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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA06-1431

NORTH CAROLINA COURT OF APPEALS

Filed: 3 July 2007

STATE OF NORTH CAROLINA

v .                         Wake County
                            Nos. 97 CRS 30316 and 30317
LUPRISE DAVON LINCOLN

    Appeal by Defendant from judgments entered 1 June 1998 by Judge Robert L. Farmer in Superior Court, Wake County. Heard in the Court of Appeals 23 May 2007.

    Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Daniel R. Pollitt, for Defendant-Appellant.

    McGEE, Judge.

    Luprise Davon Lincoln (Defendant) was indicted on 23 June 1997 for the first-degree murder of Sean Reginald Easter (Easter) and for assault with a deadly weapon with intent to kill Jacques Beatty (Beatty). Defendant was tried capitally and found guilty of both charges. The jury was unable to agree on Defendant's sentence in the murder charge; therefore, the trial court sentenced Defendant to life imprisonment without parole. On the assault charge, Defendant was sentenced as a prior record level two and received a sentence of twenty-nine months to forty-four months in prison, to run consecutively with the life sentence. Defendant appeals.
    Prior to trial, Defendant moved to suppress Beatty's identification of Defendant from a photographic lineup. Defendantcontended that Beatty told police that the shooter wore a "black pilot-style jacket with a high collar" and that Defendant was the only individual pictured in the lineup wearing a jacket matching that description. Therefore, Defendant argued that the lineup was tainted and suggestive. The trial court held a hearing on Defendant's motion to suppress on 18 May 1998 and denied Defendant's motion in open court. In an order filed 16 July 1998, the trial court concluded that Defendant's federal and state constitutional rights were not violated by the pretrial identification procedures used. The trial court also concluded that the procedures employed "were not in any manner suggestive, were not conducive to irreparable mistaken identification, and did not offend fundamental standards of decency, fairness, and justice." The trial court also concluded that, even if the pretrial identification procedures were suggestive, Beatty's in- court identification of Defendant was of independent origin and, therefore, was not tainted. The trial court denied Defendant's motion to suppress Beatty's identification of Defendant.
    Beatty testified for the State about the events which occurred in his apartment on the evening Easter was killed. Beatty testified that on 6 May 1997, he was living in an apartment on Melvid Court (the apartment) with Tyrone Bragg (Bragg). Beatty and Bragg invited Easter to stay with them because Easter had "no steady place to stay." Beatty returned to the apartment between 10:00 p.m. and 11:00 p.m. on 6 May 1997. Easter and Bragg were in the apartment playing a video game. The three men decided to cook,and Easter and Bragg left the apartment to buy supplies. Easter and Bragg returned, and Easter began cooking the food the two had purchased. Easter realized they had forgotten something, and Bragg said he would be leaving to pick up a friend and would pick up the needed item at the same time. Bragg left the apartment.
    Beatty and Easter remained in the apartment. Beatty was lying on the floor watching television. From where he was lying, he could see the front door of the apartment. Easter was cooking in the kitchen. Beatty heard a knock, and Easter left the kitchen and opened the front door. Beatty saw two African-American men at the door and heard one of the men ask for Bragg. Easter told the men Bragg was not home. The shorter of the two men entered the apartment, smoking a cigar. Beatty thought the man's face looked "vaguely familiar." He told the man to take the cigar outside, and the man left the apartment. Beatty saw the man put out the cigar on the railing outside. Beatty turned his attention back to the television but heard the other man standing at the door say, "What's up with some Gores." Beatty understood this question to be a request to buy a pair of boots, because Bragg sold clothing out of the apartment. As Beatty began to rise up from the floor, he heard a gunshot and a moan. He then heard someone fall to the floor, and he assumed it was Easter.
    Beatty saw the man take a step around the wall in front of the front door, holding a gun, and Beatty began running toward the man. The man hit Beatty in the head with the gun, and the two struggled. Beatty heard a shot fire but kept struggling with the man. The mancontinued to hit Beatty's forehead and neck with the gun. Beatty and the man were locked together, each struggling for the gun, when Beatty saw that the gun was jammed and could not fire. During the struggle, Beatty saw that Easter was still lying on the floor. Beatty pushed the man off and ran for the back door of the apartment. Beatty jumped off the balcony and as he ran away, he heard shots fired in his direction. Beatty ran around the building and hid in some nearby woods. He later found a house with a light on, knocked on the door, and asked the occupants to call Bragg's brother. Bragg's brother did not answer and Beatty asked the people to call a cab. Beatty testified that the shooting took place between 1:00 a.m. and 1:30 a.m., and that he arrived at Bragg's brother's house at approximately 2:00 a.m.
