NO. COA03-942
Appeal by defendant from judgments dated 25 February 2003 by
Judge Robert H. Hobgood in Durham County Superior Court. Heard in
the Court of Appeals 15 June 2004.
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Pitman, for the State.
Russell J. Hollers, III for defendant-appellant.
BRYANT, Judge.
Sherod Rashawn Hawkins (defendant) appeals the denial of his
motion to suppress certain pretrial identification evidence. As
detailed herein, we conclude that the trial court did not err in
denying defendant's motion to suppress, and find no error in the
judgment and commitment of the trial court dated 25 February 2003.
Defendant was charged with the 23 May 2000 robbery with a
dangerous weapon (armed robbery) and the assault with a deadly
weapon inflicting serious injury of Donald Douglas Tatum. Prior to
trial, defendant moved to suppress Tatum's identification of him as
his assailant. The evidence at the suppression hearing tended to
show that at about 11:30 p.m. on the date in question, Tatumreturned home from work and noted a group of men sitting on some
steps near the front of his duplex. As Tatum was opening the side
door to his residence, Augustus Dwayne Bass, an acquaintance of
his, approached and asked if he could come in and get a beer.
Tatum consented, and he and Bass entered the residence together.
The two men were seated at the kitchen table talking when an
unknown man entered through the screen door brandishing a gun. The
man, who was later identified by Tatum as defendant, held Tatum at
gunpoint, threatening Tatum and ordering him to give up his money
and the jewelry he was wearing. When Tatum refused, defendant shot
Tatum in his left thigh. Tatum then fell to the floor at which
time defendant proceeded to remove Tatum's jewelry, wallet, and
cellular telephone. While Tatum was on the floor, Bass stole a
video game and fled the scene. Defendant next ordered Tatum at
gunpoint to get up and walk to his bedroom in search of more money.
At finding no more money, defendant yanked one of Tatum's
telephones from the wall, and ordered Tatum to return to the
kitchen and remove all of his clothing. Once Tatum was naked,
defendant left, threatening to return and harm Tatum if he reported
the incident.
Tatum replaced his clothing and thereafter telephoned the
police to report the incident. Officer Scott Chabotte of the
Durham Police Department responded to the scene. Tatum related the
events leading up to the robbery and assault to Officer Chabotte,
and provided a description of the person who shot and robbed him.
Tatum did not know the assailant's name at the time he gave theofficer the incident report.
Detective W.L. Early, who was subsequently assigned to
investigate the incident, interviewed Tatum about three days after
the 23 May 2000 robbery and assault. Tatum again related the
events of 23 May 2000, although at this time, Tatum told the
detective that he had learned that the unknown assailant's name was
Shawn. Tatum described Shawn as a black male, of unknown age,
between 5'6” and 5'9” in height, medium build, weighing 170-190
pounds, of unknown eye color, with short black hair, brown
complexion, and no facial hair. He further described Shawn as
having normal speech. While discussing the case with some of his
fellow detectives, Detective Early learned from another police
officer, Investigator Todd Rose, that Bass “hung out” with Sherod
Rashawn Hawkins. Investigator Rose was able to give Detective
Early two photographic lineup sheets that had been compiled during
a previous investigation. The lineups consisted of six photographs
of men of similar description. The first sheet contained a
photograph of Bass, while the second contained a photograph of
defendant. Tatum identified Bass from the first lineup sheet and
defendant from the second lineup sheet. Tatum also clearly
described the pistol used by defendant as a black, nine-millimeter
handgun.
Defendant presented the testimony of Investigator Rose as to
the date and manner in which he had constructed the photographic
lineup sheets. Investigator Rose also confirmed Detective Early's
testimony that Rose provided the lineup sheets used to investigatethe 23 May 2000 robbery and assault of Tatum.
After hearing the evidence and arguments of counsel, the trial
court made findings of fact and conclusions of law in open court
before denying the motion to suppress. Thereafter, this matter
came on for trial and the State presented evidence in conformity
with the evidence presented at the suppression hearing. The jury
found defendant guilty of armed robbery and assault with a deadly
weapon. Defendant appeals.
____________________________
On appeal, defendant argues only that the trial court erred
in admitting evidence of the victim's pretrial identification of
defendant as his assailant. We disagree.
It is well settled that “'[i]dentification evidence [need
only] 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)). Hence,
“[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). Only after the trial
court determines that “the pretrial identification procedure is
impermissibly suggestive,” does the court have to “determine
whether the suggestive procedure gives rise to a substantiallikelihood of irreparable misidentification.”
