Opinion
No. COA13–213.
2013-07-2
STATE of North Carolina v. Steven R. RAMIREZ.
Attorney General Roy Cooper, by Assistant Attorney General Alvin W. Keller, Jr., for the State. Kathryn L. VandenBerg for Defendant.
Appeal by Defendant from judgments entered 24 September 2012 by Judge Mark E. Powell in Henderson County Superior Court. Heard in the Court of Appeals 5 June 2013. Attorney General Roy Cooper, by Assistant Attorney General Alvin W. Keller, Jr., for the State. Kathryn L. VandenBerg for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
This appeal arises from Defendant Steven R. Ramirez's convictions of first-degree murder, first-degree burglary, robbery with a dangerous weapon, and second-degree burglary. The evidence at trial tended to show the following:
During the early morning hours of 10 April 2009, Joyce Corn (“Corn”) and her husband, Oscar, were at their home in Henderson County when three intruders, including Defendant, confronted them demanding money and jewelry. The intruders told the Corns not to look at them. Defendant was armed with a gun and another intruder picked up a kitchen knife once inside the Corns' home. During the 15–20 minute encounter, Defendant struck both Corn and her husband with the gun, and Corn's husband was shot and killed just before the intruders fled.
Corn made a statement to law enforcement officers shortly after the events, but was only able to describe the three intruders as black males. Corn was transported to the hospital and treated for a head wound. Detective Breena Williams of the Henderson County Sheriff's Office (“HCSO”) interviewed Corn at the hospital later that morning, at which time Corn stated that the intruders were all small or slender and in their mid–20s.
Defendant was arrested later that day along with the two other intruders, Mykel Waters and Terry Landrum. At the time of the crime, Defendant was approximately 33 years old, while Waters and Landrum were both teenagers. Corn saw local television coverage of the arrests, as well as later interviews online connected to the arrests, including one featuring Defendant.
The record does not reflect what led law enforcement officers to initially suspect Defendant of involvement in the crime.
On 15 April 2009, Detective Andrew Anderson of the HCSO interviewed Corn. Detective Anderson's notes from that interview indicate that Corn “stated that the older person that she identified as Steven Ramirez had the gun.” Prior to trial, Defendant moved to suppress this statement on the grounds that he lacked “knowledge as to whether or not the provisions of the Eyewitness Identification Reform Act are implicated under the precise circumstances of this identification.”
At the motion hearing, Detective Anderson testified that, although he wrote that Corn had identified the person holding the gun as Steven Ramirez, she had never used Defendant's name. Rather, Corn had told Detective Anderson that she thought the older person she saw on the news coverage was the intruder with the gun, and Detective Anderson had then supplied Defendant's name in his written report because he knew that Ramirez was the oldest of the three men arrested in the case. Corn made no formal identification of Defendant. At the conclusion of the hearing on the motion to suppress, the trial court stated, “I don't know if there's—particularly under the eyewitness identification format[,] if there's anything to suppress. I hope I don't misunderstand that.” Defense counsel responded, “I think you are correct now that we've fl[e]shed that out a little bit.”
At trial, the State asked Corn during re-direct examination if she had an opinion about whether Defendant was one of the intruders. Defendant objected, and the trial court initially sustained the objection as a new area of inquiry and thus not proper for re-direct. However, the trial court then decided in its discretion to allow the question because Corn could be recalled. Corn identified Defendant as the man with the gun, and defense counsel objected and asked to be heard outside the jury's presence. The jury was excused and Defense counsel argued that Defendant's appearance was inconsistent with the description Corn gave just after the crime, particularly her statement that all of the intruders were young and small. Defense counsel further argued that Corn's testimony and identification were
based almost entirely on the fact that the State has chosen to prosecute this man, and the fact that they have been telling her for the last three years that the fellow that you are going to look at is the guy.... I'm not contending that anything wrongful occurred in the investigation.
Defense counsel further elucidated,
[Defense Counsel]: And I contend that she couldn't identify him without having been assisted by the State in the ordinary process of investigation. If she could have, she would have before now. And she hasn't. Ever. She has had plenty of opportunities to do it, and she has never done it.... I think [her identification has] been tainted, not deliberately, but it's been interfered with by the investigative process. And she's formed this opinion not based on what she saw, but on what she has been told.
THE COURT: I've not heard anything about how Ms. Corn might have been tainted by the investigative process except for your argument.
[Defense Counsel]: Yes, sir, I understand that.
