              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA16-815

                               Filed: 21 February 2017

Mecklenburg County, No. 14 CRS 238731, 15 CRS 25911

STATE OF NORTH CAROLINA, Plaintiff,

             v.

MARIO DONYE GULLETTE, Defendant.


      Appeal by defendant from judgment entered 25 January 2016 by Judge Hugh

B. Lewis in Mecklenburg County Superior Court. Heard in the Court of Appeals 8

February 2017.


      Attorney General Joshua H. Stein, by Assistant Attorney General Susannah P.
      Holloway, for the State.

      Jarvis John Edgerton, IV, for defendant-appellant.


      ZACHARY, Judge.


      Mario Donye Gullette (defendant) appeals from the judgment entered upon his

conviction of trafficking in heroin and having attained the status of a habitual felon.

On appeal, defendant argues that the trial court erred by denying his motion to

suppress “any in-court and out-of-court identifications conducted in violation of the

Eyewitness Identification Reform Act.” We have carefully reviewed the record and

the transcript of the proceedings in this case, and conclude that defendant did not

preserve this issue for appellate review. Accordingly, we do not reach the merits of

defendant’s argument. Given that this is the only basis upon which defendant has
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                                  Opinion of the Court



challenged his convictions, we conclude that defendant had a fair trial, free of

reversible error.

                          I. Factual and Procedural Background

      On 8 April 2014, Charlotte-Mecklenburg Police Officer Charlie Davis was

acting as an undercover detective who was assigned to make a purchase of heroin

from a suspected drug dealer. In the course of this investigation, Officer Davis met

with defendant, who sold the officer heroin for which Officer Davis paid $600. The

day after the undercover drug buy, another officer showed Officer Davis a photograph

of defendant and Officer Davis confirmed that the photograph depicted the person

from whom he had purchased the drugs. Officer Davis had not met defendant prior

to conducting the undercover purchase. However, during the sale, Officer Davis spent

several minutes in close proximity to defendant, and identified defendant in court as

the man who had sold him the heroin.

      On 13 October 2014, the Mecklenburg County Grand Jury indicted defendant

for trafficking in heroin by selling a quantity of heroin greater than four grams but

less than fourteen grams. On 27 July 2015, defendant was indicted for being a

habitual felon. On 15 December 2015, defendant filed a motion to suppress “both the

in-court and out-of-court identification” of defendant by Officer Davis, on the grounds

that when another officer showed Officer Davis a photograph of defendant, this

constituted “a ‘show up’ procedure seeking identification of the defendant” that was



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“unnecessarily suggestive” and that was conducted “in deliberate disregard of the

identification procedures required by the Eyewitness Identification Reform Act.”

      The charges against defendant came on for trial at the 18 January 2016

criminal session of Mecklenburg County Superior Court before the Honorable Hugh

B. Lewis, judge presiding. Immediately prior to trial, the trial court conducted a

hearing on defendant’s suppression motion. The court heard testimony from the law

enforcement officers involved in the investigation that resulted in defendant’s arrest.

The arguments of counsel focused on whether the provisions of the Eyewitness

Identification Reform Act, N.C. Gen. Stat. § 15A-284.52 (2015), applied to the facts of

this case. The State argued that under the version of N.C. Gen. Stat. § 15A-284.52 in

effect at the time that Officer Davis was shown a photograph of defendant, “a single

photo did not constitute a lineup and did not fall under the [Eyewitness Identification

Reform Act].” The prosecutor cited several cases from this Court in support of this

position. The prosecutor also argued that in a subsequent amendment to the

Eyewitness Identification Reform Act, under which the Act would arguably be

applicable to the situation in this case, the General Assembly explicitly stated that

the amended version of the statute was “effective December 1st of 2015 and applies to

anything after that date.”

      Defendant did not dispute the accuracy of the State’s characterization of the

history of the Eyewitness Identification Reform Act. Instead, defendant asserted that



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the State was asking the trial court to “use a technicality in the statute” and asserted

that he did not “believe the intent of the legislature was merely to give somebody who

was in court on November 30th, versus someone who was in court on December 1st,

different treatment.” Thus, defendant argued that for equitable reasons the trial

court should apply the current version of the statute to this case, despite the fact that

the show-up took place prior to the effective date of the amendment.

      After hearing the law enforcement officers’ testimony and the arguments of

counsel, the trial court ruled that it was denying defendant’s motion to suppress. The

court found that Officer Davis was an experienced law enforcement officer who had

been in defendant’s presence during the sale of heroin. Regarding the applicability

of the Eyewitness Identification Reform Act, the trial court stated that:

             [T]he Court concludes that the identification by Detective
             Davis on April 9 of 2014 was appropriate and followed the
             law that was enforced on that date. The Court also finds
             that the photo lineup act, as is presently enforced and came
             into force on December the 1st, 2015, was not in place or
             applicable law at the time of the identification by Detective
             Davis.

