Opinion
No. COA10-1605
Filed 7 June 2011 This case not for publication
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, P.A., by C. Scott Holmes, for defendant appellant.
Edgecombe County No. 09-CRS-54195.
On 3 August 2010, a jury convicted Taron Thomas Battle ("defendant") of robbery with a firearm. On appeal, defendant 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. Defendant also alleges ineffective assistance of trial counsel. We find no error.
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. The man passed Price and came up to Troublefield. He put "something in [Troublefield's] left side and held [her] by the arm," telling her not to run and to "just give it up." Troublefield did not know what was pressed against her. 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 and then fled down Sycamore Street. Price witnessed the entire 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 went back inside the residence to call the police. Officer Robert Pennington ("Officer Pennington") of the Rocky Mount Police Department was assigned to the area that evening and responded to the call within minutes. When he arrived at the scene, he spoke with all three women. 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. Troublefield told Officer Pennington that the robber was approximately 5'8" or 5'9" in height. Troublefield also told Officer Pennington that the robber's 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 suspect 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. Officer Summerlin received Officer Pennington's description of 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. Upon receiving the information, Officer Summerlin observed three black males matching the description relayed by Officer Pennington. Officer Summerlin began to follow the three men down the 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 wearing the grey hooded sweatshirt into the cemetery. Officer 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 Officer 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. The canine picked up defendant's scent at the scene of the 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. Defendant admitted to possessing the handgun found in the 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. Defendant was wearing a grey hooded sweatshirt and grey sweatpants. Both Troublefield and Ray identified defendant as the robber based on the clothing he was wearing. Price asked the officers if defendant could put the sweatshirt's hood 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. At trial, evidence of the identifications made at the scene 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. Defendant appeals.
II. 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 violation of the Eyewitness Identification Reform Act ("EIRA"), N.C. Gen. Stat. § 15A-284.51 (2009). Defendant further argues that because the pretrial identifications were unconstitutional, the in-court identifications made by the State's witnesses were similarly tainted and should also have been excluded. Defendant urges this Court to consider the issue for plain error, as defense counsel neither made a motion to suppress the identification evidence nor objected to its introduction at trial. For these reasons, defendant also contends he lacked the effective assistance of trial counsel.
We first note the rule, as defendant appears to acknowledge in his brief, that constitutional arguments not raised at trial are not preserved for appellate review: "'[I]n order for an appellant to assert a constitutional or statutory right on appeal, the right must have been asserted and the issue raised before the trial court.'" State v. Moses, ___ N.C. App. ___, ___, 698 S.E.2d 688, 693 (2010) (alteration in original) (quoting State v. McDowell, 301 N.C. 279, 291, 271 S.E.2d 286, 294 (1980)); see also State v. Roache, 358 N.C. 243, 284, 595 S.E.2d 381, 408 (2004) (holding that because "defendant failed to raise constitutional error at the trial court for any of the five pieces of evidence he contends were inappropriately admitted," defendant failed to preserve his constitutional arguments for appellate review). "Constitutional issues not raised and passed upon at trial will not be considered for the first time on appeal, not even for plain error[.]" State v. Gobal, 186 N.C. App. 308, 320, 651 S.E.2d 279, 287 (2007) (citations omitted), aff'd, 362 N.C. 342, 661 S.E.2d 732 (2008). However, because the constitutional and statutory rights at issue involve the admissibility of evidence, see State v. Garcell, 363 N.C. 10, 35, 678 S.E.2d 618, 634 (2009) ("Plain error analysis applies to evidentiary matters and jury instructions."), cert. denied, 175 L. Ed. 2d 362 (2009), and because defendant has also raised the issue of ineffective assistance of counsel with respect to the admission of the same evidence, we reach the merits of defendant's arguments under a plain error standard of review. State v. Lawson, 159 N.C. App. 534, 538, 583 S.E.2d 354, 357 (2003).
Plain error is "a fundamental error so prejudicial that justice cannot have been done." State v. Haselden, 357 N.C. 1, 13, 577 S.E.2d 594, 602 (2003). "The defendant has the heavy burden of showing that the error constituted plain error[.]" State v. Garris, 191 N.C. App. 276, 288, 663 S.E.2d 340, 349 (2008). "'The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to plain error, the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'" State v. Treadway, ___ N.C. App. ___, ___, 702 S.E.2d 335, 340 (2010) (quoting State v. Walker, 316 N.C. 33, 39, 340 S.E.2d 80, 83 (1986)). Therefore, "'[i]n order to prevail under a plain error analysis, defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.'" State v. Smith, ___ N.C. App. ___, ___, 687 S.E.2d 525, 529 (2010) (quoting State v. Steen, 352 N.C. 227, 269, 536 S.E.2d 1, 25-26 (2000)).
