An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 3 October 2006
STATE OF NORTH CAROLINA
v. Lincoln County
Nos. 04 CRS 052946 - 052947
BLAIR QUINCY BROOKS
Appeal by defendant from judgments entered 15 August 2005 by
Judge Robert C. Ervin in Lincoln County Superior Court. Heard in
the Court of Appeals 29 September 2006.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert R. Gelblum, for the State.
William D. Auman, for defendant-appellant.
Blair Quincy Brooks (defendant) appeals from judgments
entered after a jury found him to be guilty of two counts of
robbery with a dangerous weapon. We find no error.
The State's evidence tended to show during the early morning
hours of 14 October 2004 a man approached Zachary Pilkington
(Pilkington) and Jeremiah Ross (Ross) and asked whether they
wanted to purchase marijuana as they sat at a picnic table outside
a restaurant. Pilkington responded that he wanted to buy
marijuana. Pilkington and Ross entered an automobile with the man,
whom they later identified as defendant, and rode to a mobile home
occupied by Todd Wilson (Wilson) on Car Farm Road. The three menentered Wilson's home, where Pilkington and Wilson consumed
marijuana. Pilkington asked defendant whether he could also obtain
methamphetamine. Defendant responded that he could obtain the drug
for the price of $120.00. Pilkington agreed to the price and
exchanged currency with Ross to arrive at the exact amount.
Pilkington and defendant left the mobile home in defendant's
vehicle. Defendant drove down a road, suddenly stopped the
vehicle, pointed an automatic pistol at Pilkington's head, and
demanded Pilkington's wallet. After Pilkington gave defendant his
wallet, defendant ordered Pilkington out of the vehicle and drove
away, leaving Pilkington on the side of the road.
Defendant returned to Wilson's mobile home, where Ross had
remained. Defendant ran into the house, fired a gun toward Ross's
leg, and demanded his wallet. The two men engaged in a struggle,
during which defendant pulled Ross's pants down in an effort to
remove the wallet. Defendant ultimately stole Ross's wallet and
ordered him to leave the mobile home. Nude from the waist down,
Ross ran out of the mobile home to a neighboring home. The
residents of the neighboring home gave Ross underwear and called
Lincoln County Deputy Sheriff Matt Wise (Deputy Wise)
received a call at 5:07 a.m. on 14 October 2004 to report to a
residence located at 653 Car Farm Road. Deputy Wise spoke to Ross,
who reported that he had been across the road inside Wilson's home,
where a black male identified as Blair or Andre fired a gun and
robbed him of his wallet. Deputy Wise and other officers went toWilson's home, where they found two shell casings fired from a ten
millimeter weapon: one in the living room near the front door; the
other in a bedroom adjacent to the living room. They also found
bullet holes in the floor of the living room and in a wall behind
the bedroom door.
At daybreak, Pilkington began walking back toward Wilson's
mobile home. Lincoln County Sheriff Sergeant Robert Hooks found
Pilkington walking along Car Farm Road and transported him to
Wilson's house, where he was reunited with Ross.
Lincoln County Sheriff Detective Sally Dellinger (Detective
Dellinger) met the other officers at Wilson's mobile home. In
addition to taking statements from Ross and Pilkington, Detective
Dellinger interviewed Wilson, who identified the suspect by the
name of Blair Brooks. Detective Dellinger traveled to
defendant's residence and spoke to defendant's father, who provided
her with a school yearbook photograph of defendant. Detective
Dellinger showed the photograph to Ross, Pilkington, and Wilson.
All three men identified the male pictured in the photograph as the
Defendant presented an alibi defense through the testimony of
his girlfriend, who testified he was present at her residence on
the night of 13 October 2004.
On 14 March 2005, defendant was indicted for robbery with a
dangerous weapon and assault with a deadly weapon with intent to
kill. At trial, defendant moved to suppress the in-court
identification testimony and to dismiss the charges against him. The trial court denied both motions. A jury found defendant to be
guilty of two counts of robbery with a dangerous weapon. Defendant
Defendant contends the trial court erred by denying: (1) his
motion to suppress the in-court identification testimony on the
ground the testimony was the product of an unduly suggestive photo
identification procedure in violation of his rights to due process
and (2) his motion to dismiss due to insufficiency of the evidence.
III. Standard of Review
Appellate review of a denial of a motion to suppress by the
trial court is 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). Defendant has not assigned error to any of the
trial court's findings of fact. The trial court's findings of fact
are binding on appeal. The sole question for this Court is whether
the trial court's findings of facts support its conclusions of law.
State v. Cheek, 351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999), cert.
denied, 530 U.S. 1245, 147 L. Ed. 2d 965 (2000).
Identification evidence must be excluded as violating a
defendant's right to due process where the facts reveal a pretrial
identification procedure so impermissibly suggestive that there isa very substantial likelihood of irreparable misidentification.
State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983). The
practice of showing a suspect singly to a witness for the purpose
of making identification is considered an inherently and
unnecessarily suggestive identification procedure. State v.
Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982).
While this practice is disfavored, it does not violate per se
a defendant's due process rights if, under the totality of the
circumstances the identification possesses sufficient aspects of
reliability. Id. Identifications made from showup identification
procedures have been approved by our appellate courts on numerous
occasions. In re Stallings, 318 N.C. 565, 569, 350 S.E.2d 327, 329
(1986). Factors to be considered in determining whether the
identification is reliable include: (1) the opportunity of the
witness to observe the perpetrator at the time of the crime; (2)
the witness's degree of attention; (3) the accuracy of a prior
description by the witness; (4) the level of certainty demonstrated
by the witness; and (5) the length of time between the crime and
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).
