An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-942

NORTH CAROLINA COURT OF APPEALS

Filed: 6 July 2004

STATE OF NORTH CAROLINA

    v.                            Durham County
                                Nos. 00 CRS 57915, 57917
SHEROD RASHAWN HAWKINS
    

    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).

*** Converted from WordPerfect ***