Appeal by defendants from judgments entered 12 April 2002 by
Judge Thomas D. Haigwood in Dare County Superior Court. Heard in
the Court of Appeals 13 January 2004.
Attorney General Roy Cooper, by Assistant Attorney General
David J. Adinolfi, II, and Assistant Attorney General H. Dean
Bowman, for the State.
Adrian M. Lapas for defendant-appellant Lester Distance.
Richard E. Jester for defendant-appellant Tremaine Langley.
TIMMONS-GOODSON, Judge.
Lester Distance (“Distance”) and Tremaine Langley (“Langley”)
(collectively, “defendants”) appeal their convictions for robbery
with a dangerous weapon and conspiracy to commit robbery with a
dangerous weapon. For the reasons stated herein, we hold that
defendants received a trial free of prejudicial error.
On 30 January 2002, defendants were indicted for robbery with
a dangerous weapon and conspiracy to commit robbery with a
dangerous weapon. The trial court granted the State's pretrial
motion to join defendants' trials. On 3 April 2002, Distance filed
a motion to sever the trial. At the voir dire hearing on the
motion to sever, Julia Distance, Distance's wife, testified that
Langley told her that “if it came down to it that [Langley] would,
if [Langley] had to make a statement or talk to the police about
what happened, that [Langley] would make sure that they knew that
[Distance] was not the one in there.” On 3 April 2002, the trial
court denied Distance's motion to sever.
Defendants' trial began on 8 April 2002. The State presented
evidence that tended to show the following: On 7 November 2001,
Carolyn Simpson (“Simpson”) was working alone at Carolina Video, a
video rental store in Kitty Hawk, North Carolina. Simpson is
sixty-five years old and has had two knee replacement surgeries.
At approximately 8:30 p.m. on 7 November 2001, as Simpson prepared
to close Carolina Video for the evening, Distance, Langley, and
Michael Pratt (“Pratt”) entered the store. After the three men
browsed the video rental section for approximately five minutes,Pratt left the store. Distance and Langley then approached the
front counter of the store and attempted to rent two videos. As
another customer entered the store, Distance and Langley walked
away from the counter and began browsing the “new release” section
of the store. Simpson then waited on the other customer.
After the customer left the store, Distance and Langley ran
towards the counter and demanded money from Simpson. Langley
pushed Simpson to the floor and stood over her, placing a box
cutter to her throat. Langley threatened to cut Simpson unless she
gave them the store's money. Langley told Simpson that he and
Distance had watched Simpson for ten to fifteen minutes, and that
they knew that she had placed money in a bank bag. After Simpson
told defendants the bank bag was kept in the bathroom, Langley
ordered Simpson to go to the bathroom and retrieve the bank bag.
Simpson responded, “I cannot crawl because I have had two knee
replacements and I do not have any support on my legs.” After
Distance retrieved the bank bag, Langley asked Simpson how to open
the cash register. Distance then made several failed attempts to
open the cash register, prompting Langley to allow Simpson to stand
up to show defendants how to open the cash register. After the
cash register was emptied, Langley found Simpson's pocketbook and
forced Simpson to give him the money in her wallet. Langley then
forced Simpson into the bathroom of the video store, and he and
Distance fled the scene with $380 in cash.
At trial, Simpson identified both Distance and Langley as the
perpetrators of the robbery. Langley moved to suppress the in-
court identification. In a voir dire hearing, the State, defensecounsel for Distance, and defense counsel for Langley questioned
Simpson regarding her identification of defendants. Investigator
Eugene McLawhorn of the Kitty Hawk Police Department (“Investigator
McLawhorn”) also testified at the voir dire hearing. Investigator
McLawhorn testified that he arranged for Simpson to view a suspect
in custody on the night of the robbery. After another investigator
brought Distance to the front of the patrol car where Simpson and
Investigator McLawhorn were sitting, Simpson told Investigator
McLawhorn that she could not determine whether Distance was one of
the men who robbed her. Nevertheless, the trial court denied
defendants' motions to suppress, concluding that Simpson's in-court
identification of defendants was not “inherently incredible, given
all the circumstances of [Simpson's] ability to view each of the
accused at the time of the alleged crime.” The trial court further
concluded that “the credibility of the identification evidence is
for the jury to weigh.”
On 11 April 2002, the jury convicted both defendants for
robbery with a dangerous weapon and conspiracy to commit robbery
with a dangerous weapon. At defendants' sentencing hearing, the
trial court found as aggravating factors that Simpson was very old
and physically infirm. The trial court also found that Simpson was
specifically targeted by defendants because of her age.
Defendants
appeal.
Defendants filed separate appellate briefs to this Court.
As
an initial matter, we note that the briefs of both defendants fail
to support all of their original assignments of error. Pursuant toN.C.R. App. P. 28(b)(6) (2004), the omitted assignments of error
are deemed abandoned. Therefore, we limit our present review to
those assignments of error properly preserved by defendants for
appeal.
