Filed 18 November 1986
1. Criminal Law 66.11; Infants 17 — showup of juvenile — court order not required The statute prohibiting the use of certain nontestimonial identification procedures against juveniles without a court order, N.C.G.S. 7A-596, does not require a court order for a "showup" of a juvenile conducted at the crime scene shortly after the crime occurred.
2. Criminal Law 66.11; Infants 17 — showup identification of juvenile — no impermissible suggestiveness A showup identification of a juvenile was reliable and not impermissibly suggestive in violation of due process under the totality of the circumstances where a breaking or entering victim was able clearly to observe two juveniles coming from her house; although the victim did not see the juveniles' faces, she accurately described the suspects in terms of age, race, hair color and dress; the victim's attention was focused on the juveniles; she consistently identified respondent juvenile as one of the perpetrators; and there was a lapse of only forty-five to sixty-five minutes between the original sighting and the subsequent identification.
ON discretionary review of a decision of the Court of Appeals, 77 N.C. App. 592, 335 S.E.2d 529 (1985), reversing an order of LaBarre, J., at the 15 November 1984 Juvenile Session of the DURHAM County District Court, denying the juvenile's motion to suppress evidence from an investigatory "showup" and finding the juvenile to have violated N.C.G.S. 14-54(a), felonious breaking or entering with intent to commit larceny therein. At the 12 December 1984 Juvenile Session of the DURHAM County District Court, Read, J., presiding, the juvenile was adjudged delinquent. The juvenile appealed from both judgments. The Court of Appeals did not address the order of Read, J., but reversed Judge LaBarre's denial of the juvenile's motion to suppress. The State's petition for discretionary review was granted on 7 April 1986. Heard in the Supreme Court 16 October 1986.
Lacy H. Thornburg, Attorney General, by Joan H. Byers, Special Deputy Attorney General, John H. Watters, Assistant Attorney General and Robert E. Cansler, Assistant Attorney General, for the State-appellant.
Susan K. Seahorn, Assistant Public Defender, for juvenile-appellee.
North Carolina Association of Police Attorneys, by Dawn S. Bryant, President, amicus curiae.
Chief Justice BILLINGS concurring.
Justice MITCHELL joins in this concurring opinion.
Justice MARTIN dissenting.
Justices FRYE and PARKER join in this dissenting opinion.
On 15 October 1984 at approximately 10:00 a.m., the victim, Mrs. Nell Knott, left her home to visit her neighbor Brenda Hamby. After having coffee, the two ladies went into Ms. Hamby's backyard to look at the tomatoes in her garden. While standing by the garden, the ladies observed two young boys coming out of the side door of Mrs. Knott's house. The side door was approximately thirty yards from where the ladies were standing. Mrs. Knott was shocked by the two boys coming out of her house. She yelled at them, saying "what are you doing in my house"? The boys began to run, and Mrs. Knott gave chase until she tired.
Failing to catch the two boys, Mrs. Knott returned to her home and checked the inside of her house. She noticed that the contents of her purse had been rearranged and a part of her wallet was out. She then dialed the 911 emergency telephone number and told the operator what had happened. Detective Crabtree arrived approximately fifteen to twenty minutes later.
Mrs. Knott described both boys as being fairly short. One of them had long brown hair and was wearing jeans and a black T-shirt with a picture on the back. The other boy had on a cap, a black coat, and jeans. Both suspects were described as white males.
After talking with the victim, Detective Crabtree drove in the direction the suspects had been last seen running and stopped at a convenience store located approximately one-quarter mile from the victim's home. Crabtree asked the store clerk if he had seen two white male juveniles in the store. The clerk replied that he had, and pointed behind a display rack. Crabtree walked behind the display rack and saw the two suspects "scrunched down" behind the display rack. Stallings was wearing a black T-shirt, with letters or writing on the back, and jeans. His companion, Drane, had on a black cap, a black jacket, tennis shoes, and jeans. Both suspects' jeans were wet and covered with beggar lice.
Detective Crabtree asked the boys to accompany him to Mrs. Knott's house. Crabtree and the suspects arrived at her house approximately thirty to forty-five minutes after he had left to search for the suspects. (The total time elapsed from the time the victim called the police to the arrival of the suspects back at her house was somewhere between forty-five and sixty-five minutes.)
