STATE OF NORTH CAROLINA
v
.
New Hanover County
No. 00 CRS 12407
BRANDON MAURICE BROWN
Attorney General Roy Cooper, by Assistant Attorney General
Christine M. Ryan, for the State.
Sofie W. Hosford for the defendant-appellant.
WYNN, Judge.
Defendant was tried for robbery with a firearm, first-degree
burglary and assault with a deadly weapon with intent to kill
inflicting serious injury. Before trial, defendant moved to
suppress evidence of pretrial and in-court identification. The
trial court conducted a voir dire hearing and, after making written
findings of fact and conclusions of law, denied the motion to
suppress.
At trial, Ignicio Bejar testified that on 21 June 2000 at a
time when it was “fixing to get dark,” defendant approached him
outside of his apartment, put a gun in his back, and demanded his
money. When Bejar told defendant he had no money, defendantordered him to get money from his apartment where his wife, four-
year-old son, niece and some small children were located. At the
apartment, Bejar asked his wife, Minerva Zemora Bejar, in English
for money, and when she hesitated he asked in Spanish. Thereafter,
defendant pushed him inside and pointed a gun at Bejar's wife and
said he would kill her. Bejar turned, grabbed the gun and
struggled with defendant; defendant dropped the gun, regained it
and shot Bejar in the face. Thereafter, Ms. Bejar threw her purse
at defendant, who picked it up and ran away. Bejar spent three
days in the hospital recuperating from his injuries.
Bejar and his wife later identified defendant as the assailant
in separate photo lineups. Ms. Bejar also identified defendant as
the assailant in court.
At trial, defendant testified, denying that he owned or
possessed a firearm on the date of the incident. He further denied
any involvement in the robbery and assault of the Bejars.
After the charge conference and before closing arguments, the
State moved to reopen its case to allow the trial court to take
judicial notice of the time the sun set on 21 June 2000. The
defense did not object to this motion, and the trial court took
judicial notice that the sun set on 21 June 2000 at 7:27 p.m.
Eastern Standard time, or 8:27 p.m. daylight savings time in
Wilmington, North Carolina.
The jury found defendant guilty of robbery with a firearm,
first degree burglary, and assault with a deadly weapon inflicting
serious injury. The trial court respectively sentenced him underrecord level two to a minimum of 72 months and a maximum of 96
months, a minimum of 72 months and a maximum of 96 months, a
minimum of 24 months and a maximum of 38 months_-each term to run
consecutively. Defendant appealed to this Court.
The issues on appeal are whether the trial court erred in:
(I) denying defendant's motion to dismiss at the close of the
State's evidence; (II) allowing the State to reopen its case to
permit the trial court to take judicial notice of the official time
of sunset; and (III) denying defendant's motion to suppress
pretrial and in-court identification of defendant. For the reasons
stated below, we conclude that defendant received a fair trial,
free from prejudicial error.
First, defendant contends that the trial court erred in
denying his motion for nonsuit at the close of State's evidence
because the State failed to present sufficient evidence that this
offense occurred in the nighttime. We disagree.
“A motion for nonsuit in a criminal case requires
consideration of the evidence in the light most favorable to the
State, and the State is entitled to every reasonable intendment and
every reasonable inference to be drawn therefrom.” State v.
Pallas, 144 N.C. App. at 277, 286, 548 S.E.2d 773, 780 (2001),
(quoting State v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578,
581-82 (1975)). “Contradictions and discrepancies are for the jury
to resolve and do not warrant nonsuit.” State v. Pallas, 144 N.C.
App. at 286, 548 S.E.2d at 780. “[I]f there is substantial
evidence--whether direct, circumstantial, or both--to support afinding that the offense charged has been committed and that
defendant committed it, a case for the jury is made and nonsuit
should be denied.” State v. McKinney, 288 N.C. at 117, 215 S.E.2d
at 582 (1975).
In testing the sufficiency of the evidence to sustain a
conviction and to withstand a motion to dismiss, the reviewing
court must determine whether there is substantial evidence of each
essential element of the offense and substantial evidence that the
defendant was the perpetrator of the offense. See State v. Powell,
299 N.C. 95, 261 S.E.2d 114 (1980). “[I]f the State fails to
present substantial evidence that the crime charged occurred during
the nighttime, a defendant is entitled to have charges of burglary
against him dismissed.” State v. Smith, 307 N.C. 516, 518, 299
S.E.2d 431, 434 (1983).
The offense of first-degree burglary consists of six elements:
(1) the breaking, (2) and entering, (3) in the nighttime, (4) into
a dwelling house or sleeping apartment of another, (5) which is
actually occupied at the time of the offense, and (6) with the
intent to commit a felony therein. State v. Barnett, 113 N.C. App.
69, 74, 437 S.E.2d 711, 714 (1993). In North Carolina, there is no
statutory definition of nighttime; however, our courts adhere to
the common law definition of nighttime as that time after sunset
and before sunrise “when it is so dark that a man's face cannot be
identified except by artificial light or moonlight.” State v.
