No. COA11-441 TWENTY-FIRST DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

STATE OF NORTH CAROLINA ))

v. ) From Forsyth County)

KEREY DAMIEN DOWELL )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

****************************************************

INDEX

TABLE OF AUTHORITIES.....................................................ivISSUES PRESENTED...............................................................1STATEMENT OF THE CASE..................................................2STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.....................................................................................2STATEMENT OF THE FACTS................................................2ARGUMENT............................................................................10

I. KEREY DOWELL’S CONVICTION FOR ROBBERY WITH A DANGEROUS WEAPON MUST BE VACATED BECAUSE THE EVIDENCE THAT KEREY DOWELL WAS THE PERPETRATOR OF THE CHARGED OFFENSE WAS INSUFFICIENT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS THIS CHARGE IN VIOLATION OF KEREY DOWELL’S STATE AND FEDERAL RIGHTS..........................................10

A. Statement of Standard of Review...............................10

B. Analysis......................................................................11

C. Conclusion..................................................................21

II. THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR AND ABUSED ITS DISCRETION BY DENYING THE MOTION FOR MISTRIAL AFTER REFUSING TO ACCEPT THE JURY’S PROPER NOT GUILTY VERDICT AND IN RESUBMITTING THE VERDICT TO THE JURY FOR RECONSIDERATION IN VIOLATION OF KEREY DOWELL’S STATE AND FEDERAL RIGHTS.................................................................22

A. Statement of Standards of Review.............................22

B. Analysis......................................................................23

C. Conclusion..................................................................27

CONCLUSION........................................................................27

- ii -

CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(B)................................................................................28CERTIFICATE OF FILING AND SERVICE.........................29APPENDIX:

Direct Examination Testimony ofCarmen Baldeon App. 1Cross Examination Testimony ofCarmen Baldeon App. 8Re-Direct Examination Testimony ofCarmen Baldeon App. 19Re-Cross Examination Testimony ofCarmen Baldeon App. 21Direct Examination Testimony ofCheryl Grimes App. 23Cross Examination Testimony ofCheryl Grimes App. 28Re-Direct Examination Testimony ofCheryl Grimes App. 38Re-Cross Examination Testimony ofCheryl Grimes App. 40Direct Examination Testimony ofAngelo Barkley App. 41Cross Examination Testimony ofAngelo Barkley App. 45Direct Examination Testimony ofKevin Shay App. 50Cross Examination Testimony of Kevin Shay App. 53Direct Examination Testimony ofBryan Ogle App. 55Cross Examination Testimony ofBryan Ogle App. 69Re-Direct Examination Testimony ofBryan Ogle App. 90Re-Cross Examination Testimony ofBryan Ogle App. 94Motions to Dismiss Arguments and Rulings App. 96State’s Closing Argument App. 99Verdict App. 104

- iii -

TABLE OF AUTHORITIES

CASES

Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140 (1977)....................................................................................12

N.C. Dep't of Env't & Natural Res. v. Carroll, 358 N.C. 649, 599 S.E.2d 888 (2004)....................................................11, 22

State v. Avery, 286 N.C. 459, 212 S.E.2d 142 (1975)........14-15

State v. Blackmon, ___ N.C. App. ___, 702 S.E.2d 833, 2010 N.C. App. LEXIS 2433 (COA10-417) (filed 7 Dec. 2010). .16

State v. Boyd, 321 N.C. 574, 364 S.E.2d 118 (1988)...............23

State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604 (1988)..............................................................................18-19

State v. Golphin, 352 N.C. 364, 533 S.E.2d 168 (2000)..........22

State v. Gray, 337 N.C. 772, 448 S.E.2d 794 (1994)...............23

State v. Grimes, 309 N.C. 606, 308 S.E.2d 293 (1983)............15

State v. Hayden, ___ N.C. App. ___, 705 S.E.2d 787, 2011 N.C. App. LEXIS 1051 (COA10-1306)

(filed 7 June 2011).................................................................20

State v. Hennis, 323 N.C. 279, 372 S.E.2d 523 (1988)............23

State v. Kemmerlin, 356 N.C. 446, 573 S.E.2d 870 (2002).....10

State v. McCullough, 50 N.C. App. 184, 272 S.E.2d 613 (1980)....................................................................................15

State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005)...11

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). .22-23, 25

- iv -

State v. Osorio, 196 N.C. App. 458, 675 S.E.2d 144 (2009)....22

State v. Perkins, 181 N.C. App. 209, 638 S.E.2d 591 (2007). .25

State v. Perry, 225 N.C. 174, 33 S.E.2d 869 (1945)...........24-25

State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).........11-12

State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002)............12

State v. Russell, 92 N.C. App. 639, 376 S.E.2d 458 (1989).....15

State v. Sumner, 269 N.C. 555, 153 S.E.2d 111 (1967)......24-25

State v. Tirado, 358 N.C. 551, 599 S.E.2d 515 (2004).............26

State v. Whitted, ___ N.C. App. ___, 705 S.E.2d 787, 2011 N.C. App. LEXIS 237 (COA10-739) (filed 15 Feb. 2011)...15

Staton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999)..11

United States v. McCaskill, 676 F.2d 995 (4th Cir. 1982)..22-23

CONSTITUTIONAL PROVISIONS

N.C. Const. art. I, § 19..............................................................26

U.S. Const. amend. V...............................................................26

STATUTES & ADMINISTRATIVE CODES

N.C. Gen. Stat. § 7A-27(b).........................................................2

N.C. Gen. Stat. § 15A-1444(a)...................................................2

N.C. Gen. Stat. § 15A-284.50-53.............................................12

N.C.R. App. P. 10(a)(4)............................................................23

- v -

N.C.R. App. P. 26(a)(2)............................................................29

N.C.R. App. P. 26(c)................................................................29

N.C.R. App. P. 28(j)(2)(B).......................................................28

- vi -

No. COA11-441 TWENTY-FIRST DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

STATE OF NORTH CAROLINA ))

v. ) From Forsyth County)

KEREY DAMIEN DOWELL )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

****************************************************

ISSUES PRESENTED

I. WHETHER KEREY DOWELL’S CONVICTION FOR ROBBERY WITH A DANGEROUS WEAPON MUST BE VACATED BECAUSE THE EVIDENCE THAT KEREY DOWELL WAS THE PERPETRATOR WAS INSUFFICIENT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS THIS CHARGE IN VIOLATION OF KEREY DOWELL’S STATE AND FEDERAL RIGHTS?

