Opinion
No. COA10-683
Filed 18 January 2011 This case not for publication
Appeal by defendant from judgments entered 6 August 2009 by Judge J. Gentry Caudill in Mecklenburg County Superior Court. Heard in the Court of Appeals 17 November 2010.
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State. Glenn, Mills, Fisher Mahoney, P.A., by Carlos E. Mahoney, for defendant-appellant.
Mecklenburg County Nos. 08 CRS 215540-43.
Roman Wiloth Vasquez-Guardo ("defendant") appeals judgments entered upon jury verdicts finding him guilty of three counts of robbery with a firearm. We find no error.
I. BACKGROUND
At 5:30 p.m. on 30 March 2008, Wanda Boone ("Boone") was working at the front desk of the OP Business Center ("the center"), an internet poker parlor on Old Pineville Road in Charlotte, North Carolina. Two Hispanic men ("the two men") in their late twenties entered the center. The taller man, later identified as defendant, wore a red shirt with blue jeans. Defendant approached Boone and asked her about payout amounts.
Boone looked down to complete a form required for defendant to play internet poker. When Boone looked up at defendant, he was holding a gun in her face. Boone was located approximately one to two feet away from defendant and had a clear, unobstructed view of him. Therefore, she was able to get a "good look" at his face. Defendant told Boone to get on the ground and give him money. Boone got up on her knees and gave defendant at least $1,500.00 in currency.
Defendant then waved the gun and told the customers in the center to get on the floor. While defendant took the money from Boone, the other Hispanic man ("the accomplice") brandished a knife and demanded money, wallets, jewelry, cell phones, and car keys from the customers. In addition to these items taken from the customers, the accomplice also took a Masonic ring and a remote control for a vehicle from Jerome Williams ("Williams"). Boone watched and paid attention to defendant and the accomplice the entire time they robbed the customers. The robbery lasted approximately ten minutes.
As the two men fled the center, the accomplice dropped the knife. Williams exited the center to retrieve a pistol located in his vehicle. However, he was unable to open his vehicle because the two men took his car keys and remote control. Since he was locked out of his vehicle, he stood behind his vehicle and observed the two men exit the center's parking lot in a red Hyundai automobile with a large tailpipe ("the Hyundai"). Williams observed the Hyundai turn right onto Old Pineville Road.
Boone called 911 to report the robbery. She and the customers described the two men and the Hyundai. Officer M.B. Carter ("Officer Carter") of the Charlotte-Mecklenburg Police Department ("CMPD") was on patrol in the area and was informed that the robbers were driving a red or burgundy Hyundai Accent, with tinted windows and a distinctive tailpipe. Officer Carter was also given a description of the clothing the two Hispanic males were wearing. One wore a red shirt and was armed with a gun, and a second man wore a gray shirt.
Officer Carter proceeded on Old Pineville Road searching parking lots, streets, and neighborhoods for the two men and the Hyundai. One block past the intersection of Old Pineville Road and Archdale Road, Officer Carter turned right into the Lake Mist Apartments. Approximately halfway into the apartment complex, Officer Carter observed two men standing by a car. Both the men and the vehicle fit the descriptions Officer Carter was given. Officer Carter observed the two men "clapping, high-fiving, celebrating," and "enjoying whatever [] they were talking about."
Officer Carter rolled down the window of his patrol vehicle to get a "good look" at the two men. After Officer Carter spoke to one of the two men, he noticed a change in their demeanor. The two men stopped celebrating and "continued to stare" at Officer Carter. Subsequently, Officer Carter stopped, exited his vehicle, and approached the two men. When other officers from the CMPD arrived, they frisked the two men and searched the vehicle.
Officers searched defendant's front pocket and found $1,046.00 in currency along with a Masonic ring. The ring matched the description of the ring taken from Williams. When the officers searched the vehicle, they found a gun under the driver's side floor mat, $167.00 in currency, jewelry, a cell phone, a car key, and a remote control.
Since some of the items appeared to match the description of those taken from Williams, officers summoned Williams to the apartment complex for a show-up identification. Williams was asked if the two men were the same men who robbed the center. Williams recognized the Hyundai as the same vehicle that was parked in the center's parking lot but was unable to identify the two men.
At 6:45 p.m., officers brought the two men to CMPD headquarters. At 9:45 p.m., officers summoned Boone to the headquarters for a show-up identification. Boone understood that officers found and returned some of the items that were taken from customers at the center and that the officers thought they may have apprehended the two robbers. However, the officers did not tell her that they "definitely" thought they had arrested the two robbers.
