Preview:

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA12-570 NORTH CAROLINA COURT OF APPEALS Filed: 15 January 2013 STATE OF NORTH CAROLINA v. MICHAEL EUGENE LEONARD Davidson County Nos. 10 CRS 57890 and 5632

Appeal by Defendant from judgment entered 30 November 2011 by Judge Tanya T. Wallace in Superior Court, Davidson County. Heard in the Court of Appeals 27 November 2012. Attorney General Roy Cooper, by Assistant Attorney General Ebony J. Pittman, for the State. Heather L. Rattelade for Defendant. McGEE, Judge. Michael felony Eugene or Leonard entering (Defendant) and of was found guilty of

breaking

having

obtained

habitual

felon status on 30 November 2011.

These convictions arose out

of the breaking or entering of a building in Lexington (the building) from which copper was stolen. The building had been Ryan the

used by Foam Tech, Inc. (Foam Tech), a Lexington business. Harmon (Harmon) was a part owner of Foam Tech and of

-2building. The building was shuttered in 2009 when Foam Tech After

filed for bankruptcy and was seized in March of 2010. that time, only BB&T Bank and the Davidson County

Sheriff's

Department had access to the building. The building was broken into sometime prior to 9 September 2010. Large amounts of copper, including wiring, was stolen Some of the copper wiring had been removed the police dusted for

from the building.

from electrical panels, some of which fingerprints. Crime Reeve)

The prints were sent to the North Carolina State for a one analysis. latent of the Agent Adrianne Reeve Agent (Agent Reeve was of

Laboratory conducted that

print

analysis.

determined

submitted

fingerprints

sufficient quality for comparison. Agent Reeve entered it into

After preparing the print, the Automated Fingerprint

Identification System (AFIS). to prints contained in its

AFIS compared the entered print database, and returned the ten

closest matches.

Agent Reeve compared the print recovered from

the electrical panel to the ten prints from AFIS, and determined that the latent print recovered from the electrical panel

matched one of the prints in the AFIS database. to Defendant.

The match was

Martin Lyon (Lyon) testified that he owned a scrap metal business in Lexington. Lyon testified that when purchasing

-3certain scrap metal, including copper, he was required by law to record the seller's driver's license information, or other valid identification. According to Lyon's records, Defendant sold

Lyon hundreds of pounds of copper in September and October of 2010. Defendant did not present evidence at trial. Defendant

was sentenced to 102 to 132 months in prison for felony breaking or entering and of having attained habitual felon status.

Defendant appeals. below.

Additional relevant facts will be included

I. The issues on appeal are: (1) whether Defendant's trial counsel was ineffective for failing to move to suppress Agent Reeve's testimony, denying Defendant's and (2) whether the trial court erred in motion to dismiss the charge of felony

breaking or entering. II. In Defendant's first argument, he contends that his trial attorney provided ineffective assistance of counsel by failing to move to suppress expert testimony related to fingerprint

analysis.

We disagree. "When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." To meet this burden, the defendant must satisfy the two-pronged test

-4promulgated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984), and expressly adopted by this Court[.] First, the defendant must demonstrate a deficiency in counsel's performance by showing "'errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.'" Second, the defendant must also show prejudice by establishing that "the error committed was so serious that a reasonable probability exists that the trial result would have been different" absent the error. Thus, the error must be "so grave that it deprived [the defendant] of a fair trial because the result itself is considered unreliable." State v. Augustine, 359 N.C. 709, 718-19, 616 S.E.2d 515, 524 (2005) (citations omitted). Defendant fails to carry this burden. Defendant argues

that his counsel was ineffective because he "failed to test the State's case when he failed to file a motion to exclude SBI Agent Reeve's expert testimony on the grounds that her opinion was not based on a sufficiently reliable method of proof."

Defendant did not challenge the reliability of the method of fingerprint analysis at trial, and he does not now argue that admission of this testimony rises to the level of plain error. Instead, Defendant argues his trial counsel was ineffective for not challenging this allegedly inadmissible evidence. Defendant fails to show that Agent Reeve's Because was

testimony

inadmissible, Defendant fails to prove on these facts that his

-5"'counsel was not functioning as the "counsel" guaranteed

[Defendant] by the Sixth Amendment.'" 719, 616 S.E.2d at 524.

Augustine, 359 N.C. at

Under Rule of Evidence 702, this Court has established three steps "for evaluating the admissibility of expert testimony: (1) Is the expert's proffered method of proof sufficiently reliable as an area for expert testimony? (2) Is the witness testifying at trial qualified as an expert in that area of testimony? (3) Is the expert's testimony relevant?" The proponent of the expert witness, in this case the State, has "the burden of tendering the qualifications of the expert" and demonstrating the propriety of the testimony under this three-step approach. State v. Ward, 364 N.C. 133, 140, 694 S.E.2d 738, 742 (2010) (citations omitted). the reliability of In the present case, Defendant challenges the method used

Download 12-570.pdf

South Carolina Law