Filed 15 March 2011 This case not for publication
Appeal by defendant from judgment entered 10 June 2009 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 12 May 2010.
Attorney General Roy Cooper, by Assistant Attorney General Tina A. Krasner, for the State. Center for Death Penalty Litigation, by David Weiss, for defendant-appellant.
Mecklenburg County No. 07 CRS 253582.
Defendant Jon Robert Guthrie appeals from his conviction of robbery with a dangerous weapon. Defendant primarily argues that the trial court committed plain error in allowing testimony related to the alleged victim's in-court and out-of-court identifications of defendant, as this testimony was tainted by an impermissibly suggestive showup procedure that occurred about an hour after the robbery. We hold that even if the showup was improper, the evidence was sufficient to support a conclusion that the victim's identifications were of independent origin and were not tainted by the showup procedure.
The State's evidence tended to show the following facts. In the early morning hours of 14 November 2007, 17-year-old Laura Collier was heading home from her job at a restaurant where she worked as a waitress. She had been dropped off by the bus at approximately 1:00 a.m. and was talking on her cell phone when she noticed an older model dark green Buick drive past her.
As Collier kept walking along the sidewalk, she saw the Buick again at an intersection. This time, the Buick pulled up to Collier, and the rear passenger-side window rolled down. She expected to be asked for directions, but, instead, the man sitting in the rear passenger-side seat, subsequently identified as defendant, pointed a gun at her chest and told her, "[D]rop your purse or I'll shoot you dead." At this point, defendant was still in the car but was only "[a] couple of feet" away from Collier because the car was "close to the sidewalk." Afraid, Collier dropped her purse, which contained her debit card, a stack of 10 one dollar bills, and her driver's license, as well as her phone.
Defendant also told Collier to turn around, and she complied. When she heard defendant get out of the car, she turned back around to see "if he was about to kill [her] or something." She saw defendant picking up her purse while still pointing the gun at her. He then got back in the car and the car sped away. Collier continued home, and when she arrived about 10 minutes later, she called the police to report the robbery. Officer Luis Maldonado of the Charlotte-Mecklenburg Police Department arrived within 20 minutes. Collier described the car as an older model dark green Buick, reported that there were three black males in the car, and specifically noted that the gunman was light-skinned, had long dreadlocks past his shoulders, and was wearing a red, green, and black Jamaican hat. As soon as Officer Maldonado received Collier's description, he issued a BOLO ("be on the lookout") to other districts and officers.
Officer Dean Lauber, who was patrolling nearby, heard the BOLO. As he was driving on Conference Drive, he saw a vehicle run a red light as it turned left onto Monroe Road. Officer Lauber executed a traffic stop of the vehicle on Monroe Road. Initially, he saw only two people in the front seat: defendant, who was in the front passenger seat, and Avery Foy, who was in the driver's seat. When he walked up to the driver's window, however, he spotted a third person, Blair Burns, crouched down low in the back seat. Officer Lauber immediately recalled the BOLO and realized that the description of the vehicle and suspects matched the stopped vehicle and its occupants. Officer Lauber returned to his patrol car to verify the information in the BOLO and to request backup.
Other officers arrived, and Foy, the driver of the Buick, consented to a search of the vehicle. The officers found a gun under the front passenger seat, where defendant had been sitting. They also found Collier's debit card in defendant's pants pocket and Collier's cell phone in Burns' pocket.
Meanwhile, Collier and Officer Maldonado had been talking for approximately 10 minutes when Officer Maldonado received a radio communication concerning the stop of the suspects. Officer Maldonado told Collier that he thought the police had a lead, and she was needed to help identify the suspects. Before they left, Officer Maldonado wrote out Collier's statement, which she read and signed. The transcribed statement only described the gunman's hat as being black and did not say "Jamaican" or mention any other colors. At trial, Collier testified that the statement left out some of the details she had verbally communicated to Officer Maldonado, including that the hat was a red, green, and black Jamaican hat. She further noted that the statement left out other details, such as the length of defendant's dreadlocks and the tone of his skin. Officer Maldonado confirmed that Collier may have told him additional details about the hat, and he did remember that she had actually described the length of the dreadlocks. He explained that he might not have included a full description at the time because he "was trying to get as much information as quickly as possible in the statement to try to get her to the scene where the officers had the subjects."