During the show-up identification, Boone was in an unlit room with a window looking onto a well-lit hallway. Officers escorted both men into the hallway. First, the defendant was presented; then the second man followed. Boone could see the men but they could not see her. Detective P.J. Wilson ("Detective Wilson") of the CMPD asked Boone if the two men were the same two men she had seen at the center earlier in the day. When Boone saw defendant, she immediately said, "That is him," and "That is the one who had the gun."
Defendant was charged and indicted on three counts of armed robbery with a dangerous weapon and one count of conspiracy to commit armed robbery with a dangerous weapon. Before trial, defendant moved to suppress the show-up identification and any in-court identification of defendant. During a voir dire hearing, Boone and one of the customers at the center testified about their opportunity to observe the two men during the robbery. Although the customer at the center was unable to identify the two men, Boone testified that defendant and the second man were the men who robbed the center on 30 March 2008.
Following voir dire, the trial court found that the show-up identification was "especially suggestive" and "improper," and granted defendant's motion, in part, suppressing Boone's pretrial show-up identification of defendant. However, the trial court denied defendant's motion, in part, and allowed Boone's in-court identification of defendant, finding that it had "an independent origin and [was] not the subject of an invalid procedure. . . ."
Defendant's case was heard before the 3 August 2009 criminal session of Mecklenburg County Superior Court. After Boone testified on direct and cross-examination, the trial court revisited its order granting defendant's motion to suppress the pretrial show-up identification. The trial court issued a revised ruling, concluding that "[w]ithout evidence of the pretrial identification[] of the defendant[] by [Boone], the jury would be left with the impression that those who saw the Defendant[] shortly after the robbery were not able to identify [him], and that the only witness who can identify [him] did not see or identify [him] until she saw [him] sitting at the defense table at trial." The trial court then allowed Boone to testify about her pretrial show-up identification of defendant.
On 6 August 2009, the jury returned verdicts finding defendant guilty of all charges. On each of the three armed robbery charges, the trial court sentenced defendant to a minimum term of 77 months to a maximum term of 102 months, to be served in the custody of the North Carolina Department of Correction. The trial court ordered the sentences to be served consecutively and arrested judgment on the conspiracy conviction since the co-defendant was found not guilty. Defendant appeals.
II. EYEWITNESS IDENTIFICATION REFORM ACT
Defendant argues that the trial court erred in denying his motion to suppress the pretrial show-up identification by Boone. We disagree.
As an initial matter, we note that the trial court initially granted defendant's motion, concluding "that the [show-up] procedure was especially suggestive" and "improper." The court subsequently issued an amended order permitting the State to offer Boone's show-up identification because "the primary evil to be avoided as to show-up identifications, the substantial likelihood of misidentification, is not present in [this] case. . . ." However, the portion of the court's prior order regarding evidence of the pretrial identifications made by another witness remained in effect. Since neither defendant nor the State contests this portion of the trial court's order on appeal, we do not address it.
Even though defendant objected to Boone's testimony regarding the pretrial show-up identification, he failed to object to Detective Wilson's testimony regarding Boone's pretrial show-up. The general rule is that "a pretrial motion to suppress is not sufficient to preserve for appellate review the issue of admissibility of evidence." State v. Williams, 355 N.C. 501, 547, 565 S.E.2d 609, 636 (2002).
Defendant contends that pursuant to N.C. Gen. Stat. § 15A-1446(d)(10) (2008), he did not need to renew his objection at the time of Detective Wilson's testimony. Appellate review is preserved in the absence of a renewed objection as to the "[s]ubsequent admission of evidence involving a specified line of questioning when there has been an improperly overruled objection to the admission of evidence involving that line of questioning." N.C. Gen. Stat. § 15A-1446(d)(10).
The State argues that defendant is only entitled to plain error review since his pretrial motion to suppress was not sufficient to preserve for appeal the question of the admissibility of the pretrial show-up identification. Defendant failed to object to the pretrial show-up identification at the time it was offered into evidence at trial through Detective Wilson's testimony. We agree with the State. A sole objection to a single line of questioning of one instance, at trial, is insufficient to preserve the entire line of questioning for appellate review if the same evidence is "'admitted on a number of occasions throughout the trial.'" State v. Graham, 186 N.C. App. 182, 189-90, 650 S.E.2d 639, 645 (2007) (quoting State v. Brooks, 72 N.C. App. 254, 258, 324 S.E.2d 854, 857 (1985)).