Crabtree and the suspects got out of the patrol car and approached the victim. Detective Crabtree asked Mrs. Knott, "[A]re these the ones"? The victim first replied, "I don't know." Crabtree asked her to explain her answer. She responded, "I know those are the boys that came out of my house but I don't know what I want to do about it; I'm scared." Crabtree asked her two or three times to be sure he had the right suspects. Mrs. Knott responded that they were the ones and continued to question him about what would be done with them. Detective Crabtree then transported the two juveniles to the Sheriff's Department.
At the hearing before Judge LaBarre, Mrs. Knott testified, over objection, to the showup. She also made an in-court identification of the juvenile. The juvenile moved to suppress both the evidence regarding the showup and the in-court identification by Mrs. Knott. These motions were denied, and the juvenile appealed. The Court of Appeals reversed the denial of the motion to suppress. The State sought and this Court granted discretionary review of the Court of Appeals' judgment.
The juvenile first argues that the pretrial identification procedure in this case — a "showup" — was conducted in violation of N.C.G.S. 7A-596. This statute requires a court order before certain "nontestimonial identification" procedures are conducted. These include
identification by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a juvenile.
Detective Crabtree did not secure a court order before taking the juvenile before the prosecuting witness. The juvenile argues that a showup is "similar" to a lineup and is, therefore, prohibited by the statute absent a court order. We disagree.
Provisions dealing with criminal procedure in the juvenile context are codified in Article 48 of Chapter 7A of the North Carolina General Statutes. A reading of this Article persuades us that in enacting these statutes, the legislature's primary concern was the growing problem of juvenile crime. This has been well documented. See North Carolina Department of Crime Control Public Safety, A Crime Control Agenda for North Carolina, at 338 (1978) ("The juvenile crime rate is the most serious problem confronting the criminal justice system today."). Article 48, then, must be read as a legislative attempt to deal with this problem.
The value of the showup as an investigatory technique has been recognized in many jurisdictions. See, e.g., Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411 (1972); Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973), cert. denied, 416 U.S. 958, 40 L.Ed.2d 760 (1975); Terry v. Peyton, 433 F.2d 1016 (4th Cir. 1970); State v. Perkins, 141 Ariz. 278, 686 P.2d 1248 (1984); People v. Craig, 86 Cal.App.3d 905, 150 Cal.Rptr. 676 (1978); People v. Weller, 679 P.2d 1077 (Colo. 1984); State v. Hudson, 508 S.W.2d 707 (Mo. 1974); Hudson v. State, 675 S.W.2d 507 (Tex.Crim. 1984). Showups are an efficient technique for identifying a perpetrator when the trail is still fresh. See generally J. Cook, Constitutional Rights of the Accused 6:3, at n. 19 (2d ed. 1986). This Court has, on numerous occasions, sanctioned the use of showups. See, e.g., State v. Turner, 305 N.C. 356, 289 S.E.2d 368 (1982); State v. Oliver, 302 N.C. 28, 274 S.E.2d 183 (1981).
As the Court of Appeals observed, showups of adults do not require a court order and are admissible if due process requirements are met. Stovall v. Denno, 388 U.S. 293, 18 L.Ed.2d 1199 (1967); State v. Sanders, 33 N.C. App. 284, 235 S.E.2d 94, disc. rev. denied, 293 N.C. 257, 237 S.E.2d 539 (1977). For the reasons expressed herein, there is an even more compelling reason that the same rule should apply to showups of juveniles, and we so hold.
While we have found no controlling authority involving showups of juveniles, the history of N.C.G.S. 7A-596 indicates that its purpose was to empower officials to conduct the same identification procedures on juveniles as adults. Final Report, Juvenile Code Revision Committee, at 185, Comment C (1979). We find that legitimate juvenile law enforcement objectives may be met through the use of showups.
Another major concern of the legislature in enacting Article 48 was finding the least restrictive means to achieve legitimate law enforcement objectives. N.C.G.S. 7A-594 sets out this goal:
A law-enforcement officer, when he takes a juvenile into temporary custody, should select the least restrictive course of action appropriate to the situation and needs of the juvenile from the following:
(1) To divert the juvenile from the court by
b. Counsel and release;
c. Release to parents;
d. Referral to community resources;
(2) To seek a petition;
(3) To seek a petition and request a custody order.
