STATE OF NORTH CAROLINA
v
.
Avery County
Nos. 02 CRS 51200-01
03 CRS 247
PAUL BRANTLEY LEWIS
Attorney General Roy Cooper, by Assistant Attorney General
Spurgeon Fields, III, for the State.
Reita Pendry, for defendant-appellant.
CALABRIA, Judge.
Paul Brantley Lewis (“defendant”) appeals judgments entered on
jury verdicts of guilty of first-degree sexual offense, felonious
breaking or entering, and robbery with a dangerous weapon. We find
no error.
The State's evidence at trial indicates that during the early
morning hours of 1 December 2002, Georgina Fields (the “victim”)
was alone and asleep at her house when she was awakened by a knock
at the door. The victim went to the door and opened it two to
three inches to two males, the taller of which was defendant.
Defendant told the victim that there had been an accident on a
nearby roadway and, although they had attempted to get help from a
neighbor, no one had come to the door. Defendant asked the victimif they could use her phone to call for help. The victim agreed
and began to open the door further when defendant pushed the door
in, causing the victim to fall to the floor. Both males entered
the house and, while defendant demanded money, the other individual
went throughout the house, taking, inter alia, pain medication,
syringes, and currency in the house. Defendant, brandishing a
knife, grabbed the victim by the hair, cut her gown off of her, and
forced her to perform fellatio on him. During this time and
afterwards when defendant pushed the victim away from him, the
victim was cut by the knife on her arm and eyebrow. After the
sexual assault, defendant kicked the victim in the diaphragm, and
the victim could not recall what occurred during the remainder of
the time the two intruders were in her house.
When the victim revived, she was unable to pull herself up but
was able to crawl through the living room to her life line unit, an
electronic device commonly worn around the neck and connected to
the telephone used to summon aid in an emergency. After help
arrived, the victim was interviewed by local law enforcement
authorities and described her assailant as tall, with dirty blonde,
unkempt hair, weighing 175-185 pounds and approximately forty years
of age. When the victim expressed a belief that she would be able
to identify her assailant if shown a picture, Officer Derrick
Roberts procured a picture of defendant. Officer Roberts met the
victim at the hospital and told her he “was going to show her a
photo of the person we thought might be her perpetrator[.]” The
victim affirmed with ninety percent certainty that the picture ofdefendant depicted her assailant. A photographic lineup was
performed a few days later with a different picture of defendant
and six additional photographs, and the victim again identified
defendant as her assailant.
Defendant was arrested and indicted for the break-in and
assault at the victim's house. Prior to trial, defendant moved to
dismiss the first-degree sexual offense indictment on the grounds
that it failed to adequately charge the offense. In addition,
defendant moved to suppress all identification testimony by the
victim on the grounds that the initial photographic identification
by the victim was “irreparably tainted by the unnecessarily
suggestive” use of a single photograph in violation of defendant's
due process rights. The trial court allowed defendant to voir dire
the victim and Officer Roberts, and, at the end of the voir dire,
the trial court denied defendant's motion. The trial court made
extensive findings of fact and concluded that the single photograph
identification was “more suggestive than would be recommended by
applicable North Carolina law” but was, nonetheless, “reliable and
did not produce a substantial likelihood of misidentification given
the totality of the circumstances.” At the end of the State's
case-in-chief, the State offered, over defendant's objection, the
photographs used in the single photograph and photographic lineup
identification procedures, and the trial court admitted the
pictures and allowed the jury to view them. Both at the close of
the State's evidence and at the close of all the evidence,
defendant moved to dismiss all charges against him. The trialcourt denied those motions with respect to the charges of first-
degree sexual offense, felonious breaking or entering, and robbery
with a dangerous weapon, and the jury returned verdicts of guilty
on those charges. The trial court sentenced defendant to
consecutive, active sentences of 307 to 378 months for the first-
degree sexual offense conviction and 94 to 122 months for the
robbery conviction. For breaking and entering, defendant received
a sentence of 11 to 14 months, which was suspended with a term of
supervised probation for 36 months, to commence at the expiration
of the active sentences imposed. Defendant appeals.
On appeal, defendant asserts the trial court erred by (I)
denying his motion to suppress regarding the identification
procedure, (II) permitting an arrest photograph to be admitted into
evidence without redaction and displayed to the jury, (III)
refusing to give his requested instruction concerning the
identification procedure, and (IV) denying his motion to dismiss
the indictment for first-degree sexual offense.
I. Motion to Suppress
Defendant asserts the trial court erred in denying the motion
to suppress the victim's identifications of defendant because the
initial identification procedure using a single photograph was
unduly suggestive and tainted all subsequent identifications.
