Converted WP file 060282-1

Appeal by defendant from an order entered 30 October 2000 by Judge Richard G. Chaney in the District Court in Durham County and from judgments entered 7 December 2001 by Judge W. Osmond Smith, III, in the Superior Court in Durham County. Heard in the Court of Appeals 31 October 2006.

Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.

Glenn, Mills & Fisher, P.A., by Carlos E. Mahoney, for defendant-appellant.

    HUDSON, Judge.

    On 10 October 2000, the State issued two juvenile petitions alleging delinquency of defendant Erick Daniels. On 30 October 2000, the juvenile court held a probable cause hearing at the close of which defendant moved to suppress photo and in-court identifications. The court denied the motion and issued an order finding probable cause for the charges of first-degree burglary and robbery with a dangerous weapon. The court then ordered that defendant's case be transferred to the superior court. Indictments were issued, and the jury found defendant guilty of first-degreeburglary and robbery with a dangerous weapon. The court sentenced defendant to two consecutive terms of 64-86 months in prison. Defendant appeals. As discussed below, we find no error in the trial, and we dismiss without prejudice defendant's claim of ineffective assistance of counsel.
    The evidence tended to show the following: Just after dark on the evening of 21 September 2000, Ruth Brown heard a knock on her front door. Ms. Brown saw no one when she first opened the door, but then two men entered her house. The first man wore a bandana over his lower face, and Ms. Brown at first thought he was her brother Chris. The first man pointed a gun at Ms. Brown and said “give it up.” As Ms. Brown lay on a sofa, a second man entered the home carrying a gun, and both men began shouting “where's your pocketbook.” The second man took the pocketbook from Ms. Brown and the men left.
    Ms. Brown testified that her pocketbook contained $6000 in cash. Two days prior to the robbery, Ms. Brown's brother Chris and his friend Kam Russell saw Ms. Brown counting the cash. The police recovered no physical evidence from the crime. An anonymous tip led police investigators to suspect defendant. Police Investigator Delois West presented Ms. Brown with a photo identification line-up using the sixth-grade yearbook pictures of defendant and other African-American males. After studying the photos, Ms. Brown stated that she was 80-90 percent sure defendant was the first suspect.    The State's evidence consisted of Ms. Brown's testimony and her photo and in-court identifications of defendant. Defendant testified that he was at the YMCA at the time of the crime. On cross-examination, the State impeached defendant with testimony about his juvenile adjudications, experience in the juvenile court system, marijuana use and gunshot injury he suffered previously.
    Defendant first argues that the court committed plain error in failing to suppress Ms. Brown's photo identification. We do not agree.
    At the juvenile probable cause hearing, defendant moved to suppress Ms. Brown's photo identification on grounds that it was unfair and suggestive, and the in-court identification as tainted by the photo line-up. The court denied both motions. Defense counsel failed to object when the State offered evidence of the identifications at trial; thus we review the court's denial of the motions to suppress for plain error. N.C. R. App. P. 10(c)(4). “Plain error is fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done . . . .” State v. Spencer, 154 N.C. App. 666, 669, 572 S.E.2d 815, 818 (2002) (internal quotation marks omitted).
    On appeal, we employ a two-part analysis to determine whether a pretrial identification procedure is impermissibly suggestive:
            First, the Court must determine whether the identification procedures were impermissibly suggestive. Second, if the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood ofirreparable misidentification. The test under the first inquiry is 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. In analyzing whether identification procedures are impermissibly suggestive, North Carolina courts look to various factors including: the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification.

