An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                 NO. COA14-247
                        NORTH CAROLINA COURT OF APPEALS

                             Filed:     20 January 2015


STATE OF NORTH CAROLINA


      v.                                      Mecklenburg County
                                              Nos. 10 CRS 253344-45; 253347-
                                              48
QUADARRIAN ANTONIO MORRISON



      Appeal by defendant from judgments entered 6 June 2013 by

Judge   Reuben    F.    Young    in   Mecklenburg     County    Superior     Court.

Heard in the Court of Appeals 27 August 2014.


      Attorney General Roy Cooper, by Assistant Attorney General
      Anne Goco Kirby, for the State.

      Office of the Public Defender, by Assistant Public Defender
      Julie Ramseur Lewis, for defendant-appellant.


      CALABRIA, Judge.


      Quadarrian       Antonio    Morrison     (“defendant”)       appeals     from

judgments     entered    upon    jury    verdicts    finding     him   guilty     of

assault with a deadly weapon with the intent to kill inflicting

serious injury (“AWDWIKISI”), robbery with a dangerous weapon
                                         -2-
(“RWDW”), attempted RWDW, and conspiracy to commit RWDW.                        We

find no error.

                                  I. Background

    On 4 November 2010, Darius McCrae (“McCrae”) and Timothy

Graham   (“Graham”)    arranged      a    drug   transaction    with     Graham’s

acquaintance    Shawn,   who      had    previously    purchased   drugs       from

Graham on other occasions.              Shawn wanted to buy $40 worth of

marijuana from Graham and agreed to meet McCrae and Graham at a

local Harris Teeter grocery store.               McCrae drove Graham to the

meeting location in his parents’ blue Chevrolet HHR (“the HHR”).

After arriving at the Harris Teeter, Shawn called Graham and

McCrae   and   told   them   to    meet    him   across   the   street    in    the

parking lot of a closed restaurant.

    At approximately 10:30 p.m., Graham and McCrae parked in

the lot across the street and waited for Shawn to arrive.                  A few

seconds later, the driver of a gold Honda parked about three

feet from McCrae and Graham’s vehicle.                Shawn exited the Honda

and got into McCrae’s vehicle.             Shawn claimed that he wanted to

show the marijuana to his friend, later identified as defendant,

who had remained in the Honda.            Subsequently, Shawn motioned for

defendant to come over to the HHR.               Defendant entered the HHR’s

backseat and sat diagonally across from Graham.                  Defendant and
                                       -3-
Shawn sat in the backseat of the HHR for approximately ten to

fifteen minutes and acted as if they intended to purchase the

marijuana.        During that time, Graham turned around to look at

defendant two or three times.             Defendant and Shawn then both

pulled out black automatic handguns and pointed them at McCrae

and Graham.       After sitting in silence for two or three minutes,

Graham and McCrae jumped from the HHR and began to run.                 Several

shots were fired, one of which hit Graham in the back.                  Graham

collapsed and was transported to the hospital to be treated for

his injuries.        Defendant and Shawn fled in the HHR.

      At approximately 11:55 p.m., Officer Jason Kerl (“Officer

Kerl”) of the Charlotte-Mecklenburg Police Department (“CMPD”)

heard a “be on the lookout” broadcast on his police radio for a

blue Chevrolet HHR that had been involved in an armed robbery.

Within minutes of hearing the alert, Officer Kerl noticed the

HHR   at   a   gas    station,   surrounded   by    several    males.     After

confirming that the vehicle’s license plate number matched the

stolen     HHR,    Officer   Kerl    called   for   additional    assistance.