After Collier signed the statement, Officer Maldonado drove her in his patrol car to Monroe Road, which took only about 10 to 15 minutes. When they arrived, the three suspects were standing by a vehicle and were each detained by an officer. At some point, the officers sat the suspects in different patrol cars and then took them out one at a time to show them to Collier for identification. Collier remained in Officer Maldonado's car as she viewed each suspect. Immediately, without hesitation, she identified all three individuals.
She recognized defendant as the gunman who had robbed her, and Foy (who also had dreadlocks but which, in contrast to defendant's, were short) as the driver. She also recognized Burns (who was wearing a black baseball cap and sitting in the back passenger seat when the Buick was stopped) as the other passenger in the car. Collier felt "a hundred percent positive" that defendant was the one who had robbed her because she "could tell that he was the same person. He wore the same clothing, he had the same hat, he had the same hair, and his facial structure." Collier also identified her debit card and cell phone.
Defendant was indicted for robbery with a dangerous weapon. At trial, defendant called his mother as a witness, and she testified that defendant had money available to him because he had a job and was also able to use her debit card. Defendant testified that he had consumed about four beers and was somewhat inebriated when he met up with Foy and Burns. Defendant said that he rode in the front passenger seat, that Burns was sitting in the back of the car, and that Burns was the one who had the gun and robbed Collier. According to defendant, Burns was hyper after the robbery and kept putting things in the front seat. Defendant claimed to have put Collier's debit card in his pocket because he also had his mother's debit card and "didn't really even notice that." Defendant also acknowledged that he was wearing his Jamaican hat that night, but stated that he always wore his dreadlocks tucked inside that cap, and his dreadlocks were not showing until the officers took off his hat.
The jury returned a guilty verdict, and the trial court sentenced defendant to 48 to 67 months imprisonment. Defendant timely appealed to this Court.
Defendant first argues that the trial court erred in admitting testimony related to Collier's in-court and out-of-court identifications of defendant because the showup conducted at Monroe Road was impermissibly suggestive and created a substantial likelihood of misidentification. Defendant contends that Officer Maldonado's telling Collier that the police had a lead and needed her to identify the suspects, coupled with the suspects' being lined up and detained by officers when Collier arrived at Monroe Road, gave Collier "every reason to believe the police apprehended the right people."
Because defendant did not object to the identification testimony at trial, we review the issue for plain error. As the Supreme Court has explained:
"[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done, or where [the error] is grave error which amounts to a denial of a fundamental right of the accused, or the error has resulted in a miscarriage of justice or in the denial to appellant of a fair trial or where the error is such as to seriously affect the fairness, integrity or public reputation of judicial proceedings or where it can be fairly said the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
Although the Supreme Court has described showups as "suggestive and unnecessary," it has also recognized that showups "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). In order to determine whether an identification procedure was so suggestive as to create a substantial likelihood of irreparable misidentification, our appellate courts apply a two-step analysis: "`First, the Court must determine whether the identification procedures were impermissibly suggestive. Second, if the procedures were impermissibly suggestive, the Court must then determine whether the procedures created a substantial likelihood of irreparable misidentification.'" State v. Marsh, 187 N.C. App. 235, 239, 652 S.E.2d 744, 746 (2007) (quoting 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, 122 S. Ct. 1322 (2002)), overruled in part on other grounds by State v. Tanner, 364 N.C. 229, 695 S.E.2d 97 (2010). Even assuming without deciding that the showup used in this case was impermissibly suggestive, we hold that there was no substantial likelihood of irreparable misidentification. In evaluating whether such a likelihood exists, courts apply a totality of the circumstances test. State v. Smith, 134 N.C. App. 123, 127, 516 S.E.2d 902, 905-06 (1999). "For both in-court and out-of-court identifications, there are five factors to consider in determining whether an identification procedure is so inherently unreliable that the evidence must be excluded from trial: (1) the opportunity of the witness 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." State v. Washington, 192 N.C. App. 277, 296-97, 665 S.E.2d 799, 811 (2008). "If under the totality of the circumstances there is no substantial likelihood of misidentification, then evidence of pretrial identification derived from unnecessarily suggestive pretrial procedures may be admitted." State v. Mobley, 86 N.C. App. 528, 531, 358 S.E.2d 689, 691 (1987).
