NO. COA06-1141
Appeal by defendant from judgments entered 9 December 2005 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 4 June 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Joyce S. Rutledge, for the State.
Eric A. Bach for defendant-appellant.
MARTIN, Chief Judge.
Defendant Stanley Baldwin was charged with two counts of
common law robbery. The State's evidence tended to show that after
work on 27 May 2005, Carol Boyd met Janet Willard at Willard's
office building to attend a baseball game in downtown Greensboro.
Willard informed Boyd that she wanted to leave a couple of items in
her vehicle before going to the game, so the two women left Ms.
Willard's office and walked to the parking garage. Boyd and
Willard exited a staircase and into the parking garage lobby level.
After they entered the elevator to go up to the fourth floor, a
black male, later identified as defendant, walked out of the
staircase and stood in the entrance of the elevator so that theelevator doors would not close. Another black male, walked out of
the staircase and stood behind defendant. Defendant said to the
two women, “You're going to follow my instructions. Give me your
money.” The two women complied. Defendant asked, “Is this all you
have?” and the women responded affirmatively. Defendant walked off
and let the elevator doors close.
Afterwards, Boyd went to the first floor to look for help
while Willard went to the fifth floor and asked a security guard to
call the police. Willard then met Boyd near the elevators on the
first floor. Greensboro Police Officer Johnson responded to the
call and took statements from Willard and Boyd. Willard described
the robber as a thirty-four-year-old black male, approximately 6'2”
to 6'3” in height, weighing 230 pounds. She stated that defendant
wore baggy jeans and, on his head, defendant had a black “do-rag”
with “WWJD” printed on the do-rag multiple times. Boyd described
the robber as a 6'2” black male weighing about 185 to 200 lbs. She
also noted that defendant wore a “do-rag” on his head and that the
“do-rag” had “WWJD” printed on it several times.
A week later, on 3 June, Willard planned to join friends for
dinner downtown. As she was looking for a parking space, Willard
observed defendant, without his “do-rag”, standing between two
parked cars using a cell phone. Willard stopped her vehicle and
was about to call the police when she noticed Officer Johnson enter
the parking lot. Willard flagged down Officer Johnson and told him
she was 75% sure that the man standing in the parking lot was theman who robbed her. She also told Johnson that she would need to
see the man close up to be sure.
Willard waited inside the restaurant while Officer Johnson
spoke to the suspect. The suspect provided a North Carolina photo
I.D. card to Officer Johnson during their conversation. Once
officers responded to Officer Johnson's call for assistance, the
officers arrested the suspect. A search of the suspect yielded a
black “do-rag,” with “WWJD” lettering, in a jacket pocket. Officer
Johnson went into the restaurant and asked Willard to describe the
robber. Officer Johnson then showed Willard the suspect's photo
I.D. and Willard recognized the photo as defendant, the man who
robbed her. Willard also recognized the “do rag” as the one worn
by the man who robbed her.
Defendant was transported to the Criminal Investigations
Division, where he was interviewed by Detective Eric Miller.
Although defendant initially stated that he knew nothing about the
robbery of Janet and Carol on 27 May, he eventually said: “If they
said I did it, I did it, but I don't remember it.” On 8 June 2005,
Detective Miller showed Boyd a photo-lineup of six photographs and
she identified defendant as the robber within “a few seconds.” At
trial, both Willard and Boyd identified defendant in the courtroom
as the man who had robbed them in the parking garage.
A jury found defendant guilty on both counts. At the
sentencing hearing, the State introduced defendant's prior record
level worksheet, which contained two convictions: a 1980 New York
conviction for Rape and a 1986 New York conviction for Robbery.Defendant was assessed six points for the rape conviction and four
points for the robbery conviction, for a total of ten points, which
made defendant a prior record level IV. The trial court sentenced
defendant to two consecutive sentences of 19-23 months, which
sentences are within the presumptive range for a Class G felon at
a prior record level IV. Defendant appeals.
