Opinion
No. COA10-1406
Filed 2 August 2011 This case not for publication
Appeal by defendant from judgment entered 14 May 2010 by Judge Robert H. Hobgood in Wake County Superior Court. Heard in the Court of Appeals 11 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General W. Hugh Bailey, for the State. Gilda C. Rodriguez for defendant-appellant.
Wake County No. 08 CRS 5787.
Where a victim's in-court identification of defendant was sufficiently reliable and of independent origin, the trial court did not commit plain error by denying defendant's motion to suppress. Where there was substantial evidence of each element of robbery with a dangerous weapon and of defendant being the perpetrator of the offense, the trial court did not err by denying defendant's motion to dismiss.
Facts and Procedural History
The evidence presented at trial indicated the following: On 10 August 2008, as she was leaving Wal-Mart, Maryanne Conway (Ms. Conway) noticed a white car pull into the parking lot, driving "very fast and erratic[,]" but did not pay any more attention to it. As Ms. Conway entered her vehicle, a man leaned in through her open driver's side door, held a knife out, and tried to reach for her purse located on the passenger-side seat. The man said "[g]ive me your purse" and Ms. Conway handed her purse to him. Thereafter, the man ran away and Ms. Conway walked back to Wal-Mart to call police. As she was walking, Ms. Conway noticed the same white car she had seen earlier was now exiting the parking lot and the driver was the man who had just robbed her. Ms. Conway memorized the license plate number of the white car and called the police.
Detective R.P. Bowen of the Raleigh Police Department showed Ms. Conway a photographic lineup consisting of six photographs, one of which was of defendant. Ms. Conway was unable to identify anyone in the photographic lineup as the man who robbed her on 10 August 2008. Thereafter, Detective Bowen showed Ms. Conway a single photograph of defendant to see if she could make an identification and Ms. Conway "stated at the time that she could neither confirm nor deny that that was the person that robbed her."
At trial, Ms. Conway described defendant as follows: "Black male. He had dread locks and some kind of bandana or something on his head. I didn't see how tall he was because I only saw him leaning in my car and then sitting in his car. . . . [He had facial hair] [l]ike a goatee and narrow." Although Ms. Conway was not able to identify defendant in a pre-trial photographic lineup or in a single photograph, at trial Ms. Conway made a positive in-court identification of defendant.
Richard Warren Ferebee, II (Ferebee), testified that he had known defendant since August 2008. Ferebee loaned his car, a white 2007 Pontiac G6, to defendant from 9 August 2008 to 10 August 2008. Ferebee made it clear that no one else was to drive the car and he did not see anyone else but defendant driving his car.
Ferebee also testified to his involvement in a burglary, larceny, and financial card fraud on 13 August 2008 with defendant and another man. The trial court allowed joinder of these offenses. However, defendant was acquitted of the 13 August 2008 offenses.
Antonio Santwan Avent (defendant) was tried by jury and found guilty of robbery with a dangerous weapon. From this judgment, sentencing him to a term of 120 to 153 months, defendant appeals.
On appeal, defendant raises two issues: (I) whether the trial court committed plain error by denying defendant's motion to dismiss a witness's in-court identification of defendant; and (II) whether the trial court erred by denying defendant's motion to dismiss the robbery charge.
I
Defendant argues that the trial court committed plain error by denying his motion to suppress Ms. Conway's in-court identification of defendant when it was "tainted and unreliable." Defendant asserts that given the totality of the circumstances — that shortly after 10 August 2008 Ms. Conway was unable to identify defendant from a photographic lineup or a single photograph — her in-court identification of defendant was the result of "unnecessarily suggestive" procedures, creating a substantial likelihood of irreparable harm. Defendant also contends that the admission of Ms. Conway's in-court identification of defendant was prejudicial, material, and "significant to the State's case" because she was the only eye witness the State had for their case.