II. WHETHER THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR AND ABUSED ITS DISCRETION BY DENYING THE MOTION FOR MISTRIAL AFTER REFUSING TO ACCEPT THE JURY’S PROPER NOT GUILTY VERDICT AND IN RESUBMITTING THE VERDICT TO THE JURY FOR RECONSIDERATION IN VIOLATION OF KEREY DOWELL’S STATE AND FEDERAL RIGHTS?

1

STATEMENT OF THE CASE

On 8 March 2010, the Forsyth County Grand Jury issued an indictment

charging Defendant-Appellant Kerey Damien Dowell with robbery with a

dangerous weapon. (R p. 15) On 29 November 2010, this case came for trial before

the Honorable Edwin G. Wilson, Jr., Superior Court Judge presiding, during the 29

November Criminal Session of the Superior Court of Forsyth County. (R p. 1) The

trial transcript is referenced herein as TT. (R p. 14) On 30 November 2010,

following jury selection and presentation of evidence, the jury returned a verdict

finding Kerey Dowell guilty as charged. (R p. 38) On that same date, Judge Wilson

entered judgment. Kerey Dowell was sentenced to a term of a term of 71 to 95

months imprisonment. (R pp. 41-44) On that same date, Kerey Dowell entered

notice of appeal in open court. (TT Vol. II, p. 232) The record on appeal was filed

and docketed in the Court of Appeals on 13 April 2011, and mailed to the parties

on 15 April 2010. The time for filing Defendant-Appellant’s Brief was extended

until 15 June 2011.

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Defendant appeals pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-1444(a)

from a final judgment of the Forsyth County Superior Court.

STATEMENT OF THE FACTS

2

The evidence presented at the trial by the State tended to show that on 30

January 2009, Cheryl Grimes and Angelo Maurice Barkley had been dating and

living together for about a year. (TT Vol. I, pp. 60-61, 70, 87-88) Ms. Grimes and

Mr. Barkley owned A&C Girls Convenience Store. (TT Vol. I, pp. 73, 102) Three

or four days before 30 January 2009, Ms. Grimes’ friend of seven years, Willette

Sims, introduced Ms. Grimes and Mr. Barkley to Defendant-Appellant Kerey

Damien Dowell. (TT Vol. I, pp. 60-61, 72-73) Before 30 January 2009, Ms.

Grimes and Mr. Barkley had met Kerey Dowell three times. (TT Vol. I, pp. 60, 72,

75, 102, 104) Ms. Grimes and Mr. Barkley had talked with Kerey Dowell about

investing in A&C Girls. (TT Vol. I, pp. 74, 103)

On 30 January 2009, Carmen Baldeon was a cashier at the store, Abarrotera

La Guadalupana, owned by her husband, Nicholas Ynoa. (TT Vol. I, pp. 20-21)

Ms. Grimes and Mr. Barkley testified they went around the corner from where they

lived to Abarrotera La Guadalupana every day. (TT Vol. I, pp. 62-63, 68-69, 80,

88-89, 100-02, 104-05) A&C Girls did not have a license to sell beer. (TT Vol. I,

p. 102), Ms. Grimes testified she went to Abarrotera La Guadalupana three times

on 30 January 2009 to buy beer, and the first two were with Mr. Barkley: At 9:00

a.m., she and Mr. Barkley bought one 24-ounce can of beer apiece; and about 2:00

or 3:00 p.m., she and Mr. Barkley got another 24-ounce can of beer. (TT Vol. I, pp.

3

71, 78, 80) Mr. Barkley denied going to Abarrotera La Guadalupana at all on 30

January 2009. (TT Vol. I, pp. 88-89, 100-01)

Ms. Baldeon testified that Ms. Grimes had been in Abarrotera La

Guadalupana three times on 30 January 2009 to buy beer, each time with the same

man. (TT Vol. I, pp. 30, 44-45) Ms. Baldeon recognized the man as a regular

customer. (TT Vol. I, pp. 43-44) Ms. Baldeon testified the man came into the store

approximately two times each week. (TT Vol. I, p. 46) Ms. Baldeon believed the

man lived in the neighborhood and drove a white Cadillac vehicle. (TT Vol. I, p.

47) Ms. Baldeon did not know his name at the time, but later identified this man as

Mr. Barkley. (TT Vol. I, pp. 44-46, 52, 54-55, 57-58) Mr. Barkley had a four-door

1993 white Cadillac DeVille. (TT Vol. I, pp. 64, 80, 89-90)

On 30 January 2009, sometime between 5:00 p.m. and 8:00 p.m., Ms. Sims

and Kerey Dowell went to Ms. Grimes’ and Mr. Barkley’s house. (TT Vol. I, pp.

61-62, 91) Ms. Grimes testified, at her direction, she, Ms. Sims and Kerey Dowell

drove to Abarrotera La Guadalupana in a green car. (TT Vol. I, pp. 62-64) Ms.

Grimes and Mr. Barkley testified Mr. Barkley stayed home and was asleep. (TT

Vol. I, pp. 84, 90-91, 105-06) Ms. Sims stayed in the car. (TT Vol. I, p. 64) Ms.

Grimes testified Ms. Baldeon would not take Kerey Dowell’s money, and Ms.

Grimes paid for the beer. (TT Vol. I, p.62) Ms. Baldeon testified it was Mr.

Barkley that tried to buy a 12-bottle box of Budweiser beer with a $100 bill that

4

Ms. Baldeon would not accept because she thought it was a forgery. (TT Vol. I, pp.