____________________
Defendant first contends the trial court erred in allowing
Janet Willard to make an in-court identification of defendant
because the single photo out-of court identification was
impermissibly suggestive. Defendant, however, did not move to
suppress the identification, nor did he object at trial. Further,
defendant's motion
in limine does not raise the issue of Willard's
identification. Defendant, therefore, asks this Court to review
the trial court's failure to suppress Willard's in-court
identification under a plain error standard. N.C. R. App. P.
10(c)(4).
“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)),
cert. denied, 539 U.S. 949, 156 L. Ed. 2d. 640
(2003). 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.2d497, 503 (2003) (citing
State v. Odom, 307 N.C. 655, 660, 300
S.E.2d 375, 378 (1983)).
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 of irreparable
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 and appeal dismissed, 358 N.C. 239, 594 S.E.2d 27
(2004).
We conclude the police did not use a suggestive pre-trial
identification procedure. Here, Willard observed defendant during
the crime and was able to describe him. A week later, it was
Willard who identified defendant in the parking lot and reported
her identification to Officer Johnson. Based upon Willard's
identification, police questioned defendant, obtained his photo
identification, and showed the photo to Willard. Thus, the photoidentification took place after Willard had identified defendant as
her robber. More importantly, defendant has not shown that the
jury would have reached a different verdict without Willard's
identification considering defendant's statement to police and
Carol Boyd's unchallenged identification of defendant as the
robber. Therefore, we conclude that the trial court did not err by
allowing Willard's in-court identification of defendant.
Defendant also contends the trial court improperly calculated
his prior record level points. Defendant asserts that the State
failed to prove that his prior out-of-state convictions listed on
his sentencing worksheet were substantially similar to North
Carolina felonies pursuant to N.C.G.S. § 15A-1340.14(e) (2006).
For the purposes of determining prior record levels for felony
sentencing, “a conviction occurring in a jurisdiction other than
North Carolina is classified as a Class I felony if the
jurisdiction in which the offense occurred classifies the offense
as a felony . . . .” N.C. Gen. Stat. § 15A-1340.14(e)(2006). “The
State bears the burden of proving, by a preponderance of the
evidence, that a prior conviction exists,” N.C. Gen. Stat. §
15A-1340.14(f) (2006), and
[i]f the State proves by the preponderance of
the evidence that an offense classified as
either a misdemeanor or a felony in the other
jurisdiction is
substantially similar to an
offense in North Carolina that is classified
as a Class I felony or higher, the conviction
is treated as that class of felony for
assigning prior record level points.
N.C. Gen. Stat. § 15A-1340.14(e)(emphasis added). A defendant's
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. Gen. Stat. § 15A-1340.14(f)
The State points out that defendant's prior record level
worksheet shows that the State and defense counsel “stipulate[d] to
the accuracy” of the worksheet, “including the classification and
points assigned to any out-of-state convictions[.]”. Based on
defendant's signed prior record level worksheet, the State asserts
that defendant stipulated to the existence of the prior out-of-
state convictions and whether these convictions were “substantially
similar” to offenses in North Carolina.
This Court, however, has held that “the question of whether a
conviction under an out-of-state statute is substantially similar
to an offense under North Carolina statutes is a question of law to
be resolved by the trial court.”
State v. Hanton, 175 N.C. App.
250, 255, 623 S.E.2d 600, 604 (2006).
This Court further stated
that “'[s]tipulations as to questions of law are generally held
invalid and ineffective, and not binding upon the courts, either
trial or appellate.'”
Id. at 253, 623 S.E.2d at 603 (quoting
State
v. Prevette, 39 N.C. App. 470, 472, 250 S.E.2d 682, 683 (1979)).
We are bound by prior decisions of a panel of this Court.
In the
Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d30, 37 (1989). We must, therefore, conclude that the stipulation
in the worksheet regarding defendant's out-of-state convictions was
ineffective.
See State v. Palmateer, ___ N.C. App. ___ , ___ , 634
S.E.2d 592, 593 (2006)
(remanded for re-sentencing despite a clear
stipulation specifically referencing the out-of-state convictions).
Accordingly, we remand for resentencing.
No error in defendant's trial;
Remanded for resentencing.
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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