NO. COA02-490

NORTH CAROLINA COURT OF APPEALS

Filed: 18 February 2003

    Appeal by defendant from judgment entered 1 November 2001 by Judge Dwight L. Cranford in Halifax County Superior Court. Heard in the Court of Appeals 8 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General E. Clementine Peterson, for the State.

    McCotter, McAfee, & Ashton, PLLC, by Rudolph A. Ashton, III, and Robert J. McAfee, for defendant-appellant.

    LEVINSON, Judge.

    Defendant appeals his conviction of robbery with a dangerous weapon. For the reasons that follow, we find no error.
    The relevant trial evidence may be summarized as follows: Juanita Jones testified for the State. On 19 January 1999, she was employed as a clerk at the Handy Mart store in Scotland Neck, North Carolina. Between 9:00 and 10:00 p.m., she locked one of the store's two doors and began stocking shelves. At approximately 11:15 p.m., defendant approached the locked door. Jones directed him to the other door, then went behind the counter. Defendantbrought a candy bar to the counter, but when Jones turned to ring it up, defendant pulled a gun from his pocket and pointed it at her. Jones was unnerved, and inadvertently voided the transaction on the cash register. While she tried to open the register, defendant remained standing on the other side of the counter, with the gun aimed at her. After a few minutes, Jones succeeded in opening the cash drawer, and gave defendant its contents. He immediately left the store, whereupon Jones summoned the police and her manager. When law enforcement officers arrived, Jones provided a description of the robber, and viewed a surveillance video taken during the robbery.
    Regarding her identification of defendant as the man who robbed her, Jones testified at trial that they stood “face to face” about two feet apart for several minutes while she worked to open the cash drawer. The Handy Mart was well lit, and she could see him clearly. During the week following the robbery, Jones went to the Scotland Neck police station several times and looked at many photographs, without identifying the robber. However, when she was shown a sketch, she informed Chief Pilgreen of the Scotland Neck Police Department that the sketch resembled the robber, and asked to see a picture of that person. Shortly thereafter, a law enforcement officer called to tell her “I think I've got your man. I've got a lineup.” Jones went to the Sheriff's department, andfrom an adjoining room, observed “four or five different men in there lined up.” Upon seeing defendant in the lineup, Jones “just knew it was him. I remembered him, because I had been close to him.” She identified defendant at that point as the man who had robbed the Handy Mart. On cross-examination, Jones denied having viewed a specific photo array that included defendant.
    Corporal Kevin West, a narcotics investigator with the Edgecombe County Sheriff's Department, also testified for the State. On 19 January 1999 he was watching television in the Edgecombe County Magistrate's office, when an officer with the Scotland Neck police department used the television to play the surveillance video from the robbery at Handy Mart. West recognized defendant, and the following morning he contacted Chief Pilgreen. West met with Pilgreen and reviewed still photos taken from the video, to confirm his identification of defendant. As a result of West's identification, a warrant was issued. West arrested defendant, and then turned the case over to Pilgreen.
    Pilgreen, who supervised the investigation of the incident, testified for defendant. Pilgreen testified that a few days after the robbery he showed Jones Defendant's Exhibit 1, a photo array including defendant. He testified that Jones had been unable to make an identification from the photo line-up. Several days later defendant was arrested. Pilgreen testified that defendant “wanted[Jones] to look at him.” Accordingly, at defendant's request, Jones came to the sheriff's department and observed defendant through a one-way mirror. At that time she declared herself “90% sure” that defendant was the robber, but after Jones and Pilgreen drove back to the Scotland Neck police station, she told Pilgreen she was “100% sure it's him.” According to Pilgreen, defendant was the only person in the room with a one-way mirror; Jones was never shown a line-up, only the one-man “show-up” of defendant.
    Defendant presented two additional witnesses, Carol Ann Auston and Latitia Highsmith. Auston testified that she was a lifelong friend of defendant, and that he was at her apartment at the time of the Handy Mart Robbery. She also testified that in her opinion the person depicted in the surveillance videotape was not defendant. Highsmith testified that defendant was her boyfriend, and the father of her child, and that he had been at home with her on the night of the robbery. She also testified that in her opinion defendant was not the man shown in the surveillance video.

