door.    (JT. p. 9-10; T. Ex. 4)

After the knock, Ms. Brown heard a clumping sound which caused

her to walk toward the door and turn on the outside porch light.

 (T. p. 53)    According to her written statement, dated September

22, 2000, the first and second suspects then entered the home at

the same time pointing guns at her.    (T. p. 84, Ex. 1)    The men

had bandannas that covered the bottom of their face below the

bridge of the nose.   (T. pp. 59, 65, Ex. 1; JT. p. 14)     They were

both wearing dark clothing.     (T. p. 85, Ex. 1)

      When the first suspect entered, he immediately put a gun to

Ms. Brown’s forehead.   She then moved backwards falling onto the

sofa and landing on her side.    (T. pp. 54-55)     The first suspect

followed her and placed the gun to her temple.       (T. pp. 55, 97-

98)   Each time she tried to look up at him, he shouted, “Don’t

look at me.”   Ms. Brown responded, “I’m not looking at you.     I’m
                                 -22-

not looking at you.”   (T. p. 56, Ex. 1; JT. pp. 12-13)      He poked

his gun into her temple multiple times causing her to flinch and

close her eyes in fear.    (T. pp. 56-57, 109, Ex. 1)

    Even if Ms. Brown had been permitted to look at the

individual, she would have been unable to clearly see him.       While

she was lying on the sofa, the lamp was behind the first suspect.

 There were no other lights in the room and the lamp likely cast

a shadow over his face.    In fact, Ms. Brown could only recall

that the man had corn row braids and thick eyebrows.       She was

unable to remember the man’s eye color or any other

distinguishing facial features. (T. pp. 54, 59-60, 108, 112)         The

lighting was so poor that evening that Ms. Brown did not have the

opportunity to get a good look at the second suspect.       (JT. pp.

30-31)

    The event was chaotic and traumatic.      In addition to having

a gun pointed at her, Ms. Brown had to cope with seeing a gun

pointed at her daughter.     (T. p. 55-56)   During the ordeal, she

kept her eyes on her daughter pleading, “Don’t hurt her, don’t

hurt her....”   (T. p. 55)   When her daughter cried out in fear,

she tried to comfort her from the sofa.      (T. p. 56)   Once the

police arrived at the scene, Ms. Brown was crying and upset.         (T.

p. 128)   At trial, Officer Darryl Macaluso, the investigating

officer, recalled the following:

    Q.    Once you got the scene secured, did you, in
          fact, interview Ms. Brown?
                                 -23-


       A.   Yes, I did.

       Q.   What was her demeanor when you were talking
            with her that evening?

       A.   She was extremely upset.    I could hardly speak

            to her myself.   She was really more upset that

            someone had stuck a gun in her child’s face,

            and she really didn’t want to talk too much

            about anything except the welfare of her child

            at the time.

(T. pp. 233-34)    She was so distraught about the incident that

she could only give Officer Macaluso a very vague description of

the suspects and a vague account of what happened.      (T. pp. 234-

35)

       Ms. Brown initially described the first suspect as a black

male, medium complexion, medium weight, and stocky.       (T. pp. 60,

62, 81)     She said that he was 18-19 years old, either 5'1" - 5'2"

or 5'4" - 5'5" tall, and had a hard voice.      (JT. p. 17; T. p.61-

62, 112)    With respect to the face and head, Ms. Brown only saw

that the first suspect had corn row hair braids and thick

eyebrows.

       In contrast to this description, Defendant’s complexion was

darker.     (T. p. 180; JT. p. 24)   He was short in height (closer

to 5'1" than 5'4") and had a small build.      (T. p. 150-151, 162,

175)    The most glaring differences between Ms. Brown’s
                                 -24-

description and Defendant’s appearance were his age and his hair.

 Defendant was only 14 years old and did not have corn row braids

in his hair.    (R. pp. 4, 6, 19, 21; T. p. 150, 160, 211)

    The evidence indicates that Ruth Brown had minimal

opportunity to observe the first suspect at the scene.      She was

distracted by the events and paid little attention to the man’s

appearance.    She was primarily concerned about her daughter’s

safety and well-being.   As a result, Ms. Brown’s initial

description of the first suspect was materially different from

Defendant’s actual appearance.    Defendant did not have corn row

braids in his hair.    He had a different build and complexion than

the suspect.    Furthermore, Defendant was significantly younger

than the person Ms. Brown initially described.

         2.     Ms. Brown was uncertain about her identification

                which occurred weeks after the crime.