      During the trial, Officer Davis testified about his undercover purchase of

heroin from defendant and about the photograph of defendant that he was shown the

following day. Defendant did not object when Officer Davis identified defendant as

the person from whom he had bought heroin, or when the officer testified about the




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photograph of defendant he had been shown the following day. Nor did defendant

object when the State introduced the photograph into evidence.

      Following the presentation of evidence, the arguments of counsel, and the

instructions from the trial court, the jury returned a verdict finding defendant guilty

of trafficking in heroin. Thereafter, defendant entered a plea of guilty to having the

status of a habitual felon, and the trial court imposed a sentence of 88 to 118 months’

imprisonment. Defendant gave notice of appeal in open court.

                             II. Preservation of Alleged Error

      Defendant’s sole argument on appeal is that the trial court erred by denying

his motion to suppress Officer Davis’ identification of defendant as the person from

whom he made an undercover purchase of heroin. Defendant contends that the trial

court erred by ruling that the current version of N.C. Gen. Stat. § 15A-284.52 was not

applicable to the instant case. The State argues on appeal that “Defendant’s

argument on appeal should be barred” because defendant failed to preserve the issue

for review or to argue that it constituted plain error. We agree with the State and

conclude that defendant has failed to preserve this issue for our review.

      N.C. R. App. P. 10(a)(1) (2015) provides in relevant part that “to preserve an

issue for appellate review, a party must have presented to the trial court a timely

request, objection, or motion, stating the specific grounds for the ruling the party

desired the court to make” and that it “is also necessary for the complaining party to



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obtain a ruling upon the party’s request, objection, or motion.” “The law in this State

is now well settled that ‘a trial court’s evidentiary ruling on a pretrial motion [to

suppress] is not sufficient to preserve the issue of admissibility for appeal unless a

defendant renews the objection during trial.’ ” State v. Hargett, __ N.C. App. __, __,

772 S.E.2d 115, 119 (quoting State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821

(2007) (citations omitted; emphasis in original)), cert. denied, 368 N.C. 290, 776

S.E.2d 191 (2015). “[T]o preserve for appellate review a trial court’s decision to admit

testimony, objections to [that] testimony must be contemporaneous with the time

such testimony is offered into evidence and not made only during a hearing out of the

jury’s presence prior to the actual introduction of the testimony.” State v. Ray, 364

N.C. 272, 277, 697 S.E.2d 319, 322 (2010) (internal quotation omitted).

      Defendant acknowledges on appeal that he failed to object to the admission at

trial of Officer Davis’ testimony identifying defendant as the person who had sold

heroin to him, or to the evidence concerning the photograph that Officer Davis was

shown. Defendant argues, however, that the trial court’s alleged error “is preserved

for normal appellate review.” Defendant contends that “the error here is a failure by

the trial court to apply the statutory mandate expressed in N.C. Gen. Stat. § 15A-

284.52” and that “[v]iolations of statutory mandates are preserved for appellate

review without the need for an objection to the trial court.” In support of his position,




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defendant cites State v. Ashe, 314 N.C. 28, 331 S.E.2d 652 (1985). We conclude that

Ashe does not support defendant’s argument.

      In Ashe, our Supreme Court discussed N.C. Gen. Stat. § 15A-1233(a), which

provides in relevant part that “[i]f the jury after retiring for deliberation requests a

review of . . . evidence, the jurors must be conducted to the courtroom” and that the

trial court “in his discretion” could allow the jury to review the requested parts of the

trial testimony or to reexamine exhibits that had been admitted into evidence. Ashe,

314 N.C. at 33-34, 331 S.E.2d at 656. The Court held that this statute “imposes two

duties upon the trial court when it receives a request from the jury to review evidence.

First, the court must conduct all jurors to the courtroom. Second, the trial court must

exercise its discretion in determining whether to permit requested evidence to be read

to or examined by the jury[.]” Ashe at 34, 331 S.E.2d at 656. The trial court in Ashe

failed either to summon the jurors to the courtroom or to exercise its discretion. The

State argued that the defendant had waived review of the trial court’s error by failing

to object at trial. Our Supreme Court held that:

             As a general rule, defendant’s failure to object to alleged
             errors by the trial court operates to preclude raising the
             error on appeal. . . . [W]hen a trial court acts contrary to a
             statutory mandate and a defendant is prejudiced thereby,
             the right to appeal the court’s action is preserved,
             notwithstanding defendant’s failure to object at trial.

Ashe at 39, 331 S.E.2d at 659.




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      Defendant argues that, as in Ashe, the trial court “fail[ed] to apply [a] statutory

mandate[.]” However, defendant fails to identify the “statutory mandate” to which

he refers or any mandatory responsibility that the trial court neglected. In State v.

