State v. Suggs, 8615SC988

• Docket Nº: No. 8615SC988
• Citation: 86 N.C.App. 588, 359 S.E.2d 24
• Case Date: August 18, 1987
• Court: Court of Appeal of North Carolina (US)

Page 24

359 S.E.2d 24 86 N.C.App. 588 STATE of North Carolina,
v.
Keith SUGGS. No. 8615SC988. Court of Appeals of North Carolina. Aug. 18, 1987.

Page 25

[86 N.C.App. 589] Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Wilson Hayman, Raleigh, for State.

Daniel H. Monroe, Graham, for defendant-appellant.

GREENE, Judge.

Defendant was separately indicted on three counts of robbery with a dangerous weapon in connection with the robbery of a rental appliance store. The indictments were consolidated for trial and defendant was found guilty of all three counts and sentenced to three consecutive prison terms of 14 years each. At trial, defendant requested the court prevent the State's mention of the fact defendant was also charged with various other counts of armed robbery. The trial court denied this motion in limine. Defendant also moved the court suppress any evidence of his pre-trial in-court identification. The court conducted a voir dire on this motion to suppress and denied the motion. At the close of evidence, defendant moved to dismiss certain counts for lack of sufficient evidence. The court also denied this motion. Defendant appeals.

The State's evidence tended to show Messrs. Justice and Page, employees of a rental appliance store in Burlington, were closing the store around 6:00 p.m. one evening. A black male in the store suddenly placed a small nickel-or-silver-plated handgun at Justice's temple and ordered Page to lie down on the floor. Justice later described the man as about 5'10"' in height, darkly complected, weighing approximately 165 pounds, with sunglasses and normal length hair. The man took money out of the store's cash drawer as well as money from Justice's person. The robber also took money from Page, including some store money which was in Page's possession.

[86 N.C.App. 590] Testimony showed officers exhibited six photographs to Justice and Page after the robbery: each separately selected a photograph of defendant as the robber. Justice clearly identified defendant in court as the robber. Although Page stated he had an opportunity to observe the robber's body

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size and shape, he testified in court he was "not absolutely sure, but [defendant] looks an awful lot like" the robber. Furthermore, the assistant manager of Video City in Burlington also testified that, ten days before the appliance store robbery, a black man wearing sunglasses and carrying a silver-plated handgun entered her store and took money from her cash register. She identified defendant in court as the same person who robbed her store on that prior occasion. Defendant did not himself testify but offered a witness who testified defendant was with her at the time of the robbery.

The issues for this Court's determination are: (1) whether the trial court properly allowed evidence of a prior robbery with which defendant was charged; (2) whether the trial court properly allowed testimony that defendant's photograph was selected from a photographic lineup; (3) whether the trial court properly denied defendant's motion to dismiss; and (4) whether defendant's sentence constituted cruel and unusual punishment.

I

At the time of trial of this matter, defendant was also charged with the prior robbery of the Video City store. A copy of a verdict sheet attached to defendant's brief indicates defendant was subsequently acquitted of those charges. Defendant moved in limine to prevent any use of the Video City charges against him and objected at trial to his in-court identification by the assistant manager of Video City. While defendant, among other things, raises the issue of the court's failure to conduct a voir dire or make findings in denying his motion, we are not required to address this issue since defendant has not made this issue the basis of any assignment of error or exception in the record. N.C.R.App.P. Rule 10(a). However, we note in any case that defendant's failure to file an affidavit with facts supporting his motion under N.C.G.S. Sec. 15A-977(a) (1983) permitted the court's summary denial of defendant's motion under Section 15A-977(c)(2). See State v. Satterfield, 300 N.C. 621, 625, 268 S.E.2d 510, 513-14 (1980) (court upheld summary denial of motion under Section 15A-977(c) [86 N.C.App. 591] where no facts presented to support general objection to results of blood test).

The State contends evidence of the prior robbery was properly admitted pursuant to N.C.G.S. Sec. 8C-1, Rule 404(b) (1986). Defendant argues evidence of the prior robbery should not have been admitted because: (A) Rule 404(b) is inapplicable where defendant has neither pleaded nor been found guilty of the prior robbery; and (B) defendant's alleged prior conduct is inadmissible under Rule 404(b) as well as otherwise irrelevant and prejudicial.

A

Rule 404(b) states in relevant part:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident. [emphasis added]

Since the scope of Rule 404(b) includes "wrongs or acts," the Rule does not on its face require such extrinsic acts result in criminal liability. Furthermore, in State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986), our Supreme Court impliedly addressed the issue whether a defendant must be actually convicted of prior crimes before evidence of those crimes is admitted under Rule 404(b). In Morgan, defendant was asked on cross-examination if he had assaulted two other people with a deadly weapon. There was no evidence defendant had been found guilty of those charges. The State argued the cross-examination was permissible under Rule 404(b). The Court stated:

For purposes of this discussion, we shall assume that defendant was not convicted of either alleged previous assault. Thus, this exchange informed the jury that defendant ... may have pointed a shotgun at two men other than [the deceased] within three months of the

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[date] when similar conduct resulted in [the deceased's] death and defendant's arrest therefor.

315 N.C. at 632, 340 S.E.2d at 88-89 (emphasis added). Since the Morgan Court applied Rule 404(b) despite assuming defendant [86 N.C.App. 592] was not convicted of the other crimes, we conclude conviction of other crimes is not a prerequisite to their admissibility under Rule 404(b). See also 2 Weinstein and Berger, Weinstein's Evidence Par. 404 at 57 (1985) (under F.R.Evid. 404(b), conduct need not be criminal or unlawful if sheds light on defendant's character and relevant to something other than criminal propensity). Consequently, the trial court did not abuse its discretion under N.C.G.S. Sec. 8C-1, Rule 104(a) (1986) in admitting evidence pursuant to Rule 404(b) of the similar Video City robbery with which defendant had been charged, but not convicted.

B

Defendant next argues evidence of the Video City robbery was inadmissible under Rule 404(b) as an impermissible attempt to introduce evidence of a crime separate and distinct from the crime charged. It was well established in North Carolina long before the adoption of Rule 404(b) that "the State may not offer proof of another crime independent of and distinct from the crime for which defendant is being prosecuted even though the separate offense is of the same nature as the charged crime." State v. Williams, 303 N.C. 507, 513, 279 S.E.2d 592, 596 (1981) (quoting State v. Humphrey, 283 N.C. 570, 572, 196 S.E.2d 516, 518, cert. denied, 414 U.S. 1042, 94 S.Ct. 546, 38 L.Ed.2d 334 (1973)); see also State v. McClain, 240 N.C. 171, 173, 81 S.E.2d 364, 365 (1954). However, the McClain Court also described an "identity" exception to this rule as follows:

Where the accused is not definitely identified as the...