In ruling on defendant's motion to suppress, the trial court
made the following relevant findings of fact:
10. . . . [Pilkington and Ross] rode with
[defendant] to Todd Wilson's residence. It
took approximately five to ten minutes to
drive to Mr. Wilson's house.
. . . .
12. Pilkington was sitting approximately oneto two feet away from [defendant] on the way
to Wilson's residence and he could see
[defendant] during the ride . . . .
13. When they arrived at Wilson's residence,
all three men went inside . . . .
14. The lights were on inside Wilson's
trailer and Pilkington remained at the trailer
for approximately 20 to 25 minutes. The
interior of the trailer was well lighted.
. . . .
19. . . . [Defendant] then pulled out a
silver automatic and pointed it at
Pilkington's head. [Defendant] asked
Pilkington for his wallet. . . .
20. Pilkington was in the car with the driver
for between ten to fifteen minutes.
. . . .
22. Wilson saw [defendant] come back inside
the trailer and fire a shot. Wilson saw
[defendant] grab [Ross's] wallet and observed
them start scuffling. . . .
. . . .
25. During the struggle, Ross was face to
face with [defendant] at times.
. . . .
27. Detective Dellinger showed Pilkington a
picture of one individual the afternoon after
the robbery. . . .
28. . . . Pilkington indicated that he had no
doubt that the defendant was the person who
. . . .
30. Detective Dellinger showed Ross a picture
the afternoon after the robbery and Ross
indicated the person in the photo [defendant]
was the person who robbed him. . . . Ross
indicated that it was a hard face to forget
when it ruins your life.
31. Todd Wilson told Detective Dellinger that
the driver's name was Blair and indicated that
Brooks came to his house with the two white
males. Wilson told Dellinger that Brooks
lived in Lincolnton on Flint Street. . . .
Applying the factors in Powell to its findings of fact, the
trial court made the following conclusions of law:
1. The showing of only one photograph to
Wilson, Pilkington and Ross was unnecessarily
suggestive as the State conceded in this case.
2. Identification procedures, which are so
impermissibly suggestive as to give rise to a
very substantial likelihood of irreparable
misidentification violate a defendant's right
to Due Process.
3. To determine the suggestiveness of
pretrial identification procedures, a court
determines whether the totality of the
circumstances reveals a pretrial procedure so
unnecessarily suggestive and conducive to
irreparable mistaken identity as to offend
fundamental standards of decency and justice.
4. Even if a pretrial procedure is
suggestive, that suggestiveness rises to an
impermissible level only if all the
circumstances indicate that the procedure
resulted in a very substantial likelihood of
. . . .
6. In this instance, the witnesses had ample
opportunity to view the perpetrator of the
robberies. Both Pilkington and Ross rode in a
car with the perpetrator to Wilson's trailer.
Both Pilkington and Ross spent almost a half
hour with the perpetrator inside the well-
lighted trailer. Pilkington rode with the
perpetrator for an additional five to ten
minutes seated beside him in the car. Ross
had an opportunity to observe the perpetrator
again at the trailer during the robbery
itself. Wilson had an opportunity to observe
the perpetrator at his trailer for at least
7. Both Pilkington and Ross focused a
significant degree of attention on the
perpetrator of the robberies while the
robberies occurred and also during the time
that they dealt with him about obtaining
access to controlled substances. Wilson had a
heightened degree of awareness when the
perpetrator entered his trailer with a gun and
fired a shot inside his trailer.
8. There is no evidence in the record
concerning the defendant's height or weight
and it is difficult to ascertain the accuracy
of Ross' description of the perpetrator.
Pilkington's description of the perpetrator
was so limited that the accuracy of the prior
identification could not be assessed. Wilson
correctly described facts about the defendant
including the location of his residence and
the type of car that would be parked at the
9. Wilson indicated a level of certainty in
his identification by giving details leading
to the identification of the defendant. Both
Ross and Pilkington indicated their certainty
that the defendant was the person who robbed
10. The display of the photographs was
conducted within one day of the perpetration
of the robberies.
The trial court's findings of fact support its conclusions of law
that the identification testimony was sufficiently reliable and was
not the result of irreparable misidentification. This assignment
of error is overruled.
V. Motion to Dismiss
By his remaining assignment of error, defendant contends the
court erroneously denied his motion to dismiss due to insufficiency
of the evidence. Defendant argues that without the identification
testimony, no evidence links him to the crimes.
When a court rules upon a motion to dismiss, it is required toreview the State's evidence in the light most favorable to the
State and to disregard conflicts and discrepancies therein. State
v. Mize, 315 N.C. 285, 290, 337 S.E.2d 562, 565 (1985). The court
considers all of the evidence that is actually admitted, whether
competent or incompetent, that is favorable to the State. State v.
McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581-82 (1975).
Pilkington, Ross, and Wilson all identified defendant as the
perpetrator. The court admitted their identification testimony
into evidence. Based upon their testimonies, a jury could
reasonably find that defendant perpetrated the crimes. The trial
court properly denied defendant's motion to dismiss. This
assignment of error is overruled.
The trial court's unchallenged findings of fact support its
conclusion that the identification testimony was sufficiently
reliable. Since the identification testimony was properly
admitted, the trial court did not err in denying defendant's motion
to dismiss. Defendant received a fair trial, free from prejudicial
errors he preserved, assigned, and argued.
Judges BRYANT and LEVINSON concur.
Report per Rule 30(e).
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