30-31) Ms. Grimes paid for the beer. (TT Vol. I, p. 31)

Ms. Grimes testified Kerey Dowell drove her and Ms. Sims back to Ms.

Grimes’ house. (TT Vol. I, pp. 82-83) Ms. Grimes and Ms. Sims went into the

house, and Mr. Dowell left for 20 to 30 minutes. (TT Vol. I, pp. 83-84, 86, 91-92)

Ms. Grimes, Mr. Barkley, and Ms. Sims were drinking the 12-pack with two other

friends while Kerey Dowell was gone. (TT Vol. I, pp. 71, 84-85, 92, 101, 105-06)

On 30 January 2009, sometime between 7:00 and 8:30 p.m., a man with a

gun wearing a mask that covered his face, a jacket with a hood, a cap, and yellow

shoes came into Abarrotera La Guadalupana. (TT Vol. I, pp. 22-23, 26, 54-55; TT

Vol. II, p. 113) The man pointed the gun at Ms. Baldeon’s head and told her to

give him all the money in the cash register. (TT Vol. I, p. 23) Ms. Baldeon

identified this man as the same man that had been in the store with Ms. Grimes

three times that day. (TT Vol. I, pp. 30, 44-45, 54) Other than the mask, the man

was dressed the same earlier in the day as at the time of the robbery. (TT Vol. I,

pp. 31, 54)

Ms. Baldeon rang the silent panic alarm to call the police, opened the

register drawer, and started taking money out. (TT Vol. I, pp. 23-24; TT Vol. II, p.

113) Ms. Baldeon dropped a bill, and the man went behind the counter to where

she was. (TT Vol. I, p. 24) The man wanted her to open a deposit box, but Ms.

5

Baldeon told him she did not have the key. (TT Vol. I, p. 24) The man took the

money from Ms. Baldeon’s wallet and some other cash from behind the counter.

(TT Vol. I, pp. 24-25) The man took away over $2,000 altogether. (TT Vol. I, p.

25; TT Vol. II, p. 125) The man left the store. (TT Vol. I, p. 26) The man ran

through the parking lot. (TT Vol. I, pp. 26, 53; TT Vol. II, p. 126) There was no

car. (TT Vol. I, p. 53; T Vol. II, p. 126) Ms. Baldeon again rang the alarm for the

police, and she called Mr. Ynoa. (TT Vol. I, pp. 25, 27)

Winston-Salem Police Department (“WSPD”) Officer Kevin Shay

responded to the alarm. (TT Vol. II, pp. 112-13) Ms. Baldeon reported what

happened, told Officer Shay that she could identify the robber, that the robber had

been in the store earlier in the day with Ms. Grimes, that she believed he lived in

the neighborhood, that she believed he drove a white Cadillac, and gave a

description of the robber. (TT Vol. I, pp. 27-28, 46-47; TT Vol. II, pp. 114-15, 119,

121) Officer Shay watched the store’s surveillance recording. (TT Vol. I, pp. 28-

29; TT Vol. II, pp. 115-16, 120) In the opinion of Officer Shay, the man who came

in with Ms. Grimes and presented what Ms. Baldeon believed to be a counterfeit

bill was the same man as the robber. (TT Vol. II, pp. 115-17, 120)

On 3 February 2009, WSPD Detective Bryan Scott Ogle interviewed Ms.

Baldeon at the store. (TT Vol. II, pp. 122-24, 145) Ms. Baldeon reported what

happened, that she could identify the robber, that the robber was a regular

6

customer, and that the robber and Ms. Grimes had been in the store earlier in the

day to buy beer. (TT Vol. II, pp. 124-25, 146) Ms. Baldeon told Detective Ogle

that the man had driven a four-door white Cadillac, and that she believed he lived

in the neighborhood. (TT Vol. II, pp. 125, 146) Detective Ogle watched the store’s

surveillance recording. (TT Vol. II, pp. 124-26) In the opinion of Detective Ogle,

the man who came in with Ms. Grimes and presented what Ms. Baldeon believed

to be a counterfeit bill was the same man as the robber. (TT Vol. II, p. 132) In the

opinion of Detective Ogle, the vehicle on the recording from when the man was at

store earlier was similar but different to the Cadillac Ms. Baldeon described. (TT

Vol. II, pp. 127-28, 162) In the opinion of Detective Ogle, on the black and white

video, the vehicle on the recording was a light shade but appeared to be darker than

white. (TT Vol. II, p. 127) Detective Ogle did not review the surveillance from the

two earlier times Ms. Grimes and Mr. Barkley had been in the store. (TT Vol. II, p.

147)

Based on Ms. Baldeon’s description of the vehicle, Detective Ogle found a

1993 four-door white Cadillac DeVille registered to Mr. Barkley. (TT Vol. II, pp.

128, 146-48) In the opinion of Detective Ogle, based on a DMV photograph, Mr.

Barkley looked similar to the description of the robbery suspect. (TT Vol. II, pp.

129, 149) In the opinion of Detective Ogle, based on a DMV photograph and the

7

surveillance recording, Ms. Grimes was the same woman who had been in the

store. (TT Vol. II, pp. 129-30)

On 4 and 9 February, Mr. Barkley went back to Abarrotera La Guadalupana

to buy beer. (TT Vol. I, pp. 48, 58-59, 93, 98) Ms. Baldeon called the police

because she was scared he might try to rob her again. (TT Vol. I, pp. 48, 53; TT

Vol. II, p. 148)

On 10 February 2009, Detective Ogle accompanied WSPD Detective Boger

to the store to show Ms. Baldeon a photographic lineup. (TT Vol. I, pp. 48-49; TT

Vol. II, pp. 130-31, 148-49, 151) From the lineup, Ms. Baldeon picked out Angelo

Barkley as the robber. (TT Vol. I, pp. 49-52, 55, 57-59; TT Vol. II, pp. 131, 151)

On 11 February 2009, Detective Ogle went to Ms. Grimes’ house to

interview her. (TT Vol. I, pp. 67, 74-76, 103; T Vol. II, pp. 130-31, 134, 153-54,

168-69) Mr. Barkley was at the house. (TT Vol. II, pp. 131-32, 153) Detective

Ogle took Ms. Grimes to the police department for a formal interview and showed

her the store surveillance of the third beer buy and the robbery. (TT Vol. I, pp. 68,

75, 81, 103; TT Vol. II, pp. 134-36, 154, 157) Ms. Grimes identified the man on

the video to Detective Ogle as Ms. Sims’ boyfriend and in court as Kerey Dowell.

