1. Identification of Defendants-_in-court_-improper pretrial
identification_independent origin
The trial court did not err in a robbery with a dangerous weapon case by finding the
victim's in-court identification to be of independent origin and by allowing the identification of
defendant before the jury even though defendant contends the in-court identification was tainted
by an improper pretrial identification, because: (1) even though a pretrial procedure is found to
be unreliable, an in-court identification of independent origin is admissible; (2) the victim stated
that his identification of defendant was based on seeing defendant the night of the incident and
not the show-up at the sheriff's department; and (3) there was not a substantial likelihood of
misidentification when the witness had ample opportunity to view defendant, the witness gave an
accurate description of defendant and his clothing, and the witness was certain in his
identification of defendant as the person who robbed him.
2. Search and Seizure_-warrantless search-_presence in motel room of another
The trial court did not err in a robbery with a dangerous weapon case by admitting
evidence obtained from a warrantless search of the motel room where defendant was found,
because: (1) the room was rented to a person other than defendant; (2) there was no evidence that
defendant had any luggage in the room, and there was no evidence that defendant had spent the
night or planned on staying overnight; and (3) while defendant may have had a subjective
expectation of privacy in the room, it was not a reasonable expectation of privacy.
3. Robbery_dangerous weapon__sufficiency of evidence--use or threatened use of a
firearm or other dangerous weapon
The trial court did not err by denying defendant's motion to dismiss the charge of robbery
with a dangerous weapon based on the State's alleged failure to produce evidence that defendant
robbed the victim by use or threatened use of a firearm or other dangerous weapon, because: (1)
the victim testified on cross-examination that the man who robbed the victim walked up to him
from around the corner of the store and pointed a shotgun at the victim; (2) the victim testified
that the assailant kept the shotgun pointed at the victim while driving off in his stolen car; and (3)
the victim later identified the sawed-off single barrel shotgun recovered from defendant as
looking just like the gun which was pointed at him the night of the robbery.
4. Sentencing_-aggravating factor-_firearm of mass destruction--robbery with a
dangerous weapon
The trial court did not err in a robbery with a dangerous weapon case by finding as an
aggravating factor the use of a firearm of mass destruction, because: (1) N.C.G.S. § 14-
288.8(c)(3) defines a weapon of mass destruction as any shotgun with a barrel or barrels of less
than eighteen inches in length or an overall length of less than twenty-six inches; (2) a witness
testified that the barrel of the shotgun found in defendant's possession had been sawed off and
the barrel was less than eighteen inches in length; and (3) this element was not required to prove
the offense of robbery with a dangerous weapon.
5. Constitutional Law-_effective assistance of counsel--defense counsel's cross-
examination possibly bolstering the State's case
*** Converted from WordPerfect ***
A defendant in a robbery with a dangerous weapon case was not deprived of effective
assistance of counsel based on an allegation that defense counsel's extensive cross-examination
regarding the shotgun possibly bolstered the State's case, because: (1) the State presented
sufficient evidence on direct examination of the use of a dangerous weapon; and (2) defendant
failed to meet his burden of proving that his attorney's performance fell below an objective
standard of reasonableness and that defendant was prejudiced by his attorney's alleged deficient
performance.
Appeal by defendant from judgment entered 25 July 2000 by
Judge Dennis Jay Winner in Bladen County Superior Court. Heard
in the Court of Appeals 28 November 2001.
Attorney General Roy Cooper, by Special Deputy Attorney
General George W. Boylan, for the State.
A. Michelle FormyDuval, for defendant-appellant.
TYSON, Judge.
Mr. Lloyd testified that on the night of the incident he
gave a statement describing the assailant as a tall black male,
approximately 175 to 180 pounds, light brown skin, wearing a
three-quarter length black coat. Mr. Lloyd also testified that
the assailant pointed a double-barrel shotgun at him and demanded
his car keys.
After voir dire, Mr. Lloyd was permitted to identify
defendant, before the jury, as the person who robbed him. Mr.
Lloyd testified that some of the items in his car that night were
later returned to him by Investigator Marshall Allen (“Allen”).
Allen testified that he investigated the robbery on 26
December 1999. On 28 December 1999, Allen received a phone callthat Michael Green (“Green”) had attempted to cash one of Mr.
Lloyd's checks and had been detained by the Lumberton police
after he was found in possession of Mr. Lloyd's stolen car.
Green directed the police to a motel room key in Mr. Lloyd's car
and to room 134 at the Red Roof Motel which was registered by
Green under another name.
Allen testified that after knocking, Aletha Rose Jones
opened the door. Allen and other officers entered the motel
room. They found defendant lying on the bed and a sawed-off
twenty-gauge shotgun leaning against the wall, approximately
eight feet from defendant. Allen also found a black leather coat
which defendant identified as his and various personal items
belonging to Mr. Lloyd.
