State Of North Carolina v. Rawls

• Decision Date: 19 October 2010
• Docket Number: No. COA09-1029.,COA09-1029.
• Citation: 700 S.E.2d 112
• Parties: STATE of North Carolina v. Preston Teion RAWLS, Defendant.
• Court: North Carolina Court of Appeals

700 S.E.2d 112

STATE of North Carolina
v.
Preston Teion RAWLS, Defendant.

No. COA09-1029.

Court of Appeals of North Carolina.

Oct. 19, 2010.

700 S.E.2d 113

COPYRIGHT MATERIAL OMITTED.

700 S.E.2d 114

Appeal by defendant from judgment entered 8 April 2009 by Judge James E. Hardin, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 14 January 2010.

Attorney General Roy Cooper, by Assistant Attorney General Chris Z. Sinha and Assistant Attorney General Kathleen N. Bolton, for the State.

Leslie C. Rawls, Charlotte, for defendant-appellant.

GEER, Judge.

Defendant Preston Teion Rawls appeals from his conviction of one count of felony breaking and entering. Defendant primarily argues that the trial court, when denying his motion to suppress the victim's pretrial identification, erroneously concluded that N.C. Gen.Stat. § 15A-284.52 (2009), the Eyewitness Identification Reform Act (“the EIRA”), does not apply to showup identifications. We agree with the trial court. After reviewing the EIRA as a whole, considering our courts' prior decisions distinguishing showups from lineups, and noting the fact that defendant's argument would effectively eliminate the use of showups, we are unwilling to hold that the General Assembly intended the EIRA to apply to showups in the absence of any express indication of that intent.

Facts

At trial, the State's evidence tended to show the following. On the morning of 29 September 2008, Linette Rochelle Pickard Smith finished working the third shift at her job and returned to her house. She had just gone to bed when, at approximately 10:30 a.m., she heard a loud noise from another part of the house. She first checked her kitchen and, finding nothing out of the ordinary, then went to the living room.

There, she discovered that the back door had been kicked in and broken. She saw two men standing in the house and one man just outside the door. The man later identified as defendant was the closest one to Ms. Smith-he was about a table's length away. When Ms. Smith exclaimed, “[W]hat the hell,” she and defendant “looked right dead at each other” and made eye contact. The men then fled. From her back yard, Ms. Smith could see them running toward a path that led to a nearby apartment complex. Ms. Smith went back inside and called the police.

Officer S.J. Langholz, a canine officer with the Greensboro Police Department, arrived about five minutes later with his canine, Jake. While Officer Langholz took Jake out of his vehicle, Ms. Smith reported that the “two black males that came in her house were wearing white tee shirts and khaki pants; the third one was wearing dark pants, possibly blue jeans and an unknown shirt.” She also informed him that they had gone down the path toward the apartments.

Detective Eric Gray Miller was also in the area when he heard a radio broadcast with a partial description of the suspects. He started to drive toward Ms. Smith's house, but Officer Langholz advised him to go ahead to the apartment complex. As Detective Miller drove through the complex, he observed three men, in a breezeway, who fit the description he had heard on the radio. One of the men, defendant, was wearing light-colored warm-up pants and a hooded sweatshirt, another was wearing a white tee shirt and khakis, and the third man was wearing a white tee shirt and blue jeans. Detective Miller radioed for assistance. As he pulled up, the man in the white tee shirt and khakis began to walk away, but Detective Miller got out of the car and called him back over.

Meanwhile, Jake had begun to track from Ms. Smith's backyard, leading Officer Langholz down the path to the apartment complex. Jake tracked up to the second or third building until they came upon a blue duffel bag that Jake picked up and shook. Jake then dropped the bag and walked around the corner of the building into a breezeway and began barking. This breezeway was where Detective Miller and other officers were waiting with the three subjects.

Officer Miranda Key Lone was one of the officers who went to the apartment complex to assist Detective Miller. Once she arrived, she was directed to Ms. Smith's house to see if Ms. Smith would be willing to do a showup identification of the suspects. Officer Lone

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told Ms. Smith, “[T]hey think they found the guy[,]” and Ms. Smith agreed to the showup. Officer Lone then took Ms. Smith and her husband in the patrol car to the apartment complex, about a 45-second drive.