Defendant's first argument addresses the constitutionality of the "show-up" identification procedure used by the officers at the scene of the crime. Defendant argues that the show-up procedure employed by the officers was impermissibly suggestive, primarily because Troublefield, the victim of the crime, could not see the suspect's facial features and could only identify defendant by his clothing. Defendant argues that in light of such constitutional violation, the trial court committed plain error in allowing both the pretrial and in-court identification evidence.
Identification evidence violates a defendant's due process right "where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification." State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983). Our Courts have found that "show-up" procedures, "whereby a suspect is shown singularly to a witness or witnesses for the purposes of identification," are inherently suggestive. State v. Harrison, 169 N.C. App. 257, 262, 610 S.E.2d 407, 412 (2005), aff'd, 360 N.C. 394, 627 S.E.2d 461 (2006); see also State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982). However, our Supreme Court has held that pretrial show-up identifications "are not per se violative of a defendant's due process rights." Turner, 305 N.C. at 364, 289 S.E.2d at 373. "Even though a pretrial identification procedure may be suggestive, it will be impermissibly suggestive only if all the circumstances indicate that the procedure resulted in a very substantial likelihood of irreparable misidentification." Harris, 308 N.C. at 164, 301 S.E.2d at 95; see also State v. Rawls, ___ N.C. App. ___, ___, 700 S.E.2d 112, 118 (2010) ("When evaluating whether such a likelihood [of irreparable misidentification] exists, courts apply a totality of the circumstances test."). When evaluating the likelihood of irreparable misidentification, our Courts consider the following factors:
"(1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation."
State v. Pulley, 180 N.C. App. 54, 64, 636 S.E.2d 231, 239 (2006) (quoting Harris, 308 N.C. at 164, 301 S.E.2d at 95); see also Harrison, 169 N.C. App. at 262-63, 610 S.E.2d at 412.
Applying these factors to the present case, we conclude, from the totality of the circumstances, that evidence of the witnesses' pretrial identification of defendant at a one-man show-up was sufficiently reliable to be admissible despite any suggestiveness of the procedure employed. In the present case, all three witnesses — Troublefield, Price, and Ray — were alert to the three men standing across the street as soon as they exited the residence. In addition, all three witnesses had sufficient opportunity to view defendant at the time the crime occurred. While standing on the front steps of the residence, before being approached by defendant, all three witnesses observed defendant, including the clothing he was wearing, as well as the other two individuals who were standing with defendant. Two of the witnesses, Troublefield and Price, directly viewed defendant's eyes at the time of the crime, and Troublefield directly observed defendant's height as he held her by the arm. All three witnesses consistently described defendant's clothing to Officer Pennington as soon as he arrived at the scene five minutes after the incident occurred, and defendant was wearing clothing matching the three witnesses' descriptions when he was detained in the area shortly thereafter. In fact, Officer Pennington testified that Price "was able to give [him] a description to the tee." Defendant was immediately taken back to the scene of the crime for identification by the three witnesses within fifteen to twenty minutes of the robbery's occurrence. Further, when the officers confronted the three witnesses with defendant at the scene, both Price and Troublefield were certain that defendant was the robber based on his clothing and his eyes.
Because we find there was no substantial likelihood of irreparable misidentification under the totality of the circumstances in the present case, evidence of the out-of-court identifications was admissible. In addition, "[s]ince the out-of-court identification[s] [were] admissible, there is no danger [they] impermissibly tainted the in-court identification[s]." Lawson, 159 N.C. App. at 539, 583 S.E.2d at 358. Accordingly, the witnesses' in-court identifications were likewise admissible. Defendant has failed to show plain error on this issue.
Defendant's second argument is that the show-up identification procedure used by the officers at the scene of the crime violates the EIRA, N.C. Gen. Stat. § 15A-284.51. Defendant argues that, in light of such statutory violation, the trial court committed plain error in admitting the identification evidence.
