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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 July 2007
STATE OF NORTH CAROLINA
DEMETRIUS WHITE 53371 and 53421
Appeal by defendant from judgments entered 4 April 2006 by
Judge Beverly T. Beal in Rowan County Superior Court. Heard in the
Court of Appeals 26 April 2007.
Attorney General Roy Cooper, by Special Deputy Attorney
General Neil Dalton, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Matthew D. Wunsche, for defendant appellant.
Defendant appeals trial court judgments entered after a jury
verdict of guilty of two counts of robbery with a dangerous weapon
and one count of fleeing to elude arrest. We determine there was
no prejudicial error.
Demetrius White (defendant) was indicted on two counts of
robbery with a dangerous weapon and one count of fleeing/eluding
arrest with a motor vehicle. The grand jury returned superceding
indictments adding aggravating factors for each count.
The State presented evidence at trial which tended to show the
following: On 3 May 2002, at approximately 2:30 p.m., two menentered a jewelry store and asked about purchasing jewelry cleaner
to use on gold teeth. They subsequently pulled handguns and robbed
the store of jewels valued at $86,000, took $300 from the cash
drawer and took purses from two women, Carol Rabon and Elizabeth
Taylor. Multiple witnesses were in the store during the robbery
including Kirsten Reynolds (Reynolds), Lori Smith (Smith), and
Sherry Blalock (Blalock). An additional witness, Karen
Richardson, saw defendant and another man outside the jewelry store
between 11:30 and 12:00 on the day of the robbery.
Shortly after the robbery, Officer Glenn Ford (Officer Ford)
heard the police dispatcher describe a vehicle involved in an armed
robbery. At that moment, a car drove by Officer Ford that was
similar to the dispatcher's description. Officer Ford pursued the
car. When he caught up to it, Officer Ford called dispatch and
confirmed the license plate number as similar to the suspect car
and activated his blue light and siren. After a short chase, the
car ran off the road and hit a house. As the driver got out of the
car, Officer Ford got a glance of his face. Officer Ford handcuffed
the passenger and backup arrived. Inside the vehicle were ladies'
purses and jewelry.
Police Detective Rita Rule (Detective Rule) administered
photographic lineups to some of the witnesses of the robbery of the
jewelry store. During the time between the robbery and Detective
Rule's lineup, an article published in a local newspaper identified
defendant by name as one of the alleged robbers. The article also
featured a photo of defendant, the same Florida Department of MotorVehicles photo that Detective Rule used in the lineup. In
addition, the same photograph was circulated by the jewelry
Defendant filed a motion to suppress his in-court
identification alleging that any such identification was tainted by
the photo lineups. The trial court denied the motion to suppress
in a verbal order and concluded that the opportunities of the
various witnesses to have heard the name of defendant, or to have
seen other photographs of defendant, did not rise to the level of
After the close of evidence, the trial judge submitted verdict
sheets to the jury that included both the substantive offenses and
the aggravating sentencing factors. The jury found defendant
guilty of two counts of armed robbery and one count of felony
eluding arrest, and found the existence of aggravating factors in
each of the two armed robbery cases. The trial judge entered
consecutive aggravated sentences based on the jury's findings in
the armed robbery cases.
Defendant contends the trial court erred by orally concluding
that it was not impermissibly suggestive that the police used the
same photo of defendant in photo lineups that had previously been
published in two different publications. We disagree.
The trial court conducted a voir dire prior to admitting
several witnesses' in-court identification of defendant. At theend of the voir dire, the trial judge made oral findings and
conclusions. Defendant only asserts that the trial court erred in
its conclusion. Thus, the trial court's findings of fact, in regard
to this issue, are binding on appeal. Koufman v. Koufman, 330 N.C.
93, 97, 408 S.E.2d 729, 731 (1991). Whether the conclusion of law
is supported by the findings of fact is a question of law which we
review de novo. State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d
1, 13 (2005), cert. denied, 164 L. Ed. 2d 523 (2006).
The test for determining whether pretrial identification
procedures were impermissibly suggestive is clear. State v.
Fisher, 321 N.C. 19, 23, 361 S.E.2d 551, 553 (1987).
'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 is
a very substantial likelihood of irreparable misidentification.'
Id. (citation omitted). This determination involves a two-step
First, the Court must determine whether the
pretrial identification procedures were
unnecessarily suggestive. If the answer to
this question is affirmative, the court then
must determine whether the unnecessarily
suggestive procedures were so impermissibly
suggestive that they resulted in a substantial
likelihood of irreparable misidentification.
Id. Whether a substantial likelihood exists depends on the
totality of the circumstances. Id.
The factors to be considered . . . include
the opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy ofhis prior description of the criminal, the
level of certainty demonstrated at the
confrontation, and the time between the crime
and the confrontation. Against these factors
is to be weighed the corrupting effect of the
suggestive identification itself.