Barnett, 113 N.C. App. at 74, 437 S.E.2d at 714 (citations
omitted); see also State v. Smith, 307 N.C. at 519, 299 S.E.2d at434. Thus, “if the State fails to present substantial evidence
that the crime charged occurred during the nighttime, a defendant
is entitled to have charges of burglary against him dismissed.”
State v. Bowers, 135 N.C. App. 682, 687, 522 S.E.2d 332, 336
(1999) (citations omitted).
In the present case, there was sufficient evidence presented
to allow a reasonable jury to conclude that the assault took place
at nighttime. Ignicio Bejar testified that it was either dark or
“fixing to get dark” at the time of the assault on 21 June 2000.
Captain Lyle Johns, under cross-examination by the defense,
testified that he received an initial emergency call regarding Mr.
Bejar at around 9:13 p.m.; and Ms. Bejar testified that her
husband's cousins, who were in a different room in the apartment,
placed the call for assistance, which had been initiated prior to
defendant fleeing the apartment. Moreover, the trial court took
judicial notice that the time of sunset was 8:27 p.m. Daylight
Savings Time according to the U.S. Naval Observatory official times
for sunset. Viewing this evidence in the light most favorable to
the State, we find the evidence sufficient to establish the
nighttime element necessary to sustain a conviction of first-degree
burglary. See State v. Bowers, 135 N.C. App. at 688, 522 S.E.2d
at 336.
Next, defendant contends that the trial court erred in
allowing the State to reopen the case to permit the trial court to
take judicial notice of the official time of sunset. We disagree.
In the present case, defendant failed to object and waived hisright to challenge the trial court taking judicial notice of the
official time of sunset. Thus, defendant must establish plain
error by showing that it was a “fundamental error, something so
basic, so prejudicial, so lacking in its elements that justice
cannot have been done.” United States v. McCaskill, 676 F.2d 995,
1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513
(1982); see also State v. Dale, 343 N.C. 71, 468 S.E.2d 39 (1996).
Before granting relief based on the plain error rule, “the
appellate court must be convinced absent the error the jury
probably would have reached a different verdict.” State v. Walker,
316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986).
Rule 201 (b) of the North Carolina Rules of Evidence provides
in pertinent part that “a judicially noticed fact must be one not
subject to reasonable dispute in that it is either (1) generally
known within the territorial jurisdiction of the trial court or (2)
capable of accurate and ready determination by resort to sources
whose accuracy cannot reasonably be questioned.” N.C. Gen. Stat.
§ 8C-1, Rule 201(b) (2001). The rule also permits a trial court
to take judicial notice whether requested or not, and requires a
trial court to take judicial notice if “requested by a party and
supplied with the necessary information.” Moreover, “[j]udicial
notice may be taken at any stage of the proceeding.” N.C. Gen.
Stat. § 8C-1, Rule 201 (f). Particularly pertinent to the
subject appeal, our courts have regularly taken judicial notice of
the official times for sunrise or sunset in burglary cases. See
State v. Garrison, 294 N.C. 270, 280, 240 S.E.2d 377, 383 (1978);State v. Barnett.
The exact time of sunset and the current phase
of the moon on a particular date are not facts
“generally known.” They are, however, facts
which are “capable of accurate and ready
determination by resort to sources whose
accuracy cannot reasonably be questioned.”
Thus, it was the responsibility of defendant's
counsel, upon his request that the trial court
take judicial notice of the moon phase and
time of sunset, to provide that information to
the trial court in “a document of such
indisputable accuracy as [would] justif[y]
judicial reliance.”
State v. Canady, 110 N.C. App. 763, 766, 431 S.E.2d 500, 501 (1993)
(internal citations omitted).
In the present case, there was conflicting testimony as to the
amount of darkness outside during the assault as well as the exact
time. The evidence presented by the State tended to show that the
assault took place between 8:30 p.m. and 9:10 p.m. Yet, viewing
all of the evidence, even if the trial court had not taken official
U.S. Naval Observatory time of sunset, there was substantial
evidence in the record that would have permitted a jury to find
that the offense took place at nighttime. Moreover, after
supplying the official time of sunset, the trial court then
instructed the jury that they could but were not required to find
that data conclusive. Thus, this assignment of error is rejected.
Finally, defendant contends that the trial court erred in
denying his motion to suppress the pretrial and in-court
identifications of him. We disagree.
In reviewing the trial court's ruling on a motion to suppress
identification testimony, the findings of fact are binding ifsupported by competent evidence. See State v. Freeman, 313 N.C.
539, 544, 330 S.E.2d 465, 471 (1985). “The proper test is whether
in the totality of the circumstances a procedure is so
unnecessarily suggestive and conducive to irreparable
misidentification that it offends fundamental standards of decency
and justice. If an identification procedure is not impermissibly
suggestive, the inquiry is ended.” Id. (Citations omitted).