(TT Vol. I, p. 69; TT Vol. II, pp. 136, 157-58) Detective Ogle took Ms. Grimes

back to the house, and interviewed Mr. Barkley there. (TT Vol. I, p. 81; TT Vol. II,

pp. 136-37, 159-60, 169)

8

Months after the robbery, based on telephone calls from Ms. Grimes and Mr.

Barkley, Detective Ogle found a 1987 light green Buick Regal Limited registered

to Kai Derek Dowell parked outside a boarding house. (TT Vol. II, pp. 138-42,

163) In the opinion of Detective Ogle, this was the same or similar vehicle or type

of vehicle from when Ms. Grimes and the man went to Abarrotera La Guadalupana

to buy the 12-pack of beer. (TT Vol. II, pp. 141, 162-63, 171-72)

On 14 May 2009, Kerey Dowell and Ms. Sims were at the boarding house,

and Detective Ogle took them to the police department to interview them. (TT Vol.

II, pp. 142-43, 163, 173) Detective Ogle testified that Kerey Dowell said he, Ms.

Grimes, and Ms. Sims went to a store to buy beer, but the clerk would not take his

money. (TT Vol. II, p. 143) Neither Detective Ogle nor Kerey Dowell mentioned

the date this event happened or the name of the store. (TT Vol. II, p. 165)

Detective Ogle testified Ms. Grimes said Kerey Dowell came inside when they all

returned to the house. (TT Vol. II, p. 135) Detective Ogle testified Ms. Grimes said

Kerey Dowell got a call, left, and returned to the house 20 to 30 minutes later. (TT

Vol. II, p. 135) Detective Ogle testified that Kerey Dowell said he got a call from

his cousin, Ronald Dumas Little,1 who asked him to come by, and that he left Ms.

Grimes and Ms. Sims at Ms. Grimes’ house to go see Mr. Little. (TT Vol. II, pp.

1 The transcript refers to this person alternatively as Ronald Dumas Little and as Ronald Little Dumas.

9

144, 165-66) Detective Ogle testified that Kerey Dowell denied returning to the

store. (TT Vol. II, p. 143)

The Defense presented no evidence.

Additional facts are presented as they are relevant to the arguments below.

ARGUMENT

I. KEREY DOWELL’S CONVICTION FOR ROBBERY WITH A DANGEROUS WEAPON MUST BE VACATED BECAUSE THE EVIDENCE THAT KEREY DOWELL WAS THE PERPETRATOR OF THE CHARGED OFFENSE WAS INSUFFICIENT AND THE TRIAL COURT COMMITTED ERROR IN NOT GRANTING THE MOTIONS TO DISMISS THIS CHARGE IN VIOLATION OF KEREY DOWELL’S STATE AND FEDERAL RIGHTS.

PROPOSED ISSUE ON APPEAL No. 16R p. 51

A. Statement of Standard of Review.

In ruling upon a motion to dismiss, the trial court must examine the evidence

in the light most favorable to the State, giving the State the benefit of all

reasonable inferences which may be drawn from the evidence. State v. Kemmerlin,

356 N.C. 446, 573 S.E.2d 870 (2002). The trial court determines whether there is

substantial evidence of each essential element of the offense charged and of the

defendant being the perpetrator of the offense. Id. at 473, 573 S.E.2d at 889.

Substantial evidence is relevant evidence that a reasonable mind might accept as

adequate to support a conclusion. Id. Whether the evidence presented was

10

substantial is a matter of law. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d

172, 174, disc. review denied, 359 N.C. 640, 617 S.E.2d 286 (2005). Questions of

law are reviewed de novo. Staton v. Brame, 136 N.C. App. 170, 174, 523 S.E.2d

424, 427 (1999). This Court considers the matter anew and freely substitutes its

own judgment for that of the lower court. N.C. Dep’t of Env’t & Natural Res. v.

Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004).

B. Analysis.

Ms. Baldeon got a good look at the robber. (TT Vol. I, p. 43; see Appendix)

From the beginning, Ms. Baldeon told the officers she believed she could identify

the robber. (TT Vol. I, pp. 43-44; see Appendix) Ms. Baldeon was “adamant” that

Mr. Barkley was the robber. (TT Vol. II, p. 175; see Appendix) Ms. Baldeon told

the officers that she was 100 percent sure that Mr. Barkley was the robber. (TT

Vol. I, p. 52; see Appendix) Even upon seeing Kerey Dowell in court sitting in the

defendant’s chair, Ms. Baldeon never changed her identification of Mr. Barkley as

the robber. Still, based on an incomplete investigation and the word of those with

motive to lie, the State of North Carolina instead charged, tried and convicted

Kerey Dowell of robbery with a dangerous weapon.

At the close of all evidence, Mr. Dowell’s motions to dismiss the charge of

robbery with a dangerous weapon were denied. (TT Vol. II, pp. 176-78; see

Appendix) “If the evidence is sufficient only to raise a suspicion or conjecture as to

11

either the commission of the offense or the identity of the defendant as the

perpetrator of it, the motion [to dismiss] should be allowed.” State v. Powell, 299

N.C. 95, 98, 261 S.E.2d 114, 117 (1980). “This is true even though the suspicion

so aroused by the evidence is strong.” Id. It was error for the motions to dismiss to

be denied and for the charge of robbery with a dangerous weapon to be submitted

to the jury.

