              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1158

                                Filed: 2 October 2018

Mecklenburg County, No. 14 CRS 231999

STATE OF NORTH CAROLINA

             v.

JUHAROLD ZAEDWARD VANN


      Appeal by defendant from judgment entered 24 February 2017 by Judge

Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of

Appeals 6 September 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General David
      D. Lennon, for the State.

      Ward, Smith & Norris, P.A., by Kirby H. Smith, III, for defendant-appellant.


      TYSON, Judge.


      Juharold Zaedward Vann (“Defendant”) appeals from judgment entered,

following his jury’s conviction of assault with a deadly weapon with intent to kill

inflicting serious injury. We find no error.

                                I. Factual Background

      The State’s evidence tended to show on 11 August 2014, Mahmoud Albdoor

(“Albdoor”) was working at his convenience store, “Southside Mart,” with his nephew,

Jamil Swedat (“Swedat”). Shortly after 1:00 p.m., Defendant entered the Southside
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Mart and attempted to buy a cigar wrapper from Swedat, who stood at the cash

register. Defendant did not have enough money to purchase the product, and Swedat

refused to sell him the wrapper. Defendant became upset and began arguing with

Swedat. After a brief argument with Swedat, Defendant knocked over a Slim Jim

dehydrated jerky stick display on the counter, ran out of the store, and turned right

upon exiting.

      Albdoor testified he was also standing behind the counter, approximately five

to six feet away from Defendant, and observed his entire altercation with Swedat.

Albdoor identified Defendant as the person who had argued with Swedat on 11

August 2014. Defendant admitted to police officers he had engaged in a verbal

altercation with Swedat and had knocked over a Slim Jim counter display at the

Southside Mart.

      Approximately one hour later, a man entered the Southside Mart with an

orange shirt covering his face and fired four to five shots from a black handgun at

Swedat, with one bullet striking him in the right side. Albdoor testified after the

shooting stopped, he looked up from behind the counter and observed the side of the

shooter’s face as he fled from the store. Albdoor testified the shooter ran towards the

right upon exiting the Southside Mart, just as Defendant had done earlier that day.

Albdoor also identified Defendant as the shooter.




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      Swedat gave a written statement to Charlotte-Mecklenburg Police Officer

Quentin Blakeney on 11 August 2014 and identified Defendant as the individual who

had shot him earlier that day. A redacted version of this statement was read to the

jury. Because Defendant had gained weight, wore glasses, and “dressed nice” at trial,

Swedat initially did not recognize Defendant in court. Swedat identified Defendant

as the shooter on the second day of his testimony.

      Charlotte-Mecklenburg Police Officer Timothy Kiefer testified on 17 August

2014, he responded to a call for service at 3463 Markland Drive in Charlotte, which

was located approximately two hundred yards from the Southside Mart.             Upon

arrival, Officer Kiefer spoke with a resident of that address who had found a 9

millimeter handgun wrapped in a black and white striped Polo shirt and an orange

T-shirt behind his trash cans. At trial, Kelly Shea, a DNA analyst with the Charlotte-

Mecklenburg crime laboratory, testified that she was unable to obtain any useable

DNA from either the pistol or the shirts.

      Todd Nordhoff, a Charlotte-Mecklenburg crime laboratory firearm and

toolmark examiner, was admitted as an expert in firearms and toolmark

identification. Nordhoff testified the pistol recovered by Officer Kiefer was a Star

semi-automatic pistol chambered for 9 millimeter Luger ammunition.           Nordhoff

further testified the four discharged shell cases recovered at the scene had been fired

by that pistol.



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      Defendant testified at trial and admitted to arguing with Swedat and knocking

over the Slim Jim counter display at the Southside Mart. Defendant denied being

the gunman and testified that after the verbal altercation he went to his

grandfather’s house at 2921 Markland Drive, which was located approximately ten

minutes away from the Southside Mart. Defendant testified he asked his grandfather

for a ride to Lexington, North Carolina, where Defendant had a job the next day.

Fifteen minutes after arriving at his grandfather’s house, his grandfather took

Defendant to a Wendy’s restaurant located approximately ten minutes away and then

drove Defendant to Lexington.

