Opinion
No. COA09-1354
Filed 6 July 2010 This case not for publication
Appeal by juvenile from adjudication and disposition orders entered 25 March 2009 by Judge Hugh B. Lewis in Mecklenburg County District Court. Heard in the Court of Appeals 12 April 2010.
Roy Cooper, Attorney General, by Judith Tillman, Assistant Attorney General, for the State. S. Hannah Demeritt, for juvenile-appellant.
Mecklenburg County No. 05 J 1248.
M.L.A. petitioned this Court for writ of certiorari, seeking our review of the adjudication and disposition orders finding him delinquent of robbery with a dangerous weapon and imposing Level 2 punishment. We granted M.L.A.'s petition on 6 January 2010.
On 22 August 2008, Detective MB Peacock of the Charlotte-Mecklenburg Police Department filed a Juvenile Petition alleging M.L.A. delinquent of robbery with a dangerous weapon. The juvenile moved to suppress evidence of an out-of-court identification of him made by the alleged victim, Alex Devillier ("Devillier"), on the grounds that it was not reliable and violated his due process rights guaranteed under the Fourteenth Amendment of the United States Constitution and Article I, Section 19 of the North Carolina Constitution.
The evidence presented at the hearing on the motion to suppress tended to show that on 25 May 2008, around 7:30 p.m., Devillier was delivering pizza for Papa John's in the Mission House Apartment complex on the east side of Charlotte, North Carolina. Though it was early evening, it was still light outside. When he arrived at the apartment complex, he observed two African-American men walking around the parking lot as well as three neighborhood children playing in the stairwell. At this time, Devillier got "a fairly good look at these folks."
After delivering the pizza, Devillier proceeded to his vehicle. He had a total of $40 in his possession, all of which belonged to Papa John's. As he approached his vehicle, he was stopped by the two men whom he had seen in the parking lot previously. One of the men had a gun, and they both ordered Devillier to give them all of his money and possessions. The confrontation lasted between two and six minutes. During the encounter, Devillier tried to remain calm. After the men took the money, they retreated towards the direction of the apartment complex's pool. Devillier then returned to his vehicle and called his manager to report the robbery. While his manager was calling 911, Devillier returned to the Papa John's store.
Police officers responded to the Papa John's store to take Devillier's statement about the incident. During the interview, Devillier gave his account of the events as well as his description of the perpetrators. He described the man holding the gun as a "lighter skin African American with braids." He described the other man, the one who had gone through his pockets to retrieve his money, as a "slightly larger [and] darker skinned African-American gentlemen" with shorter hair. Devillier indicated both men were wearing dark clothing.
Less than an hour after the officers left the store, they called Devillier and asked him to come and identify a possible suspect. The suspect was M.L.A. Devillier drove to meet the police officers at Cross Creek Point Apartments, an apartment complex next door to the scene of the crime. When he arrived, the officers walked him closer to M.L.A. so that he could see his face. M.L.A. was wearing an ROTC uniform and not the dark clothing he had been wearing when the police first saw him. Devillier identified M.L.A., with a 75-80% certainty, as one of the men who had robbed him.
The trial court denied M.L.A.'s motion to suppress the out-of-court identification. In doing so, it concluded that the "totality of the circumstances . . . [indicated] that the identification of the individual [by] the witness . . . [was] based on his observation of the individuals at the time that events occurred." The State proceeded with its evidence, which included an in-court identification of the juvenile. At the close of the State's evidence, M.L.A.'s motion to dismiss was denied. The defense did not offer any evidence. The trial court found beyond a reasonable doubt that M.L.A. was "delinquent as to the charge of robbery with a dangerous weapon." The trial court sentenced M.L.A. as a Level 2 offender to a twelve month term of probation, required participation in a treatment program, community service, restitution, and an intermittent confinement of fourteen days.
M.L.A. first argues that the trial court erred in denying his motion to suppress the evidence of Devillier's identification of him during the out-of-court showup. M.L.A. suggests that this procedure was impermissibly suggestive and unreliable, violating his due process rights. We disagree.
The use of showup identifications are a permissible, and sometimes preferred, technique in juvenile investigations. See In re Stallings, 318 N.C. 565, 572, 350 S.E.2d 327, 330 (1986), reh'g granted, 318 N.C. 703, 351 S.E.2d 750, reh'g dismissed as improvidently allowed, 319 N.C. 669, 356 S.E.2d 339 (1987). As our Supreme Court has explained, "[t]his technique serves the important law enforcement objective of efficiency and protects the juvenile from more intrusive identification techniques." Id. Despite this preference, "[i]dentification evidence must be excluded as violating a [juvenile]'s right to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification." State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983). A pretrial identification procedure, even if suggestive, will "not create a substantial likelihood of misidentification so as to preclude [admission of] . . . the pre-trial procedures . . . where under the totality of circumstances surrounding the crime itself the identification possesses sufficient aspects of reliability." State v. Oliver, 302 N.C. 28, 45, 274 S.E.2d 183, 195 (1981), appeal after remand, 309 N.C. 326, 307 S.E.2d 304 (1983), appeal after new sentencing hearing, 155 N.C. App. 209, 573 S.E.2d 257 (2002), disc. review denied and appeal dismissed ex mero motu, 357 N.C. 254, 583 S.E.2d 45 (2003). In determining whether there are sufficient aspects of reliability surrounding the identification, the court may consider "(1) the witness' opportunity to observe the accused, (2) the witness' degree of attention, (3) the accuracy of the witness' description, (4) the witness' level of certainty, and (5) the time elapsed between the crime and the confrontation." In re Stallings, 318 N.C. at 571, 350 S.E.2d at 330.