As a general matter, lineups can be suggestive or otherwise flawed and lead

to incorrect identifications. In an effort to minimize this problem, North Carolina

enacted the Eyewitness Identification Reform Act, N.C. Gen. Stat. § 15A-284.50-

53. Detective Ogle gave an account of the process used to prepare and administer

the photographic lineup in this case. (TT Vol. II, pp. 148-51; see Appendix) There

were no allegations in this case that the photographic lineups were flawed.

“In determining whether identification procedures are impermissibly

suggestive, courts have considered such factors as the opportunity of the witness to

view the criminal at the time of the crime, the witness’ degree of attention, the

accuracy of the witness’ prior description of the criminal, the level of certainty

shown by the witness, and the time between the offense and the identification.”

State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002) (citing Manson v.

Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140 (1977)). During the robbery, Ms.

Baldeon was attentive enough to press the silent alarm several times. (TT Vol. I, p.

12

23; see Appendix) Ms. Baldeon testified she had a chance to look at and was able

to get a good look at the robber. (TT Vol. I, pp. 43, 53-54; see Appendix) Ms.

Baldeon observed how the robber was dressed. (TT Vol. I, pp. 26, 31; TT Vol. II,

p. 114; see Appendix) Ms. Baldeon first gave her account to the police about three

minutes after the robbery. (TT Vol. II, pp. 113-14; see Appendix) According to

Officer Shay, Ms. Baldeon did not appear frightened. (TT Vol. II, p. 119; see

Appendix) From the day of the robbery on, Ms. Baldeon was consistent and certain

in her account to the police and her trial testimony that the robber was a black

male, regular customer, lived in the neighborhood, drove a white Cadillac, and had

been in the store three times earlier that day. (TT Vol. I, pp. 28, 30-31, 43-44, 46-

47, 57; T Vol. II, pp. 114, 119, 120, 124-25, 145-46; see Appendix) Mr. Barkley

was a black male, a regular customer, lived in the neighborhood, drove a white

Cadillac, and had been in the store earlier that day. (TT Vol. I, pp. 63-64, 68-69,

71, 79-80, 88-90, 100-02, 104-05; TT Vol. II, pp. 128-29, 148-49; see Appendix)

When shown a photographic lineup a mere 11 days after the robbery, Ms. Baldeon

picked out Mr. Barkley and was 100 percent sure he was the robber. (TT Vol. I, pp.

48-52, 57-58; TT Vol. II, pp. 130-31, 148-49, 151; see Appendix)

The State argued to the jury Ms. Baldeon’s identification of Mr. Barkley was

a “misidentification,” and should be discounted because she was not wearing her

glasses during the entire robbery and the robber’s face was covered. (TT Vol. II, p.

13

185; see Appendix) As conceded by the State, the robber was close enough to have

a gun right in Ms. Baldeon’s face. (TT Vol. II, p. 185; see Appendix) As Ms.

Baldeon explained during her trial testimony, she mainly wears her glasses for

reading small print. (TT Vol. I, pp. 38-39, 53; see Appendix) Ms. Baldeon was

able to provide a description and identification because the robber of the robber’s

height, complexion, and that he was dressed the same as he had been on his

multiple earlier visits to the store. (TT Vol. I, pp. 26, 53-55; see Appendix)

The State’s labeling of the identification of Mr. Barkley as the robber by Ms.

Baldeon as a “misidentification” is unlikely to be an evolving understanding of the

potential problems with eyewitness identifications and lineups. The identification

of Mr. Barkley as the robber by Ms. Baldeon was deemed useless by the State

because it did not fit the State’s theory that Kerey Dowell was the robber. If Kerey

Dowell had been a frequent customer at Abarrotera La Guadalupana, and a non-

glasses-wearing Ms. Baldeon had identified Kerey Dowell as the masked robber,

the State would have argued this identification was overwhelming evidence of

Kerey Dowell’s guilt. The State has had no compunction in making this argument

based on similar facts in other cases.

Identification by victims and other witnesses is often considered to be

“overwhelming” evidence of guilt. E.g., State v. Avery, 286 N.C. 459, 468-69, 212

S.E.2d 142, 147 (1975), death sentence vacated, 428 U.S. 904, 49 L. Ed. 2d 1209

14

(1976); State v. Whitted, ___ N.C. App. ___, ___, 705 S.E.2d 787, ___, 2011 N.C.

App. LEXIS 237, *14 (COA10-739) (filed 15 February 2011). North Carolina

Appellate Courts often review cases where a frequent customer has been identified

by an employee-victim as the perpetrator. At least one very such identification has

contributed to a determination that the evidence against the defendant was

“overwhelming.” State v. Russell, 92 N.C. App. 639, 645, 376 S.E.2d 458, 462

(1989). Ms. Baldeon’s testimony is very similar to other cases where North

Carolina Courts have held the victims had sufficient opportunity for observation.

E.g., State v. Grimes, 309 N.C. 606, 611, 308 S.E.2d 293, 295 (1983) (the victim

“testified that she was not wearing glasses at the time of the attack, she also stated

that her distance vision was fine, and that she needed glasses only for close work

such as for needlework or reading.”); State v. McCullough, 50 N.C. App. 184, 188,

272 S.E.2d 613, 616 (1980) (“witness testified that she was not wearing her glasses

when the defendant was in the bank, but that he was within arm’s length of her,

and she recognized him from his prior visits to the bank.”).

The decisive identification of Mr. Barkley as the robber by Ms. Baldeon did

not fit the State’s theory that Kerey Dowell was the robber. The State was left with

evidence that could merely arouse a suspicion that Kerey Dowell was the

perpetrator of the robbery.

15

Despite the efforts of forensic and K-9 units, there were no fingerprints or

other physical evidence to link Kerey Dowell to the robbery. (TT Vol. II, pp. 117,

160; see Appendix) Cf. State v. Blackmon, ___ N.C. App. ___, ___, 702 S.E.2d

833, ___, 2010 N.C. App. LEXIS 2433, *9-10 (COA10-417) (filed 7 December

2010) (fingerprint evidence was sufficient evidence reasonable mind might accept

as adequate to support conclusion defendant was perpetrator). The State might

argue that there would be no fingerprints because the robber wore gloves. As

Detective Ogle testified, however, the fingers were cut out of the robber’s gloves.