State v. Johnson, 161 N.C. App. 68, 72-3, 587 S.E.2d 445, 448 (2003) (internal citations and quotation marks omitted), disc. review denied, 358 N.C. 239 (2004).
    Consideration of the factors discussed in Johnson, supra, indicates that the procedure employed was not impermissibly suggestive. Defendant argues that Ms. Brown could not have accurately identified the first suspect because he wore a bandana over the lower part of his face during the robbery. However, Ms. Brown stated that she studied the first suspect throughout the robbery and remembered what he looked like; she expressed an 80-90 percent level of confidence in her identification of defendant. Defendant argues that Investigator West suggested defendant as the first suspect. Investigator West denied influencing Ms. Brown's identification in any manner, and defendant acknowledges that Ms. Brown first referred to defendant's photo without any indication byInvestigator West. The photo identification took place less than three weeks after the robbery.
    Defendant also argues that the photos used in the identifications were of poor quality and that his photo was the only one of a black child with “bushy” eyebrows. The photos were taken from a sixth-grade yearbook and are of a reasonable quality. Defendant's eyebrows appear no more “bushy” than those in other photos. Our examination of the totality of the circumstances reveals that the identification procedure was not impermissibly suggestive. This assignment of error is without merit.
    Defendant next argues that the trial court committed plain error in allowing testimony about defendant's juvenile record, marijuana use, and a prior gunshot injury. We disagree.
    On direct examination, defendant testified that he had never been convicted of any robberies, firearm-related offenses or any other felonies. Defendant also stated that he had only been convicted of a misdemeanor marijuana charge. Defendant failed to object to the State's elicitation of evidence about his juvenile record, marijuana use or a gunshot wound he suffered. We review the admission of this testimony for plain error. N.C. R. App. P. 10(c)(4).
    This Court has held that where a “defendant's testimony creates favorable inferences as to his entire criminal record . . . . on cross-examination, the State may inquire into defendant's record and rebut his statement[s] . . . .” State v. Chandler, 100 N.C. App. 706, 711, 398 S.E.2d 337, 340 (1990) (internal quotationmarks omitted). The record reveals that defense counsel asked defendant if he had ever been convicted of anything and defendant replied that he had been convicted of a misdemeanor marijuana charge when he was “twelve or thirteen,” but had never been convicted of robbery, any other felony, or any charge involving a firearm. In reality, defendant had only a juvenile adjudication on the marijuana charge. This testimony opened the door to the State's cross-examination of defendant as to his juvenile record and marijuana use. Defendant contends that the State elicited testimony from his mother about his prior experience with the juvenile court system prior to any direct testimony on that subject. However, the admission by defendant's mother that he had been in juvenile detention does not rise to the level of plain error. We overrule this assignment of error.
    Defendant also argues that he received ineffective assistance of counsel at trial. We dismiss this assignment of error without prejudice.
    Defendant contends that his trial counsel received ineffective assistance of counsel (“IAC”) in failing to do the following: to file any pre-trial motions in limine, to object to evidence of Ms. Brown's photo and in-court identifications, to object to impeachment evidence about defendant's juvenile record, marijuana use and gunshot injury, to request limiting instructions following the admission of Rule 404(b) evidence, to object to the State's evidence about his acquaintance with Kam Russell and Khalid Abdallah, to request that jury selection, opening statements andclosing arguments be recorded, and to file any motions to compel complete discovery after receiving only a partial copy of the State's investigative file.
    “When making an ineffective assistance of counsel claim, defendant must show (1) counsel's performance was deficient, with errors so serious that the attorney was not functioning as 'counsel' guaranteed the defendant by the Sixth Amendment, and (2) the deficient performance prejudiced the defense to the extent there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different and defendant was deprived of a fair trial.” State v. Campbell, __ N.C. App. __, __, 629 S.E.2d 345, 349 (2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698 (1984), and State v. Braswell, 312 N.C. 553, 561-63, 324 S.E.2d 241, 247-48 (1985)). We decide IAC claims on direct appeal “when the cold record reveals that no further investigation is required, i.e., claims that may be developed and argued without such ancillary procedures as the appointment of investigators or an evidentiary hearing.” State v. Fair, 354 N.C. 131, 166, 557 S.E.2d 500, 524 (2001), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002). However, “should the reviewing court determine that IAC claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's right to reassert them during a subsequent MAR proceeding.” Id. at 167, 557 S.E.2d at 525. Because we are unable to evaluate defendant's IAC claims on the record before us, we dismiss those claims withoutprejudice to defendant's right to pursue these claims in the trial court.
    No error in part, dismissed without prejudice in part.
    Judges WYNN and STEPHENS concur.
    Report per Rule 30(e).
    The judges participated and submitted this opinion for filing prior to 1 January 2007.

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