Officer Kerl noticed one            of the individuals        carried a black

backpack, and he observed the individual with the backpack enter

the convenience store.
                                        -4-
      CMPD Lieutenant Andrew Harris (“Lt. Harris”), who responded

to Officer Kerl’s request for assistance, also witnessed the man

with the backpack, who he later identified as defendant, enter

the store. Defendant paused near the back corner of the store,

and   then    moved   towards     the      middle    of   the   store,    where    he

appeared to bend down as if to retrieve or place something onto

a shelf.      After securing three individuals outside of the store,

Lt. Harris sent another CMPD officer inside the store to detain

defendant.     Officer Kerl also went into the store and discovered

a black backpack containing two handguns and a set of Honda keys

in the same locations that Lt. Harris had observed defendant

stop and pause.         Upon searching the rest of the store, Officer

Kerl found keys to the HHR and a small bag of marijuana on one

of the store shelves.

      McCrae was brought to the gas station and a showup was

conducted with the four individuals who had been detained there.

After   the    showup    concluded,        only     defendant   was     taken   into

custody.       Defendant    was     subsequently      charged    with    AWDWIKISI,

RWDW, attempted RWDW, and conspiracy to commit RWDW.

      On 8 November 2010, CMPD Officer Ryan Whetzel (“Officer

Whetzel”)      visited     Graham     at    the     hospital,     where    he     was

recovering from his gunshot wound.                Officer Whetzel intended to
                                       -5-
interview Graham and show him a photographic lineup to see if he

could identify a suspect.              However,      Graham never viewed the

lineup because he immediately informed Officer Whetzel that he

had seen defendant’s picture on a local news broadcast, and he

identified defendant as the person who had robbed and shot him.

      Prior   to   trial,       defendant    filed    a    motion    to   suppress

Graham’s in-court testimony identifying defendant as the man who

robbed him on the basis that Graham’s identification would be

inherently incredible and that it was tainted by an improper

pretrial identification.          After a voir dire hearing, the trial

court    concluded       that     Graham      had     made      an   independent

identification of defendant prior to viewing defendant’s photo

on the news broadcast and denied defendant’s motion to suppress.

      Beginning 3 June 2013, defendant was tried by a jury in

Mecklenburg County Superior Court.                On 6 June 2013, the jury

returned verdicts finding defendant guilty of all charges.                      The

trial court sentenced defendant to a minimum of 83 months to a

maximum of 109 months for the AWDWIKISI conviction, a minimum of

73 months to a maximum of 97 months for the RWDW conviction, and

a   minimum   of   73   months    to   a    maximum   of   97   months    for   the

attempted RWDW and conspiracy convictions.                   The sentences were
                                       -6-
to be served consecutively in the North Carolina Division of

Adult Correction.     Defendant appeals.

                     II.    In-Court Identification

    Defendant argues that the trial court erred by denying his

motion    to    suppress      Graham’s       in-court      identification     of

defendant.     We disagree.

    Initially, we note that the trial court did not enter a

written order denying defendant’s motion to suppress, but merely

rendered an oral decision in open court.                However, this Court

has permitted this procedure so long as “(1) the trial court

provides its rationale from the bench, and (2) there are no

material conflicts in the evidence at the suppression hearing.”

State v. Williams, 195 N.C. App. 554, 555, 673 S.E.2d 394, 395

(2009).    Defendant does not dispute that the trial court met

both of these criteria.             Instead, defendant contends that the

trial court’s conclusion of law that Graham’s identification was

not inherently incredible was not supported by the undisputed

evidence presented at the suppression hearing.               Defendant relies

upon State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), in

support of this argument.

    In    Miller,    the      defendant      was   identified     by   a    sole

eyewitness     who   only     had     the    opportunity     to   observe    the
                                     -7-
perpetrator running at night at a distance of 286 feet away. Id.

at 732, 154 S.E.2d at 905.           Our Supreme Court explained that,

even though the question of whether a witness’s identification

of a defendant as the perpetrator of a crime has any probative

value is generally one for the jury, that general rule does not

apply “where the only evidence identifying the defendant as the

perpetrator of the offense is inherently incredible because of

undisputed facts, clearly established by the State’s evidence,

as   to    the    physical     conditions     under        which   the        alleged

observation occurred.” Id. at 731, 154 S.E.2d at 905. However,

the Court further explained that “[w]here there is a reasonable

possibility      of   observation    sufficient       to    permit    subsequent

identification, the credibility of the witness’ identification

of the defendant is for the jury . . . .” Id. at 732, 154 S.E.2d

at 906.