(TT Vol. II, p. 133; see Appendix) Therefore, fingerprints could have been left

behind. The lack of physical evidence was not overwhelming evidence of Kerey

Dowell’s identity as the perpetrator of the robbery.

Instead of Ms. Baldeon’s adamant and resolute identification of Mr. Barkley,

the State relied on less substantial evidence of Kerey Dowell’s identity as the

perpetrator. First, there was Ms. Grimes’ story, which changed from when she first

talked to the police to when she testified at the trial. Unlike Ms. Baldeon who had

no motive to make a false identification, Ms. Grimes was romantic and business

partner of Mr. Barkley. (TT Vol. I, pp. 60-61, 70, 73, 87-88, 102; see Appendix)

Detective Ogle told Ms. Grimes that Mr. Barkley had been identified as the robber.

(TT Vol. II, pp. 154, 157; see Appendix) Ms. Grimes told Detective Ogle she had

never met Kerey Dowell prior to 30 January 2009, but Ms. Grimes testified at the

16

trial that she had met Kerey Dowell three times before that date. (TT Vol. I, pp. 61,

72-75; TT Vol. II, p. 158; see Appendix) Ms. Grimes told Detective Ogle Kerey

Dowell went into the house after they returned from the store, but Ms. Grimes

testified Kerey Dowell did not go into the house after they returned from the store.

(TT Vol. I, pp. 82-83, 86; TT Vol. II, p. 135; see Appendix) Indeed, in her

interview with Detective Ogle, Ms. Grimes’ confirmed Kerey Dowell’s reported

account that he got a telephone call while he was at the house after the store visit.

(TT Vol. II, pp. 135, 144; see Appendix) Ms. Grimes told Detective Ogle she had

drunk three 24-ounce cans of beer the day he interviewed her. (TT Vol. II, pp. 155-

56, 169; see Appendix) When she testified at the trial, Ms. Grimes initially denied

she had anything to drink the day she was interviewed. (TT Vol. I, p. 78; see

Appendix)

As the person identified by Ms. Baldeon as the robbery, Mr. Barkley also

had motive to lie. Mr. Barkley’s trial testimony contradicted both Ms. Baldeon’s

trial testimony and the trial testimony of Ms. Grimes, his “old lady.” (TT Vol. I, p.

88-89; see Appendix) According to Mr. Barkley, he did not go to the store at all on

30 January 2009. (TT Vol. I, p. 88-89, 100-01; see Appendix) Mr. Barkley told

Detective Ogle he had never met Kerey Dowell or Ms. Sims prior to 30 January

2009. (TT Vol. II, pp. 159-60; see Appendix) Mr. Barkley testified at trial that he

had met Kerey Dowell and Ms. Sims three times prior to 30 January 2009. (TT

17

Vol. I, pp. 102, 104; see Appendix) As the police never bothered to formally

interview Mr. Barkley, there is no knowing whether other details of his account

near in time to the robbery would or would not have been consistent with his trial

testimony. (TT Vol. II, pp. 136-37, 153, 161; see Appendix)

Amazingly, Detective Ogle decided Mr. Barkley was not the robber because,

when he met Mr. Barkley on 11 February 2009, Mr. Barkley was not dressed

exactly the same from head to toe as the robber had been 12 days earlier on 30

January 2009. Specifically, Mr. Barkley was not wearing the same wristwatch or a

Bluetooth device. (TT Vol. II, pp. 132-33, 161-62; see Appendix) It seems, in

Detective Ogle’s opinion, a person may only own one type of watch and phone,

and those items must be worn 24-hours a day at as well as away from home in

order to make a proper identification. According to Detective Ogle, Mr. Barkley

asserted that he did not own an earpiece for his cell phone. (TT Vol. II, p. 133; see

Appendix) As has already been mentioned, Mr. Barkley was not entirely honest in

his statements to Detective Ogle. It cannot be asserted as certain that Mr. Barkley

did not possess any of the clothing worn by the robber. No search was done of Mr.

Barkley’s residence. (TT Vol. II, p. 161; see Appendix) Nor was evidence

introduced that Kerey Dowell possessed any of the clothing worn by the robber.

Cf. State v. Cannon, 92 N.C. App. 246, 255, 374 S.E.2d 604, 609 (1988) (sufficient

evidence of defendant’s identity as perpetrator of robbery included that officers

18

found clothing and other items linked to robbery in the area where defendant was

hiding), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990). The fact that

Mr. Barkley was not wearing a particular watch or cell phone accessory 12 days

after the robbery was not overwhelming evidence of Kerey Dowell’s identity as the

perpetrator of the robbery.

In light of Ms. Baldeon’s unwavering identification of Mr. Barkley as the

robber, the deficient police investigation is troubling. The lack of a formal

interview of Mr. Barkley or a search of his residence was not the only absent

means of investigation that might have yielded substantial evidence of guilt.

Despite both Ms. Baldeon and Ms. Grimes telling the police that Ms. Grimes and

Mr. Barkley had been in the store twice before the attempted 12-pack purchase, no

officer bothered to review the earlier surveillance footage even though they had

access to the full day’s video. (TT Vol. II, pp. 120, 147; see Appendix) Despite

statements from both Ms. Grimes and Kerey Dowell that he left Ms. Grimes’

residence after receiving a telephone call from Mr. Little,2 the police made a

trifling effort to follow-up. (TT Vol. II, pp. 144, 166, 174-75; see Appendix)

As for Kerey Dowell’s other statements, according to Detective Ogle, Kerey

Dowell admitted to being with Ms. Grimes’ to buy beer. (TT Vol. II, p. 143; see

Appendix) Kerey Dowell never corroborated that the beer buy happened on 30

January 2009. (TT Vol. II, p. 165; see Appendix) Kerey Dowell never corroborated 2 See fn.1.