An examination of the nontestimonial identification techniques listed in N.C.G.S. 7A-596, including lineups, reveal that they are all methods that intrude significantly upon the juvenile's privacy. The showup, by contrast, is 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. If not, the innocent juvenile can be released with little delay and with minimal involvement with the criminal justice system. If so, the juvenile can be expeditiously processed and intervention begun immediately. The showup thus serves the dual goals of protecting the juvenile from more restrictive investigatory techniques such as those listed in the statute and of expediting criminal investigations.
If, as the juvenile contends, the legislature intended to absolutely forbid showups without a court order, this policy of least restriction would be severely undercut. If we were to adopt the reasoning and argument advanced by the juvenile here, it would mean that if an officer reached a crime scene immediately upon the happening of a break-in and found the juvenile perpetrator huddled under the porch of the house he had just fled, the officer could not ask the eyewitness homeowner if the juvenile was the one who the homeowner had just seen inside the house. Such a result would be absurd and could not have been intended by our legislature in enacting N.C.G.S. 7A-596. The juvenile's reading of the statute would effectively eliminate the showup from the repertoire of investigative techniques available to law enforcement officers. We hold that the legislature did not intend this result. We find that State v. Norris, 77 N.C. App. 525, 335 S.E.2d 764 (1985), upon which the juvenile relies, does not accurately reflect the intent of the legislature in this regard.
The juvenile argues, in the alternative, that even if the statute does not expressly forbid showups without court orders, the showup conducted in this case violated the fourteenth amendment to the United States Constitution. The juvenile correctly notes that the constitution prohibits pretrial identification procedures that are so suggestive as to pose a danger of misidentification. Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401 (1972). There have been cases where showups were invalidated for this reason. See, e.g., Smith v. Coiner, 473 F.2d 877 (4th Cir. 1973); State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978). Judge LaBarre, sitting as the fact-finder, determined that the showup was not impermissibly suggestive and denied the juvenile's motion to suppress. The juvenile nevertheless argues that the procedure followed in this case was constitutionally infirm. Again, we disagree.
In determining whether an identification is reliable, the Biggers Court adopted a "totality of the circumstances" approach. Some of the factors that may be examined in determining the reliability of a showup identification are (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. Neil v. Biggers, 409 U.S. at 199, 34 L.Ed.2d at 411. See also State v. Lyszaj, 314 N.C. 256, 333 S.E.2d 288 (1985); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977).
Applying the above factors to the case at hand, we find that the showup identification was reliable. Mrs. Knott was able to observe clearly the boys coming from her house. While it is true that the boys' faces were not seen, the victim was nevertheless able to give the investigating officer information regarding their race, dress, hair color, size, and approximate age. It is clear that Mrs. Knott's attention was focused on the boys who had come running from her house. Her motivation to observe carefully was great; her susceptibility to distraction slight. The description given to the detective accurately described the suspects in terms of age, race, hair color, and dress. While the juvenile makes much of the fact that Mrs. Knott had originally seemed unsure of her identification, it became clear that her uncertainty was merely a concern for what would happen to the boys she had identified. She consistently identified this juvenile as one of the perpetrators. Finally, there was a lapse of only forty-five to sixty-five minutes between the original sighting and the subsequent identification. This factor also militates in favor of the validity of this showup.
In summary, we hold that the legislature did not intend to preclude the use of the showup in juvenile investigations. This technique serves the important law enforcement objective of efficiency and protects the juvenile from more intrusive identification techniques. While a juvenile is, of course, protected from showups that are so suggestive as to be unreliable, we agree with the trial court that the showup in this case was properly conducted and properly admitted into evidence.
The juvenile makes several other arguments based upon the premise that the showup in this case was impermissible. Also, the North Carolina Association of Police Attorneys, as amicus curiae, suggests that if we find the showup to be prohibited in this case, we decide that showups without court orders are nonetheless permissible in cases where juveniles are tried as adults. Since we have held that the showup was permissible under both the statute and the constitution, we need not address these other concerns.