The issues on appeal are whether the trial court erred in:
(I) denying defendant's motion to suppress the identification
testimony of Ross; (II) denying defendant's motion to dismiss the
armed robbery charge; (III) responding to a question of the jury
regarding unanimity of its verdict; and (IV) sentencing defendant
at prior record level V.
Defendant first challenges the trial court's denial of his
motion to suppress. He maintains identification of him by Ross as
perpetrator of the robbery should have been excluded as having been
tainted by an impermissibly suggestive photo lineup shown to Ross
by law enforcement officers. We do not agree.
After hearing
voir dire testimony from Ross and Rocky Mount
Police Department Detective T.G. Seighman (“Detective Seighman”),
the trial court denied defendant's motion to suppress Ross'
identification, stating:
The court determines that the out-of-court
identification procedure was not so
impermissibly suggestive as to give rise to
any very substantial likelihood of irreparable
identification, and in the alternative, the
court specifically finds that the procedure
and the photographs were not impermissibly
suggestive. And in addition, that
notwithstanding anything to the contrary and
in the alternative, that from the totality of
the circumstances, the identification both out
of court and in court was inherently reliable
and not unreliable.
Although “reserv[ing] the right to make complete findings of fact[]
. . . and conclusions of law,” the court dictated the following
into the record:
[Detective Seighman] met with . . .
[Ross] . . . . He made [a] photo lineup
identification procedure on January 23rd, '04,
approximately 39 days or so after the alleged
date of the robbery. [Detective Seighman] had
two photo lineups, one was prepared by another
officer, Sergeant Revis, [in] reference to
another unrelated incident. [Defendant's]
photograph was included in both. The
photographs showed different appearances or
likenesses of [defendant] based on different
hairstyles. [Detective Seighman] specifically
informed [Ross] that the suspect was not
necessarily in the lineup. [Detective
Seighman] did not in any way confirm,
corroborate, or attempt to indicate to the
witness that an identification was correct or
that she had identified a person even
suspected of the commission of the robbery.
[Detective Seighman] did not, based upon the
totality of the circumstances and all the
evidence, . . . did not show prior to
identification from lineups any photograph
representing the video [of the robbery].
. . . .
In addition, [Ross] indicated that she was
absolutely certain as to the identity in two
separate photo identifications, each one
containing [defendant's] photograph.
[Detective Seighman] testified that in State's
Exhibit 1, all persons shown in the lineup
were light skinned black males. Regarding PX
1, or the first lineup, [Ross] testified that
all persons had different hairstyles and that
all were light skin in her perception.
Regarding State's Exhibit 2, she indicated
that all had similar hair styles.
On each occasion of identification from the
photo lineups [Ross] indicated a high degree
of certainty. [Detective Seighman] described
this as one hundred percent sure. [Ross]
immediately identified the suspect from
State's Exhibit No. 1, which was the firstphotographic lineup consisting of six
photographs. All were of similar appearance
so as not to be impermissibly suggestive.
[Ross] also immediately identified the suspect
from State's Exhibit No. 2, a second
photograph lineup, from which the suspect was
immediately identified as well and that also
contained six photographs of similarly
appearing persons and not appearing
impermissibly suggestive.
In addition, [Ross], after the immediate
identification from the first photo lineup,
indicated the suspect, being [defendant], who
is now identified as the defendant in open
court, but she immediately responded that the
suspect's hair was different before [Detective
Seighman] showed her the second photographic
lineup.
In addition, the court finds that [Ross] had
ample opportunity, more than ample opportunity
to observe the suspect during the commission
of the robbery in that he was the only person
in the [Inn]. She had to open the door to
allow the suspect to enter the premises.
There was adequate and sufficient lighting
whereupon she could identify the suspect and
his face and note facial features, as well as
hair and hands. That she was in the suspect's
presence for approximately thirty minutes, and
certainly the court finds that that is
sufficient time for her to make an
identification. And that during this period
of time her attention was focused entirely on
the suspect and therefore there was an
adequate basis for her to make the
identification.