     In    the    instant    case,   Graham    testified       that      he    first

observed    defendant       from   three    feet   away       because     of     the

visibility from the interior light in the gold Honda that was

turned on while Shawn exited the vehicle.              Graham also testified

that he observed defendant two or three additional times as he

sat diagonally from defendant in the HHR.              Defendant sat in the

car with Graham for approximately ten to fifteen minutes, and
                                            -8-
the interior light of the car remained on during that time so

that    the     men    could        see    in    order   to     complete   the     drug

transaction.          Given defendant’s close proximity to Graham and

the    amount   of     time    he    had    to    observe     defendant,   there   was

sufficient evidence to support the trial court’s conclusion that

Graham had a reasonable opportunity to identify his attacker,

such that the reliability of the identification was a question

for the jury.           Consequently, the trial court properly denied

defendant’s motion to suppress.                  This argument is overruled.

                                III.       Due Process

       Defendant argues that the trial court committed plain error

by permitting evidence that Graham identified defendant as the

perpetrator after witnessing defendant’s photograph on a local

news broadcast.        We disagree.

       As an initial matter, we note that defendant did not object

to evidence of Graham’s out-of-court identification at trial.

Consequently, we review this issue for plain error.

              For error to constitute plain error, a
              defendant    must    demonstrate    that     a
              fundamental error occurred at trial. To show
              that an error was fundamental, a defendant
              must    establish    prejudice—that,     after
              examination of the entire record, the error
              had a probable impact on the jury's finding
              that the defendant was guilty. Moreover,
              because plain error is to be applied
              cautiously and only in the exceptional case,
                                                -9-
            the error will often be one that seriously
            affect[s] the fairness, integrity or public
            reputation of judicial proceedings[.]

State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012)

(internal quotations and citations omitted).

       “Identification 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).              However,          “‘suggestive           pretrial

identification procedures that do not result from state action

do   not   violate      defendant’s             due       process      rights.’      [State     v.]

Fisher,    321   N.C.       [19,]        24,    361       S.E.2d       [551,]    554    [(1987)].

Furthermore,     our       Courts        have    consistently            held    that     evidence

obtained    by    the      actions        of    private          citizens       with     no   State

involvement      do        not     implicate          a        defendant’s       constitutional

rights.” State v. Jones, 216 N.C. App. 225, 234-35, 715 S.E.2d

896, 903 (2011).

       In State v. Williams, the defendant argued that the trial

court erred by allowing evidence of a “showup” which occurred

when   a   friend     called        a    witness          so    that    she     could    view   the

defendant being arrested.                  201 N.C. App. 103, 107, 685 S.E.2d
                                               -10-
534,       538   (2009).        The   defendant       contended          “that    the    use   of

improper identification procedures violate[d] his rights under

the United States and North Carolina Constitution[s].”                                   Id. at

108,       685   S.E.2d    at    538.       However,        the    witness       specifically

testified that no one from the police department had informed

her about the arrest.                 Id. at 107, 685 S.E.2d at 538.                        This

Court held that since the witness’s friend “was not acting as an

agent of the government and instead was acting as a private

citizen,”         the      “showup”         did       not     implicate           defendant’s

constitutional rights. Id. at 108, 685 S.E.2d at 538.

