State v. Grier
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. NO. COA12-410 NORTH CAROLINA COURT OF APPEALS Filed: 20 November 2012 STATE OF NORTH CAROLINA v. Mecklenburg County No. 10 CRS 234736 KENNETH D. GRIER Appeal by defendant from judgment entered 26 August 2011 by Judge Robert C. Ervin in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 November 2012. Attorney General Roy Cooper, by Assistant Attorney General Patrick S. Wooten, for the State. Ryan McKaig, for defendant-appellant. Calabria, Judge. Kenneth D. Grier ( defendant ) appeals from a judgment entered upon a jury verdict finding him guilty of robbery with a dangerous weapon. We find no error. I. Background On 19 July 2010, Omar Chavez ( Chavez ) was walking through a parking lot near his apartment in Charlotte, North Carolina between 4:00 and 5:00 in the afternoon. Defendant approached -2Chavez, pointed a pistol at him and asked him for money. Chavez gave defendant $12.00 which was all the money he had. Chavez observed defendant s face during the robbery and recognized defendant as someone he had previously seen at the apartment complex. After being robbed, Chavez returned to his apartment and called law enforcement. Chavez described defendant as a black man wearing jeans and an orange shirt. While giving the officers the description, Chavez noticed that defendant was standing on the balcony of a nearby apartment. Chavez informed the officers that the man on the balcony was the man who robbed him. Officers then went to the apartment where Chavez saw defendant standing on the balcony and knocked on the door. Defendant answered the door. The officers detained defendant until Chavez was brought to the door of the apartment to identify defendant as the man who robbed him. Chavez stated that he was 100 percent sure that defendant was the man who robbed him. Chavez also identified defendant in open court at trial. Defendant was taken to the Charlotte-Mecklenburg Department, where he was interviewed. Police Defendant confessed to the robbery, confirming that he pointed a gun at Chavez and that Chavez had given him money. Defendant was arrested and charged -3with robbery with a dangerous weapon ( RWDW ). The returned a verdict finding defendant guilty of RWDW. jury Defendant was sentenced to a minimum of 51 and a maximum of 71 months in the North Carolina Department of Correction. Defendant appeals. II. Show-Up Defendant argues the trial court committed plain error in failing to suppress the victim s identification of him at a show-up. Defendant suggestive. plain claims the show-up was impermissibly Defendant further argues the trial court committed error in failing to suppress the victim s in-court identification of him, because the in-court identification was tainted by the impermissible show-up. We disagree. Identification evidence must be suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification. State v. Powell, 321 N.C. 364, 368, 364 S.E.2d 332, 335, cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60 (1988). identification should have been In determining whether pretrial suppressed, this Court first must determine whether the pretrial identification procedure is impermissibly suggestive. Our Supreme Court has Id. at 368-69, 364 S.E.2d at 335. stated that the test for whether an -4identification procedure was impermissibly suggestive is whether the totality of the circumstances reveals a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice. State v. Stowes, __ N.C. App. __, __, 727 S.E.2d 351, 357 (2012) (citation omitted). If it is determined that the pretrial identification procedure is impermissibly suggestive the court must then determine whether the suggestive procedure gives rise to a substantial likelihood of irreparable misidentification. Factors to be considered in making this determination are (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness degree of attention, (3) the accuracy of the witness prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation. Powell, 321 N.C. at 369, 364 S.E.2d at 335. Because defendant did of not object at trial to the admission the testimony regarding the show-up identification, we review this issue for plain error. State v. Lawrence, ___ N.C. ___, ___, 723 S.E.2d 326, 333 (2012). For an error to be considered plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the -5error had a probable impact on the jury s finding that the defendant was guilty. Moreover, because plain error is to be applied cautiously and only in the exceptional case the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings. Id. at ___, 723 S.E.2d at 334 (citations and quotation marks omitted). In the defendant procedure. instant as case, the who man had Chavez robbed had him already before identified the show-up Defendant cites two cases, State v. Richardson, 328 N.C. 505, 511, 402 S.E.2d 401, 405 (1991), and State v. Oliver, 302 N.C. 28, 44, 274 S.E.2d 183, 194 (1981), where officers told the witnesses they would be viewing a suspect or someone that met their description. In contrast to Richardson and Oliver, here Chavez was the one who pointed out defendant while giving the officers defendant s description. Chavez noticed a man standing on the balcony of a nearby apartment and informed the officers that the man on the balcony was the man who robbed him. That man was defendant. Therefore, since the identification preceded the show-up, we find that the show-up procedure was not impermissibly suggestive. -6Assuming, arguendo, that the show-up was suggestive, the Court determines substantial whether likelihood the of procedure irreparable gives rise to misidentification a by determining if it satisfies the reliability factors the Supreme Court set out in Powell. 