Opinion
No. 07-712.
Filed April 15, 2008.
Lincoln County Nos. 05CRS51043, 06CRS1144.
Appeal by Defendant from judgments entered 10 January 2007 by Judge Forrest D. Bridges in Superior Court, Lincoln County. Heard in the Court of Appeals 24 March 2008.
Attorney General Roy Cooper, by Special Deputy Attorney General Sharon Patrick-Wilson, for the State. Gilda C. Rodriguez for Defendant-Appellant.
Cedric Carvette Arnold (Defendant) was indicted on charges of felonious breaking or entering, felonious larceny, felonious possession of stolen goods and of being an habitual felon. Defendant moved to suppress a witness's in-court identification of him, which the trial court denied following a voir dire hearing at the start of trial. A jury subsequently found Defendant guilty of all the charges and of being an habitual felon. After arresting judgment on the conviction for possession of stolen goods, the trial court determined that Defendant had twenty-four prior record level points and was at prior record level VI for sentencing purposes. The trial court then imposed two consecutive sentences with a combined term of 270 to 342 months in prison. From the trial court's judgments, Defendant appeals. For the reasons stated below, we find no error.
Laura Mott testified during the voir dire hearing that she was in her apartment in Lincoln County, North Carolina at approximately 3:30 p.m. on 12 April 2005. Upon hearing a car door close, she walked to her front door to see who was there. She saw a green Mazda 626 (the vehicle) with license plate number RYE-2251 parked beside her car. She watched through the peephole as a man exited the passenger side of the vehicle and walked up to her door. The man knocked on Ms. Mott's door first, and then walked to the apartment next door, and began knocking on that door. Ms. Mott's apartment was parallel to her next-door neighbor's apartment. She moved to her bedroom window and continued watching the man through her blinds. After returning to the vehicle and talking with the driver, the man walked behind Ms. Mott's apartment toward her other neighbor's apartment. He then returned to Ms. Mott's front door and knocked again.
When the man returned to the vehicle a second time, the driver also exited the vehicle. Ms. Mott described both men as very clean-cut with short hair. She said the man on the passenger side of the vehicle was wearing a beige shirt and was the heftier of the two men. She stated the driver was tall and slender, and was wearing glasses and a royal blue shirt. Ms. Mott watched both men approach her next-door neighbor's apartment, and heard them "grab the door." Ms. Mott then called 911 and gave a description of the vehicle and its license plate number.
Initially Ms. Mott testified that she saw the two men "busting in the door[,]" then she later stated that she saw them "moving around out there" and "hitting the door so hard that [the] pictures on [her] walls were literally rattling." She "heard the door come in and . . . could hear it slam against the wall . . . from the force of them hitting it as hard as they were." Ms. Mott heard "them moving around in there," and then saw the two men carrying what appeared to be a car stereo amplifier and a television to the vehicle. She estimated that about fifteen minutes had elapsed from the time she first saw the men until they left in the vehicle.
When asked if she saw either of those two men in the courtroom, Ms. Mott stated that Defendant "looks like the guy that was wearing the blue shirt." She testified she had not had any occasion to see Defendant since the date in question, and she agreed with defense counsel that almost two years had passed since that date. Ms. Mott indicated she had never looked at a photographic lineup and had not been asked by police to view a lineup of suspects. She stated that prior to trial, no one had shown her photographs of Defendant or of any suspects.
The trial court found that all of Defendant's arguments went to the weight, rather than the admissibility, of Ms. Mott's identification of Defendant and denied Defendant's motion to suppress Ms. Mott's in-court identification. In its written order, the trial court found in part that:
6. Ms. Mott watched the two men as they "busted open" the front door of Apartment 10. . . . They proceeded to carry a number of items from the apartment to the green Mazda. She thought that one of the items was a television set.
. . .
13. Ms. Mott's observation of . . . Defendant and his cohort took place in broad daylight on April 12, 2005. She was approximately 20 to 30 feet away from the two men, and saw them both through the peephole of her front door and through the window of her bedroom. She actually watched the crime as it unfolded for several minutes.
14. The description of the two men provided by Ms. Mott led to their vehicle being stopped by deputies within ten minutes of the crime. When the men were arrested, they were in possession of the stolen property and their appearance, including their vehicle and clothing, were entirely consistent with the description that she had provided.
15. The in-court identification of the accused by the witness is based solely upon the recollection of the witness at the time of the crime and is not influenced by any pretrial identification procedure.
The trial court next concluded that:
1. The identification of the accused by the witness, Laura Mott, is credible, given all the circumstances of the witness's ability to view the accused at the time of the crime. The actual weight and credibility of the identification evidence is for the jury to determine.
2. The in court identification of . . . Defendant by Laura Mott was not based upon or related in any way to any out of court identification procedure involving . . . Defendant.
3. Based on clear and convincing evidence, the in-court identification of the accused is of independent origin, based solely upon what the witness saw at the time of this crime, and is not tainted by any pretrial identification procedure: the witness had ample opportunity to view the accused at the time of the crime, the witness had a high degree of concentration and focused attention on the accused at the time of the crime, the witness's prior description of the accused shortly after the crime is a reasonably accurate description of the accused, the degree of certainty in the witness's identification is high, and there was no pretrial identification procedure that served to taint the ability of the witness to testify as to an in-court identification of independent origin.
The trial court overruled Defendant's objection to the admission of the in-court identification evidence.
