State v. Thompson , 110 N.C. App. 217 ( 1993 )

429 S.E.2d 590 (1993) 110 N.C. App. 217

STATE of North Carolina,
v.
Mohammed Jomal THOMPSON.

No. 9215SC521.

Court of Appeals of North Carolina.

May 18, 1993.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen., Kathryn Jones Cooper, Raleigh, for the State.

Craig T. Thompson, Graham, for defendant-appellant.

WELLS, Judge.

Defendant presents six assignments of error for our review. By his first assignment of error, defendant argues that the trial court erred in denying defendant's motion regarding his presence in the court. Defendant, however, makes no argument and cites no authority in support of his contention. N.C.Gen.Stat. § 1A-1, Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure requires that appellant's arguments "contain citations of authority upon which the appellant relies." See Byrne v. Bordeaux, 85 N.C.App. 262, 354 S.E.2d 277 (1987). Because defendant has failed to cite any authority in support of his argument, this assignment of error is deemed abandoned. Id.

By his second assignment of error, defendant argues that the trial court erred in denying his motion to suppress the photographic identification and the in-court identification because the identifications were made under circumstances that were unduly suggestive, were speculative, and were likely to result in misidentification. Specifically, defendant contends that the eyewitness identification was irreparably tainted by the out-of-court exposure to the newspaper article and photograph. We disagree.

Our courts have consistently held that pre-trial identification procedures which are so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification violate a defendant's right to due process and evidence thereof must be suppressed at trial. State v. Powell, 321 N.C. 364, 364 S.E.2d 332, cert. denied, 488 U.S. 830, 109 S. Ct. 83, 102 L. Ed. 2d 60 (1988). The North Carolina Supreme Court in State v. Powell, set forth a two-step process in evaluating identification procedures for due process violations. The first inquiry, when a motion to suppress is made, is whether an impermissibly suggestive procedure was used in obtaining the identification evidence. If the answer is no, the court need not look further. If the answer is yes, the court must then determine whether the suggestive procedure gives rise to a substantial likelihood of misidentification. Id.

We note, initially, that the trial court made no findings of fact or conclusions of law as to these issues. Upon review of the entire record, we find that the identification procedures were not impermissibly suggestive. The State's evidence at trial tended to establish that all of the photographs shown to Ms. Bowlin in the photo lineup were in color and all were pictures of black males with similar pigment, age, and physical stature. Each male pictured had a similar style of hair and a mustache. The pictures were all stapled together, no names were written on the photos, and no suggestions were made to Ms. Bowlin as to which photograph to choose. Although Ms. Bowlin had seen the defendant's photograph in the newspaper prior to the photo lineup, she testified on voir dire that her identification of the photograph in the lineup was not based on having seen the newspaper picture of the defendant. From the totality of the circumstances, we find no inference or interpretation of the facts which would lead us to conclude that the pretrial identification procedure was impermissible. Having concluded that the pretrial photo lineup used in obtaining Ms. Bowlin's out-of-court identification was not impermissibly suggestive, we need not consider whether the procedure gave rise to a substantial likelihood of misidentification. Because the procedure used was permissible, the trial court did not err in denying defendant's motions to suppress the out-of-court identification and the in-court identification of defendant. State v. Billings, 104 N.C.App. 362, 409 S.E.2d 707 (1991), motion to dismiss allowed, 332 N.C. 347, 421 S.E.2d 155 (1992). Furthermore, Ms. Bowlin's positive unequivocal identification of the defendant as the perpetrator of the crime less than one year after the robbery alleviates any question as to the reliability of the in-court identification as being tainted by pretrial identification procedures. This assignment of error is overruled.

By his third assignment of error, defendant challenges the trial court's failure to sustain defendant's objection to the cross-examination testimony of defendant's probation officer. Defendant argues that the probation officer was called by the defendant to testify about the physical appearance, height and weight of the defendant as he appeared in April of 1990. This direct testimony did not involve defendant's probationary status or prior conduct in association with his probation. The prosecutor, however, was permitted to elicit testimony regarding defendant's prior conviction, the length of time defendant had been on probation, the frequency of defendant's visits, whether defendant missed regularly scheduled meetings, and whether his probation had been modified. Defendant argues that where the probation officer only testified she knew defendant in a "professional capacity," this was not tantamount to stating she knew the defendant as his probation officer, and questions involving defendant's probationary status were therefore improper. We find this to be a difference without a distinction.