In State v. Rawls, ___ N.C. App. ___, 700 S.E.2d 112 (2010), this Court expressly addressed the issue of whether the provisions of the EIRA apply to a show-up identification procedure. After noting that the EIRA expressly addresses "lineup" procedures, defining both a lineup procedure and a show-up procedure, and elaborating on the differences between the two procedures in both definition and practice, this Court held: "Viewing the EIRA as a whole, we agree . . . that the EIRA does not apply to showups because the procedure of a live lineup is inherently inconsistent with the definition of a showup." Id. at ___, 700 S.E.2d at 116-17 (emphasis added). In providing the reasons for the holding, this Court stated:
Given (1) that the provisions of the statute are inconsistent with the methodology of a showup, (2) that application of the EIRA to showups would effectively eliminate showups as an investigative technique, and (3) that showups, although sometimes troubling, may also, in some circumstances, lead to elimination of innocent individuals from investigation at an early stage, we are unwilling to conclude that the General Assembly intended that showups be subject to the requirements of the EIRA.
Id. at ___, 700 S.E.2d at 118. Accordingly, we are bound by that precedent. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) ("Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court."). Defendant's argument on this issue is therefore overruled.
Third, with respect to the identification evidence, defendant argues that, because his defense counsel neither made a motion to suppress the identification evidence nor objected to its introduction at trial, he lacked the effective assistance of trial counsel.
To establish ineffective assistance of counsel in violation of a defendant's constitutional rights, the defendant bears the burden of meeting a two-part test:
"First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). "When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." State v. Hoover, 89 N.C. App. 199, 211, 365 S.E.2d 920, 927 (1988). The general rule is "that the incompetency (or one of its many synonyms) of counsel for the defendant in a criminal prosecution is not a Constitutional denial of his right to effective counsel unless the attorney's representation is so lacking that the trial has become a farce and a mockery of justice." State v. Sneed, 284 N.C. 606, 612, 201 S.E.2d 867, 871 (1974). Ultimately, defendant has the burden of showing "there is a reasonable probability that, but for counsel's inadequate representation, the result would have been different." State v. Austin, 75 N.C. App. 338, 341, 330 S.E.2d 661, 663 (1985); see also State v. Piche, 102 N.C. App. 630, 638, 403 S.E.2d 559, 564 (1991).
Defendant argues that defense counsel should have filed a motion to suppress the identification evidence, as that is "a common and reasonable practice to file such motions." In addition, defendant argues that defense counsel should have, at the very least, objected to the admission of both the out-of-court identifications and the in-court identifications of defendant. However, defendant has failed to show how defense counsel's failure to file a motion to suppress under the circumstances of the present case was unreasonable, other than alleging the unconstitutionality of the show-up procedure. As we have already explained, we find both the pretrial identifications and the in-court identifications of defendant were not impermissibly suggestive in violation of his constitutional rights. Accordingly, defense counsel's failure both to move to suppress the evidence and to object to the admission of the evidence was not error. State v. Mewborn, ___ N.C. App. ___, ___, 684 S.E.2d 535, 540 (2009) ("The failure to object to admissible evidence is not error.").
Even assuming, arguendo, it was unreasonable for defense counsel to fail to move to suppress or to object to the identification evidence, defendant has failed to show how the jury's verdict would have been different had the identification evidence been excluded. Defendant merely contends the identification evidence was the "core of the State's case." While the witness identifications of defendant are strong evidence that he was the robber, the State also presented substantial other evidence of defendant's guilt. Officer Pennington testified as to the descriptions of the robber provided by the three witnesses when he arrived on the scene. Officer Summerlin testified that when defendant was detained at the cemetery fifteen to twenty minutes later, he was wearing clothing matching the description given by the three witnesses to Officer Pennington, and he had a bandana in his pocket matching the one the robber was wearing at the time of the crime. Troublefield testified that the robber had jabbed something into her side during the robbery, and defendant admitted to possessing a handgun found in the vicinity of the crime. Corporal Hicks testified that his canine tracked defendant's scent from the scene of the crime to the location where defendant was apprehended by Officer Summerlin, and along that path, the canine retrieved both Troublefield's purse and the handgun defendant admitted to possessing. Given this evidence, we fail to see how the jury's verdict would have been different had the identification evidence been excluded. Therefore, defendant's ineffective assistance of counsel argument must fail.
