Opinion
No. COA12–689.
2013-02-5
STATE of North Carolina v. Jarrod WILLIS, Defendant.
Roy Cooper, Attorney General, by Brandon L. Truman, Assistant Attorney General, and David Boone, Special Deputy Attorney General, for the State. Duncan B. McCormick, for defendant-appellant.
Appeal by defendant from judgments entered 26 October 2011 by Judge Timothy S. Kincaid in Mecklenburg County Superior Court. Heard in the Court of Appeals 10 December 2012. Roy Cooper, Attorney General, by Brandon L. Truman, Assistant Attorney General, and David Boone, Special Deputy Attorney General, for the State. Duncan B. McCormick, for defendant-appellant.
MARTIN, Chief Judge.
Defendant Jarrod Willis appeals from judgments entered upon jury verdicts finding him guilty of first-degree rape, first-degree sexual offense, first-degree kidnapping, and robbery with a dangerous weapon. After careful review, we find no prejudicial error in the trial court's denial of defendant's motion to suppress his in-court identification by the victim. We arrest judgment on defendant's conviction for first-degree kidnapping under No. 10 CRS 204074, and remand this matter to the trial court with instructions to enter judgment against defendant for second-degree kidnapping, and to resentence him for second-degree kidnapping.
The evidence presented at the hearing on defendant's motion to suppress, and at trial, tended to show that just before 11:00 p.m. on 12 March 2009, Jane, a woman in her early thirties, was walking home from a neighborhood convenience store in Charlotte, North Carolina, and listening to her headphones when she noticed a man in a car beside her who appeared to be saying something to her. Because she thought the man was asking for directions, she took her headphones out of her ears, walked up to the car, bent over towards the half-opened driver's side window, and asked the man what he said. When Jane was about six inches away from the window, the man “showed [her] a gun” and said, “[G]et in the car bitch.” Although Jane “thought about running for like a half a second,” she was “just too scared” to attempt an escape, so she walked in front of the vehicle and entered the front passenger's side door.
We refer to the victim of the offenses by the pseudonym “Jane.”
Once Jane was in the vehicle, the man drove around the neighborhood for about five to ten minutes, then backed the car into the driveway of a darkened house located across the street from a house that was illuminated only by a porch light. After the car was stopped, the man said, “Bitch, suck my dick,” and pushed Jane's head down into his lap “for [her] to give him oral sex.” After some time passed, the man said, “[T]his isn't working,” and told Jane to take off her clothes. As Jane took off her right shoe and started to push her jeans and underwear off of her right leg, the man told her to “turn over.” While Jane was on her knees in the front seat of the vehicle with a gun pressed into her lower back, the man engaged in vaginal intercourse with her for about five minutes until he ejaculated inside of her. He then told Jane to put on her clothes. As she started to pull up her pants and fumbled to open the car door, the man put a gun to her head and told her to give him her money. Although she told him she did not have any money, he said, “[A]ll you white bitches got money, I know you got money,” and proceeded to search her pockets, where he found and took thirty-six dollars and some change. The man then leaned across Jane, opened the passenger's side door, pushed Jane out of the moving car, and drove away. After walking to the end of the street, Jane realized she was just a few blocks from her home. When she arrived home, she called the police. Shortly thereafter, Jane was taken to the hospital, where she underwent an eight- or nine-hour examination, which included the collection of a sexual assault evidence kit.
In a statement taken by an officer with the Charlotte–Mecklenburg Police Department, Jane described the man who perpetrated the offenses against her as “a black male about 30 years old, dark skinned, with long skinny dreads[, who] was wearing black pants, a t-shirt, and [a] royal blue baseball cap.” About four days later, Jane was interviewed by another officer and again described the man as “a black male,” who “was dark, ... had long, skinny dreads that went like ... about to his chest,” and who “wasn't really fat or skinny[, but] ... was just like a medium sized.” She also said that she thought “he had just like a real little tiny mustache,” but did not have any physical “oddities”—e.g., no tattoos and no gold or crooked teeth—reporting that “[t]here was nothing really descriptive about him other than his hair.”
