STATE OF NORTH CAROLINA
v. Wake County
No. 04 CRS 6892
TIMOTHY EDWARDS ROGERS
Attorney General Roy Cooper, by Special Deputy Attorney
General Ted Williams, and Assistant Attorney General Melissa
H. Taylor, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant-appellant.
LEVINSON, Judge.
On 8 March 2004, defendant Timothy Edwards Rogers was indicted
for robbery with a dangerous weapon
. The case was tried at the 28
September 2004 Criminal Session of Wake County Superior Court.
The State presented evidence at trial which tended to show the
following:
On 3 February 2004, Juan Guttieras was working at the
Kroger supermarket on Six Forks and Wake Forest Road in Raleigh,
North Carolina. Guttieras was getting ready to go home when he
heard an alarm and saw the defendant leaving the store with a cart.
Guttieras followed the defendant outside the store and asked to see
a receipt for the items in the cart. Defendant replied that he hadleft the receipt inside and did not want to go back inside the
store to get it. Guttieras, believing the items in the cart had
been stolen from the store, asked defendant to return the groceries
and leave. Defendant refused. Defendant then pushed the cart
against Guttieras and made a motion to pull something out of his
pockets. Guttieras backed away and saw “something shiny coming
out.” Defendant then told Guttieras to back away or “I'm going to
cut you.” Guttieras backed away from defendant and let him go.
Another employee of the store called 911.
Officer Brian Romell of the Raleigh Police Department
responded to the 911 call. Guttieras told Officer Romell what
happened and described the defendant. Guttieras also pointed out
a vehicle on the side of the store that he felt was “odd.” A short
time later, Officer Romell noticed the same vehicle, a red pickup
truck, on McNeal Street. Officer Romell made eye contact with the
driver and testified that the driver “had like a deer in the
headlight look.” Officer Romell attempted to stop the vehicle and
the truck tried to elude him. Eventually, defendant crashed the
truck and attempted to elude the officer on foot. However, Officer
Romell caught defendant and placed him under arrest. Upon
inspection of the defendant's truck, officer found a Kroger
shopping cart and merchandise. Defendant was also returned to the
Kroger store where he was identified by Guttieras as the same man
he had attempted to stop earlier. Guttieras identified defendant
again at trial.
Defendant was convicted of robbery with a dangerous weapon andwas sentenced to a term of 133 to 169 months imprisonment.
Defendant appeals.
Defendant first argues that the trial court committed plain
error by allowing Guttieras to testify about the show-up
identification, and then by allowing Guttieras to identify
defendant in court based on the show-up identification. Defendant
contends that the show-up identification was impermissibly
suggestive and resulted in a substantial likelihood of
misidentification. Defendant asserts that the error constituted
plain error because the identification was a critical component of
the State's case.
We are not persuaded.
Defendant did not move to suppress the identification, nor did
he object at trial, so he couches his argument as plain error. “A
plain error is one 'so fundamental as to amount to a miscarriage of
justice or which probably resulted in the jury reaching a different
verdict than it otherwise would have reached.'” State v. Carroll,
356 N.C. 526, 539, 573 S.E.2d 899, 908 (2002)(quoting State v.
Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987)). It is to
be applied cautiously and only in the exceptional case where the
error is so prejudicial, that justice cannot have been done. State
v. Baldwin, 161 N.C. App. 382, 388, 588 S.E.2d 497, 503 (2003)
(citing State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378
(1983)).
Here, defendant claims that Guttieras' pre-trial
identification of him was so suggestive as to deny him his
constitutional due process rights, and to constitute plain error.This Court has stated that:
If defendant can show the pretrial
identification procedures were so suggestive
as to create a substantial likelihood of
irreparable misidentification, the
identification evidence must be suppressed.
While show-up style identifications are
disfavored, they “are not per se violative of
a defendant's due process rights.” We use a
totality of the circumstances test in making
this determination. The factors to be
considered in this inquiry 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. Lawson, 159 N.C. App. 534, 538, 583 S.E.2d 354, 357 (2003)
(quoting State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373
(1982)) (citations omitted). Here, the evidence demonstrates that
Guttieras engaged defendant in conversation during the commission
of the crime, giving him an opportunity to observe the defendant.
Guttieras gave officers a description of the defendant, and also
pointed out a truck in the parking lot that he suspected belonged
to defendant. Defendant was arrested a short time later in the
same truck identified by Guttieras. A Kroger shopping cart was
recovered from the back of the truck, as well as stolen
merchandise. Defendant was then taken back to the store where he
was positively identified by Guttieras. At the time of the
identification, only a short time had passed since the robbery.
Based upon a consideration of the totality of the
circumstances, we cannot conclude the trial court erred by allowingthe out-of-court identification. “Since the out-of-court
identification was admissible, there is no danger it impermissibly
tainted the in-court identification.” Id. at 539, 583 S.E.2d at
358 (quoting State v. Grimes, 309 N.C. 606, 609-10, 308 S.E.2d 293,
294-95 (1993)). Guttieras' in-court identification of defendant
was therefore admissible. This assignment of error is overruled.
Defendant next argues that the trial court erred by adding a
point to his prior record level when it did not submit to the jury
the issue of whether all the elements of his offense were included
in one of his prior convictions. See Blakely v. Washington, 542
U.S. 296, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 159 L. Ed.
2d 851 (2004);
N.C. Gen. Stat. § 15A-1340.14(b)(6) (2005) (“If all
the elements of the present offense are included in any prior
offense for which the offender was convicted, whether or not the
prior offense or offenses were used in determining prior record
level, 1 point.”). We disagree.
This Court recently decided this particular issue against
defendant. In State v. Poore, 172 N.C. App. 839, 616 S.E.2d 639
(2005), we held that “neither Blakely nor Allen preclude the trial
court from assigning a point in the calculation of one's prior
record level where 'all the elements of the present offense are
included in [a] prior offense.'” Id. at 843, 616 S.E.2d at 642
(quoting G.S. § 15A-1340.14(b)(6)). Accordingly, we overrule
defendant's assignment of error.
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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