321 N.C. at 369, 364 S.E.2d at 335. Defendant gave Chavez ample opportunity to view him at the time of the robbery. Although defendant approached Chavez behind, he faced Chavez when he pointed the gun at him. paid attention to his surroundings and the from Chavez location of his attacker at the time he was robbed. In addition, when Chavez identified defendant, he stated that he was 100 percent certain defendant familiar was with the one that defendant. robbed He had him seen because defendant Chavez on was multiple occasions at the apartment complex. For the timing element, the time identification between the robbery and the process was approximately an hour. Defendant contends that the third factor set out in Powell, accurate identification of the criminal, is missing. Chavez told the officers that the suspect was wearing an orange shirt. When defendant was located he was not wearing an orange shirt. In addition, the officers did not locate an orange shirt in the apartment where defendant was staying. However, [i]n -7determining the existence of irreparable misidentification, the court must examine the totality of the circumstances[.] State v. Smith, 134 N.C. App. 123, 127, 516 S.E.2d 902, 906 (1999). In examining the totality of the circumstances in the instant case, Chavez s pretrial identification of defendant established a substantial likelihood for the court to determine that Chavez s identification of defendant was sufficiently reliable, and that defendant was properly identified since most of the factors set out in Powell applied. Accordingly, we hold it was not error, let alone plain error, for the trial court to allow into evidence Chavez s identification of defendant at the showup. Defendant plain error further in argues failing to that the suppress trial the court committed victim s in-court identification of him, because the in-court identification was tainted by the identification impermissible procedures show-up. have Where created a the pretrial likelihood of irreparable misidentification, neither the pretrial nor the incourt identification is permissible. State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982). Since both the pretrial and permissible, in-court identifications were we have determined that there was no likelihood of misidentification. -8Therefore, both the show-up and the in-court identification of defendant were free from error. III. Ineffective Assistance of Counsel Defendant assistance of also contends counsel that because he his trial received ineffective attorney failed to object to the show-up and the resulting evidence including the in-court identification. Since we have held that the show-up was not impermissibly suggestive and there was no substantial likelihood of misidentification, the trial counsel s failure to object to the show-up and request the suppression evidence cannot constitute deficient performance. of the See State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 ( To prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel s performance was deficient and then that counsel s deficient performance prejudiced his defense. ), cert. denied, 549 U.S. 867, 166 L. Ed. 2d 116 (2006). The clear reliability lack of suggestiveness, the show-up, ensures admitted over objection. that as the well evidence as the would have of been We overrule this argument. IV. Rule 2 Finally, defendant asks this Court to invoke Rule 2 of our Rules of Appellate Procedure to avoid the manifest injustice -9that would result from a conviction should have been suppressed. plain error review in based on evidence that Aside from the possibility of criminal appeals, Rule 2 permits the appellate courts to excuse a party s default in both civil and criminal appeals when necessary to prevent manifest injustice to a party or to expedite decision in the public interest. Dogwood Dev. & Mgmt. Co., LLC v. White Oak Transp. Co., 362 N.C. 191, 196, 657 S.E.2d 361, 364 (2008) (quoting N.C.R. App. P. 2). However, in the instant case we have determined from the totality of the circumstances that the evidence from the show-up identification should not have been suppressed. Therefore, this is not a proper application of Rule 2 and we decline defendant s request to invoke Rule 2. Defendant received a fair trial free from error. No error. Judges HUNTER, Robert C. and McCULLOUGH concur. Report per Rule 30(e).
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