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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.

NO. COA06-1387


Filed: 3 July 2007


     v .                                 Rowan County
                                        Nos. 02CRS53363
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.

    McCULLOUGH, Judge.

    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 association.
    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 impermissible suggestiveness.
    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 appeals.
    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 process:
        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.
    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 with defendant.
    No prejudicial error.
    Judges BRYANT and STROUD concur.
    Report per Rule 30(e).

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