Our review of a trial court's denial of a motion to suppress
is “strictly limited to determining whether the trial judge's
underlying findings of fact are supported by competent evidence, in
which event they are conclusively binding on appeal, and whether
those factual findings in turn support the judge's ultimate
conclusions of law.”
State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d
618, 619 (1982) (citations omitted). “Indeed, an appellate courtaccords great deference to the trial court in this respect because
it is entrusted with the duty to hear testimony, weigh and resolve
any conflicts in the evidence, find the facts, and, then based upon
those findings, render a legal decision[.]”
Id. at 134, 291 S.E.2d
at 619-20
. Notwithstanding, “the trial court's conclusions of law
must be legally correct, reflecting a correct application of
applicable legal principles to the facts found.”
State v.
Fernandez, 346 N.C. 1, 11, 484 S.E.2d 350, 357 (1997) (citation
omitted).
In the case
sub judice, defendant asserts the photographic
lineups were impermissibly suggestive and resulted in an
irreparable misidentification at trial. However, defendant
proffers no challenge to the sufficiency of the evidence underlying
the trial court's findings of fact nor does he assign error to
those findings. Accordingly, our review is limited to the
propriety of the trial court's ultimate conclusions of law.
See
id.;
State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005)
(where defendant does not assign error to findings of fact
following a suppression hearing, “the findings of fact are not
reviewable, and the only issue before [the appellate court] is
whether the conclusions of law are supported by the findings, a
question of law fully reviewable on appeal”).
Defendant's arguments track the two-fold nature of appellate
review of pretrial identification procedures:
First, we must determine whether an
impermissibly suggestive procedure was used in
obtaining the out-of-court identification. If
this question is answered in the negative, weneed inquire no further. If it is answered
affirmatively, the second inquiry we must make
is whether, under all the circumstances, the
suggestive procedures employed gave rise to a
substantial likelihood of irreparable
misidentification.
State v. Leggett, 305 N.C. 213, 220, 287 S.E.2d 832, 837 (1982)
(citation omitted).
Noting he “was the only one who appeared in both” photo
lineups, defendant insists that “[c]onsciously or subconsciously
the image of defendant appearing in both [photo lineups] signaled
to [] Ross that [defendant] was the person law enforcement
believed” committed the crime. However, in determining whether a
pretrial identification procedure was impermissible, “[t]he proper
test is whether in the totality of the circumstances [the]
procedure [wa]s so unnecessarily suggestive and conducive to
irreparable misidentification that it offends fundamental standards
of decency and justice.”
State v. Freeman, 313 N.C. 539, 544, 330
S.E.2d 465, 471 (1985) (citation omitted). Thus, “[t]he fact that
a defendant's photograph is the only one common to two groups of
photographs shown a victim is not sufficient, standing alone, to
support a determination that pretrial photographic identification
was conducted in an impermissibly suggestive manner.”
Leggett, 305
N.C. at 222, 287 S.E.2d at 838.
Examining the trial court's findings, we conclude that the
totality of the pretrial identification procedures reflected
therein
“clearly indicates that the procedures were not
impermissibly suggestive.”
Id. First, both State's Exhibit 1 and
State's Exhibit 2, the photographic lineup cards presented to Ross,contain photographs of six African-American males. Next, the
individuals in State's Exhibit 2 are “similar appearing” and all
have the same length and style of hair, while those in State's
Exhibit 1, while also “similar appearing,” have differing
hairstyles and lengths. Further, although defendant's photograph
appears in both exhibits, Ross was shown State's Exhibit 2 only
after “immediately” identifying defendant positively in State's
Exhibit 1. Finally, as in
Leggett, “[n]o suggestion was made to
[Ross] that she pick any of the photographs.”
Id. Indeed,
Detective Seighman explicitly informed Ross “that the suspect was
not necessarily in the lineup.” In light of these uncontested and
binding findings, we hold the trial court did not err in concluding
that the identification procedures used in the instant case were
not impermissibly suggestive.
