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      {
        "text": "WALKER, Judge.\nDefendant appeals his conviction for first degree murder under the felony murder rule. The State\u2019s evidence presented at trial tends to show the following: On the evening of 22 May 1998, Tonya Luther (Luther), Alesia Clapp (Clapp), and Tina Clapp were visiting with Calvin Jenkins (Jenkins) in his Greensboro apartment. At approximately 9:10 p.m., Luther decided to leave and check on her nearby apartment. As she was walking out, there was a knock at the front door. Jenkins opened the door and two black males entered. One was noticeably shorter than the other. Luther said \u201cHi\u201d to the men as she walked out. The men then spoke briefly with Jenkins and left.\nA short time later, Luther returned to Jenkins\u2019 apartment and saw the same two men standing in the parking lot. After about ten minutes, there was another knock at the front door. Jenkins again answered and the two men entered. The three women were talking in the kitchen near the apartment\u2019s entrance. Luther and Clapp heard one of the men say \u201cGive me some money\u201d and observed Jenkins raise his hands. They next heard a gun shot and saw Jenkins fall to the floor. The shorter of the two men approached the women and asked, \u201cWhere\u2019s the money at?\u201d The taller man began to search the kitchen. After he found \u201cthree or four bags of marijuana,\u201d the two men left.\nWhen the police arrived at the apartment, Luther and Clapp provided them with a description of the two men. Four days later, Luther and Clapp went to the Greensboro Police Department where they gave further descriptions. The police then entered a composite description of each man into a computerized photographic database known as the \u201cSpillman system.\u201d This system matched the descriptions to photographs maintained in a computer database. It then displayed approximately nineteen photographs at one time on a seventeen-inch computer screen. At this time, Luther and Clapp viewed more than one thousand photographs but did not see one which depicted either of the two men.\nThe next day, Luther returned to the police department and continued viewing photograph displays. After some time, she selected a photograph which she identified as depicting the shorter of the two men. She continued to view several displays but did not see a photograph of the second man. Later that evening, a Greensboro detective went to Clapp\u2019s place of work and showed her the display from which Luther had made her identification. Clapp selected the same photograph as Luther. Defendant was the individual shown in the photograph.\nAt trial, both Luther and Clapp identified defendant as being the shorter man in Jenkins\u2019 apartment on the evening of 22 May 1998. Forensic evidence also showed that Jenkins died of a single gunshot wound to the chest. From the apartment, crime scene technicians recovered 175.9 grams of marijuana, a scale which is similar to those used in weighing marijuana, approximately one thousand dollars in cash, and several boxes of pistol cartridges.\nDefendant presented evidence which tended to show that he had been in Dayton, Ohio, for three to four months prior to June 1998. A recording engineer also testified that he billed defendant for the use of a studio in Dayton for the same date that Jenkins was killed.\nWith his first assignment of error, defendant contends the trial court erred by permitting the State to ask leading questions of its witnesses and to argue facts during closing argument which were not in evidence.\nOur appellate courts have consistently held that control over the course and conduct of a trial is the responsibility of the trial court and will not be disturbed absent an abuse of discretion. State v. Covington, 290 N.C. 313, 334-35, 226 S.E.2d 629, 644 (1976); State v. Davis, 77 N.C. App. 68, 74, 334 S.E.2d 509, 513 (1985); State v. Dickens, 346 N.C. 26, 44, 484 S.E.2d 553, 563 (1997)(\u201c[r]ulings concerning the admissibility of leading questions are in the sound discretion of the trial court and should not be disturbed absent an abuse of that discretion\u201d); State v. Johnson, 298 N.C. 355, 368, 259 S.E.2d 752, 761 (1979)(\u201ccontrol of the arguments of counsel must be left largely to the discretion of the trial judge\u201d). An abuse of discretion occurs only where the trial court\u2019s ruling is \u201cso arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Hayes, 314 N.C. 460, 471, 334 S.E.2d 741, 747 (1985). Even in situations where the trial court does err, a defendant is not entitled to a new trial unless such error is material and prejudicial. State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983).