Additionally, Jane told police that she would be able to identify the perpetrator if she saw him in a photographic lineup. About one week after the attack, Jane was shown a photographic array of African–American men with dreadlocks. Jane did not identify any of the men in the photos as the perpetrator; defendant's photo was not included in the photographic array. Then, about ten months after the attack, Jane received a phone call from another detective with the Charlotte–Mecklenburg Police Department who told Jane that they found a match to the DNA profile isolated from the evidence collected from her at the hospital. The detective did not arrange for Jane to view a photographic array that included defendant's photo to see whether Jane would identify defendant as the perpetrator of the offenses against her, but instead gave Jane defendant's name and told her that defendant was the person who matched the DNA profile. Jane then visited the Mecklenburg County Sheriff's Office website to search for defendant's name, although the detective neither advised Jane to do so, nor told Jane that it was possible to view defendant's picture on the website. According to Jane, when she looked at defendant's photograph on the website, she “said in [her] head that's him,” and said she “just knew,” without hesitation, that defendant was the same man who had sexually assaulted her in the car. Jane testified that, although “he looked much scarier in the photo,” she immediately recognized defendant as the perpetrator of the offenses against her.
Defendant was indicted for the offenses of first-degree rape in violation of N.C.G.S. § 14–27.2, first-degree sexual offense in violation of N.C.G.S. § 14–27.4, first-degree kidnapping in violation of N.C.G.S. § 14–39, and robbery with a dangerous weapon in violation of N.C.G.S. § 14–87. Defendant filed a pretrial motion to suppress any in-court identification by Jane of defendant as the perpetrator, on the grounds that Jane's pretrial identification was “tainted” and, thus, would make any subsequent in-court identification by her “unduly suggestive and overly prejudicial.” After hearing evidence, the trial court found facts, concluded that Jane's in-court identification was admissible in evidence, and denied defendant's motion to suppress.
After a trial, defendant was found guilty by a jury of all charged offenses, and was sentenced to four consecutive terms of imprisonment, consisting of terms of 384 months to 470 months imprisonment for first-degree rape and first-degree sexual offense, respectively, a term of 133 months to 169 months imprisonment for first-degree kidnapping, and a term of 117 months to 150 months imprisonment for robbery with a dangerous weapon. Defendant moved to arrest judgment on his first-degree kidnapping conviction, which the trial court denied. Defendant appeals.
_________________________
Defendant first contends the trial court erred by allowing Jane to identify defendant in court as the perpetrator of the offenses against her. Defendant argues that an impermissibly suggestive pretrial identification procedure was the basis for Jane's in-court identification, which was violative of defendant's constitutional right to due process.
The scope of review of “the denial of a motion to suppress is strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law.” State v. Bone, 354 N.C. 1, 7, 550 S.E.2d 482, 486 (2001) (internal quotation marks omitted), cert. denied, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002). To determine whether an identification procedure deprived defendant of his right to due process, “[f]irst, the Court must determine whether the identification procedures were impermissibly suggestive.” State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 698 (2001), cert. denied, 535 U.S. 939, 122 S.Ct. 1322, 152 L.Ed.2d 230 (2002). “[I]f the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood of irreparable misidentification.” Id. Factors to be considered in evaluating “the likelihood of irreparable misidentification” include:
(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. Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 53 L.Ed.2d 140, 154 (1977); Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401, 411 (1972)). “[T]he [C]ourt is to use these factors to determine whether under the totality of the circumstances the identification was reliable,” State v. Wilson, 313 N.C. 516, 529, 330 S.E.2d 450, 460 (1985) (internal quotation marks omitted), and “[a]gainst these factors must be weighed the corrupting effect of the suggestive procedure itself.” State v. Pigott, 320 N.C. 96, 100, 357 S.E.2d 631, 634 (1987) (citing Manson, 432 U.S. at 114, 53 L.Ed.2d at 154). Thus, “[e]ven 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.
