An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-812


Filed: 1 July 2003


    v .                             Rowan County
                                Nos. 00 CRS 053056-59
                                    00 CRS 053064

    Appeal by defendant from judgments dated 9 May 2001 by Judge W. Erwin Spainhour in Rowan County Superior Court. Heard in the Court of Appeals 19 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Kimberly W. Duffley, for the State.

    J. Stephen Gray for defendant appellant.

    BRYANT, Judge.

    Willard Alan Smith (defendant) appeals from judgments dated 9 May 2001 entered consistent with a jury verdict finding him guilty of five counts of robbery with a dangerous weapon.
    On 7 August 2000, defendant was charged with five counts of robbery with a dangerous weapon. Prior to trial, on 30 April 2001, defendant filed a motion to suppress his confession to the police, which was accompanied by an affidavit from defendant alleging: (1) he had been under the influence of alcohol and prescription drugs at the time of his interrogation; (2) he had been diagnosed with post-traumatic stress syndrome in May 2000; (3) he had “inquired about an attorney” during his interrogation; and (4) the police had indicated they wanted to talk to defendant's wife because she mightknow something, which defendant “took . . . as a threat . . . that they were going to try and charge her . . . as an accessory.” Defendant also filed a motion to suppress his out-of-court identification by his parole officers on the basis that the pre- identification procedures were impermissibly suggestive.
    The evidence presented at the suppression hearing revealed that, based on a tip from “Crimestoppers,” the police began to investigate defendant for five convenience store robberies that occurred in Salisbury, North Carolina between 23 June and 7 July 2000. The police asked federal parole officers Michael Bracey (Bracey) and Dennis Butler (Butler), who supervised defendant while he was on federal parole, to review video and audio footage of the robberies to determine if defendant was the robber. Butler, defendant's direct parole officer, had met with defendant for regular visits every twenty to thirty days since defendant's release from federal custody in December 1999. Butler also taught six classes at a relapse prevention center where he was able to observe defendant for an hour to an hour and a half at each class. Bracey, Butler's supervisor, had met defendant approximately six times during the six-month period between December 1999 and the robberies. Upon reviewing the video and audio footage, both Butler and Bracey positively identified defendant. Bracey stated “there was no doubt in [his] mind that it was [defendant].”
    Defendant was arrested at his home and subsequently transported to the police department. Defendant's wife, who had witnessed the arrest, followed him to the station. After defendantsigned a Miranda waiver form at the police department, he was presented with the evidence against him, including the video and audio footage of the robberies and eye witness statements that the perpetrator had used a gun. Defendant agreed to cooperate with the police on the condition that he would be allowed to talk to his wife and his parole officers in private, which the police permitted. Defendant first talked to his wife, who was visibly upset. Defendant then spoke with Butler and Bracey, who informed him that they had reviewed the video and audio footage of the robberies and would testify in court that they recognized defendant as the robber. Butler further advised defendant that it would be in his best interest to be honest and cooperative with the police.
    Following this conversation, defendant made a statement to the police admitting to the five robberies but denying the use of a weapon. At one point, defendant asked the interrogating officer: “What if I asked for an attorney?” The officer replied that if defendant invoked his right to an attorney, the police could not speak to him anymore and would simply proceed to process him. For clarification, the officer then asked, “[A]re you asking for an attorney?” to which defendant replied, “No, I just wanted to know what if I did.” The officer then continued taking defendant's statement.
    According to the police, defendant did not exhibit any behavior that would have led them to believe he was impaired by drugs or alcohol at the time of his arrest. Defendant did not smell of alcohol; he could walk without assistance; whenquestioned, defendant did not act confused and replied in a logical manner; and defendant even wrote out part of his statement himself. The interrogating officers further testified that defendant was never threatened, defendant's wife was never a suspect, and neither defendant nor his wife was confronted with the possibility of an accessory charge against the wife.
    Based on this voir dire testimony, the trial court, in an order dated 18 December 2001, denied defendant's motion to suppress his statement, finding defendant's waiver to have been given voluntarily, knowingly, and understandingly and in the absence of coercion or threats. The trial court also denied defendant's motion to suppress the out-of-court identification by his parole officers, concluding that “the pre-trial identification procedures did not create a substantial likelihood of misidentification” because the out-of-court identification “was inherently reliable” considering the parole officers' familiarity with defendant.
    At trial, the State presented the testimony of the five convenience store clerks who were the victims of the robberies. Since all of the robberies were caught on videotape by the stores' surveillance cameras, the video and audio footage was also introduced into evidence. Calvin Carter (Carter) testified that, on the night of 23 June 2000, he was working at the Race Track convenience store when a man wearing a cowboy hat approached and quietly told him to hand over “all the money in the register.” When Carter just looked at the man, the man repeated, “give me all the money in the till,” adding “I don't want to have to hurt you.” At this time, the man was standing with a hand partly in his jeans pocket, which “appeared to be very full.” In response to the State's question regarding what he was thinking when he saw the man standing like that, Carter replied over defendant's objection that he “felt that [the man] had a weapon in his pocket.” During the investigation of the Race Track robbery, Carter was asked to review a videotape of another robbery and, based on the body posture and mannerism depicted on the videotape, identified the perpetrator of the other robbery as the same person who had committed the robbery at the Race Track store. At trial, Carter also identified defendant as the man who had committed the Race Track store robbery.
    Robert Garrett (Garrett) testified that, in the early morning hours of 29 June 2000, a man wearing a black cowboy hat and black gloves with the fingers cut out entered the Speedway convenience store where Garrett worked and demanded money. Garrett hesitated for a moment, whereupon the man pulled up his right shirttail revealing a pistol “stuffed in the side of his pants.” Garrett handed over the money and the man left.
    Later that night, a man wearing a black cowboy hat and gloves revealing his fingertips came into the Country Cupboard convenience store and asked the clerk, Martha Williams (Williams), for some change. As Williams was opening the cash drawer, the man demanded that she give him the cash drawer with all the money, and Williams responded, saying “excuse me.” The man then “pushed his shirt back” exposing a gun tucked in his pants. Upon seeing the gun,Williams became scared and nervous; she set the cash drawer on the counter, and the man took the money, telling her to get on the floor where she remained until the police arrived.
    Michael Lucado (Lucado) testified that during his night shift at the Hot Spot convenience store on 7 July 2000, a man wearing a black Harley Davidson baseball cap and black leather gloves cut off at the knuckles approached and asked for some change. As Lucado was getting the change for the five-dollar bill the man had handed him, the man told Lucado to give him all the money in the cash drawer. As he made this demand, the man pulled up his shirt, and Lucado saw “something shiny, metal” that looked like the handle of a gun.
    Amanda Holshouser (Holshouser) testified to an additional robbery on the night of 7 July 2000, which occurred at the Circle K convenience store. Again, a man wearing a black baseball cap and gloves with the fingers cut out showed a gun that was tucked into his waistband and demanded and received the store's money. Further evidence at trial included: (1) testimony by defendant's probation officers, which was in conformity with their earlier voir dire testimony and served to identify defendant as the robber, and (2) defendant's statement to the police, which was introduced into evidence over defendant's objection. Defendant moved to dismiss the charges against him, but the trial court denied the motion.