    When Beatty spoke with police the following morning between 8:00 a.m. and 9:00 a.m., they asked Beatty to do a composite of the shooter, but he refused. Beatty testified he feared the composite would not look like the shooter and could cast doubt on any identification he might make. Instead, Beatty gave police a description of the shooter's physical attributes and told police he would be able to identify the shooter if he saw him again. Beatty stated he "had no doubt" that he could identify the shooter. Beatty described the shooter to police as a black male, "approximately six one, six two[,]" with a slim build, between 150 and 160 pounds, with a "small afro." He stated the shooter appeared to be about twenty-one years old. Beatty testified he would never forget the face of the shooter.    Beatty testified that approximately one week later, a detective with the Raleigh Police Department asked Beatty to view some photographs. Beatty was shown two sets of eight photographs. While viewing the first set, Beatty remarked that one of the individuals had a head shaped like the shorter man with the cigar, but he told police that it was not that man. When Beatty viewed the second set of photographs, he identified one of the photographs as the shooter. Beatty testified that he stated: "That's the man that killed my man [Easter], right there." Beatty testified that he did not wear glasses, that the lights were on in the apartment during the shooting and struggle, and that Beatty was "face to face [and] body to body" with the shooter "on several different occasions" during the struggle. Beatty also testified that he looked at the shooter "right in his face" and that the shooter looked Beatty in the face. In addition to his testimony about the photographic lineup, Beatty testified that earlier in the week during another courtroom proceeding, he identified Defendant when Defendant was escorted into the courtroom. During the trial, Beatty also identified Defendant as the shooter.
    Officer William McGregor of the Raleigh Police Department (Officer McGregor) testified that he responded to a dispatched call to the Melvid Court Apartments on 6 May 1997. When Officer McGregor arrived at the apartments, Bragg approached and told Officer McGregor that his friend had been shot. Officer McGregor walked up to the apartment and found the front door open. He entered the apartment and saw Easter lying face down on the floor.Several additional officers arrived at the scene and completed a security sweep of the apartment. The lights and television were on in the apartment, the water was running, and the door to the balcony was open, but officers found no one inside the apartment.     Officer Christopher Robb of the Raleigh Police Department (Officer Robb) testified that he also responded to the Melvid Court Apartments the night of the shooting. He testified that while he was securing the rear of the apartment, he discovered a pager, an expended shell casing, and a live round of ammunition next to two "deep footprints, like somebody jumped off a balcony." Herman Colvin (Agent Colvin), an identification agent with the City County Bureau of Identification, testified that shell casings were found inside the living room of the apartment. Agent Colvin also testified that he located a bullet hole in the wall in the hallway of the apartment.
    Bragg testified that when he left the apartment for the second time on the evening of 6 May 1997, he was gone for about ten to fifteen minutes. When Bragg returned, his neighbor said he had heard gunshots coming from Bragg's apartment. Bragg opened the door to the apartment and saw Easter lying on the floor, with a gunshot wound to his head. Easter was still alive and was gagging and choking. Bragg looked for Beatty, but could not find him, and asked his neighbor to call police. Bragg left the apartment to go to his brother's house. On the way, he stopped at a grocery store and called police. His brother was not home, so Bragg returned to his apartment where he spoke with police.    Cameron Omar Massenburg (Massenburg) testified for the State that he was driving a friend's car on 6 May 1997, when he saw Defendant on the street. Massenburg testified that Defendant "flagged" him down. Defendant asked Massenburg to drive Defendant and a friend to Melvid Court so they could buy some "trees," or marijuana. Massenburg agreed. When Defendant got into the car, Massenburg noticed that Defendant had a gun. When Massenburg arrived at Melvid Court, he parked the car and Defendant and his friend got out of the car. Defendant's friend returned to the car and told Massenburg that "it would be a little[.]" A few seconds later Massenburg heard two shots, and a few seconds after that Defendant returned to the car and said he was ready to go. Defendant said he had "f----- up[.]" Several days later Massenburg spoke to police. During his testimony, Massenburg admitted he did not tell police the truth initially, but later changed his mind and was truthful. Massenburg also admitted that he pled guilty to being an accessory after the fact to assault with a deadly weapon as a result of the incident.
    At the close of the State's evidence, Defendant moved to dismiss the first-degree murder charge for insufficient evidence. The trial court denied Defendant's motion. Defendant did not present any evidence.

