State v. Woodruff, No. COA09-512 (N.C. App. 2/16/2010)
| Decision Date | 16 February 2010 |
| Docket Number | No. COA09-512.,COA09-512. |
| Court | North Carolina Court of Appeals |
| Parties | STATE OF NORTH CAROLINA v. LARRY RASHAWN WOODRUFF |
Leslie C. Rawls, for Defendant.
Defendant Larry Rashawn Woodruff (Defendant) appeals from a judgment sentencing him to a minimum of sixty months and a maximum of eighty-one months imprisonment in the custody of the North Carolina Department of Correction and recommending that he be ordered to pay restitution in the amount of $574.75 to William Mars as a condition of post-release supervision or work release based upon jury verdicts convicting him of assault by pointing a gun and robbery with a dangerous weapon. We find no error in part, reverse in part, and remand.
On 8 December 2007, a number of people were working the evening shift at Fox's Pizza Den in Denver, including the owner, William Mars, Matthew Kwiatkowski, Rachael Wright, and Amy Forney. According to Mars, "a man [came] in[,] . . . walked directly to me[,] and stuck [a gun] to the side of my head." After Mars complied with the gunman's command to "open the cash register," "[the gunman] took the money out of [the register]." The gunman also "found a blue money bag" containing cash, which he took as well. Moreover, the gunman took "a black change box [containing] some paper money." As they left, the gunman and an accomplice took Wright's cell phone.
Similarly, Kwiatkowski stated that a "person came in[to] [Fox's Pizza Den] with a gun held drawn to the owner." Kwiatkowski said the man "had his gun held up screaming, don't [f***ing] play[;] give me the money." As Kwiatkowski ran "out the back door," he "looked up at the top of the monitor" and saw "another person come inside" the restaurant." Kwiatkowski testified that the perpetrators were not wearing masks.
A video surveillance camera captured the robbery. Mars described both perpetrators as African American males and testified that the gunman was "wearing . . . a dark shirt" and "a black baseball cap" with "a little pin or something on the bill." Mars also "noticed he had little . . . rhinestone or diamond things in his ears."
As Kwiatkowski exited the building, he noticed "a car sitting there," which he described as a "silver four-door sedan." Kwiatkowski "quickly turned around and ran all the way down to the opposite end [of the street]," where he entered a bar and grill to ask that someone "call 911 for" him. After reporting the robbery on a borrowed cell phone, Kwiatkowski saw the "car take off from [Fox's Pizza Den.]"
Kwiatkowski "started walking toward [Mars][,]" who had exited the restaurant after the perpetrators departed. As Mars spoke to the 911 operator on the borrowed cell phone, he "noticed [Forney], [the] delivery driver[,] trying to turn in." At that point, Mars "dropped the phone and . . . hollered for her to follow that car."
As Forney waited to turn in to Fox's Pizza Den, she heard Mars yell at her to follow a car that had just left the parking lot. According to Forney, the car was a tan or champagne-colored Mercury Sable or Ford Taurus containing two African American males. As soon as she began her pursuit, Forney called 911 on her cell phone.
The car Forney was following turned onto South Little Egypt Road, where one of the men threw certain items on the side of the road. The car then turned around and headed past Forney in the direction of the main road. After stopping briefly at an intersection, the car ran a red light. Forney got the car's license plate number and gave it to 911. Once the light turned green, Forney was unable to regain contact with the car.
After losing the car at the traffic signal, Forney returned to South Little Egypt Road and found an empty cardboard box and Wright's cell phone. On the following day, Forney and Mars found two or three $20 bills.
Detective Lester White of the Lincoln County Sheriff's Department testified that he got a tag number for the suspect vehicle. The registered owner of the vehicle, which was a peanut butter and tan Ford Taurus, was Lamar Stevens. Detective White "spoke with Mr. Stevens and also [Yulonda] Woodruff," Defendant's mother. Woodruff stated that "her son was in possession of the vehicle about 7:00 p.m., which was about an hour and fifteen/twenty minutes . . . before the robbery."
Woodruff brought Defendant to the Lincoln County Sheriff's Department on 9 December 2008. Although Defendant did not make a statement, he authorized Sergeant White to "take a Polaroid picture of" him.
