Converted WP file 040962-1

Appeal by defendant from judgments signed 11 March 2004 by Judge Thomas D. Haigwood in Durham County Superior Court. Heard in the Court of Appeals 13 June 2005.

Attorney General Roy Cooper, by Assistant Attorney General Richard L. Harrison, for the State.

Joseph E. Zeszotarski, Jr. for defendant-appellant.

BRYANT, Judge.

    Brandis Holman (defendant) appeals from a judgment signed 11 March 2004, following a jury trial, convicting him of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon.
    At trial, complainant Taneka Turner (Turner) testified that on the night of 8 March 2002, she walked with her cousin and his wife from her grandmother's house to the “In and Out” convenience store on Fayetteville Street in Durham, North Carolina. As she entered the store, Carlos Johnson (Johnson) called to Turner from a silver car parked in front of a beauty salon located beside the store. Turner had attended high school with Johnson but had not seen himin approximately two years.
    When Turner's cousin and his wife got into an argument in the convenience store, Turner left without them and began walking back to her grandmother's residence. Johnson drove his car beside Turner and called to her again. Turner did not recognize the two passengers in Johnson's car. Turner got into the back seat of Johnson's car, sitting next to a man she later identified as defendant. Defendant ordered Turner to empty her pockets. When she hesitated, defendant drew a black nine millimeter handgun, held it to her head, and stole money, a checkbook, and other items from her pockets. During the robbery, Johnson “glanced back a couple of times” but continued driving until they arrived at a church on South Roxboro Street. While there, defendant opened the door and pushed Turner out of the car. She ran to her grandmother's house and contacted the police, identifying Johnson by name and providing a description of her assailant. At trial, during voir dire, Turner testified that less than two weeks after the robbery, she went with her mother to Johnson's first appearance hearing, which was held in a courtroom at the Durham County Jail. After Johnson's hearing, Turner and her mother left the courtroom and proceeded downstairs to the bondsman's office, which was located next to the magistrate's office. While waiting for her mother to talk to a friend in an area in front of the magistrate's office, Turner saw defendant, clad in a orange jumpsuit, being led upstairs by law enforcement. Recognizing defendant as the man who robbed her, Turner pointed him out to her mother and obtained his name from abondsman. Turner also saw listed on a sheet of paper that defendant had been arrested for a probation violation. Upon leaving the jail, Turner contacted Durham Police Detective Kyle Alston (Alston) and identified defendant by name as her assailant. Later that day, she picked defendant's photograph out of a line-up of twenty-four photographs of black males prepared by Alston.
    Upon questioning from the trial court, Turner stated she was “certain” and had “no doubt” in selecting defendant's photograph as depicting the man who robbed her. When asked how sure she was of defendant's identity as her assailant upon seeing him in the magistrate's waiting area, Turner replied, “I was very certain. I couldn't never forget that face.”
    Turner further affirmed she would have been able to identify defendant in court at trial even if she had not seen him at the jail and in the photographic line-up. Although the robbery occurred at night, she had been able to see defendant's face due to a streetlight located “right by the church . . . where the car was parked.” She estimated her exchange with defendant in the back seat lasted “a good two minutes, maybe. . . . Long enough for him to go through my pockets, take everything out and pull into the church parking lot.” Turner noted her “focus was on [defendant]” during the robbery and that she “just sat back and looked directly at his face[,]” in disbelief at what was happening. She described her assailant to police immediately after the robbery as a man in his “early twenties” with brown skin, brown eyes, braids and facial hair, and wearing a red plaid shirt and blue jeans.    Detective Alston also testified on voir dire, confirming Turner selected defendant from a photographic line-up without any hesitation. Alston further testified he had notified Turner of the date and location of Johnson's first appearance. However, Alston did not suggest to Turner that defendant would be at the jail on the hearing date, inasmuch as Alston “didn't even know [defendant] was a suspect in this” case.
    Defendant moved to suppress Turner's identification. In denying the motion to suppress, the trial court announced findings of fact consistent with Turner's and Alston's voir dire testimony. It then found and concluded as follows: (1) defendant was never pointed out or suggested to Turner “as being a person whom she should identify[;]” (2) Turner's identification of defendant was “not inherently incredible given all of the circumstances of the witness' ability to view [him] at the time of the crime[;]” (3) “any pre[-]trial identification procedure . . . was not impermissibly suggestive as to violate the defendant's right to due process[;]” and (4) Turner's “in-court identification of [defendant] [was] of independent origin, based solely upon what the witness saw at the time of the purported armed robbery and [was] not tainted by any pre[-]trial identification procedure.” Defendant appeals.

    On appeal, defendant challenges the denial of his motion to suppress Turner's in-court identification, arguing that her testimony was the “product of unduly suggestive pre[-]trialidentification[.]”
    “Identification evidence must be suppressed on due process grounds where the facts show that the pre[-]trial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification.” State v. Powell, 321 N.C. 364, 368, 364 S.E.2d 332, 335 (1988) (quoting State v. Wilson, 313 N.C. 516, 528-29, 330 S.E.2d 450, 459 (1985)), cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60 (1988). As we have previously explained:
        This due process analysis requires that we conduct a two-part inquiry. We must first determine whether the identification procedures at issue were impermissibly suggestive. Only if the procedures were impermissibly suggestive must we then move to the second part of the inquiry and determine whether the procedures created a substantial likelihood of irreparable misidentification.

State v. McCree, 160 N.C. App. 19, 24, 584 S.E.2d 348, 352 (2003) (citing State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001), cert. denied, 535 U.S. 939, 152 L. Ed. 2d 230 (2002)), appeal dismissed, disc. review denied, 357 N.C. 661, 590 S.E.2d 855 (2003). For purposes of our review, the trial court's findings of fact are binding and conclusive if supported by any competent evidence. State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 470 (1985).
    We agree with the trial court's conclusion that the circumstances surrounding Turner's pre-trial identification of defendant were not impermissibly suggestive. The court found, based upon the undisputed evidence, that at no time did anyonesuggest defendant to Turner as a potential suspect in this case. Her initial identification of defendant occurred during a chance encounter in the magistrate's waiting area at the county jail. Although defendant was clad in an orange jumpsuit reflecting his detention, none of the surrounding circumstances were suggestive of his involvement in the robbery. Defendant was not in the courtroom during Johnson's first appearance. Moreover, the document read by Turner in the bondsman's office indicated that defendant was in custody for a probation violation. Finally, no evidence suggested that the photographic line-up subsequently shown to Turner was assembled or presented by Alston in a manner tending to induce her selection of defendant. See McCree, 160 N.C. App. at 26, 584 S.E.2d at 353.
    Having determined that the pre-trial identification procedures were not impermissibly suggestive, we need not proceed to the second step of the due process analysis assessing the likelihood of irreparable misidentification arising therefrom. Turner's in-court identification of defendant was untainted and freely admissible. The trial court properly denied the motion to suppress.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. By Rule, we deem them abandoned. N.C. R. App. P. 28(b)(6).
    No error.
    Judges ELMORE and GEER concur.
    Report per Rule 30(e).

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