THE COURT: [What] does the State say?
[State]: Judge, if there's any allegation of prosecutorial misconduct
[Defense Counsel]: There is not.
[State]:—we can address that. In regards to her opinion, a person can make—and I believe the case law is very clear—a lay opinion on anything as long as they can explain it. And it's still ripe for cross-examination. If counsel needs to go into further questioning of her after the State finishes their testimony, he can.... [S]he can give the opinion to clarify for the jury what she thought, who was responsible for this.
No voir dire was requested or conducted, and the re-direct examination resumed with Corn again identifying Defendant. During re-cross examination, defense counsel elicited testimony from Corn that she had seen Defendant's picture online while watching “the television interview they had with him when they were first arrested .” She also testified that she had seen Defendant in court for “some procedure” roughly a year before trial, but reiterated that she was not shown any pictures by anyone acting for the State.
Waters and Landrum testified that they, along with Defendant, had broken into a trailer on the Corns' property shortly before they entered the Corns' home. Defendant, Waters, and Landrum took a television, a safe, and some smaller items from the trailer. Police later recovered the stolen items under a porch at the home of Defendant's uncle. Defendant's uncle testified that Defendant took a gun from his house and returned it around April 9 or 10. Waters and Landrum further testified that, following the burglary of the trailer, they entered the Corns' residence at Defendant's insistence. Both admitted participating in the robbery of the Corns, testified that they left the house before Mr. Corn was shot, and waited out in the car until Defendant came out. Landrum did not hear any gunshots, while Waters thought he heard a gunshot about three minutes after leaving the house.
The trailer belonged to Ronald Rudisill, the father of the Corns' granddaughter, who was not home at the time of the burglary.
The testimony of Defendant's uncle was vague and contradictory regarding where the gun came from, what happened to it, and the order of events involved.
The jury convicted Defendant on all counts, and Judge Powell imposed consecutive sentences of life without parole for murder, 117–150 months for first-degree burglary, 117–150 months for robbery with a dangerous weapon, and 20–24 months for second-degree burglary. Defendant gave notice of appeal in open court on 24 September 2012.
Discussion
Defendant's sole argument on appeal is that the trial court erred in admitting Corn's in-court identification of Defendant without conducting a voir dire. We disagree.
“Generally, a witness may make an in-court identification of a defendant and any uncertainty in that identification goes to the weight and not the admissibility of the testimony.” State v. Miller, 69 N.C.App. 392, 396, 317 S.E.2d 84, 87–88 (1984) (citation omitted). However, “[i]dentification evidence must be excluded as violating a defendant's right to due process 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) (citations omitted).
“Although a voir dire may be proper when the competency of a witness or admissibility of evidence is in doubt, the burden is generally on the objecting party to show why the evidence is incompetent or inadmissible in order to be entitled to a voir dire on the issue[.]” State v. Cumber, 32 N.C.App. 329, 335, 232 S.E.2d 291, 296 (citations omitted; italics added), cert. denied, 292 N.C. 642, 235 S.E.2d 63 (1977). Further, “this Court [has] held that when criminal defendants have been sufficiently heard on a pretrial motion to suppress evidence, they are not entitled to another voir dire at trial.” Id. (italics added). Finally, while the “better procedure dictates that the trial judge, even upon a general objection only, should conduct a voir dire in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony[,] .... [f]ailure to conduct the voir dire ... does not necessarily render such evidence incompetent.” State v. Stepney, 280 N.C. 306, 314, 185 S.E.2d 844, 850 (1972) (citations omitted; italics added).
Instead, “[f]ailure to conduct a voir dire will be deemed harmless where the evidence is clear and convincing that the witness's in-court identification of [the] defendant originated with the witness's observation of [the] defendant at the time of the crime and not from an impermissibly suggestive pretrial identification procedure.” State v. Flowers, 318 N.C. 208, 216, 347 S.E.2d 773, 778 (1986) (citations omitted; italics added).
The factors to be considered in determining whether the in-court identification of defendant is of independent origin include [1] the opportunity of the witness to view the accused at the time of the crime, [2] the witness' [s] degree of attention at the time, [3] the accuracy of his prior description of the accused, [4] the witness'[s] level of certainty in identifying the accused at the time of the confrontation, and [5] the time between the crime and the confrontation.
State v. Hammond, 307 N.C. 662, 668, 300 S.E.2d 361, 365 (1983) (citation and quotation marks omitted).
