State v. Reaves-Smith ( 2020 )


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  •               IN THE COURT OF APPEALS OF NORTH CAROLINA
    No. COA19-932
    Filed: 5 May 2020
    Mecklenburg County, No. 16 CRS 246543
    STATE OF NORTH CAROLINA
    v.
    DEVANTEE MARQUISE REAVES-SMITH, Defendant.
    Appeal by defendant from judgment entered 28 March 2019 by Judge Karen
    Eady-Williams in Mecklenburg County Superior Court.            Heard in the Court of
    Appeals 15 April 2020.
    Attorney General Joshua H. Stein, by Assistant Attorney General Michael E.
    Bulleri, for the State.
    W. Michael Spivey for defendant-appellant.
    BERGER, Judge.
    On March 28, 2019, a Mecklenburg County jury convicted Devantee Marquise
    Reaves-Smith (“Defendant”) of attempted robbery with a dangerous weapon.
    Defendant appeals, arguing the trial court erred when it (1) denied his motion to
    suppress evidence of a show-up identification, and (2) failed to instruct the jury about
    purported noncompliance with the North Carolina Eyewitness Identification Reform
    Act (the “Act”). We disagree.
    Factual and Procedural Background
    STATE V. REAVES-SMITH
    Opinion of the Court
    On December 16, 2016, two men attempted to rob Francisco Alejandro
    Rodriguez-Baca (the “victim”) in a McDonald’s restaurant parking lot. The victim did
    not give the men any money, but instead offered to buy them something to eat. One
    of the suspects, armed with a revolver, fired a shot in the air, and the two perpetrators
    fled the scene on foot. The victim ran to a nearby parking lot. There, he found Officer
    Jon Carroll (“Officer Carroll”) and told him what had just occurred.
    The victim described the man armed with the revolver as a “slim African-
    American male” who was wearing a grayish sweatshirt, a black mask, a backpack,
    and gold-rimmed glasses. The victim later identified Defendant as the individual
    armed with the revolver.
    Officer Carroll testified that he had heard a gunshot just before the victim
    approached him. According to Officer Carroll, the victim described the suspects as:
    “two black males, approximately five-foot ten-inches in height . . . both had grayish
    colored hoodies, . . . had book bags, face mask[s] and gold-rimmed glasses.” Officer
    Carroll relayed this description to law enforcement officers over the radio. The victim
    stayed with Officer Carroll while other officers searched for the suspects.
    Approximately seven minutes later, Officer Rodrigo Pupo (“Officer Pupo”)
    spotted “two black males . . . . One of them had a grey hoodie. The other one had a
    black hoodie . . . they were both wearing backpacks” leaving a Bojangles restaurant.
    Officer Pupo reported the sighting over the radio. As another officer arrived at the
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    STATE V. REAVES-SMITH
    Opinion of the Court
    restaurant, Defendant fled the area on foot. Defendant was apprehended a short time
    later wearing a black ski mask, and he had 80 .22-caliber bullets inside his backpack.
    The other suspect was not apprehended at the time. Defendant later identified Koran
    Hicks as his accomplice.
    Officer Carroll transported the victim to Defendant’s location to conduct a
    show-up identification.    Officer Jones testified that the show-up was conducted
    around dusk and the spotlights from Officer Carroll’s vehicle were activated. The
    victim identified Defendant as the assailant with the gun. Officer Jones’ body camera
    recorded the identification.
    On January 3, 2017, Defendant was indicted for attempted robbery with a
    dangerous weapon. On October 2, 2018, Defendant filed a motion to suppress the in-
    court and out-of-court identifications by the victim.          The trial court denied
    Defendant’s motion regarding the out-of-court identification, and reserved ruling on
    the in-court identification for the trial judge. At trial, the jury found Defendant guilty
    of attempted robbery with a dangerous weapon.
    Defendant appeals, alleging the trial court erred when it (1) denied his motion
    to suppress evidence of the show-up identification, and (2) failed to instruct the jury
    concerning purported noncompliance with the Act. We disagree.