\nDefendant first asserts that he is entitled to a new trial by arguing that the trial court abused its discretion in allowing the State to ask leading questions of its witnesses. Specifically, defendant identifies thirteen questions asked of six different witnesses which he contends were leading.\nAfter carefully reviewing each of these questions, we agree with the trial court\u2019s conclusion that they were either not leading questions or were permissible to develop a witness\u2019 testimony. State v. Smith, 135 N.C. App. 649, 655, 522 S.E.2d 321, 326 (1999), disc. review denied, 351 N.C. 367, 543 S.E.2d 143 (2000). Defendant has also failed to demonstrate how the trial court\u2019s allowing these questions resulted in prejudicial error. Dickens, 346 N.C. at 44, 484 S.E.2d at 563.\nDefendant next asserts that he is entitled to a new trial based on the State\u2019s presenting to the jury facts which were not in evidence.\nDuring his closing argument, defendant argued that Jenkins\u2019 death was a \u201cdrug-related killing.\u201d He maintained that Jenkins was a drug dealer, that people were constantly in and out of his apartment, and that he was likely killed by a disgruntled client. Defendant also argued that he could not possibly have killed Jenkins because he was in Dayton, Ohio, on the day of the shooting.\nIn its argument and in response to these assertions, the State recounted for the jury the testimony of witnesses who stated that defendant smoked marijuana, was frequently seen coming and going from Jenkins\u2019 apartment, and maintained a high life style without any known job or visible source of income. The State also noted there was testimony that defendant\u2019s father had flown into town every couple of weeks and stayed in the exact same motel. After outlining this testimony, the State asked a number of rhetorical questions to which defendant made two objections: \u201c[E]ver wonder what his [father\u2019s] business might be? . . . Might common sense tell you that he might be a Jamaican drug dealer? ... Might you infer that his son is involved in his father\u2019s business? ... I mean, remember the demand? \u2018Where\u2019s the money at?\u2019 You think that might sound Jamaican?\u201d The State concluded by suggesting to the jury that it might infer from the evidence that defendant was selling drugs to Jenkins and that Jenkins\u2019 killing had \u201call the earmarks of a drug killing.\u201d\nDefendant contends the trial court erred by failing to sustain his objections to this portion of the State\u2019s argument. However, after considering the State\u2019s comments within the context in which they were made, we conclude the trial court did not abuse its discretion in failing to sustain defendant\u2019s objections. See State v. Rouse, 339 N.C. 59, 91, 451 S.E.2d 543, 560, cert. denied, 516 U.S. 832, 133 L. Ed. 2d 60 (1994) (\u201cProsecutorial statements are not placed in an isolated vacuum on appeal. Fair consideration must be given to the context in which the remarks were made and to the overall factual circumstances to which they refer\u201d). The State specifically outlined the evidence which formed the basis of the inferences it argued. Moreover, defendant invited this line of discussion by offering an alibi and first suggesting to the jury in his own closing argument that Jenkins\u2019 \u201cdrug-related killing\u201d could have been committed by a \u201cdisgruntled client.\u201d See State v. Larrimore, 340 N.C. 119, 165, 456 S.E.2d 789, 814 (1995) (noting prosecutor is allowed to respond to arguments made by defense counsel).\nFurther, even assuming arguendo that these statements were improper, their impropriety was not so extreme as to prejudice the jury in its deliberations. State v. Ingle, 336 N.C. 617, 650-51, 445 S.E.2d 880, 898 (1994), cert. denied, 514 U.S. 1020, 131 L. Ed. 2d 222 (1995) (holding a defendant is not entitled to a new trial because of an improper prosecutorial comment, properly objected to, unless the comment amounted to prejudicial error). This assignment of error is overruled.