I.

    Defendant makes two arguments regarding the sufficiency of the State's evidence at trial. Defendant first argues that the State presented insufficient evidence that Defendant was the perpetratorof Easter's murder. Defendant next argues that the State failed to offer sufficient evidence of premeditation and deliberation to support the first-degree murder conviction. We disagree with Defendant as to both arguments.
    In order to withstand a defendant's motion to dismiss, the State must present substantial evidence of each element of the crime charged, or of a lesser included offense, and of the defendant's being the perpetrator of the offense. State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When a defendant moves to dismiss for insufficient evidence,
        [t]he trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged. "In so doing the trial court should only be concerned that the evidence is sufficient to get the case to the jury; it should not be concerned with the weight of the evidence."

State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991) (quoting Earnhardt, 307 N.C. at 67, 296 S.E.2d at 652). In making this determination, the trial court must consider "the evidence . . . in the light most favorable to the State, and the State must receive every reasonable inference to be drawn from the evidence. Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (internal citations omitted). Where a trial court hasdetermined that a defendant's guilt may reasonably be inferred from the evidence, the jury must decide whether the evidence convinces them beyond a reasonable doubt that a defendant is guilty. State v. Taylor, 337 N.C. 597, 604, 447 S.E.2d 360, 365 (1994), cert. denied, 533 S.E.2d 475 (1999). Further, these rules apply whether the evidence is direct, circumstantial, or a combination of both. Vause, 328 N.C. at 237, 400 S.E.2d at 61.
    Defendant argues that the State's only evidence that Defendant was the perpetrator of Easter's killing was the testimony of Beatty, and that Beatty testified that he did not see Easter get shot. Defendant also points to a lack of forensic evidence linking Defendant to the shooting, and a lack of evidence regarding a possible motive for the shooting. Defendant's argument is directed to the weight of the evidence, and is unavailing.
    Although Defendant correctly states that Beatty admitted that he did not see Defendant shoot Easter, Defendant ignores much of the substance of Beatty's testimony. Beatty identified Defendant, both in a photographic lineup and during the trial, as the man with whom he struggled seconds after a shot was fired at his front door. Beatty testified that immediately following the shot that struck Easter, he saw a man step around the wall near the front door of the apartment, and point a gun at him. Beatty also testified that he saw the man's face during the subsequent struggle. Beatty told police that he "had no doubt" that he could recognize the man. Furthermore, Massenburg testified that he drove Defendant and another man to the Melvid Court Apartments on the night of theshooting, and that Defendant was carrying a gun. Massenburg also testified that Defendant's friend returned to the car before Defendant, and Massenburg then heard two shots. When viewed in the light most favorable to the State, this evidence is sufficient to permit a reasonable inference that Defendant was the perpetrator of the shooting which killed Easter.
    Defendant also argues that the State failed to present substantial evidence of premeditation and deliberation. "Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation." State v. Fleming, 296 N.C. 559, 562, 251 S.E.2d 430, 432 (1979). "Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation." State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36 (1994). "Deliberation does not require brooding or reflection for any appreciable length of time, but imports the execution of an intent to kill in a cool state of blood without legal provocation, and in furtherance of a fixed design." State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980). Evidence of premeditation and deliberation is "not susceptible to direct proof and must almost always be proved by circumstantial evidence." State v. Corn, 303 N.C. 293, 297, 278 S.E.2d 221, 223 (1981). Circumstances that tend to prove premeditation and deliberation include:
        "(1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendantbefore and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner."

Taylor, 337 N.C. at 607, 447 S.E.2d at 367 (quoting State v. Williams, 308 N.C. 47, 69, 301 S.E.2d 335, 349, cert. denied, Williams v. North Carolina, 464 U.S. 865, 78 L. Ed. 2d 177 (1983)).
    Applying the above factors to the present case, we conclude that the State presented substantial evidence of premeditation and deliberation. Beatty's testimony as to the events leading up to the shot fired at Easter suggests a lack of provocation by Easter. Beatty testified that after the first shot the shooter pursued him, and the two struggled until Beatty was able to flee through the back door of the apartment. Massenburg's testimony established that Defendant sought a ride to the Melvid Court Apartments, and had a handgun. Further, testimony by the medical examiner established that when Easter was shot, the gun was fired between one and eight inches from Easter's face. Beatty also testified that as he was fleeing the apartment, Defendant fired additional shots at Beatty. This evidence constituted substantial evidence of premeditation and deliberation. Therefore, we conclude the trial court did not err by denying Defendant's motion to dismiss the first-degree murder charge for insufficient evidence. We overrule these assignments of error.
II.