    The photo identification occurred on October 9, 2000, almost

three weeks after the crime.    By this point in the investigation,

Investigator West had exhausted her initial leads and had begun

to focus on Defendant as “the suspect.”    (T. pp. 131-33)

    At trial, both Ms. Brown and Investigator West testified

that Ms. Brown was “100 percent” certain of her pre-trial

identification of Defendant.    (T. pp. 90, 135)   This testimony

was inaccurate.    As noted supra at p. 18, Ms. Brown testified at

the probable cause hearing that on a scale from 1-10, her level
                               -25-

of certainty was between an 8 and a 9.    (T. p. 180, JT. p. 24)

She then signed a photograph identification affidavit which did

not reflect the uncertainty she had expressed at the lineup.    (T.

Ex. 3)

    The totality of the circumstances shows that Ms. Brown’s

identification of Defendant was unreliable and untrustworthy.      A

substantial likelihood exists that she misidentified Defendant

based upon a highly suggestive photo lineup.    The

misidentification was irreparable.    It became the centerpiece of

an otherwise underwhelming case against Defendant.    There was no

physical evidence which implicated Defendant in the crime and no

corroborating witnesses.   In the absence of the photo

identification, Defendant would have been acquitted at trial.

The trial court therefore committed plain error by failing to

suppress an impermissibly suggestive and unreliable pre-trial

photo identification of Defendant.

    D.   THE RECORD IS DEVOID OF CLEAR AND CONVINCING EVIDENCE
         THAT THE IN-COURT IDENTIFICATION OF DEFENDANT WAS NOT
         TAINTED BY THE UNCONSTITUTIONAL PHOTO LINEUP.

    An improper pre-trial identification requires that an in-

court identification be suppressed unless the trial court

determines on clear and convincing evidence that the in-court

identification is of independent origin.    State v. Yancey, 291

N.C. 656, 660, 231 S.E.2d 637, 640 (1977)(citations omitted).      In

determining whether the in-court identification is admissible,
                                   -26-

the court must consider the same factors of reliability that are

considered in evaluating whether an irreparable misidentification

occurred, supra at pp. 19-20.      State v. Hammond, 307 N.C. 662,

668, 300 S.E.2d 361, 365 (1983)(quoting, State v. Thompson, 303

N.C. 169, 172, 277 S.E.2d 431, 434 (1981).

    In this case, there is no clear and convincing evidence that

Ms. Brown’s in-court identification of Defendant was independent

of the pre-trial photo lineup.      The record does not indicate that

Ms. Brown would have identified Defendant at either the probable

cause hearing or at trial in the absence of the lineup.       Rather,

the evidence suggests that the in-court identification was

predicated upon her pre-trial identification.

    At the probable cause hearing and trial, the State first

offered the pre-trial identification into evidence.       (JT. pp. 21-

26; T. pp. 87-89)    The State then asked Ms. Brown to identify

Defendant in-court so as to corroborate the out-of-court

identification.     At the probable cause hearing she was asked,

“[D]o you see the person who you identified from that photo

lineup in the courtroom today?”      (JT. p. 26)   Before the jury,

she was asked, “Does he [Defendant] appear to be the same person

that is in the photograph there that you identified back in

October of 2000?”     (T. p. 91)   In each proceeding, the State

sought to buttress the pre-trial identification through the

corroborating testimony of Investigator West.
                                -27-

       Under the totality of the circumstances in this case, the

in-court identification of Defendant should have been suppressed.

 It was clearly intertwined with the pre-trial photo lineup.       The

record does not contain clear and convincing evidence that Ms.

Brown’s in-court identification of Defendant was independent of

and not tainted by the unconstitutional pre-trial procedure.       It

was therefore plain error for the trial court to fail to suppress

the in-court identification.

II.    THE TRIAL COURT COMMITTED PLAIN ERROR BY ALLOWING TESTIMONY
       ABOUT DEFENDANT’S JUVENILE RECORD, PRIOR MARIJUANA USE, AND
       GUNSHOT WOUND DURING RANDOM GANG VIOLENCE IN A HIGH-CRIME
       AREA.

       ASSIGNMENT OF ERROR NO. 7
       (T. p. 163, line 16 - p. 167, line 3; T. p. 193, line 4 - p.
       196, line 10; T. p. 212, line 8 - p. 214, line 13; T. p. 215
       line 8 - p. 216, line 10; T. p. 226, line 1 - p. 227, line
       7)

       This case depended on whether the jury believed Ms. Brown’s

identification or Defendant’s alibi.    As a result, the State

sought to discredit the minor Defendant by offering evidence that

he had:

       •    Been “convicted of crimes” as a minor, (T. p. 193);

       •    Been involved in the juvenile court system, (T. pp.