See Cooke, 306 N.C. at 134, 291
S.E.2d at 619.
(See footnote 1)
Ordinarily, such a decision would end our inquiry.
See
Leggett, 305 N.C. at 220, 287 S.E.2d at 837. Addressing
defendant's second argument, however, and assuming
arguendo the
trial court's findings were somehow inadequate to support its
conclusion or that the identification procedures were in somerespect impermissibly suggestive, we do not believe that, “under
all the circumstances, [any] suggestive procedures [which may have
been] employed gave rise to a substantial likelihood of irreparable
misidentification,”
id.
, at trial. Our Supreme Court has held that
[f]actors to be considered in making this
determination are (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 of the criminal, (4) the
level of certainty demonstrated at the
confrontation, and (5) the time between the
crime and confrontation.
State v. Powell, 321 N.C. 364, 369, 364 S.E.2d 332, 335 (citations
omitted),
cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60 (1988).
In the case
sub judice, when asked at trial whether she was
“able to get a good look at” the perpetrator's face “during th[e]
time that [she] w[as] dealing with him[,]” Ross answered, “Oh,
yeah,” explaining she and the perpetrator “were very close
together, and in the office, there is full light in the office.”
After identifying defendant as the perpetrator of the crime, Ross
testified she was “sure” of her identification and that there was
no “question in [her] mind whatsoever.” When questioned regarding
her identification of defendant from the photo lineup, Ross
testified that “[a]s soon as [she] saw it, [she] knew who it was.”
On cross-examination, Ross indicated defendant was “in [her]
presence” for “30 minutes” during the robbery, and that “[i]t
seemed like forever.” Although conceding she “c[ould]n't estimate”
how many customers she might see during a single day in her job,
Ross emphasized that defendant's “whole face stayed in [her] mind”following the robbery, and noted that “[o]nce you've been violated,
you don't forget.”
During
the suppression hearing, Ross recounted that the
robbery lasted “no more than thirty minutes” and that she was “able
to notice the features of the person when he was in [her]
presence[.]” Ross stated that it was “light enough” inside the Inn
for her to see the suspect, and that the “lobby area [of the Inn]
was all lit.” Ross further related that her attention was focused
“[e]ntirely” upon the perpetrator during the robbery, and that she
“could see his face, his hands, everything.” When asked “how far
away was this person, this suspect, from you when this robbery was
taking place[,]” Ross replied, “Well, I let him in the front door.”
Further, Ross recalled she was “certain” defendant was the
individual who robbed her when she picked his photographs from the
photographic lineups. Finally, when asked to quantify the degree
of certainty regarding her in-court identification of defendant,
Ross replied, “[o]ne hundred percent.”
In light of the foregoing, even assuming
arguendo the
identification procedures were in some respect “impermissibly
suggestive,” any assertion by defendant that “irreparable
misidentification” arose at trial must fail.
See id. In sum,
defendant's assignments of error regarding rejection of his motion
to suppress are unavailing.
Defendant next assigns error to the trial court's denial of
his motion to dismiss the charge of robbery with a dangerous
weapon. Although conceding a robbery occurred at the Inn on thedate in question, defendant insists the State offered insufficient
evidence to sustain his conviction. Defendant's argument is
unfounded.
“In ruling on a motion to dismiss based on the insufficiency
of the evidence, the trial court must determine whether there is
substantial evidence of each element of the crime charged and that
[the] defendant was the perpetrator.”
State v. Roddey, 110 N.C.
App. 810, 812, 431 S.E.2d 245, 247 (1993) (citation omitted). In
determining whether “substantial evidence” exists, the trial court
considers whether the State has produced “the amount of relevant
evidence a reasonable mind might accept as adequate to support a
conclusion.”
Id. (citation omitted).
