STATE OF NORTH CAROLINA
v
.
CHICARION O-RONTE LEE
Attorney General Roy Cooper, by Special Deputy Attorney
General Thomas J. Ziko, for the State.
William B. Gibson, for defendant-appellant.
McGEE, Judge.
Chicarion O-Ronte Lee (defendant) was indicted on 24 July 2000
for robbery with a dangerous weapon. The evidence presented at
trial tended to show that Wayne Edward Hinerman (Hinerman) and his
sister Heather Metz (Metz) stopped "just after dark" on 9 June 2000
at a McDonald's restaurant in Smithfield, North Carolina to use a
pay telephone. While at the pay telephone, defendant and DaQuon
Oliver (Oliver) walked through the well-lit parking lot and
approached Metz's vehicle. Defendant stopped at the rear of the
vehicle while Oliver approached the open passenger window and asked
where he could get some weed. Hinerman replied that he did not
know. Oliver pointed a gun toward Hinerman's ribs and demanded
Hinerman's money. Hinerman refused and Oliver repeated his demand,
but Hinerman continued to refuse. Defendant encouraged Oliver tobe more aggressive and to demand things. Metz pulled money from
her purse and threw it at Hinerman, who gave it to Oliver.
Defendant told Oliver to take Hinerman's cell phone. Oliver took
the cell phone and he and defendant left on foot. Hinerman
immediately entered the McDonald's restaurant and called 911.
Deputy Jason Crocker (Deputy Crocker) of the Johnston County
Sheriff's Department received a call from his dispatcher and
responded to the call with his K-9 dog. The dog picked up the most
recent scent and tracked it for a couple of blocks to the door of
a trailer occupied by Alice Lee (Lee), defendant's mother. The dog
circled the trailer but did not pick up any more of the scent.
Detective Steve Knox (Detective Knox) of the Smithfield Police
Department joined Deputy Crocker at the trailer. Lee allowed them
both to enter her home. Lee told the officers that her son had
recently come home, changed shirts, and exited through the back
door. The officers searched defendant's bedroom and asked Lee to
have defendant call them when he returned home. The officers then
left the trailer.
Shortly after leaving Lee's trailer, Detective Knox and
Lieutenant Bob Jones (Lieutenant Jones) arrested a suspect wearing
a shirt that matched the description of the shirt worn by the
gunman. Lieutenant Jones took the suspect to the McDonald's
restaurant for a showup with eyewitnesses. Hinerman sat inside the
police car while the suspect stood in front of the police car's
headlights. Hinerman said the suspect was wearing the same type of
shirt as the gunman, but said the suspect was not one of therobbers. Two other eyewitnesses, Barry Braglin (Braglin) and
Tabatha McDonald (McDonald), also said the suspect was not one of
the robbers.
Defendant returned to Lee's trailer and Lee contacted
Detective Knox. Detective Knox returned to Lee's trailer and
questioned defendant about the robbery. Defendant denied
involvement with the robbery and reluctantly agreed to go with
Detective Knox to the McDonald's restaurant for a showup.
Detective Knox took defendant to the McDonald's restaurant, removed
his handcuffs, and led him into the restaurant for a showup with
the eyewitnesses. Hinerman, Braglin, and McDonald indicated that
defendant was one of the robbers.
Defendant testified that he returned home after playing
basketball with friends. Defendant said that he went home and
changed shirts, washed up, and went to a friend's house to watch a
basketball game. A short while later, defendant's aunt went over
to the friend's house to tell defendant that his mother wanted to
speak to him about a robbery, and defendant returned home.
Defendant continued to deny any involvement with the robbery.
A jury convicted defendant of robbery with a firearm on 8
November 2001. The trial court sentenced defendant to a minimum of
fifty-one months and a maximum of seventy-one months in prison.
Defendant appeals.
Defendant first argues the trial court erred by failing to
suppress eyewitness identifications of defendant and that such
error denied defendant his due process rights under the Fifth andFourteenth Amendments of the United States Constitution. Defendant
contends the in-court identifications were impermissibly tainted by
the showup procedure used at the McDonald's restaurant. Defendant
has failed to preserve the issue of Hinerman's in-court
identification for appeal. "In order to preserve a question for
appellate review, a party must have presented to the trial court a
timely request, objection or motion, stating the specific grounds
for the ruling the party desired the court to make if the specific
grounds were not apparent from the context." N.C. R. App. P.
10(b)(1). While defendant objected to Hinerman's out-of-court
identification, the transcript shows that defendant failed to
object to Hinerman's in-court identification. Accordingly,
Hinerman's in-court identification is not before this Court for
review. See State v. Gaither, 148 N.C. App. 534, 539, 559 S.E.2d
212, 215-16 (2002) (stating that a defendant must object to
identification testimony when offered at trial in order to preserve
the matter for appellate review). However, the in-court
identifications of McDonald and Braglin were properly objected to
and are before this Court for review.
"Identification evidence must be excluded as violating a
defendant's right to due process where the facts reveal a pretrial
identification procedure so impermissibly suggestive that there is
a very substantial likelihood of irreparable misidentification."