\nIn his second assignment of error, defendant asserts the trial court erred by not allowing the testimony of his expert witness. During his presentation of evidence, defendant sought to offer the testimony of Dr. Reed Hunt, a professor of psychology at the University of North Carolina at Greensboro. During voir dire, Dr. Hunt testified that he was not a licensed or clinical psychologist. He further testified that he had attempted to testify in State court on three previous occasions but had been permitted to testify only once. On that occasion, the circumstances did not involve a photographic lineup but rather an in-court identification. Dr. Hunt stated there are several factors which affect an eyewitness identification and that witnesses often state they are sure of their identification when, in fact, they are wrong. He added that when the crime involves a weapon, the accuracy of the identification is \u201cconsiderably lower.\u201d The trial court denied defendant\u2019s motion to admit Dr. Hunt\u2019s testimony finding that: (1) he was in no better position than the jury to determine the weight to be given to the identifications of Luther and Clapp; (2) his testimony would not provide any appreciable assistance to the jury in evaluating the identifications; and (3) his testimony, even if probative, was outweighed by the risk it carried of confusing the jury.\nOur Supreme Court has held, \u201cIt is undisputed that expert testimony is properly admissible when such testimony can assist the jury to draw certain inferences from facts because the expert is better qualified.\u201d State v. Locklear, 349 N.C. 118, 147, 505 S.E.2d 277, 294 (1998), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999) (quoting State v. Bullard, 312 N.C. 129, 139, 322 S.E.2d 370, 376 (1984)); N.C. Gen. Stat. \u00a7 8C-1, Rule 702(a) (1999). This Court has previously addressed the issue of the admissibility of expert testimony on eyewitness identifications and has held that \u201cthe admission of expert testimony regarding memory factors is within the trial court\u2019s discretion, and the appellate court will not intervene where the trial court properly appraises probative and prejudicial value of the evidence under Rule 403 and the Rules of Evidence.\u201d State v. Cotton, 99 N.C. App. 615, 621, 394 S.E.2d 456, 459 (1990), affirmed, 329 N.C. 764, 407 S.E.2d 514 (1991) (citing State v. Knox, 78 N.C. App. 493, 495-96, 337 S.E.2d 154, 156 (1985)). Our review of the trial court\u2019s findings reveals that it considered Dr. Hunt\u2019s testimony and found that any probative value was outweighed by the risk of confusing the jury. We conclude the trial court did not abuse its discretion in not allowing Dr. Hunt\u2019s proffered testimony.\nWith his third assignment of error, defendant contends the trial court erred in its instructions to the jury as to the meaning it should give to \u201creasonable doubt.\u201d During its closing argument, the State quoted language from our Supreme Court\u2019s decisions in State v. Adams, 335 N.C. 401, 439 S.E.2d 760 (1994) and State v. Bishop, 346 N.C. 365, 488 S.E.2d 769 (1997), which offered explanations as to how a jury was to interpret \u201creasonable doubt.\u201d Here, following closing arguments, the trial court, in its instructions to the jury, defined reasonable doubt using the North Carolina Pattern Jury Instruction (Criminal) 101.10. During its deliberations, the jury requested a copy of the language to which the State had referred in its closing argument. Over defendant\u2019s objection, the trial court provided the jury with a copy of the language used in both Adams and Bishop. After further deliberations, the jury asked the trial court to reconcile the language from Adams \u201cnor is it proof beyond a shadow of a doubt nor proof beyond all doubts. . . 335 N.C. at 420, 439 S.E.2d at 770, with the language from Bishop \u201cfully satisfies or entirely convinces you. . . .\u201d 346 N.C. at 399, 488 S.E.2d at 787. The trial court responded by reading the pertinent language from both Adams and Bishop and instructing the jury that it was to interpret each within its own context.\nDefendant maintains that the jury apparently believed that the language of Adams and Bishop could not be reconciled, therefore demonstrating a reasonable likelihood that it applied a standard of proof less than \u201cbeyond a reasonable doubt.\u201d However, there is nothing in the record to indicate that the jury was confused about the standard of proof after the trial court\u2019s further instructions. Both Adams and Bishop accurately define \u201cproof beyond a reasonable doubt.\u201d Thus, we conclude the trial court committed no error in its instructions to the jury on the definition of reasonable doubt.\nIn his fourth assignment of error, defendant argues the trial court erred in allowing the State to ask Clapp questions which defendant maintains were beyond her personal knowledge.