      The State sought to introduce, over Defendant’s objections, portions of a

telephone conversation purportedly between Defendant and his grandmother

recorded from the Mecklenburg County Jail on 1 September 2014. The trial court

conferred with counsel and announced that it would sustain Defendant’s objections

to certain portions of the telephone conversation.

      A portion of the conversation allowed into evidence by the trial court included

Defendant’s grandmother questioning him over whether the police had really found

the gun or were merely just saying they had. Defendant argued to her the police

officers must have the gun, because the gun had been found with the orange shirt

and Polo shirt. Defendant added there was no way the police would have known the

shirts were with the gun, unless the police had actually found them.



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      Three days after the shooting, Defendant was arrested for assault with a

deadly weapon with intent to kill inflicting serious injury and was subsequently

indicted on the same charge on 2 September 2014. Defendant entered a plea of not

guilty. On 24 February 2017, the jury returned a verdict of guilty of one count of

assault with a deadly weapon with intent to kill inflicting serious injury. Defendant

was sentenced in the presumptive range to a minimum of 70 months and a maximum

of 96 months imprisonment, with 512 days of credit for pre-sentence confinement.

      Defendant gave notice of appeal in open court.

                                   II. Jurisdiction

      Jurisdiction of right lies in this Court by timely appeal from final judgment

entered by the superior court, following a jury’s verdict pursuant to N.C. Gen. Stat. §

7A-27(b)(1) (2017) and N.C. Gen. Stat. § 15A-1444(a) (2017).

                                      III. Issues

      Defendant asserts the trial court erred by (1) not requiring the State to file a

suppression motion regarding Dr. Lori R. Van Wallendael’s (“Dr. Van Wallendael”)

testimony; (2) partially sustaining the State’s objection to Dr. Van Wallendael’s

testimony regarding the factors affecting the reliability of eyewitness identification;

and, (3) excluding portions of Defendant’s 1 September 2014 telephone conversation.

                               IV. Suppression Motion




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      Defendant argues the trial court erred by failing to require the State to “file a

written pre-trial motion to suppress or motion in limine, pursuant to [N.C. Gen. Stat.

§ 15-977.]” Defendant did not raise this argument at trial and has failed to preserve

this argument for review on appeal.

                    Our Supreme Court has long held that where a
             theory argued on appeal was not raised before the trial
             court, the law does not permit parties to swap horses
             between courts in order to get a better mount in the
             appellate courts. . . . The defendant may not change his
             position from that taken at trial to obtain a steadier mount
             on appeal.

State v. Holliman, 155 N.C. App. 120, 123, 573 S.E.2d 682, 685 (2002) (quotations

omitted); see State v. Monk, 132 N.C. App. 248, 254, 511 S.E.2d 332, 336, disc. review

denied, 350 N.C. 845, 539 S.E.2d 1 (1999) (“In order to preserve a question 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 if the specific grounds were not apparent from the context.” (citation

omitted)). Defendant failed to raise this argument at trial and cannot assert this

argument for the first time on appeal. This assignment of error is dismissed.

                      V. Exclusion of Expert Witness Testimony

      Defendant argues the trial court erred by partially sustaining the State’s

objection to expert testimony by a UNC-Charlotte professor, Dr. Lori Van Wallendael,

regarding the factors affecting the reliability of eyewitness identification.



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                                 A. Standard of Review

      “This court has held that the admission of expert testimony regarding memory

factors is within the trial court’s discretion, and the appellate court will not intervene

where the trial court properly appraises probative and prejudicial value of the

evidence under Rule 403 of the Rules of Evidence.” State v. Cotton, 99 N.C. App. 615,

621, 394 S.E.2d 456, 459 (1990) (citing State v. Knox, 78 N.C. App. 493, 495-96, 337

S.E.2d 154, 156 (1985)).     The Court in Knox stated the following standard for

determining the admissibility of such testimony:

                    Expert testimony is properly admissible when it
             “can assist the jury to draw certain inferences from facts
             because the expert is better qualified.” The test for
             admissibility is whether the jury can receive “appreciable
             help” from the expert witness. Applying this test requires
             balancing the probative value of the testimony against its
             potential for prejudice, confusion, or undue delay. See N.C.
             Gen. Stat. 8C-1, Rule 403. Even relevant evidence may be
             excluded if its probative value is outweighed by the danger
             that it will confuse or mislead the jury. The court “is
             afforded wide latitude of discretion when making a
             determination about the admissibility of expert testimony.”