    Analysis
    I. Motion to Suppress
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    STATE V. REAVES-SMITH
    Opinion of the Court
    Our review of a trial court’s 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. Cooke, 
    306 N.C. 132
    , 134, 
    291 S.E.2d 618
    , 619 (1982). “The trial court’s
    conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 
    353 N.C. 200
    ,
    208, 
    539 S.E.2d 625
    , 631 (2000).
    A. Compliance with the Act
    A show-up is “[a] procedure in which an eyewitness is presented with a single
    live suspect for the purpose of determining whether the eyewitness is able to identify
    the perpetrator of a crime.” N.C. Gen. Stat. § 15A-284.52(a)(8) (2019). The purpose
    of a show-up is to serve as “a much less restrictive means of determining, at the
    earliest stages of the investigation process, whether a suspect is indeed the
    perpetrator of a crime, allowing an innocent person to be released with little delay
    and with minimal involvement with the criminal justice system.” State v. Rawls, 
    207 N.C. App. 415
    , 422, 
    700 S.E.2d 112
    , 117 (2010) (purgandum). A show-up is just one
    identification method that law enforcement may use “to help solve crime, convict the
    guilty, and exonerate the innocent.” N.C. Gen. Stat. § 15A-284.51 (2019).
    To comply with the requirements set forth by the General Assembly, a show-
    up must meet the following requirements:
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    STATE V. REAVES-SMITH
    Opinion of the Court
    (1) A show-up may only be conducted when a suspect
    matching the description of the perpetrator is located in
    close proximity in time and place to the crime, or there is
    reasonable belief that the perpetrator has changed his or
    her appearance in close time to the crime, and only if there
    are circumstances that require the immediate display of a
    suspect to an eyewitness.
    (2) A show-up shall only be performed using a live suspect
    and shall not be conducted with a photograph.
    (3) Investigators shall photograph a suspect at the time
    and place of the show-up to preserve a record of the
    appearance of the suspect at the time of the show-up
    procedure.
    N.C. Gen. Stat. § 15A-284.52(c1) (omitting requirements for juvenile offenders).
    Defendant contends that “the trial court did not make any findings of
    circumstances that required an immediate display of [Defendant] to the witness.”
    The trial court’s findings of fact, which were each supported by competent evidence,
    are set forth below:
    1. On December 16th, 2016 Charlotte Mecklenburg Police
    Department Officer J.J. Carroll heard a loud pop that be
    (sic) believed was a gun shot while he was sitting in his
    patrol vehicle.
    2. Within a few moments, Mr. Francisco Rodriguez-Baca
    approached Officer Carroll and told him he was just robbed
    by two black males. Both males were about 5’ 10”, wearing
    grey colored hoodies, black masks, both had book bags, and
    both were wearing glasses.
    3. Mr. Francisco Rodriguez-Baca had a brief conversation
    with the suspects. As such, the victim had an opportunity
    to view the suspects.
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    STATE V. REAVES-SMITH
    Opinion of the Court
    4. Mr. Francisco Rodriguez-Baca stated that one of the
    suspects fired a shot and then fled off on foot towards South
    Boulevard.
    5. Officer Carroll put out a “be on the lookout” (BOLO)
    request over the radio, giving the description of the
    suspects.
    6. Within seven minutes of the BOLO, two suspects were
    seen at a nearby Bo Jangles (sic) restaurant. The two
    suspects matched the description given by the victim in
    every way, except for the glasses.
    7. Officers attempted to detain the suspects, but they fled
    on foot.
    8. A nine minute foot chase ensued by officers. Sgt. Adam
    Jones of the Charlotte Mecklenburg Police Department
    was able to detain one of the suspects, later identified as
    the Defendant.
    9. The Defendant was detained less than 1/2 of a mile from
    the site of the robbery.
    10. Sgt. Jones placed the Defendant in handcuffs for the
    purposes of detention.
    11. Ofc. Carroll drove Mr. Francisco Rodriguez-Baca to the
    Defendant’s location in order to do a show-up.
    12. Mr. Francisco Rodriguez-Baca was inside a police
    vehicle with Officer Carroll, while Sgt. Jones escorted the
    defendant in front of the police vehicle. It was dark out
    when the show-up was conducted, however the vehicles
    headlights were used for illumination.
