Opinion
NO. COA12-631
12-18-2012
STATE OF NORTH CAROLINA v. ALLEN SLAUGHTER
Attorney General Roy Cooper, by Assistant Attorney General Charlene Richardson, for the State. Heather L. Rattelade, for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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.
Mecklenburg County
Nos.10 CRS 205201
10 CRS 205208
Appeal by defendant from order entered 2 November 2011 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 14 November 2012.
Attorney General Roy Cooper, by Assistant Attorney General Charlene Richardson, for the State.
Heather L. Rattelade, for defendant-appellant.
HUNTER JR., Robert N., Judge.
Allen Slaughter ("Defendant") appeals following a jury verdict finding him guilty of felonious possession of stolen goods and possession of a stolen motor vehicle. Defendant argues that the trial court erred in admitting evidence of three eyewitness identifications of Defendant, and that he received ineffective assistance of counsel. We find no error.
I. Factual and Procedural History
On 2 February 2010, Defendant was indicted for larceny of a motor vehicle, possession of a stolen vehicle, felonious breaking and entering, conspiracy to commit breaking and entering, larceny after breaking and entering, and felonious possession of stolen goods. Defendant pleaded not guilty, and the matter came before the superior court on 31 October 2011.
The State's evidence tended to show the following. On 29 January 2010 Defendant and his friend Jarquavious Hamilton were at a shopping center. While there, Mr. Hamilton recognized another friend in a passing van. He and Defendant approached the van and they began perusing merchandise inside.
About the same time, Officer TJ Farmer received a call to assist another officer who was investigating a van in the same shopping center. While responding, Officer Farmer passed the van and noticed two men inside. When he stopped and approached the van, two men exited and started walking in opposite directions.
Officer Farmer drove up to the man who had been sitting in the driver's seat and asked him to stop walking so he could talk to him about the van. When Officer Farmer approached the man, he fled through a hole in a fence. Officer Farmer chased the man, but was unable to apprehend him. Officer Farmer testified that when he first stopped the man he was able to look at him in the face for about five to eight seconds before he fled.
In his report, Officer Farmer described the person sitting in the driver's seat as a black male with dreadlocks wearing a gray sweatshirt and red hat with the letter "A" on it. He described the occupant of the passenger seat as a black male with a short haircut and a red shirt or sweatshirt.
Subsequent police investigation revealed that the van was stolen and contained "stolen property or suspected stolen property." On 1 February 2010, Detective Curtis Bell received surveillance footage from a store in the shopping center taken on 29 January 2010. Detective Bell showed the video to Officer Farmer. In response to this "showup," Officer Farmer identified a man shown in the video as the suspect he saw fleeing the van. Officer Farmer recognized the man in the video as the one he pursued, as he was wearing a grey sweatshirt and had dreadlocks. Despite Officer Farmer's initial belief that the fleeing suspect was wearing a red hat with the letter "A" on it, the surveillance video depicted a man in a dark New York Yankees hat with a red bill.
While Defendant's fingerprints were not present at the scene, Mr. Hamilton's fingerprints were found in the van and on some of the stolen property. Detective Bell learned through a police database that Defendant was a known associate of Mr. Hamilton. Detective Bell then acquired a photograph of Defendant and noted that it looked very similar to the man Officer Farmer had identified in the surveillance video. Later, another officer showed the photo as part of a photo lineup to Officer Farmer, who once again identified Defendant as the person he saw that day.
Without objection, Officer Farmer identified Defendant on direct examination as the suspect who fled. Officer Farmer testified over objection on direct regarding the identification of Defendant from the photo lineup. Officer Farmer also testified during cross-examination about his prior identification of Defendant from the surveillance video. Detective Bell testified on direct regarding the same.
Near the close of the State's evidence, the trial court dismissed the charges of larceny of a motor vehicle, felonious breaking and entering, conspiracy to commit breaking and entering, and larceny after breaking and entering. Defendant did not testify. The jury returned guilty verdicts on the remaining charges of possession of a stolen motor vehicle and felonious possession of stolen goods. The trial court entered a suspended sentence of 5-6 months, and placed Defendant on supervised probation for 36 months. Defendant gave oral notice of appeal in open court.
II. Jurisdiction & Standard of Review
As Defendant appeals from the final judgment of a Superior Court, we have jurisdiction over his appeal of right. See N.C. Gen. Stat. § 7A-27(b) (2011).
"The standard of review for alleged violations of constitutional rights is de novo." State v. Graham, 200 N.C. App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); see also Piedmont Triad Reg'l Water Auth. v. Sumner Hills Inc., 353 N.C. 343, 348, 543 S.E.2d 844, 848 (2001) ("[D]e novo review is ordinarily appropriate in cases where constitutional rights are implicated.").
III. Analysis
A. Identifications of Defendant
Defendant argues that the trial court erred in admitting: (1) Officer Farmer and Detective Bell's testimony concerning Officer Farmer's identification of Defendant from the surveillance video, (2) Officer Farmer's testimony concerning his identification of Defendant from the photo lineup, and (3) Officer Farmer's in-court identification of Defendant. Defendant contends these identifications were the product of impermissibly suggestive identification procedures in violation of his right to due process. We disagree.
