State v. Young, COA23-608, ___ N.C. App. ___ (Jun. 18, 2024)

In this Mecklenburg County case, defendant appealed his conviction for possession of a firearm by a felon, arguing error in (1) denying his request for a special instruction, (2) allowing a witness to testify regarding pretrial identification of defendant, and (3) failing to intervene ex mero motu during the prosecutor’s closing argument. The Court of Appeals found no prejudicial error. 

In February of 2020, a man was sitting in his apartment when he heard a loud noise and saw an intruder with a shotgun standing in his doorway. The intruder asked for money and jewelry, and the man complied. At that point, a struggle ensued, and the man was shot in the stomach while escaping with the shotgun. After an investigation, police arrested defendant as the likely intruder. During defendant’s bond hearing, the man was present, and approached the prosecutor to say he recognized defendant based on his appearance. The man gave a statement to the prosecutor confirming defendant was the intruder at his home that night. Defendant eventually came for trial on charges of robbery, burglary, assault, and possession of a firearm by a felon. The jury convicted defendant of possession of a firearm by a felon but acquitted him of the other charges. 

Taking up (1), the Court of Appeals explained that defendant’s requested instruction focused on the palm print from the shotgun. Defendant argued that the jury should be instructed that it could only consider “evidence about fingerprints” if the jury determined the fingerprints were found in the place the crime was committed and put there when the crime occurred. Slip Op. at 9. The court pointed out that defense counsel did not submit the requested instruction in writing as required by N.C. Rule of Civil Procedure 51(b). The court went on to conclude that even if the special instruction was properly submitted, it “was not a proper application of the law to the facts of this case,” as the instruction was not clearly targeted at the possession of a firearm charge and the nature of that offense did not require the jury to find that defendant possessed the firearm at the time of the other alleged offenses related to the home invasion. Id. at 18. 

Moving to (2), the court noted the substance of defendant’s argument dealt with the witness’s testimony that he identified defendant prior to the trial. Here, the court pointed out the required analysis under State v. Harris, 308 N.C. 159 (1983), regarding impermissibly suggestive pretrial identification procedures. The trial court identified several factors suggesting the information, specifically the name, provided by law enforcement to the witness set up a procedure improperly suggesting defendant was the perpetrator. Despite determining the pretrial identification procedure contained elements that were impermissibly suggestive, the trial court subsequently allowed the witness to testify. The court determined this was error, explaining that “the trial court’s factual findings did not support its conclusion of law that [the witness’s] testimony regarding pretrial identification was admissible.” Id. at 33. Despite the trial court’s attempts to separate the concept of an in-court identification from the pretrial identification, the court concluded “we are constrained to hold the trial court erred in prohibiting an in-court identification but thereafter allowing testimony about the pretrial identification.” Id. at 34. However, the court determined that this error was harmless beyond a reasonable doubt due to the evidence in the record, such as the palm print on the shotgun and other supporting circumstantial evidence.

Finally, in (3) the court rejected defendant’s argument that the trial court should have intervened in closing argument when the prosecutor mentioned photographs of defendant holding a firearm that the trial court had previously prevented the jury from viewing. The court noted that defense counsel did not object during the closing argument, and a detective had previously testified about the existence of the photographs, even though the trial court had ruled against admitting them due to their potential prejudicial effect. As a result, the court did not see grossly improper statements that would justify the trial court’s ex mero motu intervention.