    13. The Defendant was approximately 15 yards from the
    front of the vehicle. The Defendant was in handcuffs, being
    held by the arm of a uniformed police officer, and standing
    in front of a marked police cruiser.
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    STATE V. REAVES-SMITH
    Opinion of the Court
    14. Mr. Francisco Rodriguez-Baca identified the Defendant
    as one of the suspects, and indicated he was the shooter.
    He did not say how confident he was in his identification.
    15. The show-up identification procedure was recorded on
    body-worn camera (BWC) by Sgt. Adam Jones.
    16. The show-up identification procedure was done close in
    time to the robbery and was no more than 30 minutes after
    it occurred.
    17. As a result of the identification the Defendant was
    charged with attempted robbery with a dangerous weapon,
    conspiracy, assault with a deadly weapon, resisting a
    public officer, possession of a schedule IV controlled
    substance, and possession of marijuana paraphernalia.
    These findings established that Defendant and an accomplice were suspected
    of a violent crime that included the discharge of a firearm. Defendant matched the
    description provided by the victim, and he fled when officers attempted to detain him.
    Defendant’s actions forced officers to pursue him on foot for more than nine minutes.
    As the trial court noted, “given the nature of the crime, [and] the efforts on the part
    of [Defendant] to flee[,]” the circumstances required immediate display of Defendant.
    Because an armed suspect, who is not detained, poses an imminent threat to the
    public, the trial court’s findings supported immediate display of Defendant to the
    victim. See e.g., State v. Guy, ___ N.C. App. ___, ___, 
    822 S.E.2d 66
    , 72 (2018) (“Even
    though the suspects had already fled [the crime scene], there was still an ongoing
    emergency that posed danger to the public.”). Moreover, had the victim determined
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    STATE V. REAVES-SMITH
    Opinion of the Court
    that Defendant was not the perpetrator, officers could have immediately released
    Defendant and continued their search for the suspects. Thus, the officers’ actions in
    conducting the show-up identification were consistent with the purpose of the Act,
    i.e., “solve crime, convict the guilty, and exonerate the innocent.” N.C. Gen. Stat. §
    15A-284.51.
    Based on the findings of fact set forth above, the trial court made the following
    conclusions of law:
    1. The show-up conducted in this case complied with the
    North Carolina Eyewitness Identification Reform Act,
    G.S. 284.52.
    2. The Defendant matched the description given by the
    victim . . . .
    3. The Defendant was located in close in time and
    proximity to the robbery.
    4. The show-up was done with a live suspect.
    Although conclusions 2, 3, and 4 contain mixed findings of fact and conclusions
    of law, “we do not base our review of findings of fact and conclusions of law on the
    label in the order, but rather, on the substance of the finding or conclusion.” State v.
    Johnson, 
    246 N.C. App. 677
    , 683, 
    783 S.E.2d 753
    , 758 (2016) (citation omitted). Here,
    the trial court’s conclusion of law that the officers complied with the Act is supported
    by competent evidence. Defendant matched the victim’s description. Defendant was
    located at a Bojangles restaurant less than 800 feet away from the McDonalds
    restaurant parking lot within a few minutes of a BOLO being issued. The show-up
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    STATE V. REAVES-SMITH
    Opinion of the Court
    identification was conducted with a live person which was recorded on the officers’
    body cameras. In addition, the nature and circumstances surrounding apprehending
    an armed, violent suspect required officers to immediately display Defendant. Thus,
    the trial court’s findings of fact support its conclusion of law. Accordingly, the show
    up conducted here satisfied the requirements of the Act.
    B. Eyewitness Confidence Statement
    Defendant also argues that the trial court failed to make findings of fact about
    Officer Carroll’s failure to obtain a confidence statement and information related to
    the victim’s vision pursuant to N.C. Gen. Stat. Section 15A-284.52(c2)(2).
    “[T]his Court’s duty is to carry out the intent of the legislature. As a cardinal
    principle of statutory interpretation, if the language of the statute is clear and is not
    ambiguous, we must conclude that the legislature intended the statute to be
    implemented according to the plain meaning of its terms.” State v. Crooms, 261 N.C.
    App. 230, 234, 
    819 S.E.2d 405
    , 407 (2018) (citation and quotation marks omitted).