       In the instant case, defendant contends that the display of

his mugshot on a local television station essentially amounted

to     a     “‘media’       showup”        which      rendered       Graham’s           pretrial

identification unreliable.                 However, as in Williams, there is no

dispute that the television station’s posting of the mugshot was

not the result of any state action.                         Consequently, the display

of   defendant’s        mugshot       by   a    private      actor       did     not    “violate

defendant’s due process rights.”                      Jones, 216 N.C. App. at 234,

715 S.E.2d at 903.           This argument is overruled.

       Defendant           additionally           argues          that      the         pretrial

identification             tainted          Graham’s              subsequent            in-court

identification          such     that      it     should     have        been     suppressed.
                                     -11-
However, since we have already determined that Graham had a

sufficient     opportunity   to     identify    defendant      and   that   the

viewing of defendant’s mugshot on the news broadcast did not

implicate    defendant’s     due      process    rights,       the     in-court

identification was properly admitted.           See    State v. Lawson, 159

N.C. App. 534, 539, 583 S.E.2d 354, 358 (2003).

                              IV.     Hearsay

     Defendant argues that the trial court committed plain error

by   allowing    evidence    that    implied    that    McCrae       identified

defendant during a showup conducted shortly after the robbery.

Specifically, defendant contends that the testimony regarding

the identification was inadmissible hearsay.            We disagree.

     Hearsay    is   “a   statement,    other    than    one    made   by   the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” N.C. Gen.

Stat. § 8C-1, Rule 801 (2013).          A “statement” is a written or

oral assertion or nonverbal conduct of a person intended by the

declarant as an assertion. N.C. Gen. Stat. § 8C-1, Rule 801(a).

     In the instant case, Lt. Harris testified that he brought

one of the victims to the gas station to conduct a showup with

the four men who had been detained. Lt. Harris further testified

that “the person [he] brought to the scene ID[ed]” one of the
                                         -12-
four as a perpetrator.           At the conclusion of the showup, only

defendant was arrested.          Officer Whetzel also testified that he

took McCrae to the gas station and defendant was subsequently

arrested.    Defendant       contends    that       the    only       logical    inference

that could be drawn from this testimony was that McCrae stated

that defendant was the perpetrator of the robbery, a statement

which    would     constitute    inadmissible         hearsay.         Defendant       notes

that    during     closing    arguments,      the    State      specifically        argued

that McCrae identified defendant based upon this testimony.

       However,     defendant     only       objected      to     a    portion    of    the

challenged testimony at trial.               As a result, defendant failed to

preserve this issue for appellate review.                         See State v. Hunt,

325 N.C. 187, 196, 381 S.E.2d 453, 459                     (1989) (When “evidence

is admitted over objection, but the same or similar evidence has

been previously admitted or is later admitted without objection,

the benefit of the objection is lost.”).                          Consequently, even

assuming,        arguendo,      that     the        officers’           testimony       was

inadmissible hearsay, defendant is only entitled to relief if he

can demonstrate plain error.

       We   have    already     held    that    Graham’s          identifications        of

defendant,       both   in   court     and    out     of    court,       were    properly

admitted.     In addition,       defendant’s DNA was determined to be a
                                         -13-
match to the partial DNA profile recovered from the gun that was

used to shoot Graham, and officers witnessed defendant with a

backpack that was later found to contain the handgun and the

keys to the Honda.          Officers also recovered the keys to the HHR

and marijuana in the other areas of the store where defendant

had recently been.         In light of this evidence, it cannot be said

that the testimony implying McCrae’s identification of defendant

“had a probable impact on the jury’s finding that the defendant

was   guilty.”    Lawrence,       365    N.C.   at   518,    723     S.E.2d    at    334

(internal quotations and citation omitted).                  Thus, defendant has

failed    to   meet   his    burden     to   establish      plain     error.        This

argument is overruled.

                                  V.    Conclusion

      The evidence at the suppression hearing was sufficient to

support    the    trial      court’s      conclusion        that     Graham    had    a

reasonable opportunity to identify defendant.                      The broadcast of

defendant’s      mugshot     by   a     local   television         station    did    not

implicate defendant’s constitutional rights.                       Defendant failed

to establish that alleged hearsay evidence regarding McCrae’s

identification of defendant constituted plain error.                         Defendant

received a fair trial, free from prejudicial error.

      No error.
                         -14-
Judges ELMORE and STEPHENS concur.

Report per Rule 30(e).
