STATE OF NORTH CAROLINA
v. Henderson County
Nos. 00CRS51991, 2809
STEVE ALLEN SPROUSE
Attorney General Roy Cooper, by Assistant Attorney General
Karen E. Long, for the State.
Scott H. Shelton for defendant-appellant.
EAGLES, Chief Judge.
The Henderson County grand jury indicted defendant on a charge
of felonious breaking and entering on 24 April 2000 and later
indicted him for having committed the offense as a habitual felon.
On 25 September 2000, a jury found defendant guilty of felonious
breaking and entering. Defendant admitted his habitual felon
status. The trial court sentenced defendant to a term of 135 to
171 months imprisonment. From the trial court's judgment,
defendant appeals.
At trial, the State presented evidence tending to show the
following: On 11 April 2000, Marie Stinnett (victim) arrived at
her home with her sister, Anna Parton (Ms. Parton). Both womennoticed a strange vehicle parked in the victim's driveway. Upon
seeing that the glass in her back door was broken, the victim
entered her home and screamed “[g]et out of my house, and who's
here.” She “saw just a glimpse of somebody going out the front
door[,]” and only noticed that the individual was a man with short
hair and wearing a jacket.
Ms. Parton ran around the house to get the vehicle's license
plate number after she heard somebody coming out of the front door.
She ran within a foot of the man as he was opening the vehicle's
door. Ms. Parton then proceeded to call out the vehicle license
plate number to the victim, who was on her porch speaking to the
9-1-1 dispatch on a portable telephone. She described the man whom
she had observed for thirty to forty-five seconds as being five
feet eight inches in height and about 185 pounds. His hair was
black with gray, and he had a full mustache that was black with
some gray.
During a voir dire Deputy Dwayne Frickel testified that he
developed a list of suspects as a result of his investigation of
the suspected breaking and entering. He prepared a photographic
lineup that included defendant's photograph and had the victim and
Ms. Parton view it. The lineup contained photographs of six white
males, all of whom were approximately forty years of age with dark
hair, mustaches and similar facial features. Ms. Parton identified
defendant's photograph, but the victim was unable to identify the
perpetrator in the lineup. Deputy Frickel testified initially that
the only identifying markings in the photographs were the letters“BCSD” on a placard held by each of the men in a booking room of
the Buncombe County Sheriff's Department. During questioning by
defense counsel, Deputy Frickel acknowledged the words “Asheville,
North Carolina” were on all of the placards except for defendant's
photograph.
At the conclusion of the voir dire, the trial court found that
the photographic lineup was shown to the victim and Ms. Parton two
days after the alleged crime occurred. The lineup contained
photographs of six white males of approximately the same age, with
the same length of hair, and with the same facial hair, including
mustaches. Defendant's photograph did not have “Asheville, North
Carolina” under BCSD. One witness was able to identify defendant,
while the other witness marked “not sure.” On the basis of these
findings of fact, the trial court concluded “the pretrial
identification procedure involving defendant was not so
unnecessarily suggestive and conducive to irreparable mistaken
identification as to violate the defendant's right to due process
of law.” The trial court then denied defendant's motion to
suppress the photographic identification.
Deputy Frickel subsequently testified in open court that he
checked the license plate number given to him by the two women, he
discovered the vehicle was registered to defendant's father-in-law,
Joseph Earl Corn. As a result of his investigation, Deputy Frickel
prepared the photographic lineup and presented it to the victim and
Ms. Parton on 13 April 2000. While the victim indicated she could
not positively identify the perpetrator in the lineup, Ms. Partonimmediately selected defendant's photograph. Ms. Parton described
the six men in the photographs as “[m]en that look about the same”
with similar hair color, mustaches and hair length. A jury
subsequently found defendant guilty of felonious breaking and
entering. Defendant admitted his habitual felon status.
Defendant contends the trial court erred by admitting the
photographic lineup, witness identification sheet and
identification testimony into evidence. He argues this evidence
was impermissibly suggestive and conducive to misidentification due
to the failure to make the markings on his photograph identical to
the other five photographs. We disagree.
“[I]n the context of photographic lineups, a positive
identification must be suppressed only if the photographic lineup
itself is both (1) 'impermissibly suggestive' and (2) so suggestive
that 'irreparable misidentification' is likely.” State v. Roberts,
135 N.C. App. 690, 693, 522 S.E.2d 130, 132 (1999), disc. review
denied, 351 N.C. 367, 543 S.E.2d 142 (2000). Although defendant
argues the photographic lineup was impermissibly suggestive due to
the absence of the words “Asheville, North Carolina” from his
photograph, he inexplicably has not made the photographic lineup
part of the record on appeal. However, the trial court made
findings at the voir dire hearing as to the similarities of the six
photographs aside from the absence of the words “Asheville, North
Carolina” on defendant's photograph. After a thorough review of
the record, transcript, and the trial court's findings of fact, weconclude defendant's contention that the lineup was impermissibly
suggestive is without merit.
The circumstances here also do not show there was a
substantial likelihood of irreparable misidentification. Ms.
Parton viewed the perpetrator for approximately thirty to
forty-five seconds, her description of the perpetrator was
consistent with defendant's appearance, she immediately identified
defendant, and she viewed the photographic lineup only two days
after the crime. See State v. Pigott, 320 N.C. 96, 99-100, 357
S.E.2d 631, 633-34 (1987). Accordingly, the trial court did not
err in denying defendant's motion to suppress the pre-trial
identification.
While defendant next attempts to argue that the in-court
identification testimony should have been excluded by the trial
court, he has not preserved this issue for appellate review with an
appropriate assignment of error. See N.C. R. App. P. 10(a) (scope
of review is limited to assignments of error set out in the record
on appeal). His contention is without merit, nevertheless, because
when “the lineup itself was not impermissibly suggestive . . . ,
the in-court identification could not possibly be suppressed as the
fruit of a poisonous tree.” Roberts, 135 N.C. App. at 694-95, 522
S.E.2d at 133.
Defendant has failed to argue his second assignment of error,
and it is therefore deemed abandoned. N.C. R. App. P. 28(b)(5).
In his final assignment of error, defendant asks this Court to
“review the record herein for any further errors in this matter.” However, “[t]he submission . . . of isolated 'Anders issues' for
the appellate court to research is not a viable course of action.”
State v. Barton, 335 N.C. 696, 712, 441 S.E.2d 295, 304 (1994).
Accordingly, we find no error.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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