    The issues presented on appeal are whether the trial court erred in: (I) denying defendant's motion to suppress his statement;(II) failing to suppress the out-of-court identification by defendant's probation officers; and (III) allowing the State to admit evidence of a 1985 robbery under Rule 404(b).

    Defendant argues his statement to the police should have been suppressed because (1) it was not voluntary under the circumstances and (2) he had invoked his Fifth Amendment right to counsel during the interrogation.
Voluntary Waiver

    We first address the issue of voluntariness. A confession is inadmissible if obtained during a custodial interrogation and the defendant either did not waive his Miranda rights or his waiver was not a knowing, intelligent, and voluntary decision. See State v. Massey, 316 N.C. 558, 573, 342 S.E.2d 811, 820 (1986). “[T]he objective of Miranda is to protect against coerced confessions, not to suppress voluntary confessions, which 'are essential to society's compelling interest in finding, convicting, and punishing those who violate the law.'” State v. Buchanan, 353 N.C. 332, 342, 543 S.E.2d 823, 829 (2001) (citation omitted). In order to determine whether a statement was voluntarily made, the court is to consider the totality of the circumstances. State v. Corley, 310 N.C. 40, 47, 311 S.E.2d 540, 545 (1984).
    In this case, defendant asserts he was coerced by the following factors: presentation of the evidence against him, including the video footage and an incorrect statement that all store clerks had seen a gun; the police telling defendant's wife she was a suspectand the resulting possibility of her being charged as an accessory; and Butler advising defendant to tell the truth. Defendant also alleges that at the time of his arrest, he had been drinking and was suffering from post-traumatic stress syndrome. The evidence presented during the voir dire hearing, however, reveals that defendant was not impaired or confused at the time of his arrest; he was not being deceived about the evidence against him, i.e. four of the five clerks had told the investigating officers that they had seen a gun; and no threats of prosecution were voiced with respect to defendant's wife. We therefore agree with the trial court that under the circumstances of this case defendant's Miranda waiver and subsequent statement were voluntarily made.
Right to Attorney

