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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA10-1605 NORTH CAROLINA COURT OF APPEALS Filed: 7 June 2011 STATE OF NORTH CAROLINA v. TARON THOMAS BATTLE Appeal by defendant from judgment entered 3 August 2010 by Judge Richard L. Doughton in Edgecombe County Superior Court. Heard in the Court of Appeals 11 May 2011. Attorney General Roy Cooper, by Assistant Attorney General LaShawn S. Piquant, for the State. Brock, Payne & Meece, defendant appellant. McCULLOUGH, Judge. On 3 August 2010, a jury convicted Taron Thomas Battle ("defendant") of robbery with a firearm. On appeal, defendant P.A., by C. Scott Holmes, for Edgecombe County No. 09-CRS-54195

contends the trial court erred in (1) allowing evidence of both out-of-court and in-court identifications of defendant and (2) denying his motion to dismiss the robbery with a dangerous

weapon charge. trial counsel.

Defendant also alleges ineffective assistance of We find no error.

-2-

I.

Background

On the evening of 21 December 2009, Barbara Troublefield ("Troublefield") and her friend Jackie Price ("Price") were

conducting Bible study at a women's shelter on Sycamore Street in Rocky Mount, North Carolina. The women exited the residence

around 8:00 p.m. in the evening and conversed with each other and another woman, Iris Ray ("Ray"), on the front steps.

While conversing on the front steps, the three women observed three black males standing across the street. Two of the men

were wearing black flight jackets, and the third was wearing a grey hooded sweatshirt. Troublefield and Price headed towards their vehicles, which were parked on the curb in front of the residence, when the individual wearing the grey hooded sweatshirt started to

approach them. Troublefield was facing the man as he approached, and she noticed that he was approximately 5'8" or 5'9" in

height.

He was wearing a navy blue or black bandana with a

white pattern across his face, but Troublefield could see the man's eyes and complexion. Troublefield. The man passed Price and came up to

He put "something in [Troublefield's] left side

and held [her] by the arm," telling her not to run and to "just

-3give it up." her. Troublefield did not know what was pressed against

Troublefield was carrying a purse on her shoulder, which

contained her wallet, credit cards, bank card, driver's license, and social security card. The man grabbed Troublefield's purse Price witnessed the entire

and then fled down Sycamore Street.

incident from a few feet away, as did Ray who was still standing on the front steps. When Ray saw the man grab Troublefield, she Officer Mount

went back inside the residence to call the police. Robert Pennington ("Officer Pennington") of the

Rocky

Police Department was assigned to the area that evening and responded to the call within minutes. scene, he spoke with all three women. When he arrived at the Price first provided

Officer Pennington with a description of the robber, stating that he was a black male wearing a grey or light-colored hooded sweatshirt and dark pants. that the robber also was Troublefield told Officer Pennington 5'8" or 5'9" in height. robber's

approximately Officer

Troublefield

told

Pennington

that

the

complexion was similar to hers and that she was able to see his eyes, but she was unable to provide any other facial features since the robber's face was obscured by his bandana. Price also

stated she was clearly able to see the robber's eyes despite the bandana over his face. After obtaining a description of the

-4suspect from the three women, Officer Pennington relayed the information to other police officers over the radio. Officer Brad Summerlin ("Officer Summerlin") of the Rocky Mount Police Department also reported to the area where the crime occurred when the robbery call came in. received Officer Pennington's description of Officer Summerlin the suspects as

three black males, two wearing black flight jackets, and the suspect who took the purse was wearing a light-colored hooded sweatshirt and a dark bandana. Officer Summerlin observed Upon receiving the information, black males matching the

three

description relayed by Officer Pennington. began to follow the three men down the

Officer Summerlin street, when the

individual wearing the grey hooded sweatshirt left the group and entered Pineview Cemetery. The other two men wearing black

flight jackets continued down the street. Officer Summerlin proceeded to follow the individual Officer

wearing the grey hooded sweatshirt into the cemetery.

Summerlin was unable to observe the suspect while he was inside the cemetery. However, Officer Summerlin encountered the

suspect, later identified as defendant, as he was coming out of the cemetery and detained him. After detaining defendant,

Officer Summerlin noticed a large knot in defendant's pocket, so

-5Officer Summerlin asked defendant to empty his pockets.

Defendant produced a dark colored bandana with white designs on it. Meanwhile, Corporal Chris Hicks ("Corporal Hicks") of the Rocky Mount Police Department was working with a canine in the area, since the women had stated that the suspects left the scene of the crime on foot. scent at the scene of the The canine picked up defendant's crime and followed the scent to

Pineview Cemetery.

Troublefield's purse was discovered along

the path between where the incident occurred and where defendant was detained at the cemetery. The canine also searched inside

the cemetery, resulting in the discovery of a small caliber handgun located beside a headstone within ten yards of the curb. The handgun was loaded and positioned to be fired. admitted to possessing the handgun found in the Defendant cemetery,

stating that he had obtained the handgun from a family member. The officers then took defendant back to the scene of the crime, which had occurred approximately fifteen to twenty

minutes earlier. and grey

Defendant was wearing a grey hooded sweatshirt Both Troublefield and Ray identified

sweatpants.

defendant as the robber based on the clothing he was wearing. Price asked the officers if defendant could put the sweatshirt's

-6hood on his head and the bandana across his face. Price then observed defendant's eyes with the bandana on and identified defendant as the robber. The officers returned Troublefield's

purse, and she discovered that her wallet was missing, which was later found in the neighborhood and returned to her. Defendant was tried by a jury for the charge of robbery with a dangerous weapon on 3 August 2010. the identifications made at the scene At trial, evidence of of the crime was

introduced by the State without objection by defense counsel. In addition, Troublefield, Price, and Ray all testified to the events and identified defendant in court as the robber. At the

close of trial, the jury returned a guilty verdict for robbery with a firearm, and defendant was sentenced in the presumptive range to 64-86 months' imprisonment. II. Defendant appeals.

Plain error and ineffective assistance of counsel in failing to suppress identification evidence

Defendant argues the trial court committed plain error when it did not, on its own motion, suppress testimony of the State's witnesses regarding the identifications of defendant made at the scene of the crime. Defendant alleges that the "show-up"

identification procedure used by the officers at the scene of the crime was both unconstitutionally suggestive and in

-7violation of the Eyewitness Identification Reform Act ("EIRA"), N.C. Gen. Stat.

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