163-67, 195-96, 212-13, 215-16, 226);

       •    Used marijuana in the past, (T. pp. 164, 193-94, 226);

and,

       •    Suffered a gunshot wound during random gang violence in
                                -28-

a high-crime neighborhood, (T. pp. 164-65, 194-95, 213-14, 226-

27).    This evidence was inadmissible under Rules 402, 403,

404(b), 608(b), and 801 of the North Carolina Rules of Evidence.

       While Defendant acknowledges that his counsel failed to

object to this evidence at trial, he contends that the trial

court committed plain error by allowing the State to offer this

testimony before the jury.

       A.   TESTIMONY THAT DEFENDANT COMMITTED CRIMES AS A MINOR,
            WAS INVOLVED IN THE JUVENILE COURT SYSTEM, AND USED
            MARIJUANA IN THE PAST WAS IRRELEVANT, PREJUDICIAL AND
            OTHERWISE NOT ADMISSIBLE.

       In examining his client, defense counsel imprudently asked

Defendant whether he had ever been convicted of anything.      (T. p.

192)    Defendant, not understanding the distinction between a

juvenile adjudication and a criminal conviction, answered “[y]es,

I was convicted of a misdemeanor marijuana charge.”    (Id.)     On

cross-examination, the State then attempted to impeach Defendant

by offering evidence that he had also been “convicted” of

misdemeanor larceny and resisting an officer.    (T. p. 193)     In

reality, Defendant did not have a criminal record and the

“convictions” were actually juvenile adjudications.    (R. p. 18,

T. p. 222)    The evidence of the juvenile adjudications was not

admissible for the purpose of attacking Defendant’s credibility

under Rule 609(d) of the North Carolina Rules of Evidence.       See,

N.C. Gen. Stat. §8C-1, Rule 609(d)(2005).    In addition, this

evidence was inadmissible under Rule 608(b) since his reference
                                -29-

to the misdemeanor charge did not reflect an instance of

untruthful testimony by Defendant.     See, N.C. Gen. Stat. §8C-1,

Rule 608(b)(2005).   It was improper for the State to offer

evidence of Defendant’s juvenile record and plain error for the

Court to allow it.

    Defendant’s involvement in the juvenile court system was

also inadmissible.   On cross-examination, the State solicited

seven pages of testimony about Defendant’s lock-ups, juvenile

detention officers, curfew violations, delinquency hearings,

court-ordered counseling, and youth group homes.    (T. pp. 164-67,

195-96, 212-13, 215-16, 226)    His experiences in juvenile court

were irrelevant, prejudicial, and not admissible as evidence of

“other crimes, wrongs, or acts” under Rule 404(b) of the North

Carolina Rules of Evidence.    See, N.C. Gen. Stat. §8C-1, Rules

401-403, 404(b)(2005); State v. Maxwell, 96 N.C. App. 19, 384

S.E.2d 553 (1989), review denied by, 326 N.C. 53, 389 S.E.2d 83

(1990)(Evidence regarding defendant’s frequent nudity, fondling

of himself, and adulterous affair was prejudicial and required

his convictions for statutory rape and indecent liberties with a

minor to be reversed).    The collective imprint of this evidence

was that Defendant was a troubled youth and probably committed

the crimes at issue.

    In addition, the State offered evidence that Defendant had a

prior “drug problem.”    (T. p. 164)   In cross-examining Defendant,
                               -30-

the following exchange occurred:

    Q.     You have had a pretty serious marijuana problem
           during your teenage years, haven’t you?

    A.     If that’s what you want to call it, yes.

    Q.     Well, you tested positive for marijuana at
           least five or six times, didn’t you?

    A.     Yes, ma’am.

    Q.     And marijuana is an illegal controlled
           substance, is it not?

    A.     You’re right.

(T. pp. 193-94)   This Court has previously held that evidence of

prior drug use is irrelevant under Rule 608(b) of the North

Carolina Rules of Evidence.   State v. Wilson, 118 N.C. App. 616,

619-21, 456 S.E.2d 870, 872-74 (1995).   The Court has also held

that when a case turns on the credibility of a witness, the

erroneous admission of past drug use is not harmless and will

entitle the defendant to a new trial.    Id.; State v. Rowland, 89

N.C. App. 372, 366 S.E.2d 550, review dismissed by, 323 N.C. 619,

374 S.E.2d 116 (1988).

    The verdict in this case depended on who the jury considered

to be more credible: the prosecuting witness or Defendant.     The

evidence of Defendant’s past drug use diminished his credibility

before the jury and was very damaging to his defense.   (T. pp.