Here, the following evidence is relevant when evaluating the totality of the circumstances. As the Buick approached, Collier was alert because she had previously noticed the vehicle and was anticipating that she would be asked for directions. Upon being threatened with the gun, she became afraid and realized that she might be killed. She was able to view the gunman at a close range because the car had pulled up to a couple of feet away from where she was standing on the sidewalk. She faced the gunman as he told her to drop her purse, and she turned around to look at him again even after he had told her to turn away. She was able to get a "very good look" at him, even though it was 1:00 a.m., because the area was lit by street lights across the street and right behind the car.
When she later described the gunman to Officer Maldonado, she noted that he was a light-skinned black male in his early 20s, had long dreadlocks that went past his shoulders, and was wearing a red, green, and black Jamaican hat. This description matched defendant. At Monroe Road, Collier never hesitated in her identification of defendant, and she was "a hundred percent positive" defendant was the gunman because she recognized his clothing, hat, hair, and facial structure. Although Foy and Burns were also present at the showup, she never identified anyone else as the gunman. The identification occurred approximately one hour after the robbery.
The facts of this case are analogous to those of State v. White, 22 N.C. App. 123, 205 S.E.2d 757, cert. denied, 285 N.C. 668, 207 S.E.2d 761 (1974). In White, a vehicle had stopped within six or seven feet of the witness at night in a well-lit parking lot, the defendant pointed a gun at the witness, the witness observed the defendant sitting on the passenger side of the vehicle for five or 10 seconds, and the witness ran away and observed the stature of the defendant from a distance of 100 feet. Id. at 127, 205 S.E.2d at 759. At the showup, which occurred about four hours later, the witness "did not hesitate in his identification of defendant, nor did he identify any other person as being a probable suspect." Id., 205 S.E.2d at 759-60. In view of these facts, the Court held that the witness' identification of the defendant was of independent origin and was not tainted by the showup. Id. at 128, 205 S.E.2d at 760.
The circumstances surrounding Collier's identification of defendant were even more favorable than those in White. Defendant has, therefore, failed to demonstrate that the trial court committed plain error in admitting evidence regarding Collier's in-court and out-of-court identifications. See also Mobley, 86 N.C. App. at 531-32, 358 S.E.2d at 691 (holding identification not tainted by showup when victim saw defendant for five to eight seconds during larceny of vehicle; victim "was very intent on seeing the defendant" as defendant tried to pull victim out of truck and grab him after he got out of truck; victim's description of assailant's physical appearance and clothing fit defendant when he was picked up by police officer short time later; victim identified defendant immediately as he emerged from police car; and identification took place within one hour after offense).
Defendant next claims that the trial court erred by denying his request that it give the following special jury instruction:
I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.
N.C.P.I.-Crim. 104.90. Defendant argues that the main issue was whether he or one of the other occupants of the Buick robbed Collier, and, therefore, he was entitled to have the trial court give this instruction focusing the jury's attention on the identity of the perpetrator.