On 18 December 2007, a Warrant for Arrest was issued charging Defendant with robbery with a dangerous weapon. On 28 January 2008, the Lincoln County grand jury returned a bill of indictment charging Defendant with robbery with a dangerous weapon and assault by pointing a gun. On 14 November 2008, Defendant filed a Motion to Suppress Evidence seeking the entry of an order suppressing "any identification made by any witness as a result of an improper eyewitness identification procedure, and any evidence, statements or testimony gained as a result of an improper identification."
The case against Defendant came on for trial before the trial court and a jury at the 17 November 2008 criminal session of the Lincoln County Superior Court. Prior to trial, the trial court conducted a hearing concerning the issues raised by Defendant's suppression motion. At the conclusion of the suppression hearing, the trial court entered an order denying Defendant's motion in which it found and concluded that:
After considering all of the evidence presented and the arguments of counsel I would find that while the pre-trial identification procedure used at the second, I guess, showing of a photo, was somewhat suggestive[,] I do not find it impermissibly suggestive such that there is a substantial likelihood of irreparable misidentification and the motion to suppress will be denied.
On 21 November 2008, the jury returned verdicts convicting Defendant of assault by pointing a gun and robbery with a dangerous weapon. After accepting the jury's verdict, the trial court entered a judgment in which it consolidated the two offenses of which Defendant had been convicted for judgment and sentenced Defendant to a minimum of sixty months and a maximum of eighty-one months imprisonment in the custody of the North Carolina Department of Correction, with a recommendation that Defendant make restitution in the amount of $574.75 to Mars "as a condition of post release supervision, if applicable, or from work release earnings, if applicable." Defendant noted an appeal to this Court from the trial court's judgment.
A. Motion to Suppress
First, Defendant challenges the trial court's denial of his motion to suppress Mars' testimony identifying him as one of the perpetrators of the robbery of Fox's Pizza Den. After carefully reviewing the record evidence in light of the applicable law, we conclude that, while the identification procedures employed by investigating officers were impermissibly suggestive, the use of these procedures did not create a substantial risk of irreparable misidentification. For that reason, we conclude that the trial court did not err by denying Defendant's suppression motion.
In considering whether a trial court erroneously granted or denied a motion to suppress, our review on appeal is "strictly limited to determining whether the trial court's findings of fact are supported by competent evidence, in which case they are binding on appeal, and in turn, whether those findings support the trial court's conclusions of law." State v. Corpening, 109 N.C. App. 586, 587-88, 427 S.E.2d 892, 893 (1993) (citing State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982); State v. Fleming, 106 N.C. App. 165, 168, 415 S.E.2d 782, 784 (1992)). "While it is preferable that the trial judge make detailed findings of fact after a hearing to determine whether out-of-court identification procedures were impermissibly suggestive, failure to do so is not error when there is no conflict in the evidence presented at such a hearing." State v. McGuire, 49 N.C. App. 70, 73, 270 S.E.2d 526, 529, appeal dismissed and disc. review denied, 301 N.C. 529, 273 S.E.2d 457 (1980) (citing State v. Dunlap, 298 N.C. 725, 259 S.E.2d 893 (1979); State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976); State v. Russell, 22 N.C. App. 156, 205 S.E.2d 752, cert denied and appeal dismissed, 285 N.C. 667, 207 S.E.2d 764 (1974)). When a trial judge fails to make findings of fact in addressing a motion to suppress identification evidence, this Court may look to the entire record to determine whether the identification procedure was impermissibly suggestive in the event that the evidence presented at the suppression hearing was not in conflict. State v. Thompson, 110 N.C. App. 217, 222, 429 S.E.2d 590, 593 (1993). As a result, since the evidence relevant to the issues raised by Defendant's suppression motion is not in conflict and since the trial court did not make findings of fact at the time that it ruled on Defendant's suppression motion, we review the entire record in order to determine whether the identification procedures employed in this case were impermissibly suggestive and whether any suggestive pretrial identification procedures created a substantial likelihood of irreparable misidentification.
"Identification evidence must be suppressed on due process grounds1 where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood...
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