In the instant case, the trial court overruled defendant's objection to Boone's testimony regarding the pretrial show-up. When the same evidence was subsequently offered by the State, at trial, during Detective Wilson's testimony, defendant failed to object. Since Detective Wilson's testimony was the same evidence that was admitted on more than one occasion during trial, defendant's sole objection during Boone's testimony was not sufficient to preserve the entire line of questioning regarding the pretrial show-up for appellate review.
Defendant asks this Court, in the alternative, to review for plain error. State v. Odom, 307 N.C. 655, 656, 300 S.E.2d 375, 376 (1983). "[P]lain error analysis applies only to jury instructions and evidentiary matters. . . ." State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002). "Under plain error review, 'the appellate court must be convinced that absent the error the jury probably would have reached a different verdict.'" State v. Doe, 190 N.C. App. 723, 732, 661 S.E.2d 272, 278 (2008) (citations omitted). However, "[a] prerequisite to our engaging in a 'plain error' analysis is the determination that the [trial court's action] constitutes 'error' at all." State v. Bethea, 173 N.C. App. 43, 51, 617 S.E.2d 687, 693 (2005) (internal quotation and citations omitted).
This Court has recently held that the Eyewitness Identification Reform Act, N.C. Gen. Stat. § 15A-284.50-53 (2008) ("the Act"), "does not apply to showups because the procedure of a live lineup is inherently inconsistent with the definition of a showup. State v. Rawls, ___ N.C. App. ___, ___, 700 S.E.2d 112, 116-17 (2010).
Moreover, if we were to accept defendant's argument that the [Act] applies to showups, showups would effectively be eliminated. Our Supreme Court has previously concluded that a statute should not be construed in a way that would eliminate showups in the absence of an express statement by the legislature of its intent to do so.
Id. at ___, 700 S.E.2d at 117. "We must presume that the General Assembly . . . knew that it needed to specifically reference showups in the [Act] if it intended them to be covered by [the Act]. Yet, it did not do so." Id. at ___, 700 S.E.2d at 118.
Defendant contends that our holding in Rawls should not apply to the show-up identification in the instant case. We disagree. "'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.'" State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 133-34 (2004) (quoting In re Appeal from Civil Penalty Assessed for Violations of Sedimentation Pollution Control Act, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989)). Therefore, we are bound by our holding in Rawls.
In the instant case, the trial court correctly concluded that the Act did not apply to show-up identifications. Therefore, the trial court did not err, much less commit plain error, in denying defendant's motion to suppress Boone's pretrial show-up identification. Defendant's assignments of error are overruled.
III. IN-COURT IDENTIFICATION
Defendant argues that the trial court erred in denying his motion to suppress Boone's in-court identification. More specifically, defendant argues that the trial court committed plain error by failing to issue any findings of fact to support the admission of Boone's in-court identification. We disagree.
Identification evidence must be suppressed on due process grounds only whenever, under all the circumstances of the case, the pretrial identification procedure was so impermissibly suggestive as to create a very substantial likelihood of irreparable misidentification. E.g., State v. Wilson, 313 N.C. 516, 528-29, 330 S.E.2d 450, 459 (1985). Even when a pretrial procedure is impermissibly suggestive, an in-court identification is admissible if found to be of independent origin and, thus, not tainted by the previous invalid procedure. E.g., State v. Clark, 301 N.C. 176, 183, 270 S.E.2d 425, 429 (1980).
State v. Dunston, 90 N.C. App. 622, 626, 369 S.E.2d 636, 639 (1988).
Whether an identification procedure is unduly suggestive depends on the totality of the circumstances. State v. Pigott, 320 N.C. 96, 99, 357 S.E.2d 631, 633 (1987). A due process analysis requires a two-part inquiry. State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001), cert. denied, ___ U.S. ___, 152 L. Ed. 2d 230 (2002). "First, the Court must determine whether the identification procedures were impermissibly suggestive." Id. If so, "the Court must then determine whether the [suggestive] procedures created a substantial likelihood of irreparable misidentification." Id. In determining whether identification procedures are impermissibly suggestive, courts have considered such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification. Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154 (1977).
State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002). Where there is no material conflict in the evidence on voir dire, it is not error to admit challenged evidence without making specific findings of fact. State v. Phillips, 300 N.C. 678, 685, 268 S.E.2d 452, 457 (1980).
