690 S.E.2d 558
No. COA09-766.North Carolina Court of Appeals.
Filed January 19, 2010.
Mecklenburg County Nos. 07 CRS 228052-54, 07 CRS 228808.
Appeal by Defendant from judgments entered 11 March 2009 by Judge W. Robert Bell in Superior Court, Mecklenburg County. Heard in the Court of Appeals 30 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General Jason T. Campbell, for the State.
William D. Auman for Defendant-Appellant.
McGEE, Judge.
Michael Morgan (Defendant) appeals from judgments entered after a jury found him guilty of robbery with a dangerous weapon, felony fleeing to elude arrest, resisting a public officer, and possession of cocaine. Defendant contends that the trial court erred when it denied his pretrial motion to suppress “show-up” identifications and when it denied his motion to dismiss the robbery charge. We find no error.
The Mecklenburg County grand jury returned indictments against Defendant on 9 July 2007 for robbery with a dangerous weapon, conspiracy to commit robbery with a dangerous weapon, resisting a public officer, and felonious speeding to elude arrest. The grand jury returned an indictment for possession with intent to sell or deliver a controlled substance on 11 February 2008. On 27 August 2008, Defendant filed a pretrial motion to suppress the show-up identifications obtained by police on 21 June 2007. Defendant contended that the identification procedure was so suggestive as to render the identifications unreliable.
The evidence at the suppression hearing showed that at about 7:30 p.m. on 20 June 2007, Timothy Roberts and Steven Elliott drove a friend’s car to a gas station to buy cigarettes. As they were returning to the car, two African American men approached them and demanded the car keys. One of the men then struck Mr. Elliott on the head with a gun and took the keys. It was still daylight when the robbery occurred, and the victims were able to see the two men clearly. The man with the gun had dreadlocks and was wearing a dark shirt. When police arrived a short time later, the victims described the robbers and the car.
Patrol officers apprehended three suspects in the stolen car at about 11:30 p.m., and detectives decided to have the victims participate in a “show-up” identification at the police station. Detectives instructed the victims that the person they were to identify “may not necessarily be the person in the case or the person who did the robbery.” Detectives did not tell the victims that the person they were identifying had been caught in the stolen car. The victims arrived at the police department shortly after 1:00 a.m., and they were shown the three suspects individually.
Each victim separately identified Defendant as the gunman.
On 11 March 2009, the trial court filed a written order dated 9 March 2009, denying Defendant’s motion to suppress the identifications by the victims. The trial court made numerous findings of fact, including:
7. Both Elliot[t] and Roberts were in close proximity to the two black males for approximately one minute. Elliot[t] was very focused on the gunman because he had never been approached by someone brandishing a gun in a threatening manner. Roberts directed most of his attention to the man with the gun during the robbery.
8. Both Elliot[t] and Roberts had ample opportunity to observe Defendant at the time of the robbery, because their focus was on him since he was the one with the gun. Their view of him was unrestricted. They both described Defendant accurately, albeit briefly. They both were certain that the man they identified at the show-up was the man wielding the gun during the robbery, and the period of time between the robbery and the identification was not so long as to cause forgetfulness or a diminution of memory.
[. . .] 22. Eliot[t] and Roberts each identified Defendant as being the gunman with great certainty, independent of one another, approximately six hours after the armed robbery.
[. . .] 24. Each made an in-court identification of Defendant as being the gunman in the June 20, 2007, armed robbery without hesitation and with great certainty approximately 20 months after the incident.
Based on its findings of fact, the trial court concluded that the victims had ample opportunity to observe Defendant at the time of the robbery, were certain of their identifications, and that the time period that passed before the victims made their identifications was not so long as to cause a diminution of memory. Given the totality of the circumstances, the trial court concluded that the identification procedure was not impermissibly suggestive, and “there was not a substantial likelihood of irreparable misidentification.” (emphasis in original).
The evidence at trial was substantially the same as at the suppression hearing. In addition, Officer J.M. Selph testified that Defendant was driving the stolen car when officers initially attempted to apprehend him, and he failed to stop when they activated their blue lights. As officers pursued Defendant, he exceeded 110 miles per hour. After Defendant failed to stop at two red lights, officers used “stop sticks” to puncture the tires and stop the car. Defendant attempted to run away, and officers detained him. Defendant is African American, had dreadlocks, and generally matched the description provided by the victims. After officers arrested Defendant, they searched him and found 1.8 grams of crack cocaine in his sock.
The jury found Defendant guilty of robbery with a dangerous weapon, possession of cocaine, fleeing to elude arrest with a motor vehicle, and resisting a public officer. The trial court imposed a term of 96 months to 125 months in prison for the robbery conviction. The trial court then consolidated the remaining convictions into a term of 10 months to 12 months in prison, suspended that sentence, and imposed 36 months of supervised probation. Defendant appeals.
We first address Defendant’s contention that the trial court erred when it denied his motion to suppress the show-up identifications. We disagree.
Although show-ups “have been criticized as an identification procedure[,]” they “are not per se violative of a defendant’s due process rights.” State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982). “Whether an identification procedure is unduly suggestive depends on the totality of the circumstances. . . . A due process analysis requires a two-part inquiry.” State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002) (citations omitted) cert. denied, 360 N.C. 294, 629 S.E.2d 283 (2006). “First, 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, 152 L. Ed. 2d 230 (2002). If so, “the Court must then determine whether the [suggestive] procedures created a substantial likelihood of irreparable misidentification.” Id.
“`[R]eliability is the linchpin in determining the admissibility of identification testimony. . . . The factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.'”
Turner, 305 N.C. at 364-65, 289 S.E.2d at 373-74
(quoting Manson v. Brathwaite, 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154 (1977)).
“On a motion to suppress evidence, the trial court’s findings of fact are conclusive on appeal if supported by competent evidence.” State v. Campbell, 359 N.C. 644, 661, 617 S.E.2d 1, 12 (2005) (citations omitted). In the case before us, we conclude that the trial court’s relevant findings of fact are supported by the victims’ testimony. “Therefore, the scope of our inquiry is limited to the superior court’s conclusions of law, which `are fully reviewable on appeal.'” State v. Sinapi, 359 N.C. 394, 398, 610 S.E.2d 362, 365 (2005) (quoting State v. Smith, 346 N.C. 794, 797, 488 S.E.2d 210, 212 (1997)). In relevant part, the trial court concluded:
5. Under the totality of the circumstances, the show-up identification procedure utilized by the detectives, while suggestive, was not impermissibly so and the [c]ourt finds that there was not a substantial likelihood of irreparable misidentification.
. . .
7. Even assuming arguendo that the show-up was impermissibly suggestive to the extent that there was a substantial likelihood of irreparable misidentification, the in-court identification of Defendant by Elliot[t] and Roberts was independent of the pretrial procedure and based on sufficient competent evidence.
The trial court’s conclusions of law are supported by its findings of fact, and specifically address the relevant legal considerations in light of the evidence presented at the suppression hearing. Accordingly, we hold that the trial court did not err by denying Defendant’s motion to suppress the victims’ show-up identifications.
Defendant’s other argument, related to his first, is that the trial court erred when it denied his motion to dismiss the robbery charge, based on his contention that identifications were inadmissible. Because we conclude that Defendant’s argument regarding the show-up identifications lacks merit, his contingent argument concerning the sufficiency of the evidence is similarly unpersuasive. Accordingly, we find no error.
No error.
Judges GEER and HUNTER, JR. concur.
Reported per Rule 30(e).