The general rule is if a witness' direct testimony raises specific issues, it "opens the door" to cross-examination on those subjects. State v. Burgin, 313 N.C. 404, 329 S.E.2d 653 (1985). By eliciting testimony that the probation officer's relationship with defendant was a "professional" one, the defense opened the door to questions about the nature of such relationship. Defendant could have chosen another witness to verify defendant's height, weight, and physical appearance at the time of the crime. Having chosen the probation officer as the verifying witness, however, the defendant may not now complain that allowing the cross-examination was erroneous. This assignment of error is overruled.

Defendant next assigns error to the trial court's denial of defendant's motions to dismiss made at the close of the State's evidence and at the close of all the evidence. Defendant asserts that there was no corroborating evidence to the prosecution witness' eyewitness identification. We disagree.

A court shall submit a case to the jury where there is substantial evidence of each essential element of the crime charged and that the defendant is the perpetrator of the crime. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971). There is "substantial evidence" if there is more than a "scintilla of evidence," considering the evidence in the light most favorable to the State, giving the State every reasonable intendment and every reasonable inference to be drawn therefrom. State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Generally, contradiction, discrepancies, or inconsistencies are properly resolved by a jury, and do not warrant dismissal. Id. See also State v. Thomas, 296 N.C. 236, 250 S.E.2d 204 (1978).

Here, the prosecution's eyewitness gave differing descriptions of the defendant prior to trial. These prior inconsistent statements affect the weight the jury would afford her testimony, not the admissibility of such testimony. State v. Bridges, 266 N.C. 354, 146 S.E.2d 107 (1966). See also State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981). Defendant argues that Ms. Bowlin's identification testimony was inherently unreliable, and, without corroborating evidence, the State did not meet its burden of producing substantial evidence that defendant was the perpetrator of the crime.

In reviewing a motion to dismiss, the test is whether a reasonable inference of the defendant's guilt of the crime charged may be drawn from the evidence. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). Although Ms. Bowlin gave prior inconsistent descriptions of the defendant, she positively identified the defendant as the man who robbed her with a shotgun both at trial and at the photo lineup. Further, all the other elements of armed robbery were supported by ample uncontroverted evidence. We find this evidence was sufficient to permit a reasonable inference of defendant's guilt and to take the case to the jury. We find the trial court did not err in denying defendant's motions to dismiss.

Defendant next assigns error to the trial court's failure to sustain defendant's objection to the prosecutor's comments about defendant's failure to testify. Defendant argues that the comments in the prosecutor's closing argument were in clear violation of N.C.Gen.Stat. § 8-54, which our Supreme Court has interpreted to deny counsel leave to comment on the failure of a person charged with a crime to testify on his own behalf. State v. McLamb, 235 N.C. 251, 69 S.E.2d 537 (1952).

In its closing argument, the prosecution commented on defendant's failure to produce any alibi witnesses, but never directly commented on defendant's failure to take the stand. "Did you hear a single person come in here with an alibi defense as to where he was? Now, sure, I don't know where I was April 11th 1990, and I'm sure you don't either. But he should have." Defendant argues that these statements, and others to the same effect, amount to an impermissible attack on defendant's failure to take the stand. We disagree.

While it is true that the prosecution may not comment on defendant's failure to take the stand, "the defendant's failure to produce exculpatory evidence or to contradict evidence presented by the State may properly be brought to the jury's attention by the State in its closing argument." State v. Jordan, 305 N.C. 274, 287 S.E.2d 827 (1982). The prosecution's statements were directed at defendant's failure to produce rebuttal or alibi evidence, not at his failure to testify on his own behalf. We find no error.

Finally, defendant argues that the trial court should have granted his post-trial motion for a fingerprint expert. Defendant maintains that he should have been allowed an expert witness to examine the fingerprints found at the scene because the fingerprints may have exculpated him.

The fingerprints, however, were not used by the prosecution to link the defendant to the crime and therefore could not be the basis of prejudicial error. The prosecution's case revolved around an eyewitness identification of the defendant as the perpetrator of the crime. During its case in chief, the State called Detective Madden, who merely testified that the fingerprints taken from the crime scene were unidentifiable and inadmissible as evidence against the defendant. Since the State did not use the smudged prints as evidence of defendant's guilt, we find defendant's contention to be feckless.

For the reasons cited above, we find that the defendant received a fair trial free from prejudicial error.

No error.

GREENE and WYNN, JJ., concur.