Defendant contends in his first argument that the trial court erred in denying his motion to suppress. He asserts that the sixth and fifteenth findings of fact are not supported by the evidence and that those findings taint the trial court's conclusions of law. We disagree.
As an initial matter, Defendant's motion did not specifically state the legal basis for suppressing Ms. Mott's in-court testimony. However, the trial court in its discretion heard the motion. See State v. Harvey, 78 N.C. App. 235, 237, 336 S.E.2d 857, 859 (1985) (recognizing that "the decision to deny summarily a motion which fails to set forth adequate legal grounds is vested in the sound discretion of the trial court"). In reviewing the trial court's denial of Defendant's motion to suppress, this Court must first determine whether there was competent evidence to support the trial court's underlying findings of fact. State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). Defendant specifically challenges the sixth and fifteenth findings of fact. If the evidence presented in support of those findings was competent, the trial court's findings are conclusive and binding on appeal. Id. This Court must then determine whether those findings of fact support the trial court's ultimate conclusions of law. Id.
Upon review of Ms. Mott's voir dire testimony, competent evidence supports the trial court's sixth finding of fact. Ms. Mott initially testified to seeing the two men "busting in the door." She later clarified her testimony because she could not actually see the door since the next-door apartment was parallel to her apartment and she had no side window. Ms. Mott stated she saw the two men moving around outside of the apartment and heard them hitting the apartment door with sufficient force to rattle pictures on her wall. She also "heard the door come in and . . . slam against the wall" and testified to seeing Defendant and the other man carrying what appeared to be a car stereo amplifier and a televison set from the apartment to the vehicle.
While Ms. Mott did not literally see the two men "bust open" the front door, the trial court's finding was a reasonable deduction based upon what the witness testified to seeing and hearing. Given that Ms. Mott testified to seeing the men carry two items from the apartment, the trial court's finding that the men "proceeded to carry a number of items from the apartment" is also based upon competent evidence.
As for the fifteenth finding of fact, Defendant asserts that Ms. Mott's in-court identification of him was akin to a "show-up" identification and was neither credible nor independent. "Generally, [however,] a witness may make an in-court identification of a defendant and any uncertainty in that identification goes to the weight and not the admissibility of the testimony." State v. Miller, 69 N.C. App. 392, 396, 317 S.E.2d 84, 87-88 (1984). The exception occurs if the in-court identification is tainted by a prior confrontation which was unnecessarily suggestive. Id. at 396, 317 S.E.2d at 88. Because there was no prior confrontation in this instance, competent evidence supports the trial court's finding that Ms. Mott's in-court identification of Defendant was "based solely upon [her] recollection" and was "not influenced by any pretrial identification procedure." This assignment of error is overruled.
In his second argument, Defendant seeks a new trial on grounds of ineffective assistance of counsel because his trial counsel failed to state the legal basis for Defendant's motion to suppress. The trial court nevertheless exercised its discretion and heard Defendant's motion. The trial court then made findings of fact based upon competent evidence and conclusions of law which were supported by those findings. As a result, Defendant cannot show any prejudice from trial counsel's alleged omission. See State v. Braswell, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985) (recognizing that a defendant must show that counsel's deficient performance prejudiced the defense). This assignment of error is therefore without merit.
In his final argument, Defendant contends the sentences imposed by the trial court are disproportionate to the offenses committed and violate his constitutional right to be free from cruel and unusual punishment. Defendant's argument is not persuasive.
"[N]othing in the Eighth Amendment prohibits our legislature from enhancing punishment for habitual offenders." State v. Quick, 170 N.C. App. 166, 170, 611 S.E.2d 864, 867 (2005). "Our habitual felon statute is the result of a deliberate policy choice by the legislature that those who repeatedly commit felonious criminal offenses should be segregated from the rest of society for an extended period of time." Id. at 170, 611 S.E.2d at 866-67. Both of Defendant's sentences were at the lowest level of the presumptive range for the habitualized offenses, and we find no abuse of discretion by the trial court in imposing either sentence. See N.C. Gen. Stat. § 15A-1340.17(c) (2005).
Similarly, the trial court's decision to run Defendant's sentences consecutively was discretionary. See N.C. Gen. Stat. § 15A-1354(a) (2005); see also State v. Butler, 147 N.C. App. 1, 14, 556 S.E.2d 304, 313 (2001), aff'd, 356 N.C. 141, 567 S.E.2d 137 (2002). We note that in addition to the three prior felonies necessary to establish Defendant's habitual felon status, the trial court determined that Defendant had twenty-four prior record points and was at prior record level VI for sentencing purposes. Defendant has not shown that the trial court abused its discretion by directing that Defendant's sentences be served consecutively. "Only in exceedingly unusual non-capital cases will the sentences imposed be so grossly disproportionate as to violate the Eighth Amendment's proscription of cruel and unusual punishment." State v. Ysaguire, 309 N.C. 780, 786, 309 S.E.2d 436, 441 (1983). Given Defendant's prior conviction history, we do not find that his case was "exceedingly unusual." For these reasons, we conclude that the trial court's imposition of consecutive sentences did not violate Defendant's Eighth Amendment rights.
Defendant has failed to set out his remaining assignments of error in his brief. Because he has neither cited any authority nor stated any reason or argument in support of those assignments of error, they are deemed abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges STROUD and ARROWOOD concur.
Report per Rule 30(e).