Defendant filed a motion to suppress any attempted in-court identification of defendant by Ms. Conway, alleging that because she had failed to positively identify him prior to trial, any in-court trial identification would necessarily be prejudicial and inadmissible. The trial court held a pre-trial hearing on defendant's motion to suppress and made the following pertinent conclusions of law in denying defendant's motion:
[T]he presentation of a single photograph of [defendant] to [Ms. Conway] by Detective Bowen was unnecessarily suggestive but did not result in the identification of [defendant] at that time. That presentation of the single photograph did violate the procedure for eye witness identification of suspects as set forth in North Carolina General Statutes 15A-284(b) which was effective as of March 1, 2008.
. . . [T]hat procedure standing alone, although unnecessarily suggestive, did not create a likelihood of irreparable [mis]identification at the trial.
. . . [T]he Court has considered the totality of the circumstances. . . . The evidence shall be admissible. It shall be for the jury to determine its credibility and to determine what weight to place on that testimony.
Thereafter, during trial, Ms. Conway made a positive in-court identification of defendant as the person who robbed her on 10 August 2008 and defendant failed to object.
We therefore review this issue for plain error.
A pretrial ruling on a motion to suppress is preliminary. Because the evidence may be different when offered at trial, a party has the responsibility of making a contemporaneous objection. . . . Therefore, to the extent defendant failed to preserve issues relating to the motion to suppress, we review for plain error.
State v. Waring, 364 N.C. 443, 468, 701 S.E.2d 615, 631-32 (2010) (internal citations omitted).
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a " fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "resulted in a miscarriage of justice or in the denial to appellant of a fair trial" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" . . .
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citing United States v. McCaskill, 676 F.2d 995, 1002 *4th Cir. 1982)).
"A suggestive and unnecessary identification procedure does not violate due process if the identification possesses sufficient aspects of reliability under the "totality of the circumstances" test[.] An unnecessarily suggestive procedure is not per se conducive to mistaken identification." State v. Watkins, 40 N.C. App. 17, 19, 251 S.E.2d 877, 880 (1979) (citations omitted).
The factors to be considered in determining whether the in-court identification of defendant is of independent origin include the opportunity of the witness to view the accused at the time of the crime, the witness' degree of attention at the time, the accuracy of [her] prior description of the accused, the witness' level of certainty in identifying the accused at the time of the confrontation, and the time between the crime and the confrontation.
State v. Harris, 308 N.C. 159, 166, 301 S.E.2d 91, 96 (1983)).
At trial, Ms. Conway testified to the following in regards to her opportunity to view defendant at the time of the robbery:
When [the perpetrator] first leaned in, his face was just a few inches in front of mine, but he was looking at the seat. So I saw him in profile. I saw that he was a black man, and he had a thin mustache and facial hair going down to his chin, and he had long dread locks and something on his hair like a bandana.
Ms. Conway further testified that she was not able to see how big or tall the perpetrator was and did not notice what type of clothing he was wearing. However, she had a second opportunity to view the perpetrator when she saw a white car exiting the parking lot after she was robbed and "realized that [the driver] was the man who had just stolen [her] purse."
At trial, Ms. Conway described defendant as: "[a] black male. He had dread locks and some kind of bandana or something on his head. I didn't see how tall he was because I only saw him leaning in my car and then sitting in his car. . . . [Facial hair] [l]ike a goatee and narrow." Ms. Conway's description of defendant was in fact quite similar to that of Rhea Royster's (Ms. Royster) who witnessed the robbery. Ms. Royster testified that she had been in the Wal-Mart parking lot on 10 August 2008 and saw a man "crunched over in a car . . . yelling[.]" Ms. Royster then spoke with Ms. Conway and Ms. Conway told her she had just been robbed. When the police arrived, Ms. Royster described the perpetrator as follows: "I told them that he had long dreads, that he had like a bandana — some kind of bandana or head scarf on the top part of his head, that he had on blue jeans with some kind of very colorful stitching on the pockets."