From the car, Ms. Smith was unable to get a good view of the three detained individuals, so she got out of the car and walked up the stairs to where they were sitting. Recognizing the men's clothing and defendant's face, she identified all three as the men who had been at her house. She “pointed them out” individually, saying “that was him, the first one; and this is the second one, and that's the third one.” Ms. Smith indicated that the first two men, including defendant, were the ones inside the living room, but she was unsure if the third man had actually entered the house. When Detective Miller asked Ms. Smith if she was sure about the identifications, she replied that “she was positive, and that she could not forget their faces.”

Defendant was subsequently indicted on the charge of breaking and entering. ¹ On 6 April 2009, defendant filed a motion to suppress any evidence related to the showup, as well as any in-court identification of defendant, on the grounds that the showup was impermissibly suggestive and violated the EIRA. Defendant also contended that “any in-court identification is, in and of itself, a suggestive identification procedure.” The trial court ruled that the EIRA does not apply to showups and denied defendant's motion to suppress.

The jury found defendant guilty of breaking and entering, and the trial court sentenced him to a presumptive-range term of eight to 10 months imprisonment. The court suspended the sentence and placed defendant on supervised probation for 36 months. Defendant timely appealed to this Court.

I

Defendant first argues that the trial court erred in ruling that the EIRA does not apply to showups. The purpose of the EIRA “is to help solve crime, convict the guilty, and exonerate the innocent in criminal proceedings by improving procedures for eyewitness identification of suspects.” N.C. Gen.Stat. § 15A-284.51 (2009). The EIRA details several procedural requirements that law enforcement officers must follow when conducting a “lineup,” which the EIRA defines as a “photo lineup or live lineup.” N.C. Gen.Stat. § 15A-284.52(a)(4).

As our Supreme Court has emphasized, when construing a statute, “our primary task is to ensure that the purpose of the legislature, the legislative intent, is accomplished.” Elec. Supply Co. of Durham, Inc. v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991). In performing this function, “[l]egislative purpose is first ascertained from the plain words of the statute.” Id. See also O & M Indus. v. Smith Eng'g Co., 360 N.C. 263, 267-68, 624 S.E.2d 345, 348 (2006) ( “The first consideration in determining legislative intent is the words chosen by the legislature.”). When the words are unambiguous, “they are to be given their plain and ordinary meanings.” Id. at 268, 624 S.E.2d at 348. When, however, the words are ambiguous, “judicial construction must be used to ascertain the legislative will.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 209, 388 S.E.2d 134, 136-37 (1990).

The question presented by this appeal is whether the “lineup” referenced in the EIRA encompasses a “showup.” Since there is no dispute that a showup is not a “photo lineup,” the question is whether a showup falls within the definition of a “live lineup.” “If a statute ‘contains a definition of a word used therein, that definition controls,’ but nothing else appearing, ‘words must be given their common and ordinary meaning[.]’ ” Knight Publ'g Co. v. Charlotte-Mecklenburg Hosp. Auth., 172 N.C.App. 486, 492, 616 S.E.2d 602, 607 (quoting In re Clayton-Marcus Co., 286 N.C. 215, 219, 210 S.E.2d 199, 203 (1974)), disc. review denied, 360 N.C. 176, 626 S.E.2d 299 (2005). Further, “ ‘[w]ords and phrases of a statute may not be interpreted out of context, but individual

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expressions must be construed as a part of the composite whole and must be accorded only that meaning which other modifying provisions and the clear intent and purpose of the act will permit.’ ” In re Expungement of Spencer, 140 N.C.App. 776, 779, 538 S.E.2d 236, 238 (2000) (quoting In re Hardy, 294 N.C. 90, 95-96, 240 S.E.2d 367, 371-72 (1978)).

The EIRA defines a “live lineup” as “[a] procedure in which a group of people is displayed to an eyewitness for the purpose of determining if the eyewitness is able to identify the perpetrator of a crime.” N.C. Gen.Stat. § 15A-284.52(a)(6). A showup, by contrast, is “the practice of showing suspects singly to witnesses for purposes of identification.” State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982) (defining “showup”). There is no dispute that the procedure at issue in this case was a showup-Ms. Smith was shown three men and asked if they were the three men at her house. Although defendant acknowledges that not all showups would fit within the definition of a “live lineup,” defendant argues that what occurred in this case fits within the definition of a live lineup because Ms. Smith was shown a group of people.

The plain language of the definition leaves open the question whether the “group” is supposed to include only one perpetrator or whether the reference to a “group” encompasses the situation here when multiple suspects are present in the group observed by the witness in a context other than a formal lineup. Reading the statute as a whole, however, “live lineup” cannot reasonably be construed to encompass a showup such as the one that occurred here.

The EIRA provides that a single live lineup may contain no more than one...