State v. Penland, 343 N.C. 634, 472 S.E.2d 734 (1996), cert. denied, 519 U.S. 1098, 136 L. Ed. 2d 725, 117 S. Ct. 781 (1997), is controlling on this issue. In Penland, the Supreme Court explained that even if the identity of the perpetrator was at issue in that case, the trial court "adequately informed the jury that the State had to prove that defendant was the perpetrator" when (1) the trial court instructed that the State must prove the defendant was guilty beyond a reasonable doubt and (2) the trial court indicated that the State was "required to prove beyond a reasonable doubt that defendant committed [the] various elements" of the crime. Id. at 656, 472 S.E.2d at 746-47. Accord State v. Williams, 98 N.C. App. 68, 71-72, 389 S.E.2d 830, 832 (1990) (finding no reversible error, if error existed, where court instructed jury that State must prove defendant guilty beyond reasonable doubt, and State must prove defendant committed elements of charged crime beyond reasonable doubt).
In this case, the trial court gave the following general instruction regarding the State's burden of proof:
The State must prove to you that the defendant is guilty beyond a reasonable doubt.
A reasonable doubt is a doubt based on reason and common sense arising out of some or all of the evidence that has been presented, or the lack or insufficiency of the evidence, as the case may be. Proof beyond a reasonable doubt is proof that fully satisfies or entirely convinces you of the defendant's guilt.
Further, with respect to the elements of the crime, the trial court instructed:
The defendant has been charged with robbery with a dangerous weapon. . . .
For you to find the defendant guilty of this offense, the State must prove seven things beyond a reasonable doubt.
First, that the defendant took property from the person.
Second, that the defendant carried away the property.
Third, that the person did not voluntarily consent to the taking and carrying away of the property.
Fourth, that the defendant knew he was not entitled to take the property.
Fifth, that at the time of the taking the defendant intended to deprive that person of its use permanently.
Sixth, that the defendant had a firearm in his possession at the time he obtained the property.
And seventh, that the defendant obtained the property by endangering or threatening the life of that person with the firearm.
As in Penland, 343 N.C. at 656, 472 S.E.2d at 747, these instructions "adequately informed the jury that the State had to prove that defendant was the perpetrator." Accordingly, we hold that the trial court did not err in failing to give the requested N.C.P.I.-Crim. 104.90 instruction.
Next, defendant contends that the trial court committed plain error in instructing the jury on the doctrine of recent possession. In a robbery case, the doctrine of recent possession "allows the jury to infer that the possessor of the stolen property is guilty of its taking." State v. Reid, 151 N.C. App. 379, 382, 565 S.E.2d 747, 750, appeal dismissed and disc. review denied, 356 N.C. 622, 575 S.E.2d 522 (2002).
"The doctrine of recent possession applies where the State can prove three things: (1) that the property was stolen; (2) that the defendant had possession of this stolen property, possession being that `he is aware of its presence and has, either by himself or together with others, both the power and intent to control its disposition or use'; and (3) `that the defendant had possession of this property so soon after it was stolen and under such circumstances as to make it unlikely that he obtained possession honestly.'" Id. (quoting State v. Pickard, 143 N.C. App. 485, 487-88, 547 S.E.2d 102, 104, disc. review denied, 354 N.C. 73, 553 S.E.2d 210 (2001)). Defendant contends that the recent possession instruction was given in error because defendant offered "uncontested" testimony at trial that he was under the influence of alcohol at the time of the robbery and was unaware of his possession of Collier's debit card until the police found it in his pocket.
The trial court has a duty to instruct on every substantial and essential feature of the case. State v. Quick, 106 N.C. App. 548, 555, 418 S.E.2d 291, 296, disc. review denied, 332 N.C. 670, 424 S.E.2d 415 (1992). The legal principle of recent possession of stolen property constitutes a substantive feature which the court has a duty to discuss in its jury instructions when "[t]he facts taken in the light most favorable to the State support an instruction on the recent possession of stolen property." Id.