Id. In
State v.
Piggott, our Supreme Court set forth five factors to be considered
when determining whether such a substantial likelihood exists:
1) The opportunity of the witness to view the
criminal at the time of the crime; 2) the
witness' degree of attention; 3) the accuracy
of the witness' prior description; 4) the
level of certainty demonstrated at the
confrontation; and 5) the time between the
crime and the confrontation.
320 N.C. 96, 99-100, 357 S.E.2d 631, 634 (citing
Manson v.
Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154 (1977)).
In reviewing a ruling on a motion to suppress, this Court is
generally limited to a determination of “whether the trial court's
findings of fact are supported by competent evidence, and whether
these findings of fact support the court's conclusions of law.”
State v. Pulliam, 139 N.C. App. 437, 439-40, 533 S.E.2d 280, 282
(2000). Here, however, the Court's review is further limited as
defendant failed to specifically assign error to the trial court's
findings. Though defendant attempts to present arguments in his
brief regarding two of the trial court's findings, this is not
adequate to preserve the sufficiency of the evidence to support
those findings.
See State v. Perry, 316 N.C. 87, 107, 340 S.E.2d
450, 462 (1986) (“when no exceptions are made to separate findings
of fact they are presumed to be supported by competent evidence”);
Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525
S.E.2d 481, 484 (2000) (“Where findings of fact are challenged on
appeal, each contested finding of fact must be separately assigned
as error, and the failure to do so results in a waiver of the rightto challenge the sufficiency of the evidence to support the
finding.”). The trial court's findings are, therefore, binding
upon this Court on appeal. Our only question is whether the trial
court's findings are sufficient to support its conclusions of law.
In the case
sub judice, the trial court made detailed findings
consistent with the evidence of record. Based upon these findings,
the trial court made conclusions of law before denying defendant's
motion to suppress. Most pertinently, the trial court concluded,
“[t]he pre-trial identification procedure involved with this
defendant was not so impermissibly suggestive as to violate the
defendant's rights to due process of law.”
Though defendant does allege on appeal that the trial court
“wrongly concluded that the identification procedure was not
suggestive and likely to result in misidentification,” he fails
utterly to present any argument in that regard. Instead, the crux
of defendant's argument is that the trial court misapplied the five
Piggott factors.
The evidence of record tends to show that the photographic
lineups were composed of pictures of persons very similar in
complexion and facial features. Though defendant was described by
Tatum as having no facial hair, the picture used in the lineup
depicted defendant with facial hair since that photo was an older
photo. Detective Early testified that he decided to use the old
photo with facial hair, and not a more recent photo of defendant
without facial hair, to avoid the possibility of making the photo
lineup suggestive. Further, though defendant argued to thecontrary at trial, the record evidence reveals nothing suggestive
in the manner in which Detective Early presented the two
photographic lineups to Tatum. The detective specifically
testified that he read the back of the jacket in which the photo
lineups were contained. The back of the jacket read as follows:
You will be asked to look at a group of
photographs. The fact that the photographs
are shown to you should not influence your
judgment. You should not conclude or guess
that the photographs contains the picture of
the person who committed the crime. You are
not obligated to identify anyone. It is just
as important to free innocent persons from
suspicions as to identify guilty parties.
Please do not discuss this case with other
witnesses, nor indicate in any way that you
have identified someone.
Defendant failed to adduce any evidence to show that Detective
Early made any statements or acted in any manner to suggest that
Tatum's assailant was in either of the two photo lineups.
Detective Early testified that the victim, Tatum, did not hesitate
in selecting defendant's photo from the lineup. Tatum wrote a
statement on the back of the photo lineup that “[p]icture number 5
is one of the persons that robbed me.” Tatum also selected the
picture of Dwayne Bass from the first photographic lineup.
As the trial court's findings, consistent with the evidence,
support its conclusion that the pretrial identification procedure
was not impermissibly suggestive, this Court need not inquire
further.
See Powell, 321 N.C. at 368-69, 364 S.E.2d at 335 (the
court need only discuss the likelihood of irreparable
misidentification, and therefore, the
Piggott factors, if the
pretrial identification is determined to be impermissiblysuggestive). Accordingly, we conclude that the trial court
properly denied defendant's motion to suppress the pretrial
identification evidence. We hold therefore that defendant received
a fair trial, free from prejudicial error.
No error.
Chief Judge MARTIN and Judge McGEE concur.
Report per Rule 30(e).
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