Defendant also argues his statement should have been suppressed because he asserted his Fifth Amendment right to counsel during the interrogation. We disagree.
    Under the Fifth Amendment, “an accused . . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484-85, 68 L. Ed. 2d 378, 386 (1981); Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 707 (1966) (when a person “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning”). While “[t]here are no'magic words' which must be uttered in order to invoke one's right to counsel,” State v. Torres, 330 N.C. 517, 528, 412 S.E.2d 20, 26 (1992), “[a] suspect must unambiguously request counsel to warrant the cessation of questions and 'must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.'” State v. Barnes, 154 N.C. App. 111, 118, 572 S.E.2d 165, 170 (2002) (quoting Davis v. United States, 512 U.S. 452, 459, 129 L. Ed. 2d 362, 371 (1994)). The police may continue to question a suspect until he actually requests an attorney. Id.
    Defendant in this case specifically stated that he did not wish to engage the assistance of an attorney. Defendant asked the interrogating officer, “What if I asked for an attorney?” The officer answered that the police would stop speaking to him and would simply proceed to process him. The officer followed up on defendant's question by asking whether defendant was indeed “asking for an attorney,” but defendant replied, “No, I just wanted to know what if I did.” We conclude that this exchange was insufficient to invoke defendant's right to counsel. Accordingly, the trial court did not err in denying defendant's motion to suppress his statement.

    Defendant next contends his out-of-court identification by Butler and Bracey should have been suppressed because the identification procedure, which consisted of the police asking the parole officers if they could identify defendant from the video andaudio footage, was impermissibly suggestive.
    “Suggestive pre-trial identification procedures, even if unnecessary, do not create a substantial likelihood of misidentification so as to preclude an in-court identification nor are the pre-trial procedures themselves inadmissible where under the totality of circumstances surrounding the crime itself 'the identification possesses sufficient aspects of reliability.'” State v. Oliver, 302 N.C. 28, 45, 274 S.E.2d 183, 195 (1981) (citation omitted). “The primary evil to be avoided is the substantial likelihood of misidentification.” State v. Flowers, 318 N.C. 208, 220, 347 S.E.2d 773, 781 (1986).
    In this case, the voir dire testimony revealed and the trial court found as fact that, in his role as probation officer, Bracey had met defendant approximately six times during the six-month period between defendant's release and the robberies. Butler was defendant's direct parole officer and had met with defendant every twenty to thirty days since 20 December 1999. Butler also taught six classes at a relapse prevention center where he was able to observe defendant for an hour to an hour and a half at each class. The parole officers thus had sufficient contact with defendant to be able to identify him and did so with a high degree of certainty. As their out-of-court identification was thus inherently reliable and there was no substantial likelihood of misidentification, see Flowers, 318 N.C. at 220, 347 S.E.2d at 781; Oliver, 302 N.C. at 45, 274 S.E.2d at 195, the trial court properly denied defendant's motion to suppress.    Defendant further argues the trial court erred in allowing Butler and Bracey to testify in their capacity as parole officers, thereby revealing to the jury defendant's prior criminal history in violation of North Carolina Rules of Evidence 404 and 609. Defendant, however, waived this assignment of error by allowing the same evidence to be admitted at different stages of the trial without objection. See State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984) (“[w]here evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost”). The testimony of Butler and Bracey indicating that defendant was on federal parole, but not the nature or history of the crime itself, was nevertheless admissible as foundation evidence for their identification testimony. See N.C.G.S. § 8C-1, Rule 602 (2001) (“[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter”).

    Finally, defendant assigns prejudicial error to the admission into evidence of testimony regarding a 1985 robbery involving defendant. Defendant argues that the similarities found by the trial court between the 1985 crime and the present charges were mere generalities insufficient to show identity or plan. The similarities found were as follows:
        [B]oth were in the evening hours when it was dark, in both cases the defendant acted alone, in both cases what was reported to be a firearmwas used, in both cases . . . a confession was made, in both cases no one was hurt, in both cases a clerk was present, . . . [a]nd . . . the robbery itself . . . [was] very brief.

    Assuming without deciding that this list fails to show sufficient similarities between the past crime and the current robberies to make introduction of the 1985 robbery permissible under North Carolina Rule of Evidence 404(b), see State v. Sneeden, 108 N.C. App. 506, 509, 424 S.E.2d 449, 451 (1993) (“a prior act or crime is 'similar' if there are some unusual facts present indicating that the same person committed both the earlier offense and the present one”), aff'd, 336 N.C. 482, 444 S.E.2d 218 (1994), the admission of this evidence was not prejudicial in light of the evidence against defendant, see State v. Evans, 149 N.C. App. 767, 774, 562 S.E.2d 102, 106 (2002) (in spite of error, a defendant is not entitled to a new trial where he has not shown that he was prejudiced). In order to establish prejudice, a defendant must show that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.” N.C.G.S. § 15A-1443(a) (2001). Not only was defendant identified on the surveillance tapes by his parole officers and one of the clerks who also later identified defendant in court, but defendant himself admitted to the robberies in his confession. In addition, all of the clerks testified to having been threatened with what they believed to be a gun. Accordingly, there was sufficient evidence to support a conviction of robbery with a dangerous weapon.    We have carefully reviewed defendant's remaining assignments of error and find them either to be without merit, expressly abandoned, or waived by violations of our appellate rules.
    No error.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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