19

that the beer buy happened at Abarrotera La Guadalupana. (TT Vol. II, p. 165; see

Appendix) Even if this statement is taken as corroboration that the beer buy

happened on 30 January 2009 at Abarrotera La Guadalupana, it does not negate

Ms. Baldeon’s testimony that the robber was also in the store two other times on

30 January 2009. Kerey Dowell never confessed to the robbery. (TT Vol. II, pp.

143, 164; see Appendix) Kerey Dowell’s statements alone may be a strong

suspicion of guilt. Kerey Dowell’s statements in conjunction with Ms. Baldeon’s

testimony was not overwhelming evidence of Kerey Dowell’s identity as the

perpetrator of the robbery.

The gun used in the robbery was never located by the police. (TT Vol. II, p.

160; see Appendix) It would be speculation to suggest why no gun was ever found.

Still, the inability of the State to introduce a gun into evidence and link the gun to

both Kerey Dowell and the robbery is yet another point that there was not

overwhelming evidence of Kerey Dowell’s identity as the perpetrator of the

robbery. See State v. Hayden, ___ N.C. App. ___, ___, ___ S.E.2d ___, ___, 2011

N.C. App. LEXIS 1051, *22 (COA10-1306) (filed 7 June 2011) (conviction

vacated where insufficient evidence to connect defendant to weapon that would

have been means to commit offense).

The police did locate a green car they believed but could not be certain the

robber drove. A car was not involved in the robbery; the robber was on foot. The

20

police were looking from the car on the surveillance video at the time of the 12-

pack of beer buy. (TT Vol. II, p. 163; see Appendix) It was impossible for

Detective Ogle to determine the green car they found was the same from the

surveillance video. (TT Vol. II, pp. 162, 171-72; see Appendix) The green car was

not registered to Kerey Dowell. (TT Vol. II, pp. 140, 163, 172-73; see Appendix)

The police never interviewed the green car’s owner. (TT Vol. II, pp. 172-73; see

Appendix) Finding a green car that could not be positively linked to the robbery or

Kerey Dowell was not overwhelming evidence of Kerey Dowell’s identity as the

perpetrator of the robbery.

C. Conclusion.

The victim of the robbery was steadfast and adamant that Mr. Barkley and

not Kerey Dowell was the perpetrator of the robbery. The evidence of the victim’s

identification of Mr. Barkley as the perpetrator was the type of evidence that is

often argued by the State and held by North Carolina Courts to be overwhelming

evidence of guilt. In contrast, the evidence introduced by the State was sufficient

only to raise a suspicion that Kerey Dowell was the perpetrator of the robbery. In

the light most favorable to the State, giving the State the benefit of all reasonable

inferences which may be drawn from the evidence, there was not substantial

evidence of Kerey Dowell being the perpetrator of the robbery. It was error for the

21

motions to dismiss the charge to be denied. Kerey Dowell’s conviction and

sentence for robbery with a dangerous weapon should be vacated.

II. THE TRIAL COURT COMMITTED ERROR OR PLAIN ERROR AND ABUSED ITS DISCRETION BY DENYING THE MOTION FOR MISTRIAL AFTER REFUSING TO ACCEPT THE JURY’S PROPER NOT GUILTY VERDICT AND IN RESUBMITTING THE VERDICT TO THE JURY FOR RECONSIDERATION IN VIOLATION OF KEREY DOWELL’S STATE AND FEDERAL RIGHTS.

PROPOSED ISSUES ON APPEAL Nos. 19-22R p. 51

A. Statement of Standards of Review.

The standard of review of an instructional issue is de novo. State v. Osorio,

196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). This Court considers the

matter anew and freely substitutes its own judgment for that of the lower court.

N.C. Dep’t of Env’t & Natural Res. v. Carroll, supra, 358 N.C. at 660, 599 S.E.2d

at 895. The standard of review of an instructional issue when there was no

objection is plain error. State v. Golphin, 352 N.C. 364, 460, 533 S.E.2d 168, 230

(2000), cert. denied, 532 U.S. 931, 149 L. Ed. 2d 305 (2001). Plain error is:

a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,” or “where [the error] is grave error which amounts to a denial of a fundamental right of the accused,” or the error has “‘resulted in a miscarriage of justice or in the denial to appellant of a fair trial’” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.”

22

State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378-79 (1983) (quoting

United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Kerey Dowell

specifically and distinctly contended the judicial action questioned in these

proposed issues on appeal amounted to plain error. N.C.R. App. P. 10(a)(4). This

issue is properly before this Court.

The standard of review of a decision to grant or deny a motion for a mistrial

is abuse of discretion. State v. Boyd, 321 N.C. 574, 579, 364 S.E.2d 118, 120

(1988). “Abuse of discretion occurs only where the trial court’s ruling is

‘manifestly unsupported by reason or is so arbitrary that it could not have been the

result of a reasoned decision.’” State v. Gray, 337 N.C. 772, 776, 448 S.E.2d 794,

798 (1994) (quoting State v. Hennis, 323 N.C. 279, 285, 372 S.E.2d 523, 526

(1988)).

B. Analysis.

After deliberating, the jury indicated it had reached a verdict. Upon inquiry

by the trial court, the foreperson responded that the jury had reached a unanimous

verdict, and that he had personally signed and dated the verdict sheet. (TT Vol. II,

pp. 211-12; see Appendix) At the direction of the trial court, the clerk read out the

jury’s verdict as not guilty. (TT Vol. II, p. 212; see Appendix) This was an

accurate reading of the verdict sheet. (R p. 37)

23

At this point, according to the court reporter’s contemporaneous account,

there was an: “Outburst from audience members.” (TT Vol. II, p. 212) The trial

court described this as “Members of the audience started clapping.” (TT Vol. II, p.