In the instant case, uncontradicted evidence on voir dire shows that: (1) when Boone first looked at defendant from her desk, he pointed a gun in her face; (2) Boone was approximately one to two feet away from defendant during the robbery; (3) she had a clear, unobstructed view of his face for ten minutes in well-lit conditions; (4) she paid careful attention as she got on her knees and gave defendant the money; and (5) she described defendant's approximate age, clothing, ethnicity, and height. On voir dire, Boone testified that she based her identification on her "recollection of what had just happened earlier that day."
Furthermore, uncontradicted evidence on voir dire shows that during the show-up, officers did not pressure Boone to identify a suspect or suggest that she should or should not make any particular selection. During the State's examination on voir dire, Boone testified as follows:
Q: Did any police officer in any way tell you that you had to make a selection?
A: No.
Q: Did they suggest to you in any way that these were the exact people who had robbed the OP Business Center?
A: No.
Q: Did any of the police officers tell you for certain that these are the people that robbed the OP Business Center?
A: Not for certain. They didn't know exactly. They asked me who I thought robbed the business.
. . .
Q: Did the police in any way tell you that you had to make an identification of the second individual who was shown to you?
A: No.
Q: Did they tell you that that was the person who had robbed the OP Business Center a couple of hours ago?
A: They didn't know for sure. They just said that these were the ones that may have robbed it.
During cross-examination by defendant's counsel on voir dire, Boone testified as follows:
Q: Do you remember whether the police gave you any particular sets of instructions before they brought these men out?
A: Just if I thought it was the same individuals and to identify them. If I was not sure, then don't identify them to be the ones.
In addition, when the officers escorted the two men down a well-lit hallway for Boone to identify behind a one-way glass, each man was separately escorted.
This evidence satisfies the factors our Supreme Court adopted in Rogers for assessing whether there was a "substantial likelihood of irreparable misidentification." Rogers, 355 N.C. at 432, 562 S.E.2d at 868 (internal quotation and citation omitted). Since there was no material conflict in the evidence, the trial court was not required to make specific findings of fact regarding Boone's in-court identification testimony. Therefore, the trial court did not err, much less commit plain error, in admitting Boone's in-court identification testimony. Defendant's assignment of error is overruled.
IV. JURY INSTRUCTIONS
Defendant argues that the trial court committed plain error by failing to give an instruction to the jury that it could consider the State's compliance or non-compliance with the requirements in the Act to determine the reliability of the pretrial show-up identification as mandated by N.C. Gen. Stat. § 15A-284.52(d)(3). We disagree.
The Act states, in pertinent part, "[w]hen evidence of compliance or noncompliance with the requirements of this section has been presented at trial, the jury shall be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications." N.C. Gen. Stat. § 15A-284.52 (d)(3) (2008). Plain error applies to jury instructions in criminal cases. Wiley, 355 N.C. at 615, 565 S.E.2d at 39-40. However, before this Court considers whether the trial court committed plain error, we must first consider whether there was error at all. Bethea, 173 N.C. App. at 51, 617 S.E.2d at 693.
The Act does not apply to show-up identifications. Rawls, ___ N.C. App. at ___, 700 S.E.2d at 116-17. Therefore, it was not error, much less plain error, for the trial court to refuse to give the jury an instruction based on the Act. The trial court properly refused to give the jury an instruction based on the Act, and defendant's assignment of error is overruled.
V. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant's final argument is that he received ineffective assistance of counsel at trial because his trial counsel failed to request a jury instruction based on the Act. We disagree.
"To prevail on an ineffective assistance of counsel claim, a defendant must show that (1) defense counsel's 'performance was deficient,' and (2) 'the deficient performance prejudiced the defense.'" State v. Wilkerson, 363 N.C. 382, 413, 683 S.E.2d 174, 193 (2009) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). "Counsel's performance is defective when it falls 'below an objective standard of reasonableness.'" Id. (quoting Strickland, 466 U.S. at 688, 80 L. Ed. 2d at 693). "A defendant is prejudiced by deficient performance when there is 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (quoting Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698).
Since the Act does not apply to show-up identifications, Rawls, ___ N.C. App. at ___, 700 S.E.2d at 116-17, defendant's trial counsel did not commit an "unprofessional error" nor was his performance defective by failing to ask the trial court for a jury instruction based on the Act. Therefore, defendant cannot show that but for counsel's failure to ask for an instruction based on the Act, the result of his trial would have been different. Defendant's assignment of error is overruled.
VI. CONCLUSION
Assignments of error not argued in defendant's brief are abandoned. N.C.R. App. P. 28(b)(6) (2008). Defendant received a fair trial, free from error.
No error.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).