Knox, 78 N.C. App. at 495, 337 S.E.2d at 156 (citations omitted).

      This Court has also noted, “expert testimony on the credibility of a witness is

inadmissible[.]” State v. Davis, 106 N.C. App. 596, 602, 418 S.E.2d 263, 267 (1992)

(citations omitted). Our Supreme Court has held: “When the jury is in as good a

position as the expert to determine an issue, the expert’s testimony is properly




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excludable because it is not helpful to the jury.” Braswell v. Braswell, 330 N.C. 363,

377, 410 S.E.2d 897, 905 (1991) (citation omitted).

                                      B. Analysis

      Dr. Lori Van Wallendael was qualified and accepted by the court as an expert

witness in the field of memory perception and eyewitness identification. Defendant

sought to have Dr. Van Wallendael testify on his behalf concerning whether any

factors were present that could have affected Albdoor’s and Swedat’s identifications

of Defendant as the shooter. The State objected.

      The trial court conducted a voir dire hearing to determine whether to admit or

exclude Dr. Van Wallendael’s testimony. Dr. Van Wallendael identified four factors

in the present case which could have affected Albdoor’s and Swedat’s identifications

of Defendant: (1) the time factor, (2) the disguise factor, (3) the stress factor, and (4)

the weapon focus effect. See generally Hon. D. Duff McKee, Challenge to Eyewitness

Identification Through Expert Testimony, 35 Am. Jur. Proof of Facts 3d 1, § 10 (1996

& Supp. 2018) (describing psychological factors affecting eyewitness identification).

      Dr. Van Wallendael related that the time factor means the likelihood of an

accurate identification increases the longer in time a witness has to view the

perpetrator’s face. For the second factor, a disguise refers to anything covering the

face of the perpetrator, which decreases the chances of an accurate identification later

by the eyewitness. The stress factor states that stress, especially from violent crimes,



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can significantly reduce an eyewitness’s ability to remember accurately. Dr. Van

Wallendael testified that studies on the weapon focus factor have shown people

confronted with a weapon tend to concentrate their attention on the weapon itself,

and not the individual holding the weapon, which decreases the likelihood of an

accurate identification of the assailant or shooter later. Psychologists refer to this

phenomenon as the weapon focus effect. See id.

       After hearing arguments from both sides, the trial court sustained the State’s

objection to Dr. Van Wallendael’s opinion testimony concerning the time and disguise

factors. The trial court noted these two concepts “are such elementary, common sense

conclusions that it would be of little if any benefit to the jury to hear someone

purporting to be an expert to espouse those opinions.”

       The trial court, however, did allow Dr. Van Wallendael to testify on the stress

factor and weapon focus effect, noting expert testimony on these two concepts “could

be helpful to the jury.” In addition, the trial court strongly admonished the defense

and Dr. Van Wallendael not to express any opinion regarding the credibility or

reliability of a witness.

       Defendant has failed to show any abuse of discretion by the trial court in

partially sustaining the State’s objection. The trial court properly found the time and

disguise concepts were “common sense conclusions that . . . would be of little if any

benefit to the jury” and excluded expert testimony on these two factors. See Smith v.



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Pass, 95 N.C. App. 243, 251, 382 S.E.2d 781, 786 (1989) (“Rule 702 permits a witness

qualified as an expert to offer opinion testimony about his or her area of expertise if

the trier of fact determines such testimony would be helpful to the jury.” (emphasis

supplied)).

      The trial court correctly found expert testimony on these two factors would be

of little help to the jury and strongly admonished Dr. Van Wallendael not to express

any opinion concerning the credibility or reliability of a witness, to prevent her

testimony from invading the province of the jury. See State v. Scott, 323 N.C. 350,

353, 372 S.E.2d 572, 575 (1988) (“The credibility of the witnesses and the weight to

be given their testimony is exclusively a matter for the jury.” (citation omitted)).