215; see Appendix) According to the prosecutor, the foreman had an unspecified

“immediate reaction when the clerk read the verdict sheet.” (TT Vol. II, p. 214; see

Appendix) The trial court’s recollection was: “the foreperson immediately

approached the bailiff, wanting to say something.” (TT Vol. II, p. 215; see

Appendix)

The trial court asked the jurors who agreed with the not guilty verdict to

raise their hands, and no one did. (TT Vol. II, p. 213; see Appendix) Over Kerey

Dowell’s objections, the trial court sent the jury back to deliberate with a new

verdict sheet. (TT Vol. II, pp. 213-16; see Appendix) Kerey Dowell’s motion for a

mistrial was also denied. (TT Vol. II, pp. 213-15; see Appendix) The jury

subsequently returned a guilty verdict. (R p. 38)

The trial court erred in ordering the jury to re-deliberate. “`When and only

when, an incomplete, imperfect, insensible, or repugnant verdict, or a verdict

which is not responsive to the issues or indictment is returned, the court may

decline to accept it and direct the jury to retire, reconsider the matter, and bring in

a proper verdict.'” State v. Sumner, 269 N.C. 555, 557, 153 S.E.2d 111, 112 (1967)

24

(quoting State v. Perry, 225 N.C. 174, 176, 33 S.E.2d 869, 870 (1945)). As the

North Carolina Supreme Court explained:

While the general rule is that a verdict is not complete until it is accepted by the court, nevertheless the rule seems to be that if a proper verdict is returned, one that is permissible under the charge and complete in itself . . . the court should have accepted it and directed its entry into the records as the verdict of the jury.

State v. Sumner, supra, 269 N.C. at 557, 153 S.E.2d at 112-13 (internal citations

omitted).

Here, the verdict sheet reading not guilty was properly filled out, signed and

dated, and was for a verdict that was permissible under the charge. The trial court

should have accepted the jury’s proper verdict as originally rendered, and the

failure to do so was error. State v. Perkins, 181 N.C. App. 209, 211, 638 S.E.2d

591, 599, disc. review denied, 361 N.C. 222, 642 S.E.2d 708 (2007).

When the trial court ruled that he would have the jury re-deliberate, Kerey

Dowell objected and moved for a mistrial. The trial court abused its discretion by

not granting the motion for a mistrial. The trial court’s refusal to accept the jury’s

proper not guilty verdict as mandated was not a reasoned decision.

If this Court does not feel that the events in this matter sufficiently preserved

this issue, it may review the question for plain error. State v. Odom, supra, 307

N.C. at 660-61, 300 S.E.2d at 378-79. No guess work is needed to determine

whether having the jury re-deliberate had a probable impact on the jury’s finding

25

that Kerey Dowell was guilty. Kerey Dowell was prejudiced by the trial court’s

error. If the trial court had accepted the verdict as originally rendered, he would

have been acquitted of the charge. Instead, Kerey Dowell’s right to be free for

Double Jeopardy was violated. The Fifth Amendment of the United States

Constitution and Article 1, Section 19 of the North Carolina Constitution protect

Kerey Dowell against Double Jeopardy. The Double Jeopardy “Clause protects

against three distinct abuses: (1) a second prosecution for the same offense after

acquittal, (2) a second prosecution for the same offense after conviction, and (3)

multiple punishments for the same offense.” State v. Tirado, 358 N.C. 551, 578,

599 S.E.2d 515, 534 (2004) (citations omitted), cert. denied sub nom. Queen v.

North Carolina, 544 U.S. 909, 161 L. Ed. 2d 285 (2005). Kerey Dowell was

convicted of the same offense of robbery with a dangerous weapon after he had

already been acquitted.

If the trial court had accepted the verdict as originally rendered, Kerey

Dowell would have been acquitted. Instead, Kerey Dowell was convicted of the

Class D felony of robbery with a dangerous weapon. As a consequence of this

conviction, Kerey Dowell is serving a sentence of 71 to 95 months imprisonment.

In addition, the prosecutor noted this was Kerey Dowell’s second violent felony

conviction, making him subject to a mandatory sentence of life imprisonment

26

without the possibility of parole should he be convicted of a third such offense. (R

pp. 39-44; TT Vol. II, p. 232)

C. Conclusion.

The jury returned a proper verdict of not guilty. It was error for the trial

court to refuse to accept the jury’s proper verdict. The trial court’s denial of the

motion for a mistrial was not a reasoned decision. Kerey Dowell was prejudiced by

the trial court’s error. Kerey Dowell’s conviction and sentence for robbery with a

dangerous weapon should be vacated.

CONCLUSION

For all the foregoing reasons, Kerey Dowell respectfully contends his

conviction and sentence for robbery with a dangerous weapon should be vacated.

Respectfully submitted this the 15th day of June 2011.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant1818 Martin Luther King, Jr. Blvd.,Suite 146Chapel Hill, North Carolina 27514-7415(919) 593-0782N.C. State Bar No. 20860ABTigerLaw@earthlink.net

27

CERTIFICATE OF COMPLIANCE WITH N.C.R. APP. P. 28(j)(2)(B)

The undersigned hereby certifies that this Defendant-Appellant’s Brief is in compliance with Rule 28(j)(2)(B)(2) of the North Carolina Rules of Appellate Procedure in that it is printed in 14 point Times New Roman font and contains no more than 8,750 words in the body of the Brief, footnotes and citations included, as indicated by the word-processing program used to prepare the Brief.

This the 15th day of June 2011.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

28

CERTIFICATE OF FILING AND SERVICE

The undersigned hereby certifies that the original Defendant-Appellant’s Brief has been filed pursuant to Rule 26(a)(2) of the North Carolina Rules of Appellate Procedure by electronic means with the Clerk of the North Carolina Court of Appeals.

The undersigned further certifies that the foregoing Defendant-Appellant’s Brief has been served pursuant to Rule 26(c) of the North Carolina Rules of Appellate Procedure by electronic means upon the following parties:

Mr. Robert R. GelblumSpecial Deputy Attorney GeneralNorth Carolina Department of JusticeEnvironment Division401 Oberlin RoadSuite 150Raleigh, North Carolina 27605-1350(919) 508-8408N.C. State Bar No. 14461rob.gelblum@ncdenr.gov

This the 15th day of June 2011.

By electronic submissionAnne BleymanAttorney for Defendant-Appellant

29