An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1516


Filed: 18 November 2003


v .                         Lenoir County
                            No. 02 CRS 51170

    Appeal by defendant from judgment entered 21 August 2002 by Judge Paul L. Jones in Lenoir County Superior Court. Heard in the Court of Appeals 10 September 2003.

    Attorney General Roy Cooper, by Assistant Attorney General John F. Oates, Jr., for the State.

    William H. Dowdy, for defendant-appellant.

    HUDSON, Judge.

    Defendant was indicted for robbery with a dangerous weapon. On 21 August 2002, the jury convicted defendant of armed robbery, and sentenced him to 100 to 129 months imprisonment. Defendant appeals.

    The State's evidence tended to shown that on the afternoon of 12 March 2002, defendant Willie Louis McMillian approached Maguerite Everette in a Kinston parking lot as she returned from running errands. As Ms. Everette stood near the passenger side of her car sorting through papers, defendant approached her from behind and said “Don't be scared.” Ms. Everette turned around to see defendant less than a foot away from her. Defendant pulled aknife from his waistband, grabbed Ms. Everette's arm, and demanded her money. After Ms. Everette gave him her wallet, purse and a bank envelope, defendant ran away down Washington Street.
    Ms. Everette immediately called police on her cell phone and described the robber's appearance and the direction he was running. Lieutenant William Murphy of the Kinston Police Department arrived on the scene while Ms. Everette was still on the phone with police. Lt. Murphy drove Ms. Everette about five blocks down Washington Street to a location where other officers were holding a suspect who matched the description of Ms. Everette's assailant.
    As Ms. Everette made her initial call to police, Kinston Detective Robert King heard a radio dispatch of the suspect's description and his likely location. The suspect was described as a black male wearing a dark blue jacket, dark pants and a blue hat. As Det. King drove toward the crime scene, he saw defendant, who generally matched the description, running down Davis Street near Washington Street. Defendant did not have on a hat, but did appear to be carrying something underneath his jacket.
    Det. King stopped defendant on Davis Street about five blocks away from the scene of the robbery and called for back-up. No weapon was visible. As Det. King began to frisk defendant, Officer Goyette arrived. During the frisk, Det. King felt a bulge under defendant's pants and asked him what it was. Defendant replied “It's my girlfriend's.” Det. King then removed a purse from the front of defendant's pants. While Det. King finished his pat-downof defendant, Officer Goyette searched the purse. Officer Goyette then searched defendant's jacket and found a bank envelope.
    A few minutes later, Lt. Murphy and Ms. Everette arrived and Ms. Everette identified defendant as the person who robbed her. At the time of the identification, defendant was leaning over the hood of a police car, surrounded by several officers. Ms. Everette viewed defendant from a distance of four to six feet.
    Defendant testified in his defense, and claimed to have found the purse on the ground. He denied committing armed robbery. Defendant moved to have the case against him dismissed at the close of the State's case-in-chief, and again at the close of all evidence. The court denied both motions, and defendant was convicted.
    Defendant first assigns error to the trial court's failure to disallow, sua sponte, evidence of the victim's identification of defendant at the “show-up” just after the robbery. Defendant contends that the identification procedure was so impermissibly suggestive as to violate defendant's due process rights and to irreparably taint any later in-court identification. We disagree.
    Defendant did not move to suppress the identification, so he couches his argument as plain error. An assertion of plain error on appeal pursuant to N.C.R. App. P. 10(c)(4) requires defendant to cite authority defining the relevant standard and to apply that standard to the specific facts of the case at hand. State v. Cummings, 352 N.C. 600, 637, 536 S.E.2d 36, 61 (2000), cert.denied, 532 U.S. 997, 149 L. Ed.2d 641 (2001). In his brief, defendant fails to cite any authority defining the plain error standard.
    However, even if defendant had properly brought this issue forward for plain error review, “reversal is justified when the claimed error is so basic, prejudicial, and lacking in its elements that justice was not done.” State v. Prevatte, 356 N.C. 178, 258, 570 S.E.2d 440, 484 (2002). The plain error standard also requires a defendant to show “that the error was so fundamental that the result would probably have been different absent the error.” State v. Kandies, 342 N.C. 419, 452, 467 S.E.2d 67, 85 (1996). Defendant fails to make such a showing in the instant case.