Distance assigns error to the trial court's denial of his
motion to sever the trial. Langley assigns error to the trial
court's denial of his motion to suppress Simpson's in-court
identification. Both defendants assign error to the trial court's
finding as an aggravating factor that the victim of their crime was
very old and physically infirm.
[1] Distance first assigns error to the trial court's denial
of his motion to sever. Distance argues that defendants' trial
should have been severed because a prior statement by Langley
provided exculpatory evidence in favor of Distance. We disagree.
Where two defendants are being held accountable for the same
crime or crimes, “public policy strongly compels consolidation as
the rule rather than the exception.”
State v. Nelson, 298 N.C.
573, 586, 260 S.E.2d 629, 639 (1979),
cert. denied sub nom. Jolly
v. North Carolina, 446 U.S. 929 (1980). Consolidation is “in the
discretion of the trial judge, and, in the absence of a showing
that a joint trial has deprived a defendant of a fair trial, the
exercise of the judge's discretion will not be disturbed on
appeal.”
State v. Craft, 32 N.C. App. 357, 360, 232 S.E.2d 282,
284,
disc. review denied, 292 N.C. 642, 235 S.E.2d 63 (1977). In
the case
sub judice, Distance's wife, Julia Distance (“Julia”),
testified during the
voir dire hearing of Distance's motion to
sever. Julia stated that Langley told her that “if it came down toit that [Langley] would, if [Langley] had to make a statement or
talk to the police about what happened, that [Langley] would make
sure that they knew that [Distance] was not the one in there.”
Distance argued at the
voir dire hearing that Julia's testimony
suggested that there was exculpatory evidence of Distance's
innocence, and that this evidence could not be presented at a
consolidated trial because the statement would implicate Langley in
the robbery. Distance further argued that “were Langley not at
jeopardy, . . .[it] would certainly make it likely that [Langley]
would present this evidence.”
Distance now argues that
State v. Alford, 289 N.C. 372, 222
S.E.2d 222,
death penalty vacated sub nom. Carter v. North
Carolina, 429 U.S. 809 (1976), requires severance in the case
sub
judice. In
Alford, the defendant argued that he was prejudiced by
a joint trial with his co-defendant, Carter, because Carter could
not be called as a witness to bolster the defendant's alibi
defense.
Id. at 389, 222 S.E.2d at 233. Carter had previously
provided the police with a signed statement in which he had
admitted that he was involved in the crime and stated that an
individual other than Alford had committed the crime.
Id. at 386-
87, 222 S.E.2d at 231. The Court reversed the trial court's order
denying the motion to sever, and the Court ordered a new trial for
Alford.
Id. at 389, 222 S.E.2d at 233.
We find the facts of
State v. Paige, 316 N.C. 630, 343 S.E.2d
848 (1986), more analogous to the case
sub judice. In
Paige, our
Supreme Court held that the trial court did not err in denying the
the defendant's motion to sever.
Id. at 643, 343 S.E.2d at 857. The only suggestion that Paige's co-defendant Lowery could aid
Paige in his defense was an unsupported assertion by Paige's
counsel that “suspect Lowery said that Arnold Lorenzo Paige was not
present during any crime and could be a witness for Arnold Lorenzo
Paige were the joinder not ordered.”
Id. at 641, 343 S.E.2d at
856. The Court noted that Paige made no attempt to corroborate
Lowery's statement at the pre-trial
voir dire hearing, and the
Court distinguished the facts before it from the facts of
Alford,
finding that Lowery's statement was “a far cry from a signed, sworn
statement by a co-defendant admitting his own guilt and identifying
some person other than the defendant as the other guilty party.”
Id. at 641-42, 343 S.E.2d at 856.
In the case
sub judice, Distance failed to provide any
evidence to corroborate the testimony of Julia, an interested
witness providing hearsay testimony. Furthermore, Distance made no
attempt during the
voir dire hearing or at trial to corroborate his
assertion that Langley would have testified on Distance's behalf
were their trial severed. This “bald assertion of hearsay
information” coupled with the “theoretical possibility” that
Langley might testify for Distance if the trial was severed is
insufficient to show that Distance was deprived of an opportunity
to present his defense.
Id. at 642, 343 S.E.2d at 856.
Furthermore, as in
Paige, Langley's alleged statement is a far cry
from the sworn statement made by the co-defendant in
Alford. Thus,
we conclude that Distance has failed to show that the trial court
abused its discretion in consolidating the trial or that the
consolidation deprived Distance of a fair trial. Therefore, wehold that the trial court did not err in denying Distance's motion
to sever the trial.
[2] Langley first assigns error to the trial court's denial of
his motion to suppress Simpson's in-court identification. Langley
argues that the in-court identification was impermissibly
suggestive. We disagree.