In the present case, the trial court found, and defendant does not dispute, that a detective with the Charlotte–Mecklenburg Police Department informed Jane by telephone that the police “had a DNA match” to the evidence collected in her case and told Jane the name of the suspect who matched that DNA profile. Jane then found defendant's photograph on the sheriff's website and positively identified him as the man who perpetrated the attack against her, although she was not directed by police to search for defendant's name on the sheriff's website in order to view his photograph. Neither party has presented argument addressing whether Jane's decision to view defendant's image on the sheriff's website after learning defendant's name from the detective constituted State action, see State v. Fisher, 321 N.C. 19, 24, 361 S.E.2d 551, 554 (1987) (“[S]uggestive pretrial identification procedures that do not result from state action do not violate defendant's due process rights.”), but even if the identification process employed by Jane after being advised of defendant's name by the officer could be said to have resulted from State action, we are not persuaded that such procedure would, standing alone, constitute an impermissibly suggestive identification procedure. Cf. State v. Knight, 282 N.C. 220, 226, 192 S.E.2d 283, 287 (1972) (concluding that a pretrial photographic identification procedure was “impermissibly suggestive since the photographic showing was of only one picture and was accompanied by the statement ‘we've got a man, is this the one’ ”). Accordingly, we will confine our consideration to the issue of whether, under the totality of the circumstances, the events disclosed by the record resulted in a substantial likelihood of irreparable misidentification.
As the court found and the evidence shows, Jane had an opportunity to observe defendant at the time of the crime because there were lights illuminating the street where she first encountered defendant and viewed his face from a distance of only six inches, and because Jane continued to look at defendant's face as she sat beside him for five to ten minutes while he drove her around the neighborhood. Although defendant argues that Jane could not have clearly seen the perpetrator's face because he was “wearing a hat,” Jane only described that he was wearing a baseball cap and did not suggest in her testimony that defendant wore this cap in such a way as to obstruct her view of his face during this fifteen-minute period. Additionally, in the hours and days immediately following the crime, and prior to viewing defendant's photograph on the sheriff's website, Jane gave consistent descriptions of the perpetrator to officers, which descriptions were said to accurately describe defendant, with the exception that defendant is purported to be “light-skinned” while Jane described the perpetrator as “dark-skinned.” Defendant also asserts that, because Jane viewed defendant's photograph almost ten months after the crime, too much time had passed for Jane to be capable of positively identifying defendant as the perpetrator of the offenses against her. Nevertheless, Jane testified that, in spite of the time that had passed, she recognized defendant without hesitation immediately upon viewing his photograph as the man who committed the offenses against her. Therefore, we conclude that the evidence supported the trial court's findings and its findings supported its conclusion that Jane's identification of defendant was reliable under the totality of the circumstances, and that the admission of Jane's in-court identification of defendant as the perpetrator did not violate his right to due process.
However, even assuming arguendo that the trial court had erred by allowing Jane to identify defendant as the perpetrator of the offenses against her, we conclude that such error would be harmless beyond a reasonable doubt. See State v. Autry, 321 N.C. 392, 399–400, 364 S.E.2d 341, 346 (1988) ( “[E]rror committed at trial which infringes upon defendant's constitutional rights is presumed to be prejudicial and entitles him to a new trial unless the error in question is harmless beyond a reasonable doubt.”). Here, the State presented testimony from the Charlotte–Mecklenburg Police Department's DNA analyst who conducted the analysis on vaginal swabs collected from Jane at the hospital shortly after the offenses were committed. The analyst determined that the “major DNA profile” isolated from the sperm cell fraction of the vaginal swabs matched defendant's DNA profile. The analyst further testified that “[t]he probability of selecting an unrelated person at random who could be the source of this DNA profile is approximately 1 in 4.03 quadrillion for Caucasians, 1 in 10.3 quadrillion for African–Americans, and 1 in 800 trillion for Hispanics.” Defendant's counsel challenged the analyst on cross-examination about her decision to exclude from this statistical calculation her finding of an additional allele at two of the sixteen loci tested. Nonetheless, the analyst testified that those two loci are “never used in our statistical calculation,” and that the exclusion of those two “stutters” or allele artifacts—which she said are not uncommon in the process—actually resulted in a statistical assessment that was more favorable to defendant, because the inclusion of those artifacts would have made it more probable that defendant was the major DNA profile contributor, not less. Accordingly, in light of the uncontroverted evidence in the record before us, we conclude that the admission of Jane's in-court identification of defendant as the perpetrator did not violate defendant's due process rights and, assuming error arguendo, any such due process violation was harmless beyond a reasonable doubt. See Fowler, 353 N.C. at 619, 548 S.E.2d at 699.