“Identification evidence must be excluded as violating due process
where a pretrial identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of
irreparable misidentification.” State v. Jones, 98 N.C. App. 342,345, 391 S.E.2d 52, 55 (1990). “Whether an identification
procedure is unduly suggestive depends on the totality of the
circumstances.” State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d
859, 868 (2002). “A due process analysis requires a two-part
inquiry” of (1) whether the identification procedure was
impermissibly suggestive and, if so, (2) whether the suggestive
procedure “created a substantial likelihood of irreparable
misidentification.” Id. (citations and internal quotation marks
omitted). Relevant factors to be considered in determining whether
an identification procedure was impermissibly suggestive 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.” Id.
As “[o]ur courts have widely condemned the practice of showing
suspects singly to persons for the purpose of identification[,]”
see State v. Yancey, 291 N.C. 656, 661, 231 S.E.2d 637, 640 (1977),
we summarily agree with the trial court's conclusion that, under
these facts, the single photograph identification procedure in the
instant case was “more suggestive than would be recommended by
applicable North Carolina law.” Accordingly, we proceed to the
second relevant determination, which we consider in light of the
factors and evidence adduced at trial.
Regarding the victim's opportunity to view the criminal at the
time of the crime, the victim testified daylight was breaking atthe time she went to her door with additional light coming from
streetlights and a light in her hallway. The conversation at the
front door lasted approximately a minute, and during that time, the
victim focused mostly on defendant's face at a distance of eight to
ten inches. After defendant entered the victim's house but before
the sexual assault, the victim again was able to see defendant from
a short distance for approximately thirty seconds. The victim also
testified that both during the sexual assault and after defendant
pushed her away from him, she was able to observe defendant from a
short distance. Given the lighting, distance, and duration of the
encounter, the victim had ample opportunity to observe defendant
during the criminal acts.
In addition, the victim's degree of attention supports a
determination that she adequately observed defendant during the
relevant time period. The victim specifically stated that she
“focused” on defendant's face prior to initially admitting him into
her house. She again noted that she “focused on his face” after he
had forced the door open and she had fallen to the ground. After
she was pulled to her knees, the victim again “focused on his
face[.]” Throughout the encounter, the victim reiterated that she
focused her attention on defendant's face.
The victim described defendant as being tall, with dirty
blonde, unkempt hair, weighing 175-185 pounds and approximately
forty years of age. The testimony at trial indicated defendant was
at least six feet six inches, and Officer Roberts estimated his
weight, as of 1 December, to be “roughly 190 pounds.” Defendantargues the victim's description omitted certain “details of
appearance,” but this Court has never enumerated any required
amount of detail. While a greater degree of detail certainly lends
itself to reliability when the provided details accurately set
forth the defendant's appearance, the description in the instant
case was sufficiently robust to provide indicia of reliability.
Likewise unavailing are defendant's arguments concerning (1)
whether the victim should have described defendant as “extremely
tall” instead of merely “tall” and (2) whether the victim's
description of defendant's weight accurately reflected his weight
at trial as opposed to the time of the incident. These arguments
are summarily rejected.
Regarding the last two relevant factors, we note the victim's
viewing of the single photograph allowed her to say, with ninety
percent certainty, that defendant was her assailant. While not
unequivocal, the victim's high degree of certainty argues in favor
of the reliability of the identification. Likewise, the time
between the offense and the identification was, as defendant
concedes, “only a few hours.” Given the totality of the
circumstances, we hold the trial court properly denied defendant's
motion to suppress the identifications made by the victim.
II. Admission of Arrest Photograph
In his second assignment of error, defendant asserts the trial
court erred in admitting, over defendant's objection, an unredacted
“mug shot” of defendant resulting in prejudice “in that it alerted
the jury that [defendant] had a prior criminal record [despite thefact that defendant] did not testify [and] was not impeached with
any prior criminal acts.” Defendant contends the “only evidence of
his prior bad character came through this mug shot,” entitling him
to a new trial as a result. Despite defendant's assertion to the
contrary, this Court's analysis in State v. Foster is instructive.
Foster, 63 N.C. App. 531, 306 S.E.2d 126 (1983).
In Foster, this Court reiterated that “the State cannot offer
evidence of [a defendant's] bad character, including his previous
criminal record [or a 'mug shot']” if the defendant “does not take
the stand as a witness and does not offer evidence of his good
character[.]” Id., 63 N.C. App. at 535, 306 S.E.2d at 128.