205-06)   The failure of the trial court to exclude this evidence

was a miscarriage of justice and plain error.

    B.     TESTIMONY THAT DEFENDANT SUFFERED A GUNSHOT WOUND
                               -31-

         DURING A RANDOM GANG SHOOTING IN A HIGH-CRIME AREA WAS
         IRRELEVANT AND PREJUDICIAL CHARACTER EVIDENCE.

    The State never located the first suspect’s gun and had no

evidence that Defendant had ever owned or touched a firearm.   (T.

pp. 151-52)   Due to the absence of evidence, the State improperly

sought to link Defendant to guns and to gang violence by

soliciting testimony that he was shot during a gang shooting in

the Few Gardens housing complex.   On cross-examination, Defendant

was questioned as follows:

    Q.   Now, how was it that you - - you say you don’t
         have any familiarity with firearms, down own
         one. How is it you end up getting shot in May
         of 2000?

    A.   How did I end up getting shot?

    Q.   Uh-huh.

    A.   Because I remember seeing some red and blue
         flags, and I recall ... an argument or whatnot,
         and people started shooting, and a bullet
         ricocheted off the side of the building and hit
         me in the ankle.

    Q.   When you say red and blue flags, you’re talking
         about gang paraphernalia, aren’t you?

    A.   Yes, ma’am.

    Q.   And what does red mean, for those members of
         the jury that don’t understand gangs in Few
         Gardens?

    A.   Red means for Bloods.

    Q.   All right.    What does blue mean?

    A.   Blue means for - - I’m not - - I’m not really
         sure. It’s a lot of blue - - it’s a lot of
         gangs for blues, I guess.
                                      -32-


    Q.   And have you ever heard of the names Crips?

    A.   Oh, yes, I have heard of that name.

    Q.   And which one did you normally wear, red or
         blue?

    A.   I wear mixed colors. I’m not in a - -
         affiliated with a gang.

    Q.   Now, you said that you had never owned a
         firearm. Firearms or guns are pretty easy to
         come by in Few Gardens, aren’t they?

    A.   They probably are; they probably are.

    Q.   You have seen them out there, haven’t you?

    A.   Yeah, I’ve seen guns.   I’ve seen guns before,
         yes, I have.

(T. pp. 194-95)   Later in the trial, the State obtained testimony

from Keith Patterson that Few Gardens was a “high-crime area”

where children should not hang out.    (T. pp. 226-27)

    This testimony was irrelevant and highly prejudicial to

Defendant.   The Court of Appeals has previously held that a

defendant’s random firing of a gun on 14 unrelated occasions was

inadmissible at trial for the purpose of showing the character of

the accused and that he acted in conformity with that character

in committing the crime.   State v. Mills, 83 N.C. App. 606, 610-

14, 351 S.E.2d 130, 133-35 (1986).    If this evidence was not

admissible when a defendant actually fired his weapon, the trial

court was required to exclude it in this case in which Defendant

was injured in an unrelated random shooting.
                                -33-

    The prejudice of the shooting was heightened by the follow-

up questioning about gangs and the Few Gardens neighborhood.     “It

is common knowledge that there is a deep, bitter, and widespread

prejudice against street gangs in every large metropolitan area

in America.”   People v. Parrott, 40 Ill. App.3d 328, 331, 352

N.E.2d 299, 302 (1976).   The City of Durham is no exception.

Under North Carolina law, gang references are inadmissible unless

the reference is somehow relevant to the charges.    Freeman, 313

N.C. at 548, 330 S.E.2d at 473 (1985).   In this case, the gang

testimony had no relevancy since there was no evidence that the

crime was gang-related.   In addition, the testimony concerning

the reputation of Few Gardens as an open area for firearms and a

“high-crime area” was inadmissible hearsay which should have been

stricken by the court.    State v. Williams, 164 N.C. App. 638, 596

S.E.2d 313, review denied by, 358 N.C. 738, 600 S.E.2d 857

(2004)(holding that testimony indicating that defendant was in a

neighborhood known as an “open air market for drugs” was

inadmissible hearsay that entitled defendant to a new trial).

    Defendant was shot as a result of being in the wrong place

at the wrong time.   There was no evidence that he was a

participant in the violence or that he was a gang member.    The

State proffered this testimony in order to suggest by innuendo

that Defendant was involved in the crime because he could have

obtained a gun and could have been a gang member.   This evidence
                               -34-

was highly prejudicial and should have been excluded by the trial

court.   The court’s failure to control this improper questioning

amounts to a miscarriage of justice and absent these errors, the

jury probably would have reached a different verdict.