    Defendant maintains that Ms. Everette's pre-trial identification of him was so suggestive as to deny him his constitutional due process rights, and to constitute plain error. The totality of the circumstances surrounding an identification procedure determines its constitutionality. State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002). “First, the Court must determine whether the identification procedures were impermissibly suggestive [and if so], the Court must then determine whether the [suggestive] procedures created a substantial likelihood of irreparable misidentification.” State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002).
    Factors for consideration include “the opportunity of the witness to view the criminal at the time of the crime, the witness'degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification.” Rogers, 355 N.C. at 432, 562 S.E.2d at 868. Here, the evidence showed that Ms. Everette observed her assailant from only a foot away in broad daylight. She paid sufficient attention to his appearance and actions that she was able to give police a reasonably detailed description of the suspect and the direction in which he fled. Using her description officers were quickly able to locate defendant nearby. Further, the resulting show-up took place only a few minutes after the robbery and Ms. Everette never expressed any hesitancy in her identification. These factors do not support defendant's contention that the identification of defendant was impermissibly suggestive. Thus, we conclude that the admission of the identification was not in error at all, let alone plain error of constitutional magnitude, and we overrule this assignment of error.
    Defendant next argues that the trial court committed plain error in failing to disallow, on its own motion, the admission of statements defendant made while he was frisked. Defendant claims that officers should have given him his Miranda warning prior to stopping and frisking him. During his pat-down of defendant, Det. King asked him about the suspicious bulge in his pants and defendant replied “It's my girlfriend's.” As with the previous assignment of plain error, defendant failed to preserve this for plain error review by failing to cite the appropriate standard. Cummings, 352 N.C. at 637, 536 S.E.2d at 59. Once again, however, defendant could not prevail under the plain error standard in any case.
    “The rule of Miranda requiring that suspects be informed of their constitutional rights before being questioned by the police only applies to custodial interrogation.” State v. Brooks, 337 N.C. 132, 143, 446 S.E.2d 579, 586 (1994) (citing Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694 (1966)). Whether the suspect is in custody depends upon whether a reasonable person in defendant's position would believe that he was under arrest or its functional equivalent. State v. Benjamin, 124 N.C. App. 734, 738, 478 S.E.2d 651, 653 (1986). The stop and frisk procedure here was not the functional equivalent of an arrest.
    In Benjamin, this Court upheld the admission of a suspect's statement in very similar circumstances. Id. at 740, 478 S.E.2d at 655. During the pat-down of Benjamin, a police officer felt an object in defendant's pocket and asked what it was. The suspect replied that it was crack cocaine. Id. We held that the officers in that case were not required to give Miranda warnings before the pat-down. Id. Here, as in Benjamin, defendant's response to Det. King's inquiry during the pat-down was not subject to the Miranda requirement. In both cases, the officers acted properly when they quickly patted down the suspect to make sure he was not carrying a weapon, for the sake of their own safety. This assignment of error is overruled.    Defendant's next assignment of error alleges that the evidence obtained from defendant during and following the stop and frisk was “fruit of the poisonous tree” and should not have been admitted. Defendant claims that Det. King went beyond the permitted scope of a frisk and that Officer Goyette went too far when searching defendant's jacket pocket and the purse found in his pants. We disagree.
    As previously discussed, an assertion of plain error on appeal pursuant to N.C.R. App. P. 10(c)(4) requires defendants to cite authority defining the relevant standard and to apply that standard to the specific facts of the case at hand. Cummings, 352 N.C. at 637, 536 S.E.2d at 61. In his brief, defendant fails to cite any authority defining the plain error standard. However, once again, defendant would not prevail on this assignment of error even were it properly presented for plain error review.