    Section 15A-284.52(c2) states that
    The North Carolina Criminal Justice Education and
    Training Standards Commission shall develop a policy
    regarding standard procedures for the conduct of show-ups
    in accordance with this section. The policy shall apply to all
    law enforcement agencies and shall address all of the
    following, in addition to the provisions of this section:
    (1) Standard instructions for eyewitnesses.
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    STATE V. REAVES-SMITH
    Opinion of the Court
    (2) Confidence statements by the eyewitness, including
    information related to the eyewitness’ vision, the
    circumstances of the events witnessed, and
    communications with other eyewitnesses, if any.
    (3) Training of law enforcement officers specific to
    conducting show-ups.
    (4) Any other matters deemed appropriate              by   the
    Commission.
    N.C. Gen. Stat. § 15A-284.52(c2).
    In North Carolina, policies established by State agencies are “nonbinding
    interpretive statement[s] . . . used purely to assist a person to comply with the law,
    such as a guidance document.” N.C. Gen. Stat. § 150B-2(7a) (2019) (emphasis added).
    “When a term has long-standing legal significance, it is presumed that legislators
    intended the same significance to attach by use of that term, absent indications to
    the contrary.” State v. Fletcher, 
    370 N.C. 313
    , 329, 
    807 S.E.2d 528
    , 540 (2017)
    (citation and quotation marks omitted). There is no indication that the legislature’s
    use of the term “policy” in Section 15A-284.52(c2) was intended to have any other
    significance or meaning. In fact, the delegation of authority to establish other policies
    the agency deemed appropriate is a clear indication that the guidelines established
    pursuant to Section 15A-284.52(c2) were just that: guidelines.
    Statutes are binding acts of the General Assembly. By definition, policies from
    State agencies are nonbinding guidelines. The plain language of the statute shows
    that the legislature delegated authority to the North Carolina Criminal Justice
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    STATE V. REAVES-SMITH
    Opinion of the Court
    Education and Training Standards Commission to establish nonbinding guidelines to
    assist law enforcement. Because the language of Section 15A-284.52(c2) does not
    place additional statutory requirements on law enforcement, but rather requires the
    North Carolina Criminal Justice Education and Training Standards Commission to
    develop nonbinding guidelines, only Section 15A-284.52(c1) sets forth the
    requirements for show-up identification compliance.
    C. Impermissibly Suggestive or Likelihood of Misidentification
    Next, Defendant claims that the trial court’s findings of fact did not support its
    conclusion of law that the show-up was not “impermissibly suggestive or created a
    substantial likelihood of misidentification.”
    Our Courts have previously held that show-up identifications “may be
    inherently suggestive for the reason that witnesses would be likely to assume that
    the police presented for their view persons who were suspected of being guilty of the
    offense under investigation.” State v. Turner, 
    305 N.C. 356
    , 364, 
    289 S.E.2d 368
    , 373
    (1982) (citations omitted). However, “[p]retrial show-up identifications . . . , even
    though suggestive and unnecessary, are not per se violative of a defendant’s due
    process rights. The primary evil sought to be avoided is the substantial likelihood of
    irreparable misidentification.”
    Id. at 364,
    289 S.E.2d at 373 (citations omitted).
    This Court applies a two-step process to determine “whether identification
    procedures violate due process.” State v. Malone, 
    256 N.C. App. 275
    , 290, 807 S.E.2d
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    STATE V. REAVES-SMITH
    Opinion of the Court
    639, 650 (2017) (citation and quotation marks omitted), aff’d in part, rev’d in part,
    
    373 N.C. 134
    , 
    833 S.E.2d 779
    (2019).         First, we must determine “whether an
    impermissibly suggestive procedure was used in obtaining the out-of-court
    identification.”
    Id. at 290,
    807 S.E.2d at 650 (citation omitted).     Second, if we
    determine that the identification procedures were impermissibly suggestive, we must
    then determine “whether, under all the circumstances, the suggestive procedures
    employed gave rise to a substantial likelihood of irreparable misidentification.”
