State v. Meggett
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA13-107 NORTH CAROLINA COURT OF APPEALS Filed: 17 September 2013 STATE OF NORTH CAROLINA v. Wake County No. 11 CRS 209117 TYQUON DEVOETA MEGGETT Appeal by defendant from judgment entered 17 April 2012 by Judge James E. Hardin, Jr. in Wake County Superior Court. Heard in the Court of Appeals 29 August 2013. Attorney General Roy Cooper, by Assistant Attorney General Donald W. Laton, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Katherine Jane Allen, for defendant-appellant. CALABRIA, Judge. Tyquon judgment Devoeta entered Meggett upon jury ( defendant ) verdicts appeals finding him from a guilty of attempted murder and assault with a deadly weapon with intent to kill inflicting serious injury ( AWDWIKISI ). I. Background We find no error. -2At approximately 1:00 a.m. on ( Rashaad ) and his brother McKnight ( Devyonte ) Carolina. were walking While they to were 21 their April Devyonte home walking, 2011, in they Rashaad McKnight Raleigh, noticed a North passing silver four-door automobile. Devyonte recognized defendant, who he in knew had been involved a Rashaad, as a passenger in the car. previous altercation with Devyonte concealed himself in the bushes, while Rashaad continued to walk. Defendant and another individual exited their vehicle and approached Rashaad. Defendant pulled out a black 9 millimeter and shot Rashaad multiple times, including in his arm and lower back. A final shot struck the ground directly in front of Rashaad s face. Defendant and the other individual then fled the scene. Rashaad treatment. was transported to Wake Medical Center for At the hospital, Rashaad was interviewed by, inter alios, Officer M.G. Cooper ( Officer Cooper ) of the Raleigh Police Department s ( RPD ) gang suppression unit. Rashaad provided Officer Cooper with a description of the shooter and indicated that he had previously been incarcerated with him. However, Rashaad did not know the shooter s name. -3Based upon Rashaad s description, Officer Cooper concluded that defendant may have been the shooter. RPD Officer P.J. Hodge ( Officer Hodge ), who was not involved in the case, was directed to show a photographic lineup which included defendant to Devyonte. Around 5:00 a.m. on 21 April 2011, Officer Hodge administered the lineup and Devyonte selected defendant as the shooter. Later that morning, RPD officers located a vehicle matching the description provided by Rashaad and Devyonte. Defendant was a passenger in the vehicle and was subsequently arrested by law enforcement. No weapons were found in the vehicle after defendant s arrest. Based upon information gained during their investigation of Rashaad s Dansey shooting, Drive in law enforcement Raleigh. During searched their an apartment search, on officers discovered Perez Keyes ( Keyes ) hiding in a laundry room. In addition, officers discovered a firearm which had been placed inside of a pillowcase that was inside of the washing machine in the laundry room. Keyes initially denied having any knowledge of the firearm or where it came from. However, Keyes subsequently stated that he received a phone call from defendant in the early morning -4hours of 21 April 2011 in which defendant asked Keyes to help him sell a firearm. Keyes s apartment. Defendant then brought the firearm to The firearm recovered from Keyes s apartment was subsequently determined to be the weapon which shot Rashaad. On 25 April 2011, Detective Sean Brady ( Detective Brady ) of the RPD lineup. visited Rashaad and administered a photographic Detective Brady was the lead investigator for Rashaad s shooting, but officers were he administered available at the that lineup time. because Rashaad no other identified defendant as his shooter. Defendant was indicted for attempted murder and AWDWIKISI. Beginning 9 April 2012, defendant was tried by a jury in Wake County Superior Court. On 16 April 2012, the jury returned verdicts finding defendant guilty of both charges. The jury also found the existence of an aggravating factor. Prior to sentencing, defendant s mother was permitted to make a statement regarding However, sentenced the the existence trial defendant court in the of possible found no aggravated mitigating mitigating range. factors. factors and Defendant was sentenced to a minimum of 258 months to a maximum of 319 months in the North Carolina Division of Adult Correction. appeals. Defendant -5II. Jury Instructions Defendant argues that the trial court erred by failing to instruct the jury regarding the State s violations of the Eyewitness Identification Reform Act ( the Reform Act ). We disagree. Defendant concedes that he did not request instruction regarding the Reform Act at trial. a jury Accordingly, 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, 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). In the instant case, defendant contends that Rashaad s identification of defendant from a photographic lineup four days after the shooting violated the Reform Act trial court to instruct the jury and regarding