    Defendant next argues that the trial court improperly admittedBeatty's eyewitness identification of Defendant under State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967). Because Defendant failed to object to the admission of this evidence at trial, Defendant argues this error amounted to plain error, requiring that he receive a new trial on both the first-degree murder charge and the charge of assault with a deadly weapon with intent to kill. We disagree.
    In Miller, our Supreme Court held that "where the only evidence identifying [a] defendant as the perpetrator of [an] offense is inherently incredible because of undisputed facts[,]" the general rule that assessment of the weight of an identification is within the province of the jury does not apply. Id. at 731, 154 S.E.2d at 905. In order to determine whether the identification evidence is "inherently incredible[,]" a trial court must consider whether "there is a reasonable possibility of observation sufficient to permit subsequent identification[.]" Id. at 732, 154 S.E.2d at 906. Defendant contends the Miller rule applies to the present case, inter alia, because (1) Beatty did not know Defendant prior to the night of the shooting; (2) Beatty admitted he could not see the men who stood at the front door when the shot that killed Easter was fired; and (3) Beatty was only able to see the shooter during an intense struggle in which he was fighting for his life.
    We conclude that the circumstances of the present case are easily distinguishable from those presented in Miller, and that the trial court properly left the determination of the weight to begiven to Beatty's identifications of Defendant with the jury. In Miller, the identification of the perpetrator was based upon observation made from a distance of 286 feet. Id. at 732, 154 S.E.2d at 905. Further, although the area where the perpetrator was seen was well lighted, the events occurred at night. Id. We concluded that "the distance was too great for an observer to note and store in memory features which would enable him, six hours later, to identify a complete stranger with the degree of certainty which would justify the submission of the guilt of such person to the jury." Id. at 732, 154 S.E.2d at 905. In the present case, although Beatty did not see the shot fired that killed Easter, he engaged in a lengthy struggle with the shooter moments later, in which Beatty and the shooter looked directly at one another. Beatty testified that he did not wear glasses and that all the lights were on in the apartment. We overrule this assignment of error.
III.

    In a related argument, Defendant contends that the trial court erroneously denied his motion to suppress Beatty's pretrial identification of Defendant, as well as both of Beatty's in-court identifications of Defendant. We disagree.
    Defendant argues that the procedures used during Beatty's identification of Defendant as the shooter from a photographic lineup were "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Defendant contends (1) that the array containing Defendant'sphotograph was itself suggestive; (2) that the comments made by the detective during the pretrial identification were suggestive; and (3) that there was a very substantial likelihood that Beatty misidentified Defendant because Beatty had a poor opportunity to view the shooter.
    The State argues that Defendant waived the admission of this evidence by failing to object when the evidence was offered during trial. The State also argues that Defendant has raised on appeal a constitutional issue which he failed to raise at trial, thereby precluding our review. We do not agree. Defendant moved to suppress Beatty's pretrial identification on the grounds that it was impermissibly suggestive. In its order, the trial court concluded that no constitutional error occurred during the pretrial identification procedures, and specifically noted that Defendant's due process rights were not violated under the federal or state constitutions. Therefore, we conclude that Defendant raised this constitutional argument below. Further, although Defendant failed to object to this testimony at trial, Defendant contends before this Court that admitting the evidence amounted to plain error. Therefore, we conclude that Defendant's argument is properly before us for plain error review. N.C.R. App. P. 10(c)(4). Although we conclude we can properly reach this argument, we find no error in the trial court's decision to deny Defendant's motion to suppress.
    "Identification evidence must be suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantiallikelihood of irreparable misidentification." State v. Powell, 321 N.C. 364, 368, 364 S.E.2d 332, 335 (1988). The trial court must first determine whether the pretrial identification procedure was impermissibly suggestive, and if so, determine whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification. Id. at 368-69, 364 S.E.2d at 335. In undertaking this analysis,
        [f]actors to be considered . . . are (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation.