Defendant presented no evidence at trial. The jury found
defendant guilty of robbery with a dangerous weapon. The trial
court found as an aggravating factor the use of a weapon of mass
destruction and sentenced defendant within the aggravated range.
Defendant appeals. We hold there was no error.
We note that defendant raised an additional assignment of
error in the record, pertaining to the failure of the trial court
to find mitigating factors. This assignment of error was not
argued in defendant's brief and is deemed abandoned. N.C.R. App.
P. 28(b)(5) (1999).
Both the United States Supreme Court and our Supreme Court
have criticized the practice of a “show-up”: showing suspects to
victims and witnesses singularly rather than as part of a lineup.
See State v. Oliver, 302 N.C. 28, 44-45, 274 S.E.2d 183, 194
(1981) (citing Stovall v. Denno, 388 U.S. 293, 302, 18 L. Ed. 2d
1199, 1206 (1967)). At bar, the trial court properly found that
the pretrial show-up was suggestive and not admissible.
Even though a pretrial procedure is found to be unreliable,
an in-court identification of independent origin is admissible.
State v. Headen, 295 N.C. 437, 439, 245 S.E.2d 706, 708 (1978).
If shown that the pretrial identification procedures were so
suggestive as to create a very substantial likelihood of
irreparable misidentification, the in-court identification
evidence must be suppressed. State v. Wilson, 313 N.C. 516, 528-
29, 330 S.E.2d 450, 459 (1985). The likelihood of irreparable
misidentification depends on the totality of the circumstances.
State v. Fisher, 321 N.C. 19, 23, 361 S.E.2d 551, 553 (1987). Our Supreme Court identified several factors to determine the
existence of irreparable misidentification: (1) the opportunity
of the witness to view the criminal at the time of the crime, (2)
the witness' degree of attention, (3) the accuracy of the
witness' prior description of the perpetrator, (4) the level of
certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation.
State v. Powell, 321 N.C. 364, 368-69, 364 S.E.2d 332, 335
(1988).
Defendant objected prior to the in-court identification.
During voir dire, Mr. Lloyd testified that: (1) he was fifteen
feet from the assailant during the robbery, (2) he saw his
assailant's face for approximately one to two minutes, (3) the
parking lot outside of the convenience store had newer canopy
lights and track lights, (4) the parking lot was well lit, (5) he
was not tired at the time, and (6) he does not wear glasses or
have any eyesight problems. Mr. Lloyd then identified defendant
as the person who robbed him and stated that his identification
of defendant was based on seeing defendant the night of the
incident and not the show-up at the sheriff's department. The
trial court found by clear and convincing evidence that the in-
court identification of defendant by Mr. Lloyd was independent of
and not tainted by the show-up but was solely from his memory of
the incident.
Considering the totality of the circumstances, we conclude
that there was not a substantial likelihood of misidentification.
The witness had ample opportunity to view defendant; the witnessgave an accurate description of defendant and his clothing, other
than a minor discrepancy as to whether defendant had a toboggan
rolled up around his head or whether it was defendant's own hair;
and the witness was certain in his identification of defendant as
the person who robbed him. We hold that the trial court did not
err by admitting the in-court identification. This assignment of
error is overruled.
The Fourth Amendment protects people from unreasonable
searches and seizures. To challenge a search as unreasonable
under the Fourth Amendment, an individual must be able to show
that he has a legitimate expectation of privacy in the area
searched. Rakas v. Illinois, 439 U.S. 128, 143, 58 L.Ed.2d 387,
401 (1978). Justice Harlan, concurring in Katz v. United States,
389 U.S. 347, 19 L.Ed.2d 576 (1976), outlined a two-prong test
for determining whether an individual has a legitimate
expectation of privacy: (1) the individual must have a
subjective expectation of privacy, and (2) that subjective
expectation must be reasonable. Id. at 361, 19 L. Ed. 2d at 588.
The United States Supreme Court has held that a guest in a
hotel room has a reasonable expectation of privacy. Stoner v.California, 376 U.S. 483, 490, 11 L. Ed. 2d 856, 861
(1964)(holding that an overnight guest "living" in a hotel room,
like "a tenant of a house, or the occupant of a room in a
boarding house," has a legitimate expectation of privacy in the
hotel room) (citations omitted). The facts in Stoner are not
present here. The evidence showed that the room was rented to
Green and not to defendant, there was no evidence that defendant
had any luggage in the room, and there was no evidence that
defendant had spent the night or planned on staying overnight.