____________________________

    Defendant argues first that the trial court erred by denying his motion to suppress the in-court identification of defendant by Jones. Defendant contends that Jones' identification was based on an impermissible one-person show-up, a highly suggestive photographic array, and upon a single photograph. We disagree.     Preliminarily we note that although defendant states that Jones' identification of him was based in part upon a “single photograph,” he has neither identified the challenged photo, nor presented any argument regarding it. Thus, he has abandoned the issue of the alleged “single photograph.” See N.C.R. App. P. 28(b)(6) (“Assignments of error . . . in support of which no reason or argument is stated or authority cited, will be taken as abandoned.”).
    “'Identification evidence must be excluded as violating a defendant's right to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.'” State v. Pinchback, 140 N.C. App. 512, 518, 537 S.E.2d 222, 226 (2000) (quoting State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983)). Therefore, “[t]he first inquiry when a motion is made to suppress identification testimony is whether the pretrial identification procedure is impermissibly suggestive.” State v. Powell, 321 N.C. 364, 368-369, 364 S.E.2d 332, 335 (1988). “If it is determined that the pretrial identification procedure is impermissibly suggestive the court must then determine whether the suggestive procedure gives rise to a substantial likelihood of irreparable misidentification.” Id. In determining whether this substantial likelihood exists, the trial court should consider:        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; 4) the level of certainty demonstrated at the confrontation; and 5) the time between the crime and the confrontation.

State v. Pigott, 320 N.C. 96, 99-100, 357 S.E.2d 631, 633-634 (1987). If supported by competent evidence, a trial court's findings of fact regarding these issues are conclusive on appeal. State v. Freeman, 313 N.C. 539, 330 S.E.2d 465 (1985).
    However, “a suggestive identification procedure has to be unreliable under a totality of the circumstances in order to be inadmissible. Even when a pre-trial procedure is found to be unreliable, in-court identification of independent origin is admissible.” State v. Garner, 136 N.C. App. 1, 11-12, 523 S.E.2d 689, 697 (citing State v. Headen, 295 N.C. 437, 439, 245 S.E.2d 706, 708 (1978)) (emphasis added). See State v. Powell, 321 N.C. at 369, 364 S.E.2d at 336 (“although the trial court may have erred in finding a pretrial procedure was not impermissibly suggestive it was not error to allow an in-court identification when the trial court found, based on sufficient competent evidence, that the witness' 'identification was independent of the pretrial procedure'”) (quoting State v. Bundridge, 294 N.C. 45, 56, 239 S.E. 2d 811, 819 (1978)).    In the instant case, defendant moved pretrial to suppress the identification by Jones. He argued that Jones had been shown an impermissibly suggestive photo line-up, and had identified defendant based on a one-man show-up, both of which had “inescapably” prevented her identification of defendant from being of independent origin. On 19 September 2001 defendant was granted a hearing on his motion to suppress the identification. At the hearing, the State called only one witness _ Jones. She testified that she had picked defendant's photo from among a group of about 15 to 20 pictures, but had never been shown the photographic array at issue. She also denied seeing defendant in a one-man show up, testifying instead that she had picked defendant from a line-up of five or six men. Jones testified further that (1) the Handy Mart store was brightly lit; (2) she had an unobstructed view of defendant for several minutes; (3) she generally noted characteristics of her customers, and; (4) she was certain that defendant was the man who had robbed the store. On this basis, the trial court made findings of fact including in relevant part the following:
        . . . . 4. That the store was well-lighted and that there were no persons in the store other than Ms. Jones and [defendant]. 5. That [defendant] stood within two to three feet of Ms. Jones during the entire time he was at the cash register, which was in excessof one minute. 6. That Ms. Jones . . . informed the police that she had been robbed by a black male in his mid-twenties or early thirties standing about five feet six inches tall and that she described the clothing the perpetrator was wearing. 7. That Ms. Jones testified that the defendant . . . was the person who robbed her on that occasion, that she had ample opportunity to observe him, and that there was no doubt about him being the perpetrator.
        8. That . . . Ms. Jones was shown some 15 to 20 photographs . . . [and] picked the photograph of the defendant[.] 9. That several days after the photographic lineup, Ms. Jones . . . observed several black males through a one-way mirror, and that she picked out the defendant as being the [one] who robbed the store[.]