Id. at 369, 364 S.E.2d at 335.
    In the present case, Beatty testified that during the struggle with the shooter, he was "face to face" with the shooter, and that he looked the shooter "right in his face." Beatty testified that he told police he would never forget the face of the shooter and "had no doubt" that he could identify the shooter. When he was shown the second photograph array, one week after Easter's murder, Beatty did not hesitate and stated, "[t]hat's the man that killed my man [Easter], right there." These facts were reflected in the trial court's findings, and supported the trial court's conclusion that the pretrial identification procedures used were not impermissibly suggestive nor conducive to irreparable misidentification. In addition, the trial court found as fact that the photographs in the array included more than one individual wearing a jacket with a high collar. Further, our review of thearray reveals this finding to be supported by the evidence. Where a trial court's findings of fact are supported by competent evidence, they are binding on appeal. State v. Fowler, 353 N.C. 599, 618, 548 S.E.2d 684, 698 (2001), cert. denied, Fowler v. North Carolina, 535 U.S. 939, 152 L. Ed. 2d 230 (2002). This assignment of error is overruled.
IV.

    Defendant also argues that he is entitled to a new trial because the State committed ex mero motu error during its closing statement. Defendant states that the State (1) made grossly improper emotional appeals for conviction; (2) misrepresented the evidence; and (3) disparaged and misrepresented defense counsel.
    "Where there is no objection at trial to a jury argument, the standard of review to determine whether the trial court should have intervened ex mero motu is whether the allegedly improper argument was so prejudicial and grossly improper as to interfere with [a] defendant's right to a fair trial." State v. Alford, 339 N.C. 562, 571, 453 S.E.2d 512, 516 (1995). To succeed in such a claim, a "defendant must show that the [State's] comments so infected the trial with unfairness that they rendered the conviction fundamentally unfair." State v. Davis, 349 N.C. 1, 23, 506 S.E.2d 455, 467 (1998), cert. denied, Davis v. North Carolina, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999).
    After reviewing the statements made by the State, we cannot conclude that Defendant is entitled to a new trial on this basis. Even if we assume arguendo that the State's comments were improper,Defendant has not shown that the comments were so "grossly improper as to interfere with [his] right to a fair trial." Alston, 339 N.C. at 571, 453 S.E.2d at 516. Therefore, we overrule this assignment of error.
V.

    Lastly, Defendant contends that he is entitled to a new sentencing hearing on the charge of assault with a deadly weapon with intent to kill. We agree with Defendant's contention.
    N.C. Gen. Stat. § 15A-1340.14(f) (2005) provides the methods by which prior convictions can be proved to determine a defendant's prior record level for felony sentencing. This statute permits proof by stipulation of the parties, a court record of the prior conviction, a copy of records maintained by one of three state agencies, or "any other method found by the [trial] court to be reliable." Id. "The State bears the burden of proving, by a preponderance of the evidence, that a prior conviction exists and that the offender before the [trial] court is the same person as the offender named in the prior conviction." Id. "[W]hen section 15-1340.14 uses the term 'prior felony conviction' it refers only to a prior adjudication of the defendant's guilt or to a prior entry of a plea of guilty or no contest by the defendant." State v. Vaughn, 130 N.C. App. 456, 460, 503 S.E.2d 110, 113 (1998), aff'd per curiam, 350 N.C. 88, 511 S.E.2d 638 (1999). Our Supreme Court has held that standing alone, a worksheet is insufficient to establish a defendant's prior record level. State v. Alexander, 359 N.C. 824, 827, 616 S.E.2d 914, 917 (2005).    Our review of the sentencing hearing reveals that the trial court noted receipt of a worksheet that indicated that Defendant had a 1996 conviction for larceny. The State also noted that it had "the court files[.]" However, at no time during the sentencing hearing was any evidence of any prior conviction offered by the State and admitted by the trial court. Further, there was no evidence presented that Defendant stipulated to a prior conviction. Although the State made remarks during the sentencing hearing that referenced a prior larceny conviction, a statement by the State that a defendant has a certain number of points, if only supported by a worksheet, is insufficient to prove a prior record level, even if uncontested by a defendant. State v. Riley, 159 N.C. App. 546, 557, 583 S.E.2d 379, 387 (2003). Therefore, we must conclude that Defendant is entitled to a new sentencing hearing on the charge of assault with a deadly weapon with intent to kill.
    No error in 97 CR 30316; remanded for new sentencing hearing in 97 CR 30317.
    Judges LEVINSON and JACKSON concur.
    Report per Rule 30(e).

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