III. Motion to dismiss
Defendant further contends the trial court erred in failing to grant defendant's motion to dismiss the charge of robbery with a dangerous weapon. Defendant alleges the charge was not supported by the evidence, and therefore, should not have been submitted to the jury. Defendant argues that the witness identifications were unreliable in that they were not specific and the opportunity to view the suspect was extremely limited, and that no witness saw the suspect brandish or show a weapon. For those reasons, defendant argues, the charge of robbery with a dangerous weapon should have been dismissed, or in the alternative, the case should have been submitted to the jury on common law robbery grounds and not armed robbery.
In order to survive a motion to dismiss for insufficient evidence in a criminal trial, the State must present substantial evidence of (1) each essential element of the charged offense and (2) defendant's being the perpetrator of such offense. State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000). "Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (internal quotation marks and citations omitted). "[S]o long as the evidence supports a reasonable inference of the defendant's guilt, a motion to dismiss is properly denied even though the evidence also 'permits a reasonable inference of the defendant's innocence.'" State v. Miller, 363 N.C. 96, 99, 678 S.E.2d 592, 594 (2009) (quoting State v. Butler, 356 N.C. 141, 145, 567 S.E.2d 137, 140 (2002)). "In reviewing challenges to the sufficiency of evidence, we must view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences" that can be drawn from the evidence. Fritsch, 351 N.C. at 378-79, 526 S.E.2d at 455; see also Miller, 363 N.C. at 98, 678 S.E.2d at 594.
The essential elements of the crime of robbery with a dangerous weapon are: "'(1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of "firearms or other dangerous weapon, implement or means"; and (3) danger or threat to the life of the victim.'" State v. Trusell, 170 N.C. App. 33, 37, 612 S.E.2d 195, 198 (2005) (quoting State v. Joyner, 295 N.C. 55, 63, 243 S.E.2d 367, 373 (1978)).
In the present case, the State presented substantial evidence that defendant took Troublefield's purse and ran off with it, and that in doing so, defendant possessed a handgun and threatened Troublefield's life if she did not give him the purse. Troublefield testified that defendant approached her, grabbed her arm, jabbed something into her side, told her not to run and to "just give it up," and then took her purse and ran. Price testified that she witnessed the entire incident from a short distance away. Price looked directly at defendant's eyes, saw him grab Troublefield and jab something into her side, and heard him tell Troublefield not to run but to "just give it up." All three women provided consistent descriptions of the robber, and defendant matched those descriptions, including his clothing and his possession of a dark bandana with white designs on it when he was detained in the area approximately fifteen to twenty minutes later. A police canine unit tracked defendant's scent from the scene of the crime to the cemetery where he was detained. The police canine unit also discovered Troublefield's purse and a handgun along the path of the scent, and defendant admitted to possessing the handgun. In addition, all three witnesses were able to identify defendant as the individual who grabbed Troublefield, jabbed something into her side, told her not to run and to "just give it up" as he took Troublefield's purse. We find the evidence is sufficient for a jury to reasonably infer that defendant was the perpetrator of the robbery, and that defendant possessed a handgun which he used to threaten Troublefield's life in order to steal her purse.
Accordingly, the trial court properly submitted the case to the jury on the robbery with a dangerous weapon charge. We also note that, in addition to the armed robbery charge, the trial court also submitted to the jury the lesser included offense of common law robbery. Thus, defendant's arguments that the trial court erred in denying defendant's motion to dismiss the robbery with a dangerous weapon charge and that, in the alternative, the trial court should have submitted the case to the jury on common law robbery grounds, are without merit.
IV. Conclusion
We hold the trial court did not commit plain error in admitting the pretrial show-up identification evidence and the in-court identifications of defendant by the three witnesses. Under the totality of the circumstances, we find the pretrial show-up identification procedure was not impermissibly suggestive such that there was a substantial likelihood of irreparable misidentification. In addition, defendant is not entitled to appellate relief based on the allegedly deficient performance of his trial counsel, as defense counsel's failure to move to suppress or object to admissible evidence is not error. We also hold the State presented substantial evidence of defendant's guilt of the charge of robbery with a dangerous weapon such that his motion to dismiss was properly denied.
Therefore, we find no error in defendant's trial.
No error.
Judges HUNTER (Robert C.) and BRYANT concur.
Report per Rule 30(e).