The State had Ms. Conway explain how she was able to make an in-court identification of defendant in light of the fact that she was not able to identify defendant in a photographic line-up or in a single photograph. Ms. Conway gave the following explanation:
When [the robbery] occurred, I saw the man from the right side. I only saw him in profile when he was reaching across me and looking at the passenger seat. I never saw him from the front, only from the side. And then again, as he was backing his car out and looking over his shoulder, I saw the right side of his face. The photos that I was shown were only front views. There were no side views, and I didn't recognize him from the photographs. But, when I was sitting in the courtroom yesterday . . . I could see him in profile, and I recognized him at that time.
Ms. Conway further explained that she was able to specifically recognize defendant's mouth, chin, and facial hair in his profile, thereby displaying her attention to detail.
The trial court found that the unnecessarily suggestive procedures that were used prior to trial did not create a likelihood of irreparable misidentification at trial. Although approximately twenty-one months passed between the time of the alleged offense and Ms. Conway's testimony at trial, the admission of Ms. Conway's in-court identification of defendant, under the totality of the circumstances, was sufficiently reliable and of independent origin. Defendant's argument is overruled.
II
In defendant's second and final argument, he asserts that the trial court erred by denying his motion to dismiss the robbery charge when Ms. Conway's in-court identification was "inherently incredible." Defendant bases his argument on State v. Miller, 270 N.C. 726, 154 S.E.2d 902, contending that the rule providing for jury assessment of the credibility of witnesses and weight of the evidence does not apply "where the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible because of undisputed facts, clearly established by the State's evidence, as to the physical conditions under which the alleged observation occurred." Id. at 731, 154 S.E.2d at 905. We disagree.
The standard of review
[u]pon defendant's motion for dismissal, the question for the court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied. If the evidence is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion should be allowed. This is true even though the suspicion so aroused by the evidence is strong. The test of sufficiency of the evidence to withstand the motion is the same whether the evidence is direct, circumstantial or both.
State v. Johnson, ___ N.C. App. ___, ___,702 S.E.2d 547, 549-50 (2010) (citing State v. Powell, 299 N.C. 95, 98-99, 261 S.E.2d 114, 117 (1980)). "[T]he trial court must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences." State v. Williams, 363 N.C. 689, 705, 686 S.E.2d 493, 504 (citation omitted). "In addition, the credibility of the witness' identification and the weight given his testimony is a matter for the jury to decide." State v. Baker, 338 N.C. 526, 559, 451 S.E.2d 574, 594 (1994) (internal quotation marks and citation omitted).
Defendant was indicted for violation of N.C. Gen. Stat. § 14-87, robbery with firearms or other dangerous weapons. The elements of robbery with a dangerous weapon are: "(1) an unlawful taking or an attempt to take personal property from the person or in the presence of another; (2) by use or threatened use of a firearm or other dangerous weapon; (3) whereby the life of a person is endangered or threatened." State v. Gwynn, 362 N.C. 334, 337, 661 S.E.2d 706, 707-08 (2008) (citation omitted).
In the instant case, there was substantial evidence of each element of robbery with a dangerous weapon. There was testimony that defendant forced his way into Ms. Conway's vehicle, grabbed Ms. Conway's purse from the passenger's seat of her vehicle in her presence, and that defendant displayed a knife by holding it directly in front of Ms. Conway. Also, as previously discussed in issue I, there was additional eyewitness testimony to support Ms. Conway's account of how the robbery occurred, and that defendant was the perpetrator of the robbery. Defendant's credibility argument challenging the in-court identification of defendant goes to the weight to be accorded such testimony by the jury. See Baker, 338 N.C. at 559, 451 S.E.2d at 594. Because there was sufficient evidence of each element of the offense of robbery, the trial court did not err in denying defendant's motion to dismiss. Defendant's argument is overruled.
No error.
Judges HUNTER, Robert C. and MCCULLOUGH concur.
Report per rule 30(e).