Here, the State presented evidence at trial that Collier's purse, which contained her debit card, was stolen. The State also showed — and defendant admitted — that Collier's debit card was found in defendant's pants pocket approximately an hour after the robbery, and defendant had put the card there. Thus, the evidence amply supported the instruction on the doctrine of recent possession. See State v. Patterson, 194 N.C. App. 608, 620-21, 671 S.E.2d 357, 364 (holding evidence was sufficient to support jury instruction on doctrine of recent possession when evidence showed property was stolen and was subsequently recovered from defendant's exclusive control 21 days after alleged breaking and entering), disc. review denied, 363 N.C. 587, 683 S.E.2d 383 (2009); Pickard, 143 N.C. App. at 488, 547 S.E.2d at 105 (holding evidence sufficient to support jury instruction on doctrine of recent possession when evidence showed unique item — victim's address book — was seen in defendant's vehicle less than three days after victim's purse was stolen, and vehicle and its contents were in possession and under control of defendant).
Defendant's reliance on State v. McFalls, 221 N.C. 22, 18 S.E.2d 700 (1942), is misplaced. In McFalls, the Court held that the trial court erred in instructing the jury on recent possession when the evidence established that the defendant was drunk at the time the stolen property was placed in the defendant's cedar chest in her apartment. Id. at 22-23, 18 S.E.2d at 701. Although defendant claims that the facts of McFalls are indistinguishable from the facts of this case, we disagree. There was no evidence in McFalls that the defendant placed the stolen property in the chest or knew of its presence in the chest: "the money was placed in the defendant's cedar chest without her immediate knowledge, at a time when she was drunk, and . . . was removed by the officers before she had an opportunity to open the chest or to know it was there." Id. at 23, 18 S.E.2d at 701 (emphasis added).
Here, by contrast, defendant testified that he was aware that he put the debit card in his pocket. Therefore, it was "`manifest that the stolen goods [came] to [his] possession by his own act.'" Id. at 24, 18 S.E.2d at 701-02 (quoting State v. Lippard, 183 N.C. 786, 788, 111 S.E. 722, 723 (1922)). Defendant's testimony as to why he put the card in his pocket simply created an issue for the jury to consider. "[G]iving the State the benefit of all reasonable inferences," we conclude that it was not error for the trial court to instruct the jury on the doctrine of recent possession. State v. Osborne, 149 N.C. App. 235, 241, 562 S.E.2d 528, 533, aff'd per curiam, 356 N.C. 424, 571 S.E.2d 584 (2002).
Lastly, defendant contends that the trial court erred by failing to affirmatively exercise its discretion pursuant to N.C. Gen. Stat. § 15A-1233(a) (2009). During the jury's deliberations, the jury sent the judge a note with three questions:
(1) What were each of [Collier's] descriptions of the hat regarding color in her testimony?
(2) Did [Collier] report that the gunman's dreds were down? (From testimony)
(3) What was [Collier's] specific description of the gunman on her initial police report?
After the judge received the note, he initially indicated to counsel: "My response to each of those would be they'll have to rely upon their recollection of the testimony in their deliberations." Defendant's counsel then suggested that the jurors should be able to review State's Exhibit 1, the police report that contained Collier's statement. The State did not object. The judge decided, however, not to allow the jury to review any materials: "You know, and typically my response is they didn't ask for the report. I mean, at that point then we'd have to start asking well, what else can I suggest that they take back there, and I don't want to get in the middle of that. So I'm going to deny that request and simply instruct them as to they're to rely on their recollections." When the jurors returned to the courtroom, the judge informed them, "My response to each of those questions will be the same. . . . [I]t's your responsibility to rely upon your recollection of the testimony in your deliberations. So I'm going to ask that you go back and resume your deliberations."
N.C. Gen. Stat. § 15A-1233(a) provides that
[i]f the jury after retiring for deliberation requests a review of certain testimony or other evidence, the jurors must be conducted to the courtroom. The judge in his discretion, after notice to the prosecutor and defendant, may direct that requested parts of the testimony be read to the jury and may permit the jury to reexamine in open court the requested materials admitted into evidence.