State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983).
While showups are strongly disfavored methods of identification,
see State v. Matthews, 295 N.C. 265, 285, 245 S.E.2d 727, 739(1978), this Court has approved the use of showups on numerous
occasions. In re Stallings, 318 N.C. 565, 569, 350 S.E.2d 327, 329
(1986). Showups are an unrestrictive means of determining if a
suspect committed the crime in question and they ensure an innocent
party's minimum involvement with the criminal justice system. Id.
at 570, 350 S.E.2d at 329. The trial court must employ the
totality of the circumstances test to evaluate the reliability of
a showup identification and "determine whether the procedures
created a substantial likelihood of irreparable misidentification."
State v. Fowler, 353 N.C. 599, 617, 548 S.E.2d 684, 697-98 (2001);
see Stallings, 318 N.C. at 571, 350 S.E.2d at 330.
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.
Id.; see Neil v. Biggers, 409 U.S. 188, 199, 34 L. Ed. 2d 401, 411
(1972); State v. Wilson, 313 N.C. 516, 529, 330 S.E.2d 450, 460
(1985). A trial court's findings of fact regarding the
circumstances surrounding an identification are binding on appeal
if they are supported by competent evidence. State v. Hannah, 312
N.C. 286, 291, 322 S.E.2d 148, 151-52 (1984).
In the present case, defendant has failed to demonstrate that
the showup was impermissibly suggestive and created a substantial
likelihood of irreparable misidentification. The evidence in the
record demonstrates that the eyewitnesses had sufficient
opportunity to observe defendant earlier in the evening before theshowup. McDonald testified that she and Oliver had worked together
at the McDonald's restaurant for two months and that Oliver was at
work with her earlier in the day. Additionally, McDonald said that
Oliver had returned to the restaurant with defendant twice after
Oliver had left work. McDonald stated that she had no trouble
seeing the faces of defendant and Oliver that evening.
Testimony by McDonald indicates that she was familiar with
defendant and Oliver before the robbery and was able to observe
both individuals during the course of the robbery. The trial
transcript also indicates that McDonald was certain about her
identification and was attentive to the events comprising the
robbery. Additionally, McDonald's identification of defendant in
the showup occurred a couple of hours after the robbery. This time
period was sufficiently proximate to support the reliability of the
identification.
Braglin testified that he and his wife were driving through
the parking lot of the McDonald's restaurant and observed two black
males interacting with individuals inside a car at the time of the
robbery. Braglin testified that he circled the McDonald's
restaurant several times and was able to observe the individuals
from a range of five to six feet in a well-lit area. Braglin
testified that he was able to see their faces and observe their
physical build and clothing. Braglin's identification demonstrated
a high level of certainty and attentiveness and was based on
specific characteristics from his observation. Additionally, the
showup was conducted only a couple of hours after Braglin'sobservations, making the identification sufficiently proximate in
time.
The potential suggestiveness of the showup is further
mitigated by the fact that the eyewitnesses were shown a different
individual shortly before defendant was brought into the McDonald's
restaurant. None of the eyewitnesses who testified identified the
first suspect, even though he wore a shirt with a logo that was the
same logo as on a shirt worn by one of the robbers. The
eyewitnesses had a sufficient basis for their identification to
distinguish between defendant and other suspects. The presentation
of another suspect provided an alternative to the eyewitnesses,
which reduced the risk that the subsequent showup was impermissibly
suggestive.
While defendant was handcuffed when he first arrived at the
showup, this alone is insufficient to make the showup impermissibly
suggestive. Defendant has failed to demonstrate how this
occurrence requires exclusion of the showup. The evidence in the
record demonstrates that the eyewitnesses had a sufficient basis
for their in-court identification beyond the showup. The trial
court made the appropriate findings of fact regarding the
eyewitness identification and those findings were supported by
competent evidence in the record. The trial court considered that
the eyewitnesses' in-court identifications were based on their
recollection of the crime and not the subsequent showup.
Considering the totality of the circumstances, we do not believe
the in-court identifications by McDonald and Braglin were taintedby an impermissibly suggestive showup that deprived defendant of
his due process rights. This assignment of error is without merit.
Defendant next argues the trial court erred in excluding
testimony by Dr. Reed Hunt (Dr. Hunt) about eyewitness confidence,
eyewitness memory, and showups. Defendant contends this exclusion
deprived him of his Fifth and Fourteenth Amendment due process
rights under the United States Constitution.
"'It is undisputed that expert testimony is properly
admissible when such testimony can assist the jury to draw certain
inferences from facts because the expert is better qualified.'"
State v. Locklear, 349 N.C. 118, 147, 505 S.E.2d 277, 294 (1998)
(quoting State v. Bullard, 312 N.C. 129, 139, 322 S.E.2d 370, 376
(1984)), cert. denied, 526 U.S. 1075, 143 L. Ed. 2d 559 (1999).
The trial court must balance "the probative value of the testimony
against its potential for prejudice, confusion, or undue delay."