\nDefendant identifies three specific questions which were asked of Clapp concerning the certainty of her pre-trial and in-court identifications. The first question occurred after Clapp had described her opportunity to view the defendant on the evening of 22 May 1998:\nQ: . . . what kind of look were you able to get at the person\u2019s facial features during that.. . approximate three minute period?\nA: A glance.\nQ: Do you feel personally that you got a good look at the person should you see them [sic] again?\nThe trial court overruled defendant\u2019s objection.\nA: Yes.\nThe second question occurred following Clapp\u2019s testimony concerning her identification of defendant from the photograph display:\nQ: At the time you picked out the photograph, Ms. Clapp, how certain or how sure were you that the person you picked out. . . was what you\u2019re describing as [the defendant]?\nA: Pretty sure.\nQ: All right. If you had to put pretty sure in some kind of a percent \u2014 could you do that?\nThe trial court overruled defendant\u2019s objection.\nQ: So we know what you mean by pretty sure. I mean are we talking\u2014\nA: Sure.\nQ: \u201470 percent, 90 percent, 95 percent? What are we talking?\nA: 95 percent.\nThe final question occurred after defendant cross-examined Clapp concerning her in-court identification:\nQ: Now, what is your degree of certainty when you pointed to the defendant seated over there at the table ... as to him being . . . the person you saw [the evening of 22 May 1998]?\nA: Pretty sure.\nQ: Is that equal to more than sure?\nThe trial court overruled defendant\u2019s objection.\nA: Yes.\nDefendant asserts that the trial court should have sustained his objections and prevented Clapp from providing answers and percentages with respect to her degree of certainty for the reason that such a precise calculation was beyond her personal knowledge.\nUnder our rules of evidence, a witness \u201cmay not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 602 (1999). The purpose of Rule 602 is to prevent a witness from testifying to a fact of which he has no direct personal knowledge. See N.C. Gen. Stat. \u00a7 8C-1, Rule 602 (Commentary) (1999). \u201c[Pjersonal knowledge is not an absolute but may consist of what the witness thinks he knows from personal perception.\u201d Id. Here, each of the State\u2019s questions were designed to ascertain from Clapp the degree of certainty she attached to the words \u201csure\u201d and \u201cpretty sure\u201d in relation to what she observed about defendant in Jenkins\u2019 apartment on the evening of 22 May 1998. Such information was within her personal knowledge. Therefore, we overrule defendant\u2019s assignment of error.\nFinally, defendant contends the trial court erred in- admitting Clapp\u2019s pre-trial and in-court identifications of defendant, arguing that each was \u201cimpermissibly suggestive.\u201d\nWith regard to a pre-trial identification, such evidence must be excluded where the \u201cfacts reveal a pretrial identification procedure [which is] so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.\u201d State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983). Accordingly, in the context of a photograph display, a positive identification must be suppressed where the display is both: \u201c(1) impermissibly suggestive, and (2) so suggestive that irreparable misidentification is likely.\u201d State v. Roberts, 135 N.C. App. 690, 693, 522 S.E.2d 130, 132 (1999) (citing State v. Pigott, 320 N.C. 96, 99, 357 S.E.2d 631, 633 (1987)).\nDefendant argues that the photograph display from which Clapp identified defendant was impermissibly suggestive in that \u201c[t]here is no evidence that any of the other photos even came close to matching the original description\u201d which Clapp gave to police. The evidence shows that the display contained nineteen thumbnail-sized photographs. These photographs were generated from a computerized system which matched photographs similar to the descriptions Clapp and Luther provided to police. The evidence also shows that the detective did not make any comments or suggestions to Clapp when he showed her the display but merely asked her if anyone looked like one of the perpetrators. See generally State v. Goodson, 101 N.C. App. 665, 670-71, 401 S.E.2d 118, 122 (1991). Therefore, the trial court properly concluded that Clapp\u2019s pre-trial identification was not impermis-sibly suggestive and we find no error with its admission.\nDefendant also argues that the trial court should not have permitted Clapp to make an in-court identification because it was tainted by the impermissibly suggestive pre-trial identification. However, having found no merit to defendant\u2019s claim concerning Clapp\u2019s pretrial identification, we likewise conclude that the trial court did not err in permitting her to make an in-court identification. See Roberts, 135 N.C. App. at 694-95, 522 S.E.2d at 133 (where pre-trial identification is not impermissibly suggestive, a subsequent in-court identification cannot be considered \u201cfruit of the poisonous tree\u201d).\nIn sum, we find defendant received a trial free of prejudicial error.\nNo error.\nJudges MARTIN and TYSON concur.",