We have held that even if the pretrial
procedure is suggestive, that suggestiveness
rises to an impermissible level only if all
the circumstances indicate that the procedure
resulted in a very substantial likelihood of
irreparable misidentification. The factors to
be considered in evaluating the likelihood of
irreparable misidentification include: (1) the
opportunity of the witness to view the
criminal at the time of the crime; (2) the
witness's degree of attention; (3) the
accuracy of the witness's prior description of
the criminal; (4) the level of certainty
demonstrated by the witness at the
confrontation; and (5) the length of time
between the crime and the confrontation.
[Citation omitted].
State v. Grimes, 309 N.C. 606, 609-10, 308 S.E.2d 293, 294-295
(1983).
In the present case, the record on appeal shows that defendant
failed to offer any evidence that the photo lineups were improper.
The State's evidence tended to show that prior to trial defendant
filed a motion to suppress the evidence of pretrial and in-court
identification. The trial court held a voir dire regarding
defendant's motion to suppress. The trial court denied the motion
to suppress and made written findings of facts and conclusions of
law. At the suppression hearing, Ignacio Bejar testified that
defendant approached him with a gun while he was outside cleaning
his truck. When Bejar told defendant that he did not have money,
defendant told him to go inside of his apartment to get some.
Bejar looked at defendant's face; subsequently, Bejar went to his
apartment with defendant following him and when he opened the door,
he asked his wife for $50. Once inside the apartment, defendant
and Bejar wrestled over the gun, which gave Bejar an opportunity to
see defendant up close, approximately 10 to 12 inches away. During
the struggle, the lights were on in the apartment so Bejar had no
difficulty seeing defendant's face. During the struggle, defendant
shot Bejar in the head.
While in the hospital, Bejar was approached by Investigator
Gronau, who asked him to identify the assailant from pictures.
Bejar was medicated and in pain and was unable to comply. On 26
June 2000, Investigator Gronau visited Bejar after he was home.
Investigator Gronau showed Bejar six photographs on a sheet of
paper. He asked Bejar if he saw the man who shot him on that
paper. Bejar quickly identified a photograph of defendant as his
assailant, and signed and dated it. He told the investigator that
he was one hundred percent certain that he had identified his
assailant. When giving his description of the assailant, Bejar
described him as skinny, with fully braided hair, approximately 18-
20 years old.
Investigator Gronau testified that defendant had generally fit
the description given to police by the family after the shooting. He had generated a photo lineup which included defendant and five
other random suspects with similar features. He also testified on
the night of the shooting, he received a verbal description of the
suspect from Bejar's wife. Ms. Bejar described the suspect as a
young, black male, with short dreads or braids. Later that night,
Investigator Gronau provided Ms. Bejar with a computer terminal and
showed her how to review the photographs of black males in the
computer. There were approximately 1,700 photos of black males in
the system at the time Ms. Bejar reviewed it. She selected
defendant's picture as the one who shot her husband.
Investigator Gronau showed a photo lineup to Ms. Bejar which
was in a different order than that shown to Bejar. The lineup
contained the photo that she had selected from the computer. Ms.
Bejar again identified defendant as the attacker from the photo
lineup. A third witness, Maria Vargas viewed stored photographs on
the computer on the night of the shooting but was unable to
identify any individual with certainty. So she was not shown the
photo lineup.
The trial court's findings of fact state that all six
photographs consisted of similar black and white computer generated
pictures of the head and shoulders of six black males. All of them
appeared to be in their late teens to early twenties. The trial
court further found that nothing was said by Gronau to direct or
single out defendant to the witnesses. The trial court concluded
that the identification by Ms. Bejar was not inherently credible,
given all of the circumstances of the witness' ability to view thedefendant at the time of the crimes; and that credibility of the
identification evidence was for the jury to weigh. The trial court
further concluded that the pretrial identification procedure was
not so impermissibly suggestive as to have violated defendant's
right to due process; and that the pretrial identification
procedure was reliable and did not produce substantial likelihood
of misidentification given the totality of the circumstances. We
hold that the trial court's findings sufficiently show that the
identification procedure was not impermissibly suggestive. See
State v. Roberts, 135 N.C. App. 690, 693-96, 522 S.E.2d 130, 133
(1999), disc. review denied, 351 N.C. 367, 543 S.E.2d 142 (2000).
Even assuming, arguendo, that the identification procedure was
impermissibly suggestive, defendant has failed to show that it
created a substantial likelihood of irreparable misidentification.
Applying the five factors from State v. Cain, supra, the Bejars had
the opportunity to view the assailant in good lighting conditions;
their prior descriptions to police of defendant matched defendant's
physical appearance; they demonstrated a high level of certainty
about their identification of defendant; and they viewed
photographic array shortly after the crime. Moreover, less than a
year after the assault, the witnesses made in-court identifications
of defendant and indicated that they were certain of their
accuracy. After a review of the aforementioned factors, we find
no error in the trial court's denial of defendant's motion to
suppress the pretrial and in-court identifications of defendant.
In summation, we hold that defendant received a fair trial,free from prejudicial error.
No error.
Judges Hudson and Campbell concur.
Report per Rule 30(e).
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