State v. Knox, 78 N.C. App. 493, 495, 337 S.E.2d 154, 156 (1985);
see N.C. Gen. Stat. 8C-1, Rule 403 (2001).
This Court has previously addressed the issue
of the admissibility of expert testimony on
eyewitness identifications and has held that
"the admission of expert testimony regarding
memory factors is within the trial court's
discretion, and the appellate court will not
intervene where the trial court properly
appraises probative and prejudicial value of
the evidence under Rule 403 and the Rules of
Evidence."
State v. Cole, 147 N.C. App. 637, 642, 556 S.E.2d 666, 670 (2001)
(quoting State v. Cotton, 99 N.C. App. 615, 621, 394 S.E.2d 456,
459 (1990)); see Bullard, 312 N.C. at 140, 322 S.E.2d at 376.
In the present case, the trial court conducted a voir direhearing and made findings of fact regarding the expert witness's
proposed testimony. "The trial court's findings of fact following
a voir dire hearing are binding on this court when supported by
competent evidence." State v. Lane, 334 N.C. 148, 154, 431 S.E.2d
7, 10 (1993). However, conclusions of law drawn from these
findings of fact are reviewable on appeal. Id. The trial court
found as fact that Dr. Hunt, the proposed witness, had not
interviewed the victims, did not visit the crime scene, and did not
observe any of the eyewitnesses' testimony at trial. The sole
basis for Dr. Hunt's testimony was his review of the eyewitnesses'
testimony at a suppression hearing and research studies conducted
by other experts independent of these facts. The trial court
determined that the evidence was not case specific and lacked
probative value. The trial court excluded the evidence because the
probative value was outweighed by the danger that it would confuse
the jury and that it would be unduly prejudicial in defendant's
favor.
While expert testimony concerning eyewitness identification
may be appropriate in some cases, we do not believe its admission
was warranted in the present case. The eyewitnesses had sufficient
opportunity to observe defendant and they were attentive. The
identification of defendant by the three eyewitnesses was detailed
and possessed a high level of certainty. The identifications were
corroborated between the three eyewitnesses, significantly reducing
the risk of misidentification about which Dr. Hunt intended to
testify. The overwhelming evidence of defendant's guilt wassufficient to permit a jury to draw inferences without the aid of
expert testimony. The probative value of Dr. Hunt's testimony was
outweighed by its likely danger to mislead the jury and confuse the
issues. This assignment of error is without merit.
Defendant argues the trial court abused its discretion in
denying defendant's oral motion in limine regarding eyewitness
confidence. "On appeal the issue is not whether the granting or
denying of the motion in limine was error, as that issue is not
appealable, but instead whether the evidentiary rulings of the
trial court, made during the trial, are error." T&T Development
Co. v. Southern Nat. Bank of S.C., 125 N.C. App. 600, 602-03, 481
S.E.2d 347, 349 (1997). No prejudice results from a denial of a
motion in limine because the defendant remains free to object to
admission of the evidence during trial. See Hall v. Hotel
L'Europe, Inc., 69 N.C. App. 664, 665, 318 S.E.2d 99, 101 (1984).
While defendant offered an objection to this evidence at trial, he
failed to assign error to the evidentiary rulings by the trial
court on this issue. Accordingly, this issue is not before us for
review. See N.C. R. App. P. 10(a). This assignment of error is
overruled.
Defendant argues the trial court abused its discretion in
sustaining the State's objections to defendant's two questions
regarding eyewitness memory during jury voir dire. "'The trial
court has the duty to control and supervise the examination of
prospective jurors.' Regulation of the extent and manner of
inquiries during voir dire rests largely in the trial court'sdiscretion." State v. Simpson, 341 N.C. 316, 336, 462 S.E.2d 191,
202 (1995) (quoting State v. Green, 336 N.C. 142, 164, 443 S.E.2d
14, 27, cert. denied, 513 U.S. 1046, 130 L. Ed. 2d. 546 (1994)),
cert. denied, 516 U.S. 1161, 134 L. Ed. 2d 194 (1996). "Abuse of
discretion results where the court's ruling is manifestly
usupported by reason or is so arbitrary that it could not have been
the result of a reasoned decision." State v. Hennis, 323 N.C. 279,
285, 372 S.E.2d 523, 527 (1988). Defendant does not develop this
argument and fails to demonstrate that the trial court's decision
was arbitrary or that he was prejudiced by exclusion of the
questions. This assignment of error is overruled.
Finally, defendant argues the trial court abused its
discretion by prohibiting defendant from cross-examining Detective
Knox about procedures in a publication from the U.S. Justice
Department entitled, Eyewitness, Evidence, A Guide for Law
Enforcement. "The scope of cross-examination rests in the
discretion of the trial judge, and his rulings thereon will not be
disturbed absent a showing of abuse of discretion." State v.
Royal, 300 N.C. 515, 528, 268 S.E.2d 517, 526 (1980). Defendant
does not develop this argument, fails to demonstrate that the trial
court's decision was arbitrary, and fails to show that he was
prejudiced by exclusion of the questions. This assignment of error
is overruled.
No error.
Judges HUDSON and THOMAS concur.
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