        "type": "majority",
        "author": "WALKER, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy Cooper, by Assistant Attorney General Bur\u00e9n R. Shields, III, for the State.",
      "Leonard Law Firm, by Robert K. Leonard, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. BENJAMIN ALEXANDER COLE\nNo. COA00-1311\n(Filed 18 December 2001)\n1. Witnesses\u2014 leading questions \u2014 no abuse of discretion\nThe trial court did not improperly permit the State to ask leading questions in a first-degree murder prosecution where the questions at issue were not leading or were permissible to develop a witness\u2019s testimony.\n2. Criminal Law\u2014 prosecutor\u2019s argument \u2014 defendant as drug dealer \u2014 factual basis\nThe trial court did not abuse its discretion in a first-degree murder prosecution by denying defendant\u2019s objections to portions of the State\u2019s closing argument as not being based on facts in evidence. The State specifically outlined the evidence which formed the basis of the inference that defendant was a drug dealer and defendant invited the issue by offering an alibi and suggesting that the victim\u2019s \u201cdrug-related killing\u201d could have been committed by a \u201cdisgruntled client.\u201d Moreover, the impropriety of the statements was not so extreme as to prejudice the jury.\n3. Identification of Defendants\u2014 eyewitness testimony\u2014 expert witness rejected\nThe trial court did not err in a first-degree murder prosecution by not allowing defendant\u2019s proffered expert testimony on identification testimony where the court found that the witness was in no better position than the jury to determine the weight to be given the identifications in this case, that the witness\u2019s testimony would not provide any appreciable assistance to the jury in evaluating the identifications, and that his testimony was outweighed by the risk of confusing the jury.\n4. Criminal Law\u2014 instructions \u2014 reasonable doubt\nThe trial court did not err in a first-degree murder prosecution in its instructions as to the meaning of \u201creasonable doubt\u201d where the State in its argument quoted from two Supreme Court decisions, the trial court originally used the Pattern Jury Instructions definition, the jury first requested a copy of the language to which the State had referred, then asked the court to reconcile the language from the two opinions, and the court responded by reading the language from the two opinions and instructing the jury that it was to interpret each in its own context. There is nothing in the record to indicate that the jury was confused after the court\u2019s further instructions and the two Supreme Court cases accurately defined reasonable doubt.\n5. Identification of Defendants\u2014 eyewitness testimony \u2014 percentages of certainty\nThe trial court did not err in a first-degree murder prosecution by allowing the State to ask a witness to give percentages of certainty to the words \u201csure\u201d and \u201cpretty sure\u201d in her identification testimony.\n6. Identification of Defendants\u2014 photographic \u2014 computer generated display\nThe trial court did not err in a first-degree murder prosecution by admitting a witness\u2019s pre-trial and in-court identifications of defendant where the display contained 19 thumbnail photographs generated from a computerized system which matched descriptions given by witnesses and the detective merely asked if anyone looked like one of the perpetrators but did not make any comments or suggestions.\nAppeal by defendant from judgment entered 20 December 1999 by Judge L. Todd Burke in Guilford County Superior Court. Heard in the Court of Appeals 11 October 2001.\nAttorney General Roy Cooper, by Assistant Attorney General Bur\u00e9n R. Shields, III, for the State.\nLeonard Law Firm, by Robert K. Leonard, for defendant-appellant."
  },
  "file_name": "0637-01",
  "first_page_order": 667,
  "last_page_order": 676
}
