State v. Reaves-Smith

• Decision Date: 05 May 2020
• Docket Number: No. COA19-932,COA19-932
• Parties: STATE of North Carolina v. Devantee Marquise REAVES-SMITH, Defendant.
• Court: North Carolina Court of Appeals

271 N.C.App. 337

844 S.E.2d 19

STATE of North Carolina

v.Devantee Marquise REAVES-SMITH, Defendant.

No. COA19-932

Court of Appeals of North Carolina.

Filed: May 5, 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

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 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

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:

(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.

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.

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 , 262 N.C.App. 313, 319, 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 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...