III. DEFENDANT RECEIVED THE INEFFECTIVE ASSISTANCE OF COUNSEL AT
     TRIAL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS.

    ASSIGNMENT OF ERROR NO. 10
    (R. pp. 19-22)

    A defendant’s right to counsel under the Sixth Amendment

includes the right to the effective assistance of counsel.   State

v. Braswell, 312 N.C. 553, 324 S.E.2d 241 (1985).   In order to

establish an ineffective assistance of counsel claim, a defendant

must show (1) that his counsel’s performance fell below an

objective standard of reasonableness and (2) that his counsel’s

errors were so serious as to deprive him of a fair trial, a trial

whose result is reliable.   Strickland v. Washington, 466 U.S.

668, 687-88, 104 S.Ct. 2052, 2064 (1984).

    In this case, Defendant’s counsel was not present when the

matter was called for trial.   He had to be summoned from traffic

court to try this matter.   (T. p. 4)   Defense counsel’s

performance at the trial was objectively unreasonable and

deprived the minor Defendant of a fair trial.   In particular,

defense counsel erred in the following ways:

    •     Failed to file any pre-trial motions in limine;

    •     Failed to object to the prosecuting witness’s pre-trial
                                            -35-

photo identification and in-court identification of Defendant;

       •      Failed to object to highly prejudicial impeachment

evidence concerning Defendant’s juvenile record, experience in

the juvenile system, past marijuana use, and gunshot injury

during random gang-violence, (See T. p. 221;

       •      Failed to request limiting jury instructions following

the admission of “other crimes, wrongs or acts” evidence under

Rule 404(b), See State v. Haskins, 104 N.C. App. 675, 411 S.E.2d

376 (1991);

       •      Failed to object to the State’s evidence that Defendant

knew Mr. Russell and knew of his co-defendant Khalid Abdallah.7

(T. pp. 124-25, 131-32, 140-41, 154);

       •      Failed to have jury selection, opening statements, and

closing arguments recorded; and,

       •       Failed to file any motions to compel complete

discovery after only receiving only a partial copy of the State’s

investigative file before trial.                 (R. p. 13)

       Defense counsel asserted only one objection during the trial

and his conduct showed a lack of familiarity with the rules of

evidence.      In addition to prejudicing his client before the jury,

he has unduly prejudiced Defendant on appeal by failing to

adequately preserve the record.                Defendant was deprived of his


       7
         Mr. Russell was never charged with a crime and Mr. Abdallah was acquitted of the
charges by a jury. State v. Abdallah,01-CRS-41153, Durham County (App. at pp. 114-17)
                                 -36-

right to the effective assistance of counsel at trial and

requests that the Court grant him a new trial.     See Powell v.

Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64 (1932)(Without the

aid of counsel, a defendant may be convicted upon incompetent,

irrelevant, and inadmissible evidence).    In the alternative,

Defendant asks the Court to dismiss this claim without prejudice

to his right to reassert it in a motion for appropriate relief.

State v. Fair, 354 N.C. 131, 167, 557 S.E.2d 500, 525 (2001).

                            CONCLUSION

    For the foregoing reasons, Defendant requests that this

Court vacate the trial court’s Judgments and remand this matter

for a new trial free from the prejudicial errors raised in this

appeal.   In the alternative, Defendant requests that the Court

remand the matter without determination so that trial court may

issue an appropriate ruling on his motion to suppress.

    This the ___ day of April, 2006.


                                 GLENN, MILLS & FISHER, P.A.


                           By:
                                 Carlos E. Mahoney
                                 N.C. State Bar No. 26509
                                 Attorney for Defendant
                                 P.O. Drawer 3865
                                 Durham, NC 27702-3865
                                 (919) 683-2135
                                 cmahoney@gmf-law.com
                              -37-

                     CERTIFICATE OF SERVICE

    I, Carlos E. Mahoney, do hereby certify that a copy of the

foregoing document entitled, Defendant-Appellant’s Brief, was

duly served upon the following parties of record by first class

U.S. Mail with postage pre-paid thereon, on this the ____ day of

April, 2006.

    Jason T. Campbell
    State of North Carolina
    Department of Justice
    Assistant Attorney General
    1505 Mail Service Center
    Raleigh, NC 27699-1505
    Attorney for State



                              Carlos E. Mahoney

								
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