[T]he trial court must view the evidence in
the light most favorable to the State, giving
the State the benefit of every reasonable
inference to be drawn from it. If there is
substantial evidence -- whether direct,
circumstantial, or both -- to support a
finding that the offense charged has been
committed and that the defendant committed it,
the case is for the jury and the motion to
dismiss should be denied.
State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988)
(citations omitted).
Acc
ording to defendant, the State failed to meet its burden at
trial because it produced no physical evidence connecting defendant
to the crime, but relied entirely upon the “fatally corrupted” and
uncorroborated identification testimony of Ross. However, our
courts have consistently applied “[t]he general rule . . . that the
testimony of a single witness, if it embraces all elements of a
crime or cause of action, is legally sufficient to take a case tothe jury.” 1 Brandis and Broun on North Carolina Evidence § 17
(6th ed. 2003). In
Roddey, for example, this Court found the
testimony and identification of the defendant by an armed robbery
victim “clearly adequate to present substantial evidence that [the]
defendant was the perpetrator” of the crime, 110 N.C. App. at 814,
431 S.E.2d at 248, notwithstanding inconsistencies in the victim's
statement and “[t]he fact that no physical evidence was found.”
Id. at 813, 431 S.E.2d at 248.
The ruling in
Roddey was consistent with prior decisions of
our Supreme Court, which has observed that “'[w]here the commission
of the crime is admitted or established, the testimony of the
prosecuting witness, or of one witness, identifying [the] defendant
as the perpetrator, carries the case to the jury regardless of the
questionable character of the witness[.]'”
State v. Shaw, 284 N.C.
366, 371, 200 S.E.2d 585, 588 (1973) (quoting 2 Strong's N.C. Index
2d, Criminal Law § 106, p. 658));
see also State v. Hanes, 268 N.C.
335, 339, 150 S.E.2d 489, 492 (1966) (evidence sufficient to submit
charge of robbery to jury where “[n]o pocketbook was traced to
defendant[,] [n]o money was traced to defendant[,]” and, except for
the victim's uncorroborated testimony, no evidence was presented
placing the defendant outside his home on the night of the crime);
compare State v. Miller, 270 N.C. 726, 731, 154 S.E.2d 902, 905
(1967) (rule that credibility of witnesses is matter for the jury
inapplicable “where the only evidence identifying the defendant as
the perpetrator of the offense is inherently incredible because of
undisputed facts, clearly established by the State's evidence, asto the physical conditions under which the alleged observation
occurred”).
Defendant neither claims nor does the record suggest an
“inherently incredible,”
id.,
identification by Ross, and thus the
general rule is applicable to the facts of this case. Although no
law enforcement official recovered the weapon allegedly used or the
money obtained during the robbery, the description by Ross of the
events of 19 December 2003 satisfied the State's burden in
withstanding a motion to dismiss. Ross testified that an
individual stole approximately $180.00 from the Inn and $40.00 from
her, brandished a semi-automatic weapon while doing so, and pointed
the weapon at her and forced her to give him the money.
See
Roddey, 110 N.C. App. at 813, 431 S.E.2d at 247 (“The elements of
robbery include: (1) an unlawful taking or an attempt to take
personal property from the person or in the presence of another,
(2) by use or threatened use of a firearm or other dangerous weapon
and (3) whereby the life of a person is endangered or
threatened.”). Although Ross identified him at trial as the
individual who committed these acts, defendant, in advancing this
assignment of error, appears to be “ask[ing] that we disregard the
time-honored tradition of the jury to serve as the trier of fact
and to determine the credibility of the witnesses.”
Id. at 814,
431 S.E.2d at 248. However, having determined
supra that admission
of the in-court identification of defendant by Ross was not error
and that there was no argument or record evidence categorizing her
identification of defendant as “inherently incredible,”
see Miller,270 N.C. at 731, 154 S.E.2d at 905, we conclude her credibility was
a question for the jury.
See Shaw, 284 N.C. at 371, 200 S.E.2d at
588. Therefore, the trial court did not err by denying defendant's
motion to dismiss the charge of robbery with a dangerous weapon.