Upon these findings, the trial court denied defendant's suppression motion, concluding that “the identifications by Ms. Jones of the defendant . . . from the photographic array, the one-way mirror identification at the jail, and Ms. Jones' identification in court this date, are all based upon Ms. Jones' observations on the night of the robbery and appear to be reliable.”
    Defendant concedes in his brief that the trial court's findings and conclusions at the suppression hearing “may well have been supported by competent evidence.” We agree, and hold that the trial court did not err by denying defendant's pretrial suppression motion. Jones' trial testimony essentially reiterated her earlier testimony at the suppression hearing. However, defendant renewedhis motion at trial, following his presentation of Deputy Pilgreen's testimony. Pilgreen testified that Jones had been shown Defendant's Exhibit 1, a photo lineup, and that she had observed defendant in a one-man show-up. Defendant argues that Pilgreen's testimony, which contradicted that of Jones as regards which pretrial identification procedures were employed, required the trial court to grant his renewed suppression motion. We disagree.     Pilgreen's testimony was relevant only to the preliminary determination of whether Jones was exposed to impermissibly suggestive identification procedures. Pilgreen did not impeach Jones as regards the lighting conditions at the store, her opportunity to observe the robber, or the certainty of her in-court identification. “We have consistently held that an in-court identification is competent, even if improper pretrial identification procedures have taken place, so long as it is determined on voir dire that the in-court identification is of independent origin.” State v. Jackson, 306 N.C. 642, 649-650, 295 S.E.2d 383, 388 (1982). Assuming, arguendo, that suggestive pretrial identification procedures were employed, the trial court's determination that Jones's identification was of independent origin was supported by competent evidence. Jones testified unequivocally that defendant was the individual who robbed her, and the undisputed evidence was that defendant and Jones were within a fewfeet of each other in a brightly lit room for several minutes. Moreover, this determination was not challenged by Pilgreen's testimony. This assignment of error is overruled.

___________________

    Defendant's next two arguments challenge the introduction of Corporal West's testimony, that he recognized defendant in the store surveillance video.
    Defendant argues that West's testimony was either incompetent evidence as to the identity of the robber, or was a lay opinion regarding the identity of the robber. We conclude defendant has mischaracterized this testimony. The trial court allowed the State to present West's testimony, that he recognized defendant, in order to show the sequence of events that led to defendant's arrest. At trial, the state adhered to the trial court's ruling. Only one law enforcement officer testified to recognizing defendant on the videotape, and this testimony was presented briefly and without elaboration. In essence, it was irrelevant whether West accurately identified defendant, as his testimony on this point was introduced only to explain how defendant came to be arrested. As such, it was admissible as “[e]vidence tending to establish the context or chain of circumstances of a crime[.]” State v. Agee, 326 N.C. 542, 547, 391 S.E.2d 171, 173 (1990). We hold that the trial court did not err by allowing this testimony. Defendant also argues that thetrial court erred by allowing West to testify that he had known defendant for over seven years. We disagree. The statement was elicited on redirect, after defendant repeatedly challenged West's earlier testimony that he had recognized defendant on the videotape, and attempted to cast doubt on the testimony. In response, West was asked on redirect how long he had known defendant. West answered that he had known defendant “more than seven years” but did not elaborate on the circumstances of their acquaintance. We hold that the trial court did not err by allowing this question and answer on redirect. This assignment of error is overruled.
    Defendant argues next that the trial court committed plain error by failing to declare a mistrial sua sponte in response to a question asked of Highsmith by the prosecutor. We disagree.
    The challenged question was asked on cross-examination. Highsmith testified that she knew defendant would not “have the guts to rob a store.” The prosecutor asked her if she thought he would “have the guts to sell cocaine.” The trial court sustained defendant's objection to this question, and instructed the jury:
        Ladies and gentlemen of the jury, I have sustained the objection to the last question by the District Attorney. You are not to consider that question, and you are not to speculate as to what the answer would have been if the witness had been allowed to answerit. That would not be proper for you[r] consideration.

“It is within the trial court's discretion to determine whether to grant a mistrial, and the trial court's decision is to be given great deference because the trial court is in the best position to determine whether the degree of influence on the jury was irreparable.” State v. Hill, 347 N.C. 275, 297, 493 S.E.2d 264, 276 (1997). A mistrial should only be granted when there are improprieties of such magnitude and gravity that the defendant cannot receive a fair trial and impartial verdict. “It is well-settled in this jurisdiction that when the court withdraws incompetent evidence and instructs the jury not to consider it, any prejudice is ordinarily cured.” State v. Smith, 301 N.C. 695, 697, 272 S.E.2d 852, 855 (1981). Further, as defendant did not request a mistrial, we review only for plain error. See N.C.R. App. P. 10(c)(4) (“a question which was not preserved by objection noted at trial . . . nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error”); State v. Hinton, ___ N.C. App. ___, 573 S.E.2d 609 (2002) (“because defendant failed to request a mistrial from the trial court, our review is limited to whether the court's failure to declare a mistrial constituted 'plain error.'”).     Plain error is “'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or . . . grave error which amounts to a denial of a fundamental right of the accused[.]'” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982)). “In order to prevail under a plain error analysis, a defendant must show: (1) there was error; and (2) without this error, the jury would probably have reached a different verdict.” State v. Smith, __ N.C. App. __, __, 566 S.E.2d 793, disc. review denied, 356 N.C. 311, 571 S.E.2d 208 (2002) (citation omitted). Defendant has not met this burden and, accordingly, this assignment of error is overruled.