      After the State objected, the trial court excused the jury, conducted a voir dire

examination of Dr. Van Wallendael to determine the substance of her testimony, and

heard and considered arguments of counsel before partially sustaining the State’s

objection. The trial court did allow Dr. Van Wallendael to testify to both the stress

factor and weapon focus effect, noting these two concepts “could be helpful to the

jury.” Defendant has not shown the trial court abused its discretion in partially

sustaining the State’s objection to Dr. Van Wallendael’s testimony.

      Although the trial court did not make a specific finding that the probative value

of this admitted testimony outweighed its prejudicial effect, the procedure it followed

demonstrates the trial court conducted its discretionary balancing test under Rule



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403 and its ruling was “the result of a reasoned decision.” State v. Riddick, 315 N.C.

749, 756, 340 S.E.2d 55, 59 (1986) (citation omitted) (“A trial court may be reversed

for abuse of discretion only upon a showing that its ruling was manifestly

unsupported by reason and could not have been the result of a reasoned decision.”).

We defer to the trial court’s exercise of discretion and its “reasoned decision.” Id.

Nothing in the trial court’s ruling prevented Defendant from probing the time and

disguise factors upon cross-examination of the State’s witnesses and to bring forth

and argue any asserted flaws and doubts in the victim’s identification of Defendant

as the perpetrator of the crime due to the length of time of the crime or the impact of

any disguise the shooter wore. Defendant’s argument is overruled.

                VI. Exclusion of Defendant’s Telephone Conversation

      Defendant argues the trial court erred by allowing the State to offer portions

of Defendant’s 1 September 2014 telephone call with his grandmother into evidence,

but refusing to allow Defendant to offer other portions from the same telephone call

into evidence. Defendant asserts the exclusion of portions of the telephone call

violated (1) the Rule of Completeness and (2) Defendant’s constitutional “right to fully

confront and cross-examine the witnesses against him.”

                               A. Rule of Completeness

      N.C. Gen. Stat. § 8C-1, Rule 106 (2017) codifies the common law Rule of

Completeness and states: “When a writing or recorded statement or part thereof is



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introduced by a party, an adverse party may require him at that time to introduce

any other part or any other writing or recorded statement which ought in fairness to

be considered contemporaneously with it.”

      Our Supreme Court reviewed and addressed Rule 106 in State v. Thompson

and noted North Carolina’s rule is identical to the Federal rule, which has been

interpreted and applied in many federal courts’ decisions. 332 N.C. 204, 219, 420

S.E.2d 395, 403 (1992).

      The Court in Thompson set out the following principles as our standard of

review:

                   The lessons of the federal decisions discussing Rule
            106 are well settled. Rule 106 codifies the standard
            common law rule that when a writing or recorded
            statement or a part thereof is introduced by any party, an
            adverse party can obtain admission of the entire statement
            or anything so closely related that in fairness it too should
            be admitted. The trial court decides what is closely related.
            The standard of review is whether the trial court abused its
            discretion. The purpose of the ‘completeness’ rule codified
            in Rule 106 is merely to ensure that a misleading
            impression created by taking matters out of context is
            corrected on the spot, because of the inadequacy of repair
            work when delayed to a point later in the trial.
                   Federal decisions also make [it] clear that Rule 106
            does not require introduction of additional portions of the
            statement or another statement that are neither
            explanatory of nor relevant to the passages that have been
            admitted.

Id. at 219-20, 420 S.E.2d at 403-04 (emphasis supplied) (citations and internal

quotation marks omitted).


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      The admitted portions of the telephone conversation between Defendant and

his grandmother tend to show Defendant possessed knowledge of the crime that only

the shooter would know. Defendant sought to introduce an additional portion of the

telephone conversation, in which Defendant’s grandmother said “you didn’t do it,”

and Defendant responded, “I know.”

      The State objected on grounds that the trial court had already ruled only the

portion of the telephone conversation previously agreed upon by both parties was

admissible, which did not include the above exchange. Defendant argued the door

had been opened by the admission of the agreed-upon limited portion of the

conversation to admit the proffered statements.

      The trial court sustained the State’s objection to the introduction of this portion

of the conversation and noted if it ruled the agreed-upon portion of the conversation

opened the door for any other part, that might be grounds for the State to demand

admission of other clearly inadmissible parts of the conversation.          Defendant’s

assertion that the trial court violated the Rule of Completeness and abused its

discretion in sustaining the State’s objection and excluding other portions of the 1

September 2014 telephone conversation is without merit.