Our Supreme Court has recognized the suggestive nature of a showup identification. Oliver, 302 N.C. at 45, 274 S.E.2d at 194 (noting that "a showup, may be inherently suggestive because the witness would likely assume that the police had brought [him] to view persons whom they suspected might be the guilty parties" (internal quotation marks omitted) (alteration in original)). However, as previously noted, the suggestive nature of a showup does not, standing alone, preclude the trial court from admitting such evidence, but instead requires an analysis of the reliability of the witness's identification during the showup. See id. at 45, 274 S.E.2d at 195; see also State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982).
Applying these principles, we agree with the trial court that the showup identification in the present case was sufficiently reliable to permit the evidence to be considered by the fact finder. Devillier had two opportunities to view M.L.A., once before he delivered the pizza and another while the robbery was taking place. During the second encounter, he had the opportunity to see M.L.A.'s face. Devillier was able to see M.L.A. clearly because it was light outside the entire time. From these facts, it is evident that Devillier had sufficient opportunity to view M.L.A. See Turner, 305 N.C. at 365, 289 S.E.2d at 374 (finding that the witness's identification of the defendant was reliable even though his "observation of [the] defendant was brief and made under poor lighting conditions" because the witness also "stated he knew defendant from having seen him in the neighborhood"). Although, as M.L.A. points out, Devillier admitted on cross-examination that his previous testimony indicated he did not get a good chance to look at M.L.A.'s face, this evidence goes to the credibility of the witness, which is to be weighed by the trier of fact. Smith v. Smith, 89 N.C. App. 232, 235, 365 S.E.2d 688, 691 (1988) ("Credibility, contradictions, and discrepancies in the evidence are matters to be resolved by the trier of fact, here the trial judge, and the trier of fact may accept or reject the testimony of any witness.") The totality of the evidence indicates Devillier had a sufficient opportunity to see M.L.A. during the commission of the crime.
Devillier also testified that he tried to remain calm during the robbery, indicating his ability to pay attention to M.L.A.'s appearance. When the police interviewed Devillier, he described the perpetrator who went through his pockets as an African-American male with short hair who was wearing dark clothing, and who was "slightly larger [and] darker skinned" than the other perpetrator. When the officers first found M.L.A., he matched this description. Thus, Devillier's description was sufficiently accurate to support the reliability of his identification. State v. Capps, 114 N.C. App. 156, 158, 163, 441 S.E.2d 621, 622, 625 (1994) (finding that the witness's description of the perpetrator "`as having a mustache, mole on his face, dark skin, and black hair, a Puerto Rican or Mexican descent, and wearing dark clothing'" was sufficient when it "was substantially similar to that of defendant").
Additionally, when Devillier viewed M.L.A. at the showup, he was 75-80% sure M.L.A. was one of the perpetrators, a relatively high level of certainty. See State v. Sharratt, 29 N.C. App. 199, 203, 223 S.E.2d 906, 908 (indicating that the witness's "high level of certainty of identification" at the showup was sufficient, in consideration with the other evidence, to ensure the reliability of the identification), disc. review denied, 290 N.C. 554, 226 S.E.2d 512 (1976). Finally, the time between the crime and Devillier's observation of M.L.A. was approximately forty-five minutes, which "militates in favor of the validity of this showup." In re Stallings, 318 N.C. at 572, 350 S.E.2d at 330. Considering the totality of the circumstances, the trial court did not err in admitting Devillier's out-of-court identification of M.L.A.
M.L.A. next argues the trial court erred in allowing Devillier's in-court identification of M.L.A. because it was not of independent origin. "The factors to be considered in determining whether the in-court identification of a defendant is of independent origin are the same as those used to evaluate the likelihood of irreparable misidentification during pretrial identification procedures." State v. Wilson, 313 N.C. 516, 530, 330 S.E.2d 450, 460 (1985). Accordingly, in light of our analysis above, we hold there was sufficient evidence that Devillier's in-court identification was of independent origin.
Finally, M.L.A. contends the trial court erred in denying his motion to dismiss for insufficiency of the evidence. A denial of a motion to dismiss is reviewed de novo to "determine whether upon consideration of all of the evidence in the light most favorable to the State, there is substantial evidence that the crime charged . . . was committed and that defendant was the perpetrator." State v. Beasley, 118 N.C. App. 508, 511-12, 455 S.E.2d 880, 883 (1995) (internal quotation marks omitted) (alteration in original); see State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007), appeal after a new trial, ___ N.C. App. ___, 677 S.E.2d 14 (2009) (unpublished). M.L.A. does not challenge the sufficiency of the evidence surrounding the commission of the robbery but instead argues there was insufficient evidence that he was the perpetrator of the crime. In addition to Devillier's out-of-court and in-court identifications of M.L.A., the State presented evidence that when the police first observed M.L.A., a short while after the robbery, he matched the description given by Devillier of the second robber. Before the showup occurred, however, M.L.A. changed clothes into his ROTC uniform so that he did not "look like a suspect." In fact, M.L.A. was not supposed to have the uniform in his possession on the date of the robbery. We hold the evidence, considered in the light most favorable to the State, was substantial to show that M.L.A. was in fact the perpetrator of this crime. See State v. Smith, 130 N.C. App. 71, 78-79, 502 S.E.2d 390, 395 (1998) (finding identification testimony along with the defendant's incriminating statements "sufficient to overcome defendant's motion to dismiss").
Affirmed.
Judges JACKSON and BEASLEY concur.
Report per Rule 30(e).