STATE OF NORTH CAROLINA
v. New Hanover County
No. 03CRS000669
PAUL DEWAYNE CUMMINGS
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Margaret Eagles, for the State.
Jeffrey Evan Noecker, for defendant-appellant.
HUNTER, Judge.
Paul Dewayne Cummings (“defendant”) was found guilty of
robbery with a dangerous weapon and was sentenced to an active term
of a minimum of 77 months and a maximum of 102 months.
The State presented evidence tending to show that between
midnight and 12:30 a.m. on 31 August 2002, Eula Caldwell (“Ms.
Caldwell”), a driver for Port City Taxi, picked up a male passenger
at the El Berta Motor Lodge on Market Street in Wilmington. The
passenger directed her to drive to 202 Dogwood Circle, located in
Dogwood Trailer Park. Upon arriving at this destination, the male
passenger slid behind Ms. Caldwell, put his arm around her neck,
held a sharp object against her throat and demanded all of her
money. The man grabbed cash from Ms. Caldwell and removed theearrings she was wearing. The man exited the vehicle and ran into
a wooded area.
Ms. Caldwell gave a description of the male passenger to the
police. She viewed a large number of police mug shots but could
not make an identification. On 6 October 2002, Ms. Caldwell saw a
photograph of defendant in a newspaper and recognized this person
as the man who robbed her. She notified the police and on 5
December 2002, she viewed another police lineup which included the
same photograph of defendant that appeared in the newspaper. She
selected defendant's photograph as the person who robbed her. She
also identified defendant in court as the robber.
By the first assignment of error presented in his brief,
defendant contends the court erred by denying his motion to
suppress Ms. Caldwell's identification testimony. He argues her
identification was tainted by an impermissibly suggestive
identification procedure. He argues Ms. Caldwell selected the
photo because it was the same photo she had seen in the newspaper.
“Even though a pretrial identification procedure may be
suggestive, it will be impermissibly suggestive only if all the
circumstances indicate that the procedure resulted in a very
substantial likelihood of irreparable misidentification.” State v.
Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983) (emphasis
omitted). Relevant factors to be considered in determining whether
or not irreparable misidentification is likely include: (1) the
opportunity of the witness to view the perpetrator at the time of
the incident; (2) the degree of attention paid by the witness; (3)the accuracy of the witness' prior description of the perpetrator;
(4) the level of certainty demonstrated by the witness at the time
of the identification; and (5) the length of time between the event
and the making of the identification. State v. Powell, 321 N.C.
364, 369, 364 S.E.2d 332, 335, cert. denied, 488 U.S. 830, 102 L.
Ed. 2d 60 (1988).
Ms. Caldwell testified on voir dire that when she arrived at
the motel, the lights of the motel were illuminated and the
awaiting passenger was sitting in a chair in front of the motel.
After the passenger boarded her vehicle, she turned on the light
inside her cab and turned around to look at the passenger as she
does with all of her customers, especially males late at night or
early morning, to get a look at him and to ask him where he was
going. She looked at him directly for thirty seconds to a minute,
at a distance of two feet away. At the time she picked up the
passenger she had been talking on a cellular telephone to a fellow
driver. Because she had an “odd feeling” about the passenger, she
asked the other driver to stay on the telephone with her. After
arriving at the passenger's destination, she parked the vehicle
under a street light, turned on her vehicle dome light, and turned
around to tell the passenger how much he owed her. When she talked
to police after the incident, she described her assailant as a
white male approximately nineteen years old, wearing a white tee
shirt, having “buzzed” hair, and standing approximately 5'7” to
5'8” inches tall. On 6 October 2002, she came into the dispatch
room of her employer and observed a newspaper on a counter. Shesaw a photograph of defendant in the newspaper and, without reading
the story or article and without any doubt in her mind, identified
him as the person who robbed her five weeks earlier. She notified
the police and on 5 December 2002, she selected defendant's
photograph from a lineup. She based her selection upon her
recollection of his face after seeing him in her taxicab on 31
August 2002.
Officer William Griffith Craig, Jr. of the Wilmington Police
Department testified that he showed Ms. Caldwell photographs of
approximately 2,100 white males on the computer and that
defendant's photograph did not appear in the array because he is a
Lumbee Indian and was not classified in their system as white. He
also viewed a videotape provided by the motel of a man getting into
a taxicab during the early morning of 31 August 2002. Although he
could not identify the man, he could see that he was wearing a
white tee shirt, blue jeans and short hair consistent with the
description given by Ms. Caldwell. When he subsequently showed Ms.
Caldwell a photograph lineup consisting of six photographs,
including one of defendant, Ms. Caldwell without any hesitation
selected the photograph of defendant.
The court made findings of fact consistent with the foregoing
evidence and concluded that Ms. Caldwell had ample opportunity to
observe her assailant at the time of the incident, her degree of
attention was strong, her description was accurate, her level of
certainty was firm and unequivocal, and the time lapse between the
incident and her identification was not so long as to significantlydiminish her ability to make an identification. The court
concluded that the pretrial identification procedure did not taint
the ability of the witness to give an in-court identification of
independent origin.
The court's findings of fact in ruling upon a motion to
suppress identification testimony are binding on appeal when they
are supported by competent evidence. State v. Hannah, 312 N.C.
286, 291, 322 S.E.2d 148, 151-52 (1984). The evidence we have
recited above provides ample support for the court's findings of
fact. These facts support a conclusion there was not a substantial
likelihood of misidentification by Ms. Caldwell. This assignment
of error is overruled.
By his remaining assignment of error, defendant contends that
the court erred by determining that he had three prior record level
points. He argues the court erred by allocating one point for a
prior misdemeanor conviction of hit and run.
Defendant is correct in stating that only the following three
Chapter 20 traffic misdemeanors may be counted in determining one's
prior record level for felony sentencing purposes: (1) impaired
driving; (2) impaired driving in a commercial vehicle; and (3)
misdemeanor death by vehicle. N.C. Gen. Stat. § 15A-1340.14(b)(5)
(2003). The court therefore erred by including the prior
conviction of hit and run in the count of prior record level
points. However, the error is harmless. The court found that
defendant has three prior record level points and that his prior
record level is level II. The point range to fall within priorrecord level II is “[a]t least 1, but not more than 4 points.”
N.C. Gen. Stat. § 15A-1340.14(c)(2). Deduction of one point for
the erroneously counted conviction leaves defendant with two
points, which is still within the point range for prior record
level II. See State v. Lowe, 154 N.C. App. 607, 610-11, 572 S.E.2d
850, 853-854 (2002) (harmless error to include a point when the
total points still remained within the same prior record level).
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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