    Id. at 290,
    807 S.E.2d at 650 (citation omitted). This inquiry “depends upon whether
    under the totality of circumstances surrounding the crime itself the identification
    possesses sufficient aspects of reliability.” State v. Richardson, 
    328 N.C. 505
    , 510,
    
    402 S.E.2d 401
    , 404 (1991) (citation and quotation marks omitted). The central
    question is whether under the totality of the circumstances the identification was
    reliable even if the confrontation procedure was suggestive. State v. Oliver, 
    302 N.C. 28
    , 45-46, 
    274 S.E.2d 183
    , 195 (1981).
    To determine the reliability of a pre-trial identification, this Court considers
    the following factors:
    (1) the witness’s opportunity 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.
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    STATE V. REAVES-SMITH
    Opinion of the Court
    State v. Gamble, 
    243 N.C. App. 414
    , 420, 
    777 S.E.2d 158
    , 163 (2015) (citations
    omitted).
    The show-up identification proceeding at issue here did not violate Defendant’s
    due process rights as it was not impermissibly suggestive, nor did it create a
    substantial likelihood of misidentification.
    The evidence presented at the motion to suppress hearing satisfies the
    reliability factors in Gamble. The victim had the opportunity to view Defendant
    during the robbery and provided a detailed description of the suspects to Officer
    Carroll as two black males “approximately five-ten in height wearing gray-colored
    hoodies” with “book bags, a black-colored mask or some type of covering over their
    face” and “both were wearing glasses.”
    The description enabled officers to identify the two suspects “seven minutes
    later” about “800 feet” from the original crime scene.     The victim immediately
    recognized Defendant as “one of the suspects” and that he was the “guy who shot at
    him.” Finally, the victim identified Defendant as the individual with the revolver
    approximately “fourteen minutes” from the time he heard the gunshot to the time of
    the show-up identification.
    Therefore, the trial court did not err in concluding that the show-up was not
    “impermissibly suggestive or [that it] created a substantial likelihood of
    misidentification.”
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    STATE V. REAVES-SMITH
    Opinion of the Court
    II. Jury Instructions
    Defendant concedes that he failed to object to the jury instructions and that he
    did not request an instruction concerning compliance or noncompliance with the Act.
    However, Defendant argues that the trial court committed plain error by not
    instructing the jury that it may consider credible evidence of compliance or
    noncompliance to determine the reliability of eyewitness identifications.          We
    disagree.
    For error to constitute 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 error 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.
    State v. Lawrence, 
    365 N.C. 506
    , 516-17, 
    723 S.E.2d 326
    , 334 (2012) (purgandum).
    “In instructing the jury, it is well settled that the trial court has the duty to
    declare and explain the law arising on the evidence relating to each substantial
    feature of the case.” State v. Scaturro, 
    253 N.C. App. 828
    , 835, 
    802 S.E.2d 500
    , 506
    (2017) (purgandum).
    Section 15A-284.52(d) provides various remedies “as consequences of
    compliance or noncompliance with the requirements of” Section 15A-284.52. N.C.
    Gen. Stat. § 15A-284.52(d). Section 15A-284.52(d)(3) provides that “[w]hen evidence
    - 14 -
    STATE V. REAVES-SMITH
    Opinion of the Court
    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).
    Defendant argues that he was entitled to jury instructions under Section 15A-
    284.52(d)(3) because Officer Carroll did not obtain an eyewitness confidence level
    under Section 15A-284.52(c2)(2).     However, Section 15A-284.52(d)(3) specifically
    limits remedies for “compliance or noncompliance with the requirements of this
    section.” N.C. Gen. Stat. § 15A-284.52(d)(3) (emphasis added). As set forth above,
    Section 15A-284.52(c2) concerns policies and guidelines established by the North
    Carolina Criminal Justice and Training Standards Commission, it does not establish
    the requirements for show-up identifications. Those requirements are specifically
    enumerated in subsection (c1). Thus, because officers complied with the show-up
    procedures in Section 15A-284.52(c1), Defendant was not entitled to a jury instruction
    on noncompliance with the Act.
    Conclusion
    For the reasons stated herein, Defendant received a fair trial free of error.
    NO ERROR.
    Judges TYSON and COLLINS concur.
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Document Info

Docket Number: 19-932

Filed Date: 5/5/2020

Precedential Status: Precedential

Modified Date: 12/13/2024