Defendant next contends, and the State concedes, the trial court erred by denying defendant's motion to arrest judgment on his first-degree kidnapping conviction. Defendant argues that the court could not have imposed consecutive sentences for defendant's first-degree kidnapping and first-degree sexual offense convictions because the same sexual assault served as the basis for both convictions. We agree.
Under N.C.G.S. § 14–39(a), a person is guilty of kidnapping if such person “unlawfully confine[s], restrain[s], or remove[s] from one place to another, any other person 16 years of age or over without the consent of such person, ... if such confinement, restraint or removal is for the purpose of ... [f]acilitating the commission of any felony.” N.C. Gen.Stat. § 14–39(a), (a)(2) (2011). “If the person kidnapped either was not released by the defendant in a safe place or had been seriously injured or sexually assaulted,” a person is guilty of kidnapping in the first degree. N.C. Gen.Stat. § 14–39(b). In comparison, “[i]f the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted,” a person is guilty of kidnapping in the second degree. Id.
In order to guarantee a defendant's constitutional protection against double jeopardy—which keeps a person from receiving multiple punishments for the same offense—“[a] defendant may not be punished for both first-degree kidnapping and sexual assault, where the sexual assault is used to elevate kidnapping to the first degree.” State v. Coats, 100 N.C.App. 455, 459, 397 S.E.2d 512, 515 (1990), appeal dismissed and disc. review denied, 328 N.C. 573, 403 S.E.2d 515 (1991). Instead, where a defendant is “convicted and sentenced for a sexual assault and first-degree kidnapping predicated on the sexual assault,” the trial court must arrest judgment “either on the conviction of sexual assault or on the conviction of first-degree kidnapping.” Id. If a judgment on first-degree kidnapping is arrested, a defendant may be resentenced for second-degree kidnapping, provided that the State proved each of the elements of that crime beyond a reasonable doubt. See id. at 459–60,397 S.E.2d 512, 397 S.E.2d at 515–16.
In the present case, the trial court instructed the jury on the elements of kidnapping set forth in N.C.G.S. § 14–39(a), and instructed that it could find defendant guilty of committing first-degree kidnapping if, in addition to the other necessary elements, it found that defendant had transported Jane “for the purpose of facilitating [defendant's] commission of a sexual offense ” “such as fellatio with [Jane] with force or the threat of force.” (Emphasis added.) Thus, since the court instructed the jury to specifically consider the act underlying defendant's conviction for sexual offense—defendant's sexual assault against Jane consisting of forced fellatio—as the basis for defendant's first-degree kidnapping conviction, we conclude the trial court erroneously subjected this defendant to double jeopardy by denying defendant's motion to arrest judgment on his first-degree kidnapping conviction and imposing consecutive sentences for both sexual offense and kidnapping in the first degree. Nevertheless, the parties agree, and the record reflects, that the State presented sufficient evidence to support a kidnapping conviction against defendant in the second degree. Accordingly, we remand this matter to the trial court with instructions to arrest judgment on defendant's first-degree kidnapping conviction under File No. 10 CRS 204074, and to enter judgment against defendant for second-degree kidnapping and to sentence him for the same.
No prejudicial error in part; judgment arrested on first-degree kidnapping under File No. 10 CRS 204074; remanded for sentencing on second-degree kidnapping. Judges McGEE and ERVIN concur.
Report per Rule 30(e).