Defendant next assigns error to the trial court's response to
a jury question regarding unanimity of its verdict. However,
because review of the record reveals defendant failed to object at
trial to the court's statement and has not asserted plain error in
his appellate brief, we hold defendant has not properly preserved
this issue for appeal.
Fifteen minutes after the jury began its deliberations, the
following colloquy occurred in open court:
THE COURT: I've received a paperwriting
indicating, “Question: Do all twelve of us
have to agree guilty or not guilty?” Is this
the question of the jury, so say you all, yes
or no?
THE JURY: Yes.
THE COURT: The answer to that question is
yes, you must agree unanimously. All twelve
jurors must agree guilty or not guilty.
. . . .
FOREPERSON: So it's now our job to try to
convince one another so all twelve of us think
that either it's guilty or not guilty?
THE COURT: Is this the question of the jury,
so say you all?
THE JURY: Yes.
THE COURT: The answer to that question is
also yes. Return to the jury room and await
further instructions. Mr. Bailiff, collect
the verdict sheet as the foreperson goes by.
(The jury is not present in the courtroom)
THE COURT: In light of these instructions,
anything further from either party, request
for additional instructions?
DEFENSE COUNSEL: No, sir.
THE STATE: No, Your Honor.
THE COURT: Knock on the door and instruct the
jurors to continue deliberations and return
the verdict sheet.
Defense counsel thereafter interposed no objection to the trial
court's instructions.
Defendant's lack of objection to the additional instructions
given by the trial court in response to the jury's inquiry
constitutes a waiver of any contended error therein.
See N.C.R.
App. P. 10(b)(2) (2005) (“A party may not assign as error any
portion of the jury charge or omission therefrom unless he objects
thereto . . . , stating distinctly that to which he objects and the
grounds of his objection[.]”).
However, although failing to object to a jury instruction
during a criminal trial, the defendant may also gain appellate
review thereof by asserting plain error on appeal. N.C.R. App. P.
10(c)(4). In the latter instance, however, the defendant “must
specifically and distinctly allege that the trial court's action
amounted to plain error in order to have the error reviewed on
appeal.”
State v. Alston, 131 N.C. App. 514, 517, 508 S.E.2d 315,
318 (1998); N.C.R. App. P. 10(c)(4). In the case
sub judice,
defendant has not asserted plain error on appeal, nor does his
appellate brief contain any attempt to satisfy his “burden ofshowing that the error constituted plain error, that is, (i) that
a different result probably would have been reached but for the
error or (ii) that the error was so fundamental as to result in a
miscarriage of justice or denial of a fair trial.”
State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations
omitted).
In short, because defendant neither objected at trial to the
alleged instructional error nor “specifically and distinctly,”
Alston, 131 N.C. App. at 517, 508 S.E.2d at 318
, alleged and
contended plain error on appeal,
we conclude this assignment of
error has been waived.
See N.C.R. App. P. 10(c)(4)
.
Finally, defendant argues the trial court erred by sentencing
him at prior record level V. Defendant claims entitlement to a new
sentencing hearing based upon the alleged insufficiency of the
evidence regarding his prior convictions. Defendant is mistaken.
Before imposing a felony sentence, the trial court must first
determine a defendant's prior record level by calculating the sum
of the points assigned to the defendant's prior convictions. N.C.
Gen. Stat. § 15A-1340.14(a) (2003). “There is no question that a
worksheet, prepared and submitted by the State, purporting to list
a defendant's prior convictions is, without more, insufficient to
satisfy the State's burden in establishing proof of prior
convictions.”
State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d
738, 742 (2002) (citation omitted). However, a prior conviction
may be proven by any of the following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court record of
the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information, the Division
of Motor Vehicles, or of the Administrative
Office of the Courts.
(4) Any other method found by the court to be
reliable.