This Court has previously rejected arguments that an eyewitness's pretrial exposure to a defendant automatically renders the witness's subsequent in-court identification unconstitutional, and thus inadmissible, where the exposure to a defendant was not the result of state action or occurred during ordinary court proceedings. “[S]uggestive pretrial identification procedures that do not result from state action do not violate [a] defendant's due process rights.” State v. Jones, ––– N.C.App. ––––, ––––, 715 S.E.2d 896, 901 (2011) (holding that a school principal who showed students a photograph which the students identified as the man who had broken into their home the previous day was not acting as an agent of the state, and thus, the protections of the Fourth Amendment and the exclusionary rule for improper identification procedures did not apply to the eyewitness's identification), appeal dismissed and disc. review denied, 365 N.C. 559, 723 S.E.2d 767 (2012); see also State v. Williams, 201 N.C.App. 103, 108, 685 S.E.2d 534, 538 (2009) (holding that the friend of an eyewitness to a robbery who called the witness to view the defendant as he was being arrested by police was not acting as an agent of the State, but rather a private citizen, and therefore, the protections of the Fourth Amendment and the exclusionary rule for improper identification procedures did not apply to the eyewitness's identification at the showup). Further,
the viewing of a defendant in a courtroom during varying stages of a criminal proceeding by witnesses who are offered to testify as to the identity of the defendant is not in and of itself such a confrontation as will taint an in-court identification unless other circumstances are shown which are so unnecessarily suggestive and conducive to irreparable mistaken identification as would deprive [the] defendant of his due process rights.
State v. Watson, 179 N.C.App. 228, 240, 634 S.E.2d 231, 239 (2006) (citations omitted), disc. review denied,361 N.C. 437, 649 S.E.2d 896 (2007).
Here, Defendant contends Corn's in-court identification of him as the intruder with the gun was tainted by her exposure to (1) media coverage of his arrest and (2) his presence in the courtroom during pretrial proceedings. We are not persuaded. We first note that Corn never formally identified Defendant to law enforcement, as defense counsel acknowledged at the conclusion of the pretrial suppression hearing, and thus, there plainly was no “impermissibly suggestive pretrial identification procedure.” Flowers, 318 N.C. at 216, 347 S.E.2d at 778. Further, Corn's exposure to media coverage of Defendant's arrest was not the result of state action, and the record reflects no unnecessarily suggestive circumstances surrounding Corn's exposure to Defendant during pretrial court proceedings. See Jones, ––– N.C.App. at ––––, 715 S.E.2d at 901;Watson, 179 N.C.App. at 240, 634 S.E.2d at 239.
While Corn recognized Defendant when she saw his arrest on television and online, she did not participate in any formal identification procedure such as a lineup, showup, or photographic identification, nor did she provide Defendant's name to law enforcement officers during the investigation.
Defendant was heard extensively on his concerns about Corn's identification during the pretrial hearing on his motion to suppress and during his exchange with the trial court outside the presence of the jury. In addition, Defendant had a full opportunity to attack Corn's identification at trial through cross-examination. Defendant has failed to show that he was entitled to a voir dire on Corn's in-court identification. See Cumber, 32 N.C.App. at 335, 232 S .E.2d at 296.
Further, even were the trial court's failure to conduct a voir dire error, it was harmless in light of the Hammond factors. See Hammond, 307 N.C. at 668, 300 S.E.2d at 365. Corn's identification testimony was of independent origin. Corn had ample opportunity to observe Defendant during the 15–20 minutes that he was in her home. She stated that she made eye contact with him and that when he left her home, the hoody he was wearing did not cover his face. Corn also stated that she was initially unable to give a detailed description of Defendant because she was under the effects of stress, shock, terror, medication for her head injury, and grief from the loss of her husband. However, at trial, Corn stated, “I do have the opinion that [Defendant] was the one holding the gun at my home that night.” In sum, the evidence shows that Corn's identification testimony originated with her observation of Defendant at the time of the crime and not from an impermissibly suggestive pretrial identification procedure.
Finally, had there been an impermissibly suggestive pretrial identification procedure such that Corn's in-court identification should not have been allowed, the other evidence of Defendant's guilt is overwhelming. The testimonies of Waters, Landrum, and Defendant's uncle directly link Defendant to the stolen property and to the shooting of Oscar Corn. In light of this overwhelming evidence, any assumed error in permitting Corn's in-court identification was harmless.
NO ERROR. Judges BRYANT and DILLON concur.
Report per Rule 30(e).