The Supreme Court has explained that § 15A-1233(a) imposes upon the trial court a duty to "`exercise its discretion in determining whether to permit requested evidence to be read to or examined by the jury together with other evidence relating to the same factual issue.'" State v. Guevara, 349 N.C. 243, 252, 506 S.E.2d 711, 717 (1998) (quoting State v. Ashe, 314 N.C. 28, 34, 331 S.E.2d 652, 657 (1985)), cert. denied, 526 U.S. 1133, 143 L. Ed. 2d 1013, 119 S. Ct. 1809 (1999). "The burden is on defendant to show that the court abused its discretion by acting so arbitrarily that the determination could not have been the result of a reasoned decision." State v. Corbett, 339 N.C. 313, 337, 451 S.E.2d 252, 265 (1994).
In State v. Wampler, 145 N.C. App. 127, 131, 549 S.E.2d 563, 567 (2001), a jury sent a question asking about "the time frame from when defendant was at the [convenience store] until the time of the crime." The trial court declined to answer the question, explaining that the testimony could not be produced because a different court reporter had recorded the pertinent testimony and because the court was "`unwilling in its discretion to give [the jury] a mere portion of the testimony as requested and [could] only invite . . . [the] members of the jury to try as best [they were] able to rely on [their] own recollection of what was said.'" Id. This Court concluded that the trial court had not abused its discretion under N.C. Gen. Stat. § 15A-1233 because, in part, answering the question would entail the trial court giving evidence, in the absence of a transcript. 145 N.C. App. at 132, 549 S.E.2d at 567.
Here, the trial court could not have answered the question itself and recited to the jury the description in the police report because, as in Wampler, that would have amounted to evidence. The question could only be answered by providing a portion of the transcript relating to the police report or by providing the jury with the actual report, as defendant requested. The trial court essentially told counsel that it did not want to have to determine what other evidence would need to be sent with the report in order to ensure that undue stress was not placed on the report. Instead, the trial court chose to instruct the jury to rely upon its own recollection of the evidence.
Our courts have consistently held that a trial court does not abuse its discretion when it declines to provide the jury with evidence for similar reasons to those given by the trial court in this case. See, e.g., State v. Buckner, 342 N.C. 198, 232, 464 S.E.2d 414, 433 (1995) (finding no error where, although judge "never addressed the question of whether the court reporter could read back the testimony to the jury, . . . this specific request was never actually made by the jury[,]" and "[n]othing in the record indicates the trial judge was acting under a misapprehension of the limits of his discretion when he made his decision"), cert. denied, 519 U.S. 828, 136 L. Ed. 2d 47, 117 S. Ct. 91 (1996); Corbett, 339 N.C. at 338, 451 S.E.2d at 265 (concluding that trial court did not err in declining jury request because "it would not be fair to give the jury only portions of the testimony taken out of context of the whole trial" and in instructing jury "to rely upon their individual recollections to arrive at a verdict"); State v. Starr, ___ N.C. App. ___, ___, 703 S.E.2d 876, 882 (2011) (holding that trial court properly exercised discretion in denying jury's request to review one witness' testimony and directing jury to rely on recollection of testimony).
Defendant contends, however, that the trial court abused its discretion in basing its decision in part on its conclusion that the jury had not requested the police report. Defendant's argument is premised on his assumption that the jury's third question necessarily amounted to a request to review the police report. When, however, the third question is read in conjunction with the first two, it is not apparent that the jury was asking for the report as opposed to asking for the trial court to answer its question. Keeping in mind that the judge read all three of the jury questions together, we cannot say that the judge's interpretation of the request was unreasonable. In any event, the judge went on to weigh his concerns about giving the jury more material, and he exercised his discretion to require the jury to rely upon its recollection of the evidence. We, therefore, hold that the trial court did not abuse its discretion.
Judges ROBERT C. HUNTER and STEPHENS concur.
Report per Rule 30(e).