Id. (citation omitted).
Based on the trial court's findings, and the factors in
Fisher, we determine that, even if the pretrial identification
procedures were unnecessarily suggestive, these procedures were not
impermissibly suggestive because they do not result in the
substantial likelihood of irreparable misidentification. For
example, as to Reynolds, the trial court found that Reynolds'
identification of defendant at the voir dire hearing was not based
on the photograph in the paper or the photograph in the lineup.
She recognized defendant during the voir dire as the man who put
the gun to her neck and forced her to go down on the floor. The
court found she was involved with the perpetrator at the time of
the robbery face-to-face for at least one minute and at a distance
of 2 feet apart. The trial court also found that Smith recognized
defendant as the man who put the gun to Reynolds' head. Richardson
did not witness the robbery, but testified during voir dire that
she saw defendant and another man the day of the robbery between
11:30 and 12:30 in a parking area near a door of the jewelry store.
She had a feeling that they were out of place. The court found that
she was not asked to participate in the photographic lineup and had
seen no photographs since that time until the day of the voir dire.
As to Blalock, the trial court found that she identified defendantas the man who had the gun in her face. The robber came within 12
inches of her and was not wearing a mask. The court did note that
right after the robbery, Blalock saw a picture of defendant as a
result of a telefax transmission. As to Rabon, the trial court
found that her identification of defendant was based on what she
saw the day of the robbery, and also on newspaper reports and
photographs. Finally, as to Officer Ford, the trial court found
that his identification of defendant was based on what he saw the
day of the robbery and on the photograph.
Therefore, the trial court's findings support its conclusion
that pretrial procedures were not impermissibly suggestive because
they do not result in the substantial likelihood of irreparable
misidentification. Accordingly, we disagree with defendant.
Defendant contends the trial court erred when it admitted
State's Exhibit 28-C. We disagree.
At trial, the State introduced, over defendant's objection,
the contents of State's Exhibit 28-C, a piece of paper that police
seized from the car that defendant was allegedly driving on 3 May
2002. On the paper was written, Eighth Period, Demetrius White,
Jr., Band Final Exam. The trial court admitted 28-C, and the
State distributed copies of it to the jury. Defendant asserts
that, because 28-C was not properly authenticated, the trial court
erred when it admitted that exhibit, and defendant is entitled to
a new trial. Pursuant to Rule 901(a), [t]he requirement of
authentication . . . is satisfied by evidence sufficient to supporta finding that the matter in question is what its proponent
claims. N.C. Gen. Stat. § 8C-1, Rule 901 (2005). The State
presented evidence tending to show that this paper was found in the
car defendant was driving. Accordingly, we disagree with
Defendant contends the trial court lacked jurisdiction to
enter a judgment imposing an aggravated sentence based on a jury
finding of aggravating factors. We disagree.
In 2004, the United States Supreme Court determined that a
trial judge's sentencing of a defendant beyond the statutory
maximum, based on the trial judge's finding that defendant had
acted with deliberate cruelty, violated the defendant's right to
trial by jury under the Sixth Amendment to the United States
Constitution. Blakely v. Washington
, 542 U.S. 296, 301-15, 159 L.
Ed. 2d 403, 412-20, reh'g denied
, 542 U.S. 961, 159 L. Ed. 2d 851
(2004). Thus, after Blakely
, trial judges . . . [should] not
enhance criminal sentences beyond the statutory maximum absent a
jury finding of the alleged aggravating factors beyond a reasonable
doubt. State v. Blackwell
, 361 N.C. 41, 45, 638 S.E.2d 452, 455
(2006). Then, [i]n June 2005, the General Assembly amended
Chapter 15A of the General Statutes to require the submission of
aggravating factors to a jury, which must make its findings using
a reasonable doubt standard. Id
. The legislature explicitly made
that amendment effective when it becomes law, stating
[p]rosecutions for offenses committed before the effective date of[the amendment] are not abated or affected by [the amendment], and
the statutes that would be applicable but for [the amendment]
remain applicable to those prosecutions. 2005 N.C. Sess. Laws
145. This bill was signed by the Governor and became effective on
30 June 2005. Id.
Here, defendant requests us to remand the case for
resentencing. He asserts that, because the alleged offenses took
place on 3 May 2002, the trial court, not the jury, should have
considered the evidence of aggravating and mitigating factors.
However, as of the time of the sentencing hearing on 4 April 2006,
Chapter 15A expressly required the trial judge to submit
aggravating factors to the jury. Moreover, under Blakely
, the trial
court was not permitted to impose an aggravating sentence based on
its own finding of aggravating factors. Accordingly, we disagree
No prejudicial error.
Judges BRYANT and STROUD concur.
Report per Rule 30(e).
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