Hill, 235 N.C. App. 166, 170, 760 S.E.2d 85, 88, disc. review denied, 367 N.C. 793, 766

S.E.2d 637 (2014), the defendant argued that “holding a charge conference is a

statutory mandate,” and this Court stated that “ ‘ordinarily, the word ‘must’ and the

word ‘shall,’ in a statute, are deemed to indicate a legislative intent to make the

provision of the statute mandatory[.]’ ” (quoting State v. Inman, 174 N.C. App. 567,

570, 621 S.E.2d 306, 309 (2005)). With this in mind, we have carefully reviewed the

text of N.C. Gen. Stat. § 15A-284.52. We observe that N.C. Gen. Stat. § 15A-284.52(d)

provides in both the original and the amended versions of the statute that:

             (d) Remedies. -- All of the following shall be available as
             consequences of compliance or noncompliance with the
             requirements of this section:
             (1) Failure to comply with any of the requirements of this
             section shall be considered by the court in adjudicating
             motions to suppress eyewitness identification.
             (2) Failure to comply with any of the requirements of this
             section shall be admissible in support of claims of
             eyewitness misidentification, as long as such evidence is
             otherwise admissible.
             (3) When evidence of compliance or noncompliance with the
             requirements of this section has been presented at trial,
             the jury shall be instructed that it may consider credible
             evidence of compliance or noncompliance to determine the
             reliability of eyewitness identifications.




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                                  Opinion of the Court



      Given that this is the only part of the statute that refers to the trial court’s

responsibilities, we will assume that this section is the “statutory mandate” to which

defendant refers. N.C. Gen. Stat. § 15A-284.52(d) mandates that, upon a trial court’s

review of the State’s compliance or noncompliance with the statute: (1) the failure to

comply with Eyewitness Identification Reform Act “shall be considered” by the court

in adjudicating motions to suppress eyewitness identification; (2) evidence of the

failure to comply with the Eyewitness Identification Reform Act, if otherwise

admissible, “shall be admissible” to support claims of eyewitness misidentification;

and (3) if evidence of compliance or noncompliance is offered at trial, the jury “shall

be instructed” on the proper consideration of such evidence (emphasis added). These

remedies appear to be mandatory and if, for example, a trial court found that the

State had failed to comply with the Eyewitness Identification Reform Act in a given

case, but then stated that it would not consider this fact in its determination of a

defendant’s suppression motion, that would be a violation of a statutory mandate.

      However, the issue of a trial court’s compliance with this part of the statute

does not arise unless the court first reviews a party’s compliance or noncompliance

with the Eyewitness Identification Reform Act. In the present case, the trial court

ruled that the Eyewitness Identification Reform Act did not apply to the facts of this

case. The trial court did not consider evidence of compliance or noncompliance with

the statute, did not make any findings or conclusions on this issue, and was not asked



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to admit evidence or to instruct the jury concerning the Eyewitness Identification

Reform Act. Because the trial court ruled that, as a matter of law, the Eyewitness

Identification Reform Act did not apply to this case, it never conducted the type of

hearing on the Eyewitness Identification Reform Act that might have triggered the

court’s statutorily-mandated responsibilities arising from the statute. We conclude

that the trial court did not violate a “statutory mandate” because the mandates of the

statute arise only if a court determines that the Eyewitness Identification Reform Act

does apply to a case and conducts the appropriate inquiry on the issue.

      Defendant has not offered any other argument in support of his assertion that

the trial court’s alleged error was preserved for appellate review. We conclude that,

by failing to object to the challenged evidence at the time it was introduced in the

jury’s presence, defendant has failed to preserve this issue for review. “And since

defendant failed to specifically and distinctly allege plain error in his brief, he waived

his right to have this issue reviewed under that standard.” State v. Joyner, __ N.C.

App. __, __, 777 S.E.2d 332, 335 (2015) (citing N.C.R. App. P. 10(a)(4), and State v.

Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012)).

      We also note that defendant, who does not acknowledge his failure to preserve

the alleged error for appellate review, has not asked this Court to apply N.C. R. App.

P. 2 in order to reach the merits of his argument.

             Appellate Rule 2 relates to the residual power of our
             appellate courts to consider, in exceptional circumstances,


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                                    Opinion of the Court



             significant issues of importance in the public interest, or to
             prevent injustice which appears manifest to the Court and
             only in such instances. This Court’s discretionary exercise
             to invoke Appellate Rule 2 is intended to be limited to
             occasions in which a fundamental purpose of the appellate
             rules is at stake, which will necessarily be rare occasions.

State v. Biddix, __ N.C. App. __, __, 780 S.E.2d 863, 868 (2015) (internal quotations

omitted). Defendant has not requested that we invoke Rule 2, and we discern no

“exceptional circumstances” that would warrant its application.

      For the reasons discussed above, we conclude that defendant failed to preserve

for appellate review the issue of the trial court’s ruling on his suppression motion. As

this is the only basis upon which he has challenged his conviction, we conclude that

defendant had a fair trial, free of reversible error.

      NO ERROR.

      Judges ELMORE and DILLON concur.




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