    Defendant's final two arguments concern the surveillance videotape. Defendant argues first that the trial court erred by admitting it without proper foundation. Videotapes are admissible in evidence for both substantive and illustrative purposes under N.C.G.S. § 8-97 (2001) (“Any party may introduce a photograph, [or] video tape . . . as substantive evidence upon laying a proper foundation and meeting other applicable evidentiary requirements. This section does not prohibit a party from introducing a photograph or other pictorial representation solely for the purposeof illustrating the testimony of a witness.”). In State v. Cannon, 92 N.C. App. 246, 374 S.E.2d 604 (1988), rev'd on other grounds, 326 N.C. 37, 387 S.E.2d 450 (1990), this Court set out the requirements of a proper foundation for the admission of videotape evidence:
        The prerequisite that the offeror lay a proper foundation for the videotape can be met by: (1) testimony that the motion picture or video tape fairly and accurately illustrates the events filmed (illustrative purposes);
        (2) proper testimony concerning the checking and operation of the video camera and the chain of evidence concerning the videotape. . .;
        (3) testimony that the photographs introduced at trial were the same as those [the witness] had inspected immediately after processing, (substantive purposes); or
        (4) testimony that the videotape had not been edited, and that the picture fairly and accurately recorded the actual appearance of the area photographed.

Cannon at 254, 374 S.E.2d at 608 (citations omitted).
    In the present case, evidence was presented only as to the first factor. Jones testified that a security camera recorded events in the front of the store, so that “[e]verybody [who] comes in and out of the store, it picks them up on this camera.” Shortly after the robbery, the store manager unlocked the security camera box in the presence of Jones and several law enforcement officers. They retrieved the videotape from the store security camera and viewed it. Jones testified that the videotape accurately depictedthe robbery. The defendant objected to its introduction as substantive evidence on the grounds that the State had neither laid a proper foundation, nor established the chain of custody. The trial court allowed the videotape to be admitted only to illustrate Jones' testimony, to which defendant had no objection. We hold that the videotape was properly admitted for illustrative purposes, upon Jones's testimony that it accurately depicted the events therein. This assignment of error is overruled.
    Defendant finally argues that the trial court committed plain error by instructing the jury that it could consider the videotape as substantive evidence. The challenged instruction, to which defendant did not object, was as follows:
        Some photographs were introduced into evidence in this case for the purpose of illustrating and explaining the testimony of a witness. These photographs may not be considered by you for any other purpose. In addition, a videotape was introduced into evidence in this case. This videotape may be considered by you as evidence of facts it illustrates or shows.

We conclude that this instruction impermissibly allowed the jury to consider the videotape as substantive evidence, notwithstanding the absence of a proper foundation. However, we further conclude that this did not constitute reversible error.
    The defendant failed to object to the instruction, and we conclude that it did not constitute plain error. “It is wellsettled that '[i]n deciding whether a defect in the jury instruction constitutes 'plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.'” State v. Wright, 151 N.C. App. 493, 498, 566 S.E.2d 151, 155 (2002) (quoting State v. Odom, 307 N.C. at 661, 300 S.E.2d at 378-79). “In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected.” State v. Holden, 346 N.C. 404, 435, 488 S.E.2d 514, 531 (1997). Thus, “when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection had been made in the trial court.'” Odom, 307 N.C. at 660-61, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1997)).
    In State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), the defendant argued that where photographs had been admitted only for illustrative purposes, the trial court committed plain error by instructing the jury that they “could consider certain photographs 'as evidence of facts that they illustrate.'” The North Carolina Supreme Court disagreed, noting that “[t]o determine whether plainerror occurred, we must examine the whole record and decide whether the instruction had a 'probable impact' on the jury's verdict.”
    The central issue for the jury's resolution was whether the defendant robbed the Handy Mart. We hold that the jury's consideration of the videotape as substantive, in addition to illustrative, evidence was not plain error. See State v. Mason, 144 N.C. App. 20, 550 S.E.2d 10 (2001) (error in admission of store surveillance videotape held harmless).
    For the reasons discussed above, we conclude that the defendant had a trial free from prejudicial error.
    No Error.
    Judges TIMMONS-GOODSON and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***