      This portion of the conversation admitted before the jury dealt largely with

Defendant’s explanation to his grandmother of the evidence the State had amassed

against him. Defendant must demonstrate the statements concerning whether and



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how the police had actually found the gun were taken out of context when introduced

into evidence. Defendant’s exculpatory statement to his grandmother was “neither

explanatory of nor relevant to” his admitted statements regarding whether the police

found the gun. See id. Presuming Defendant’s conversation evinces knowledge of the

crime, Defendant did not admit to the crime during the conversation and his

response, “I know,” to his grandmother’s statement was not explanatory of or relevant

to his other discussion of the State’s recovery and possession of the gun.

      In excluding this portion of the telephone conversation, the trial court correctly

expressed concerns that admission of this not agreed-upon portion of the telephone

call could open the door to other portions of the conversation, which both parties had

previously agreed were inadmissible. Defendant has failed to show the trial court

abused its discretion when it sustained the State’s objection to this portion of the 1

September 2014 telephone conversation. Defendant’s arguments are overruled.

                           B. Confrontation Clause Claim

      Defendant contends it was reversible error for the trial court to exclude the

aforementioned portion of the 1 September 2014 telephone call because it violated his

constitutional right to fully confront and cross-examine the witnesses against him.

See U.S. Const. amend. VI; N.C. Const. art. I, § 23. Defendant has failed to preserve

this issue for appeal.

                                1. Standard of Review



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      Our Supreme Court has stated:

                    It is well established that a defendant may waive the
             benefit of statutory or constitutional provisions by express
             consent, failure to assert it in apt time, or by conduct
             inconsistent with a purpose to insist upon it. It follows that
             in order for an appellant to assert a constitutional or
             statutory right on appeal, the right must have been
             asserted and the issue raised before the trial court. In
             addition, it must affirmatively appear on the record that
             the issue was passed upon by the trial court.

State v. McDowell, 301 N.C. 279, 291, 271 S.E.2d 286, 294 (1980) (citations omitted).

                                      2. Analysis

      Defendant referenced the Confrontation Clause briefly in his objection to

authentication of the 1 September 2014 telephone conversation. The trial court and

parties conferred and the trial court partially sustained the Defendant’s objection.

After the trial court ruled that certain portions of the telephone conversation would

be inadmissible, Defendant’s counsel stated, “I’m fine with the other portion.”

Mecklenburg County Sheriff’s Office Sergeant Thomas Shields then testified to the

authenticity of the recorded phone conversation and the agreed-upon portions were

played before the jury.

      Later during cross-examination of Sergeant Shields, Defendant attempted to

question Sergeant Shields about the statement counsel had previously agreed, and

the court had ruled, to be inadmissible. The State objected. The trial court heard

arguments from both sides and sustained the State’s objection. During this exchange,



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defense counsel did not specifically assert Defendant’s rights under the Confrontation

Clause. Defendant’s failure to raise the Confrontation Clause here is a waiver of

these rights. See id.; see also Monk, 132 N.C. App. at 254, 511 S.E.2d at 336 (“‘In order

to preserve a question 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 if the specific grounds were not apparent from

the context.’” (citation omitted)). This argument is dismissed.

                                    VII. Conclusion

      Defendant failed to preserve for review procedural issues regarding the State’s

objection to Dr. Van Wallendael’s testimony.         The trial court did not abuse its

discretion by partially sustaining the State’s objection to Dr. Van Wallendael’s

testimony regarding the commonsense time and disguise factors presumably

affecting the reliability of eyewitness identification. Defendant was free to probe

these factors from the State’s witnesses and argue to the jury.

      The trial court also did not abuse its discretion by excluding portions of

Defendant’s 1 September 2014 jailhouse telephone conversation with his

grandmother, after review, agreement and consent of counsel. Defendant failed to

renew or preserve for review constitutional issues on the exclusion of the

aforementioned conversation. Defendant received a fair trial, free from prejudicial

errors he preserved and argued. It is so ordered.



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NO ERROR.

Judges INMAN and BERGER concur.




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