1. Surveillance Video Identification
At the outset, we note it was Defendant who first elicited testimony from Officer Farmer regarding his surveillance video identification. Defendant made no effort to strike this testimony. We have recognized that "[s]tatements elicited by a defendant on cross-examination are, even if error, invited error, by which a defendant cannot be prejudiced as a matter of law." See State v. Carter, __ N.C. App. __, __, 707 S.E.2d 700, 707-08 (2011) (quotation marks and citation omitted). "Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review." State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001). Accordingly, Defendant has waived his right to have this Court review the introduction of testimony concerning the surveillance video identification.
2. Photo Lineup Identification
Defendant next argues the trial court should have excluded Officer Farmer's testimony concerning his identification of Defendant from the photo lineup. Defendant contends Officer Farmer's photo lineup identification was tainted by the previous showup, and thus testimony concerning the photo lineup should have been excluded. We disagree.
When "lineup and confrontation procedures [are] so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification [they] violate due process and are constitutionally unacceptable." State v. Smith, 278 N.C. 476, 481, 180 S.E.2d 7, 11 (1971) (citation and quotation marks omitted). "In determining the admissibility of pre-trial identifications, the court first must determine whether the identification procedures were unnecessarily suggestive. If [so], the court then considers whether they have created a likelihood of irreparable misidentification." State v. Richardson, 328 N.C. 505, 510, 402 S.E.2d 401, 404 (1991) (quotation marks and citations omitted). "This depends upon whether under the totality of circumstances surrounding the crime itself the identification possesses sufficient aspects of reliability." Id. (quotation marks and citations omitted).
We consider several factors in evaluating the reliability of an identification, including:
(1) the opportunity of the witness to view the criminal at the time of the crime; (2)State v. Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983).
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.
Here, Officer Farmer testified that his identification of Defendant in the photo lineup was based on his "independent recollection," and that he was "100 percent sure" the individual he picked out of the photo lineup was the person he saw that day. The evidence presented showed that Officer Farmer was able to view the man in the driver's seat twice: once as he drove past the van, and then again before giving chase. When Officer Farmer stopped the man, he was able to look him directly in the face for five to eight seconds, getting a "good look at his face and . . . mouth." In addition, less than a week had passed when the photo lineup was conducted. Thus, the image of the man in the driver's seat was presumably still fresh in Officer Farmer's mind when he made the identification.
Moreover, Officer Farmer, as a trained police officer responding to a disturbance, likely gave full attention to the identification of the man he saw. The United States Supreme Court has recognized that law enforcement officers are specially trained and can "be expected to pay scrupulous attention to detail" as they are aware that their identifications will "be subject later to close scrutiny and examination at any trial." See Manson v. Brathwaite, 432 U.S. 98, 115 (1977). Officer Farmer was not a casual observer. One can assume that when he was able to stare into the face of Defendant he did so with the understanding that he would likely need to identify him at a later date, and therefore made an effort to pick up details for future recognition an ordinary observer would not.
In sum, Officer Farmer: (1) had a sufficient opportunity to view Defendant on 29 February 2010, (2) likely paid a high degree of attention to the encounter, (3) expressed a high level of certainty in his identification, and (4) identified Defendant at the photo lineup a short time after first seeing him. Officer Farmer also testified that he was told by the officer conducting the photo lineup that the suspect "may or may not [have] be[en] in the lineup" and that he "didn't feel like [he] had to make an identification." Thus, we find nothing in the record suggesting the photo lineup was "impermissibly suggestive" or that it "created a substantial likelihood of irreparable misidentification." State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002). Therefore, the trial court did not err in admitting Officer Farmer's testimony about the photo lineup.
3. In-Court Identification
"Since the out-of-court identification was admissible, there is no danger it impermissibly tainted the in-court identification." State v. Lawson, 159 N.C. App. 534, 539, 583 S.E.2d 354, 358 (2003). Accordingly, the trial court did not err in admitting Officer Farmer's in-court identification of Defendant as the man in the driver's seat.
B. Ineffective Assistance of Counsel
Defendant additionally contends that he received ineffective assistance from his trial counsel. We dismiss this argument without prejudice to the right of Defendant to file a motion for appropriate relief in the trial court.
"In general, claims of ineffective assistance of counsel should be considered through motions for appropriate relief and not on direct appeal." State v. Stroud, 147 N.C. App. 549, 553, 557 S.E.2d 544, 547 (2001). "Our Supreme Court has instructed that should the reviewing court determine the [ineffective assistance of counsel] claims have been prematurely asserted on direct appeal, it shall dismiss those claims without prejudice to the defendant's rights to reassert them during a subsequent MAR proceeding." Id. at 554, 557 S.E.2d at 547 (quotation marks and citation omitted).
In the instant case, the record does not disclose whether the actions of trial counsel, which Defendant contends deprived him of an effective defense, were part of a broader trial strategy. We therefore dismiss this claim without prejudice to the right of Defendant to file a motion for appropriate relief at a later date.
IV. Conclusion
For the foregoing reasons, we find
NO ERROR.
Judges HUNTER, Robert C. and CALABRIA concur.
Report per Rule 30(e).