    “[W]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, [the officer may pat-down the suspect] to determine whether the person is in fact carrying a weapon.” Terry v. Ohio, 392 U.S. 1, 25, 20 L. Ed. 2d 889, (1968). Generally, a Terry stop and frisk is limited to a pat-down of the suspect's outer clothing. State v. Beveridge, 112 N.C. App. 688, 695, 436 S.E.2d 912, 916 (1993), affirmed, 336 N.C. 601, 444 S.E.2d 223 (1994). “Whether a non-consensual search that goes beyond a pat-down of the outer clothing is improper requires a court to determine 'whether thedegree of intrusion [was] reasonably related to the events that took place.'” State v. Smith, 150 N.C. App. 317, 321-22, 562 S.E.2d 899, 902 (2002) (quoting State v. Watson, 119 N.C. App. 395, 398, 458 S.E.2d 519, 522 (1995)). Reasonableness turns on the specific facts and circumstances of a search, and “courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.” Watson, 119 N.C. App. at 399, 458 S.E.2d at 522 (internal quotation marks omitted).
    Here, the officers' actions were reasonable in light of the facts and circumstances surrounding their search. While investigating a suspicious individual who may have been carrying a knife, Det. King was justified in his pat-down of defendant. Defendant was sweating and shaking and appeared nervous. The pat- down revealed a suspicious bulge under defendant's pants which Det. King then removed so it could be searched for a weapon. Det. King did not, however, find a knife while frisking defendant. The reported armed robbery having occurred only a few blocks away and a few minutes before, the officers were reasonably justified in briefly searching the purse and defendant's jacket pocket. See State v. Willis, 125 N.C. App. 537, 481 S.E.2d 407 (1997) (emptying defendant's pocket reasonable where defendant's demeanor was furtive and nervous after being stopped while leaving a known drug house and who suddenly thrust his hand into the interior of his jacket during a pat-down).    Defendant next assigns error to the trial court's failure to declare a mistrial, sua sponte, on the basis of defense counsel's failure to object at trial to the admission of the physical evidence, statement and identification evidence previously discussed. We overrule this assignment of error as without merit.
    An assertion of plain error on appeal pursuant to N.C.R. App. P. 10(c)(4) requires defendants to cite authority defining the relevant standard and to apply that standard to the specific facts of the case at hand. Cummings, 352 N.C. at 637, 536 S.E.2d at 61. In his brief, defendant fails once again to cite any authority or define the plain error standard.
    In order to prevail on a claim of ineffective assistance of counsel, defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 80 L.Ed.2d 674 (1984). “First, defendant must show counsel's performance fell below an objective standard of reasonableness.” State v. Moorman, 320 N.C. 387, 399, 358 S.E.2d 502, 510 (1987). If counsel's performance is found lacking, the court must then determine “whether a reasonable probability exists that, absent counsel's deficient performance, the result of the proceeding would have been different.” Id. Here, defendant fails to address these two critical issues of ineffective assistance of counsel under Strickland.
    Further, the decision whether to order a mistrial lies within the sound discretion of the trial court. State v. King, 343 N.C. 29, 44, 468 S.E.2d 232, 242 (1996). “Abuse of discretion occurs when the trial court's decision is so arbitrary that it could nothave been the result of a reasoned decision.” State v. Diehl, 353 N.C. 433, 437, 545 S.E.2d 185, 188 (2001) (internal quotation marks omitted). Defendant presents no persuasive argument that the trial court acted arbitrarily in failing to declare a mistrial sua sponte. This assignment of error is without merit.
    Defendant's final assignment of error contends that the trial court erred in denying his motion to dismiss the charge of robbery with a dangerous weapon. For the reasons discussed below, we disagree.
    In ruling on a motion to dismiss, the trial court considers whether the State has presented substantial evidence on each element of the crime and substantial evidence that the defendant is the perpetrator. State v. Israel, 353 N.C. 211, 216, 539 S.E.2d 633, 637 (2000). All evidence is viewed in the light most favorable to the State and all conflicts are resolved in the State's favor. Id. “The essential elements of robbery with a dangerous weapon are: (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, (3) whereby the life of a person is endangered or threatened.” State v. Haselden, 357 N.C. 1, 17, 577 S.E.2d 594, 605 (2003) (internal quotation marks and citation omitted); N. C. Gen. Stat. § 14-87(a) (2001). Here, evidence showed that Ms. Everette was threatened with a large knife while being robbed in a parking lot and that she identified defendant as the person who robbed her. When stopped by police only minutes after the robbery,defendant possessed Ms. Everette's purse and wallet. This evidence amply supported the denial of defendant's motion to dismiss the charge against him.
    For the reasons discussed above, we overrule defendant's assignments of error.
    No error.
    Judges TIMMONS-GOODSON and ELMORE concur.
    Report per Rule 30(e).

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