Langley contends that the only reason Simpson identified him
was because he was present in court and seated in the defendant's
chair. However, in ruling on the motion to suppress, the trial
court found that Langley “came within arm['s] reach of [Simpson] at
the counter,” that Langley “came to be side-by-side or with
[Simpson] as she opened the cash register for him,” that Simpson
“had ample opportunity to view [Langley's face],” and that while in
court five months later, Simpson “recognized [Langley] immediately
as being the person[] who held the box cutter to her throat.”
An identification procedure is impermissibly suggestive only
if the totality of the circumstances surrounding the identification
indicate that the procedure resulted in a very substantial
likelihood of irreparable misidentification.
State v. Lyszaj, 314
N.C. 256,
264, 333 S.E.2d 288, 294 (1985). The factors for the
court to consider when reviewing an identification include: the
opportunity of the witness to view the perpetrator at the time of
the crime; the witness's degree of attention; the accuracy of the
witness's prior description of the perpetrator; the level of
certainty demonstrated by the witness at the identification; and
the length of time between the crime and the identification.
Id.
In the case
sub judice, after making the findings of fact detailedabove, the trial court concluded as a matter of law that Simpson's
in-court identification of Langley was not “inherently incredible,
given all the circumstances of [Simpson's] ability to view each of
the accused at the time of the alleged crime.”
We conclude that the trial court's findings of fact support
its conclusion of law that Simpson's in-court identification of
defendants was credible. Langley maintains that Simpson's level of
attention was impaired the night the video store was robbed, and
that her prior description of what Langley was wearing was
incorrect. However, an in-court identification is considered
competent where the identification is independent in origin and
based upon the witness's observations at the time and scene of the
crime.
State v. Miller, 69 N.C. App. 392, 396, 317 S.E.2d 84, 88
(1984). Furthermore, any uncertainty in an in-court identification
goes to the weight and not the admissibility of the testimony.
Id.
Therefore, we hold that the trial court did not err in denying
Langley's motion to suppress Simpson's in-court identification.
[3] Both defendants assign error to the trial court's finding
as an aggravating factor that the victim was very old and
physically infirm. We note as an initial matter that, because
neither defendant objected to the trial court's finding at the
sentencing hearing, this issue is not properly before this Court.
See N.C.R. App. P. 10(b)(1) (2004). Nevertheless, pursuant to
Rule 2 of the North Carolina Rules of Appellate Procedure, we have
elected to examine defendants' arguments, and we conclude that they
are without merit. N.C.R. App. P. 2 (2004).
Under Structured Sentencing, the trial court may find as anaggravating factor that
the victim was very young or very old, or
mentally or physically infirm, or handicapped
. N.C. Gen. Stat. §
15A-1340.16(d)(11) (2003). The State bears the burden of proving
by a preponderance of the evidence that the aggravating factor
exists. N.C. Gen. Stat. § 15A-1340.16(a) (2003). Furthermore, the
trial court's finding of an aggravating factor must be supported by
“sufficient evidence to allow a reasonable judge to find its
existence by a preponderance of the evidence.”
State v. Hayes, 102
N.C. App. 777, 781, 404 S.E.2d 12, 15 (1991).
A defendant may take advantage of a victim's age in at least
two ways.
State v. Thompson, 318 N.C. 395, 398, 348 S.E.2d 798,
800 (1986). First, a defendant may target the victim of a crime
because of the victim's age, knowing that the chances of success
are greater where the victim is very old.
Id. Second, a defendant
may take advantage of a victim's age during the actual commission
of the crime, knowing that the victim is unlikely to effectively
intervene or defend him or herself if the victim is very old or
physically infirm.
Id.
In the case
sub judice, defendants argue
that the State failed to prove that defendants took advantage of
Simpson because of her age and physical infirmity. We disagree.
Simpson testified at trial that she is sixty-five years old,
has had two knee replacement surgeries, and has difficulty kneeling
and walking. Simpson also testified that as Langley held a razor
blade to her throat, he ordered her to retrieve the bank bag.
Simpson testified that she responded by telling Langley that she
had knee problems and therefore could not crawl to the bathroom to
retrieve the bank bag. Simpson further testified that she neededthe help of a chair to stand up and show defendants how to open the
cash register. Michael Pratt testified that before defendants
robbed the store, one of them said that he saw “an old lady in the
movie store.” Pratt further testified that, as the three walked
past the video store, Langley said, “yeah, she's in there by
herself. Let's go in there and get her.” Simpson also testified
that Langley told her after he forced her to the ground that
defendants had been watching her for ten to fifteen minutes before
they entered the store.
We conclude that the evidence was sufficient to allow the
trial judge to find that defendants targeted the video store
because Simpson was very old and physically infirm, and that
defendants took advantage of Simpson's age and infirmity during the
commission of the robbery. Therefore, we hold that the trial court
did not err in finding as an aggravating factor that the victim was
very old and physically infirm.
No error.
Judges WYNN and MCCULLOUGH concur.
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