While defendant may have had a subjective expectation of
privacy in the room, it was not a reasonable expectation of
privacy “rooted in 'understandings that are recognized and
permitted by society.'” Minnesota v. Olson, 495 U.S. 91, 100,
109 L. Ed. 2d 85, (1990) (determining that an "overnight guest"
has a legitimate expectation of privacy, in part, because he is
engaging in a "longstanding social custom that serves functions
recognized as valuable by society") (quoting Rakas, 439 U.S. at
144, n. 12, 58 L. Ed. 2d 387 (1978)). We conclude that defendant
did not have a reasonable expectation of privacy and cannot
invoke the protections of the Fourth Amendment. See United
States v. Grandstaff, 813 F.2d 1353, 1357 (9th Cir. 1987)
(holding that “mere presence in the hotel room of another is not
enough” to establish a legitimate expectation of privacy in one's
surroundings); United States v. Maddox, 944 F.2d 1223, 1234 (6th
Cir. 1991) (holding that a “purely transient party guest” had no
reasonable expectation of privacy in his host's home). This
assignment of error is overruled.
The standard for ruling on a motion to dismiss "is whether
there is substantial evidence (1) of each essential element of
the offense charged and (2) that defendant is the perpetrator of
the offense." State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811,
814 (1990). Substantial evidence is that relevant evidence which
a reasonable mind might accept as adequate to support a
conclusion. State v. Patterson, 335 N.C. 437, 449-50, 439 S.E.2d
578, 585 (1994). In determining the sufficiency of the evidence,
"[t]he trial court must consider such evidence in the light most
favorable to the State, giving the State the benefit of every
reasonable inference to be drawn therefrom." Id. at 450, 439
S.E.2d at 585.
The offense of robbery with a dangerous weapon has the
following three elements: (1) an unlawful taking or an attempt to
take personal property from the person or in the presence of
another, (2) by use or threatened use of a firearm or other
dangerous weapon, and (3) whereby the life of a person is
endangered or threatened. State v. Call, 349 N.C. 382, 417, 508
S.E.2d 496, 518 (1998).
Mr. Lloyd, the victim, testified on cross-examination thatthe man who robbed him walked up to him from around the c
orner of
the store and pointed a double-barrel shotgun or a single-barrel
with a pump, which appeared to be two barrels, at him. Mr. Lloyd
also testified that the assailant kept the shotgun pointed at him
while driving off in his stolen car. Mr. Lloyd later identified
the sawed-off single barrel shotgun recovered from defendant as
looking just like the gun which was pointed at him the night of
the robbery.
This evidence is sufficient to withstand defendant's motion
to dismiss. This assignment of error is overruled.
Defendant further contends that the aggravating factor was
based on circumstances which were part of the essence of the
crime. "Evidence necessary to prove an element of the offense
shall not be used to prove any factor in aggravation. . . ."
N.C. Gen. Stat. § 15A-1340.16(d) (1999); see also State v.
Hughes, 136 N.C. App. 92, 99, 524 S.E.2d 63, 67 (1999) ("[i]t is
error for an aggravating factor to be based on circumstances
which are part of the essence of a crime"), disc. review denied,
351 N.C. 644, 543 S.E.2d 878 (2000).
An essential element of the offense of robbery with adangerous weapon is the use or threatened use of a firearm or
other dangerous weapon. Call, 349 N.C. at 417, 508 S.E.2d at
518. We have already concluded that sufficient evidence was
presented that defendant pointed a shotgun at the victim.
Elements not essential to the crime charged may be used to prove
any factor in aggravation. State v. Thompson, 309 N.C. 421, 422,
307 S.E.2d 156, 158 (1983). "The State bears the burden of
proving by a preponderance of the evidence that an aggravating
factor exists . . . ." N.C. Gen. Stat. § 15A-1340.16(a) (1999).
A weapon of mass destruction includes “any shotgun with a
barrel or barrels of less than 18 inches in length or an overall
length of less than 26 inches . . . .” N.C. Gen. Stat. § 14-
288.8(c)(3) (1999). Allen testified that the barrel of the
shotgun found in defendant's possession had been sawed off and
that the barrel was less than 18 inches in length. This element
was not required to prove the offense of robbery with a dangerous
weapon and therefore was properly found as an aggravating factor
by the trial court. This assignment of error is overruled.
The test for ineffective assistance of counsel is the same
under the federal and state constitutions. A defendant isentitled to relief if he can show: (1) that his counsel's
performance fell below an objective standard of reasonableness,
and (2) that his counsel's deficient representation was so
serious as to deprive him of a fair trial. State v. Braswell,
312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985); see also
Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984).
Here, the State presented testimony by the victim that
defendant was the man who robbed him on 26 December 1999 and that
Green was not the man who pointed the gun at him. While defense
counsel's extensive cross-examination regarding the shotgun may
have bolstered the State's case, we conclude that the State
presented sufficient evidence on direct examination of the use of
a dangerous weapon. Defendant has failed to meet his burden of
proving that his attorney's performance fell below an objective
standard of reasonableness and that he was prejudiced by his
attorney's alleged deficient performance.
No error.
Judges TIMMONS-GOODSON and HUDSON concur.