N.C.G.S. § 15A-1340.14(f). “The State bears the burden of proving,
by a preponderance of the evidence, that a prior conviction
exists.”
Id.
T
he following exchange occurred during sentencing:
THE COURT: Is the State ready to pray
judgment?
THE STATE: Yes, Your Honor. His sentence
worksheet is in another file in my office just
down the hall.
THE COURT: All right. Have you seen the
worksheet, [defense counsel]? Have you seen
it?
DEFENSE COUNSEL: Yes.
THE COURT: Do you wish to be heard, [defense
counsel]?
DEFENSE COUNSEL: Just briefly, Judge. . . . I
would ask the court to consider in light of
the evidence that you heard, Judge, to
consider the minimum presumptive sentence that
the court can give in its discretion.
. . . .
THE COURT: Take this judgment, please. Let
him stand.
THE STATE: Your Honor, is there any question
about his prior sentencing record?
DEFENSE COUNSEL: No.
THE STATE: This is a Class D, it's a Level Vwith 15 prior record points, the defendant has
stipulated to that record.
Defense counsel said nothing further at that point and the trial
court proceeded to enter judgment. Defendant now contends the
foregoing exchange did not establish a stipulation “to [his] prior
convictions.” Defendant is mistaken.
“[D]uring sentencing, a defendant need not make an affirmative
statement to stipulate to his or her prior record level . . .,
particularly if defense counsel had an opportunity to object to the
stipulation in question but failed to do so.”
State v. Alexander,
359 N.C. 824, 829, 616 S.E.2d 914, 918 (2005). Further, “counsel
need not affirmatively state what a defendant's prior record level
is for a stipulation with respect to that defendant's prior record
level to occur.”
Id. at 830, 616 S.E.2d at 918 (citations
omitted). Rather, depending upon the circumstances, defense
counsel's statements during sentencing may indeed constitute a
stipulation to the defendant's prior record level even though
failing to include that precise terminology.
See, e.g.,
id.
(defendant stipulated to convictions listed on State's worksheet
where defense counsel “specifically directed the trial court to
refer to the worksheet to establish that defendant had no prior
felony convictions” and made statements indicating “not only that
[he] was cognizant of the contents of the worksheet, but also that
he had no objections to it”);
State v. Mullican, 329 N.C. 683,
686, 406 S.E.2d 854, 855 (1991) (defendant stipulated to finding of
aggravating factors where defense counsel “made a statement which
was consistent with the statement of the prosecuting attorney” anddeclined “invitation . . . to object” when “the prosecuting
attorney said he would summarize the State's evidence with the
permission of the defendant”).
Defendant herein contests neither the existence of the
convictions contained on the State's “sentence worksheet” nor the
propriety of the trial court's calculation of his record level. He
elects instead to challenge the record as inadequate to establish
a stipulation to the convictions set forth in the worksheet.
However, as detailed above, defense counsel at sentencing
acknowledged having seen the State's “sentence worksheet,” and
responded in the negative when specifically asked whether “there
[was] any question about [defendant's] prior sentencing record[.]”
Further, counsel made no argument regarding the convictions listed
on the sheet advanced by the State, and interjected no objection
when the trial court stated “[t]his is a Class D, it's a Level V
with 15 prior record points, the defendant has stipulated to that
record.” Under the foregoing circumstances and the authorities
cited above, defense counsel's conduct at sentencing “may
reasonably be construed,”
Eubanks, 151 N.C. App. at 506, 565 S.E.2d
at 743, to “constitute[] a stipulation of [defendant's] prior
record level pursuant to N.C. Gen. Stat. § 15A-1340.14(f)(1).”
See
Alexander, 359 N.C. at 830, 616 S.E.2d at 918. Accordingly, the
trial court did not err in sentencing defendant as a prior record
level V offender, and defendant's final argument is unavailing.
In sum, we hold defendant received a trial free of prejudicial
error. No error.
Judges WYNN and STEELMAN concur.
Report per Rule 30(e).
Footnote: 1