Nonetheless, this Court went on to note that where a defendant
raises the issue as to the propriety of pre-arrest identification
procedures, a “mug shot” of the defendant is admissible as
competent evidence relating to that issue. Id., 63 N.C. App. at
535, 306 S.E.2d at 129. See also State v. Fulcher, 294 N.C. 503,
513, 243 S.E.2d 338, 346 (1978) (finding “no prejudicial error in
permitting the State to show the jury the photographs” used in pre-
arrest identification procedures where a defendant “by his previous
cross-examination of the State's witnesses, br[ings] into question,
before the jury, the propriety of [those] procedures”). In such
situations, a defendant “is entitled, upon request, to have the
jury instructed to consider it only for the purposes for which it
is competent.” Foster, 63 N.C. App. at 536, 306 S.E.2d at 129.
Accordingly, in the instant case, the “mug shot” was admissible as
relating to the issue of the propriety of the pre-arrestidentification procedure, and the trial court properly admitted the
photograph. Had defendant wished for a limiting instruction
regarding improper use of the photograph as character evidence,
defendant could, but did not, request one.
Moreover, we note that, even if we agreed with defendant that
the trial court erred in admitting into evidence the photograph
without redaction, any such error would be harmless. See N.C. Gen.
Stat. § 15A-1443(a) (2004). In the instant case, the victim
provided eyewitness testimony after ample opportunity to observe
defendant and identified defendant with ninety per cent certainty.
Accordingly, defendant has not shown “a reasonable possibility
that, had the error in question not been committed, a different
result would have been reached” at trial. Id. Finally, to the
extent defendant's argument is directed to what specific words or
images on the photograph should have been redacted, it is deemed
abandoned under our Appellate Rules because defendant (1) has not
presented the photograph to this Court on appeal, (2) has not
presented any argument pertaining to particular words or images
other than those indicating the photograph was a “mug shot,” and
(3) has not argued any specific prejudice which resulted, other
than his general argument that the photograph constituted evidence
of prior criminal acts. This assignment of error is overruled.
III. Jury Instruction
Defendant asserts in his third assignment of error that the
trial court erred in refusing to give his requested jury
instruction regarding identification, patterned after the holdingof the United States Court of Appeals for the Fourth Circuit in
United States v. Holley, 502 F.2d 273 (4th Cir. 1974).
Specifically, this expanded identification jury instruction sets
forth (1) that the State bears the burden of proving the identity
of the defendant as the perpetrator of the crime beyond a
reasonable doubt, (2) the relevant factors concerning a witness'
ability to make a reliable identification, and (3) the credibility
of the identification witness.
A trial court is not required to repeat, verbatim, the charge
requested by a defendant so long as the charge given “conveys the
substance of the requested instruction[.]” State v. Smith, 311
N.C. 287, 290, 316 S.E.2d 73, 75 (1984). Where the trial court so
instructs, the charge is sufficient for purposes of appellate
review. Id. In the instant case, the trial court gave the
criminal pattern jury instruction regarding the State's burden of
proving defendant's identity:
I instruct you that the State has the burden
of proving the identity of the Defend ant as
the perpetrator of the crimes charged beyond a
reasonable doubt. This means that you, the
Jury, must be satisfied beyond a reasonable
doubt that the Defendant was the perpetrator
of the crimes charged before you may return a
verdict of guilty.
In addition, the trial court instructed the jury as follows:
Now you are the sole judges of the
creditability, and that is the believability,
of each witness. You must decide for
yourselves whether to believe the testimony of
any witness. You may believe all, or part of
or none of what any witness has said on the
witness stand. In determining whether to
believe any witness, you should apply the same
test of truthfulness which you apply in youreveryday affairs. As it applies to this trial
these tests may include the opportunity of a
witness to see, hear, know, or remember the
facts or occurrences about which that witness
has testified[,] [t]he manner and appearance
of the witness, [and] any interest, bias, or
prejudice that any witness may have[.]
We hold the language of this charge adequately sets forth the
State's burden of proof, the victim's ability to see and remember
relevant facts, including those that would result in a reliable
identification, and the credibility of the witness. This
assignment of error is overruled.
IV. Motion to Dismiss the Indictment
Finally, defendant asserts the trial court erred in failing to
dismiss the indictment charging first-degree sexual offense on the
grounds that the indictment did not conform with the statutory
short-form indictment as required by N.C. Gen. Stat. § 15-144.2
(2003). Specifically, defendant contends the indictment was
insufficient because it did not contain the averment “with force
and arms.” However, the indictment does aver the offense was
committed “by force and against [the] victim's will[,]” and
defendant concedes this Court has held such language to be
sufficient. State v. Smith, 110 N.C. App. 119, 429 S.E.2d 425
(1993). Since Smith is dispositive of this issue, defendant's
assignment of error, while preserved for further appellate review,
is overruled.
Affirmed.
Judges HUNTER and LEVINSON concur.
Report per Rule 30(e).
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