required the the violation. However, even assuming, arguendo, that defendant is correct, he -6has failed to establish that the trial court s alleged failure to provide this instruction amounted to plain error. The State presented evidence that Devyonte, who witnessed the shooting, identified defendant from a photographic lineup four hours after the shooting occurred. Defendant does not challenge the propriety of this identification. Moreover, while Rashaad did not specifically identify defendant by name as the individual who shot him, he gave a general description which matched defendant perpetrator from incarcerated and also prison. with indicated Rashaad defendant. In that had he knew previously addition, defendant the been was apprehended traveling in a vehicle which matched the description of the shooter s Finally, which Keyes, was vehicle the provided individual identified as the by Rashaad in possession weapon used to and of Devyonte. the shoot firearm Rashaad, testified that defendant had asked him to get rid of the firearm shortly after the shooting and that defendant later hid the weapon in Keyes s home. In light of the above evidence, defendant has failed to show that the trial court s alleged failure to instruct the jury regarding the Reform Act had a probable impact on the jury s finding that the defendant was guilty. Accordingly, defendant -7has failed to show that this alleged error rose to the level of plain error. See id. This argument is overruled. III. Mitigating Factors Defendant argues that the trial court erred by refusing to consider evidence of potential defendant s sentencing hearing. mitigating factors during Specifically, defendant alleges that the court failed to consider a statement by defendant s mother as evidence in mitigation. We disagree. N.C. Gen. Stat. ยง 15A-1340.16(a) (2011) requires the trial court to consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate, but the decision to depart from the presumptive range is in the discretion of the court. [T]he offender bears the burden of proving by a preponderance of the evidence that a mitigating factor exists. A defendant proves a mitigating factor when the evidence is substantial, uncontradicted, and there is no reason to doubt its credibility. As this Court has previously explained, [a] trial judge is given wide latitude in determining the existence of . . . mitigating factors, and the trial court's failure to find a mitigating factor is error only when no other reasonable inferences can be drawn from the evidence. State v. Mabry, ___ N.C. App. ___, ___, 720 S.E.2d 697, 702 (2011)(internal quotations and citations omitted). However, -8while the trial court may determine whether mitigating factors have been adequately proven, [t]he sentencing judge cannot, as a matter of law, refuse to consider mitigating factors . . . . State v. Brooks, 68 N.C. App. 298, 300, 314 S.E.2d 565, 566 (1984). In the instant case, the trial court allowed defendant s mother, Tabitha Grier, to address the court at sentencing: I just wanted y all to know that I, you know, I m not here to say whether he s guilty or not because I don t know, but me as a single mother of five tried to do the best that I could in raising Tyquon. And in school he struggled because of his size. He struggled. He felt that he had to build this wall and be this macho person. He s always - I thought I had this together before I came up here. THE COURT: Yes, ma'am. MS. GRIER: He just -- me working so many hours every day trying to make ends meet was always able to just hang out in the streets because there was really no supervision at home because I was at work and he just fell in with the wrong crowd and I don t know. That s it. That s it. After hearing this statement, defendant s own statement, and the arguments of counsel, the trial court stated: Primarily in recognition of and in consideration of information as to mitigation, there's no evidence before this Court as it relates to specific mitigation. However, the Court has considered the -9information you presented but chooses not to find that information as evidence by a preponderance of the evidence as it relates to any mitigation. Contrary to defendant s argument, the trial court s statement does not demonstrate that the court erroneously consider mitigating factors presented by defendant. refused to Instead, the court s statement reflects that it determined that defendant failed to meet his burden of establishing any mitigating factors by a preponderance of the evidence. discretion in this determination. IV. We discern no abuse of This argument is overruled. Conclusion Defendant failed to meet his burden of showing that the trial court s failure to instruct the jury regarding an alleged violation of the Reform Act constituted plain error. court present properly for determined purposes of that no sentencing received a fair trial, free from error. No error. Judges STROUD and DAVIS concur. Report per Rule 30(e). mitigating defendant. The trial factors were Defendant
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