STATE OF NORTH CAROLINA
v. Catawba County
No. 00 CRS 6301
JUAN CARLOS MARTINEZ
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Mabel Y. Bullock, for the State.
David Shawn Clark, P.A., by D. Shawn Clark, for defendant-
appellant.
EAGLES, Chief Judge.
Defendant-appellant Juan Carlos Martinez appeals from
judgments entered on jury verdicts finding him guilty of
trafficking in marijuana by possession, possession of cocaine, and
knowingly maintaining a place or residence for keeping controlled
substances. Defendant-appellant contends that the trial court
erred in denying his motion to suppress. After careful review of
the record, briefs, and contentions of the parties, we disagree.
The evidence tended to show the following. Walter Craig was
the owner of property located at 919 9th Street Drive, Northeast,
in Hickory, North Carolina. On 11 or 12 January 2000, Craig showed
the property to prospective tenants, a young hispanic couple andtheir child. The couple identified themselves as Jesus and
Claudette Chavez. Craig met with the couple for about forty-five
minutes to an hour. Craig met with the couple a second time on 13
January 2000, again for about forty-five minutes. During this
meeting, Craig agreed to lease the property to them.
On or about 10 May 2000, Craig visited the property to collect
unpaid rent. Upon inspection, Craig noticed that the house had
been vacated and the property damaged, so he called the police.
Shortly thereafter, Craig was informed by Officer Randy Isenhour of
the Hickory City Police Department that there had been a drug bust
at the property and arrests had been made.
On or about 12 May 2000, Craig met with Investigator Mike
Saunders of the Catawba County Sheriff's Office to view a
photographic lineup. Craig was shown three photographs and a
picture identification. The lineup included two hispanic men and
two hispanic women. Craig picked out the photographs of the two
people who had identified themselves as Jesus and Claudette Chavez
when leasing the property from him. The photographs were of co-
defendant Jesus Martinez and Norma Morones. Defendant-appellant is
Jesus Martinez's brother.
On 7 August 2000, defendant-appellant was indicted on charges
of trafficking in marijuana by possession, trafficking in cocaine
by possession, and knowingly maintaining a place or residence for
keeping controlled substances. The case was tried during the 27
November 2000 Criminal Session of Catawba County Superior Court.
Defendant-appellant's, Jesus Martinez's, and Maria Martinez's(defendant-appellant's aunt) cases were joined for trial. At the
conclusion of the trial, a jury found defendant-appellant guilty as
charged.
At trial, defendant-appellant moved to suppress the
identification of Martinez and Morones. After a voir dire hearing,
the motion was denied. Craig then identified Martinez in court and
Morones as the person who had been with Martinez.
Defendant-appellant's sole argument on appeal is that the
trial court erred by denying his motion to suppress the
photographic identification of Martinez and Morones. Defendant-
appellant notes that Craig was only given four photographs to view,
two of two hispanic males, and two of two hispanic females.
Additionally, defendant-appellant notes that Craig had described
the couple as young, yet the pictures presented to Craig were of an
older male and female, and a younger male and female. Thus,
defendant-appellant asserts that the photographic identification
was impermissibly suggestive.
Defendant-appellant further argues that even though he was not
identified, the process was equally violative of his constitutional
rights. The defendants were arrested, tried, and convicted as a
group. Thus, defendant-appellant contends that when Craig
identified Martinez and Morones, the identification guaranteed his
conviction.
Finally, defendant-appellant argues that the suggestive
photographic identification led to an irreparable in-court
misidentification of Martinez and Morones. Defendant-appellantcontends that in addition to the suggestive photographic
identification: (1) Craig only viewed the tenants for ninety
minutes when he rented them the property; (2) he had twenty-one
tenants, several of whom were hispanic; (3) he did not ask Jesus
and Claudette Chavez for additional identification, personal
information, or references; (4) he was not a victim of a crime, and
thus had no reason to pay particular attention to the tenants; (5)
his degree of attention when meeting with the tenants was not
acute, and he gave very little attention to their physical
attributes; (6) he never gave a detailed description of the
tenants; and (7) approximately four months passed between the time
Craig first met with Jesus and Claudette Chavez and the date of the
photographic identification.
Initially, we note that there is a question as to whether
defendant-appellant has standing to challenge the identification.
However, even assuming arguendo that defendant-appellant does have
standing, we find no error.
This Court has stated that:
“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). Therefore, even when the
procedures used at a pretrial identification
are suggestive, the pretrial identification is
nevertheless admissible unless under the
totality of the circumstances “there is a
substantial likelihood of irreparable
misidentification.” State v. Pigott, 320 N.C.
96, 99, 357 S.E.2d 631, 633 (1987). Indetermining whether this substantial
likelihood exists, the trial court must
consider the following factors:
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;
4) the level of certainty demonstrated at
the confrontation; and
5) the time between the crime and the
confrontation.
Id. at 99-100, 357 S.E.2d at 633-34. A trial
court's findings of fact regarding these
factors are binding on appeal when supported
by competent evidence.
State v. Pinchback, 140 N.C. App. 512, 518, 537 S.E.2d 222, 225-26
(2000) (citation omitted).
Here, the trial court concluded that the pretrial
identification was “somewhat suggestive,” but that the procedure
was not so impermissibly suggestive as to result in irreparable
misidentification. The trial court based its conclusions on
findings that Craig viewed and talked with Martinez and Morones for
an extended period of time (approximately forty-five minutes to one
hour on the first occasion they met, and another forty-five minutes
on the day they signed the lease agreement); that he had an
interest in observing them and to pay particular attention to them
because they planned to lease property from him; that the
observation was made when he was in a “cool, collected manner;”
and Craig based his identification of Martinez and Morones not onthe photographs, but on the two occasions he met with them in
January 2000. There was sufficient competent evidence in the
record to support each of the trial court's findings.
In sum, we conclude that under the totality of the
circumstances, the identification of Martinez and Morones was
sufficiently reliable to be admissible. Accordingly, the trial
court did not err.
No error.
Judges TIMMONS-GOODSON and McCULLOUGH concur.
Report per Rule 30(e).
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