STATE OF NORTH CAROLINA
v
.
Rockingham County
Nos. 00 CRS 12046
MICHAEL ANTHONY PEELER 01 CRS 298
Attorney General Roy Cooper, by Assistant Attorney General
Emery E. Milliken, for the State.
Craig M. Blitzer for defendant appellant.
CAMPBELL, Judge.
Defendant was found guilty by a jury of breaking and entering,
larceny, and possession of stolen goods. Following defendant's
guilty plea to habitual felon status, the trial court arrested
judgment on defendant's conviction for possession of stolen goods,
consolidated his remaining offenses, and sentenced him as an
habitual felon to 107 to 138 months' imprisonment. Defendant gave
notice of appeal in open court.
Defendant was charged with a break-in at 1226 Ridge Avenue in
Eden during the early morning hours of 13 October 2000.
Approximately one-half hour after the incident, eyewitness Ruby
Turner identified defendant as the perpetrator after he was
apprehended by Eden Police Officer John Price. On appeal,defendant contends that the trial court erred in denying his motion
to suppress Turner's pretrial identification and in overruling his
subsequent objection to Turner's testimony at trial.
In reviewing the denial of a motion to suppress, we must
usually determine (1) whether the trial court's findings of fact
are supported by competent evidence, and (2) whether the trial
court's findings of fact support its conclusions of law. In this
case, defendant offered only a general exception to the denial of
his motion and did not object to any of the court's findings.
Therefore, we are bound by the findings of fact entered below and
must determine only whether the trial court's findings support its
conclusions of law. See State v. Jones, 96 N.C. App. 389, 392, 386
S.E.2d 217, 219 (1989) (quoting Anderson Chevrolet/Olds, Inc. v.
Higgins, 57 N.C. App. 650, 653, 292 S.E.2d 159, 161 (1982)), appeal
dismissed, disc. review denied, 326 N.C. 366, 389 S.E.2d 809
(1990).
The findings of fact relevant to our discussion are as
follows:
1. That on or about the evening of October
13th, 2000 at around 12 midnight to 12:30
a.m., Ruby Turner was awakened by the barking
of her dog.
2. That she arose and went into her kitchen
and from the window observed a black male
coming from behind the house of her next door
neighbor, Cathy Johnson.
3. That the area between the Turner residence
and the Johnson residence was illuminated by
backyard lights in the Turner yard and in the
yard of the neighbor on the other side of the
Johnson residence.
. . .
5. That [Turner] observed the black male
break out a window at the Johnson residence
and enter the residence.
6. That she observed the black male emerge
from the residence with a bag.
7. That she then observed the black male's
face.
. . .
11. That she observed the black male dragging
a bag across the street in front of the
Johnson and Turner residences past empty
buildings into a grassy area behind the
buildings.
12. That she telephoned 911 and reported what
she had observed.
13. That Officer John W. Price of the Eden
Police Department was dispatched to the area.
. . .
16. That Ms. Turner described the person she
saw [to Price] as a black male, short of
stature with braided hair and wearing a black
or brown coat.
17. That Officer Price went into a wooded
area across the street from the Johnson and
Turner residences and found the defendant
lying on the ground with a bag beside him.
. . .
19. That Officer Price went back . . . and
informed Ms. Turner that a person fitting her
description had been located.
20. That . . . Officer Price also mentioned
that a bag had also been found.
21. That Officer Price requested that Ms.
Turner accompany him to Stadium Drive to see
if she could identify the person found . . . .
. . .
23. Ms. Turner believed before she saw
defendant on Stadium Drive that the person[]
that the police had apprehended [was] the
person she had seen earlier at the Johnson
residence.
24. That when Officer Price drove Ms. Turner
to the location on Stadium Drive where the
defendant had been taken and used his alley
light to illuminate the defendant seated in
the back of the police patrol car.
25. That Ms. Turner immediately identified
the defendant as the person whom she had seen
earlier at the Johnson residence.
Based on these findings, the trial court also reached the following
“conclusions:”
1. The witness, Ms. Turner, had sufficient
opportunity to see the defendant at the time
of the alleged crime.
2. That the witness devoted a sufficient
degree of attention to her observation of the
defendant at that time.
3. That the witness' prior description of the
person she had observed at the Johnson
residence was reasonably accurate.
4. That the witness demonstrated a sufficient
level of certainty of identification at the
time of the confrontation on Stadium Drive.
5. That the length of time between the alleged
crime and the confrontation was not material.
6. The witness had . . . formed a belief that
the person apprehended was the perpetrator
before the confrontation occurred. And while
the evidence does not indicate a deliberate
attempt by law enforcement to influence her
belief, . . . the officer's communications
with her did in fact influence.
7. However, the Court is unable to determine
applying the applicable tests that as the
result of the procedure followed a very
substantial likelihood of irreparable
misidentification existed.
The motion to suppress is denied.
Defendant argues that the trial court's conclusions of law
failed to resolve whether or not Turner's pre-trial identification
was tainted by a very substantial likelihood of irreparable
misidentification caused by the show-up procedure. Because the
trial court did not resolve this ultimate question, defendant
contends that its findings of fact are not binding on this Court.
Moreover, defendant insists that “the Due Process Clause of the
United States Constitution[] would prohibit a trial court from
denying a motion to suppress simply because the trial [c]ourt is
unable to determine any result using what the [c]ourt considers to
be the applicable standards.”
In taking the position that the trial court failed to assess
the likelihood of misidentification, defendant has grounded his
appeal in a mis-reading of the trial transcript. The transcript
reflects the trial court's conclusion, after a painstaking
examination of the circumstances, that it was “unable to determine
applying the applicable tests that as the result of the procedure
followed a very substantial likelihood of irreparable
misidentification existed. ” What defendant casts as a failure to
resolve the dispositive question before the court was, in fact, the
court's affirmative ruling that no substantial likelihood of
irreparable misidentification was created by the show-up procedure.
Having misconstrued the trial court's statement as an inability to
decide the matter, defendant has not addressed the merits of thecourt's analysis. In an abundance of caution, we review the
court's ruling under the appropriate legal standard.
Defendant's motion to suppress challenged the show-up
identification by Turner on the morning of 13 October 2000. This
Court has summarized the applicable legal standard as follows:
Identification evidence must be suppressed if
the facts show the pretrial identification
procedures were so suggestive as to create a
very substantial likelihood of irreparable
misidentification. The determination of this
question involves a two-step process: "First,
the Court must determine whether the pretrial
identification procedures were unnecessarily
suggestive. If the answer to this question is
affirmative, the court then must determine
whether the unnecessarily suggestive
procedures were so impermissibly suggestive
that they resulted in a substantial likelihood
of irreparable misidentification."
State v. Capps, 114 N.C. App. 156, 161-62, 441 S.E.2d 621, 624
(1994) (citing State v. Fisher, 321 N.C. 19, 23, 361 S.E.2d 551,
553 (1987); State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985)).
Show-up identifications are generally disfavored and are deemed
sufficiently suggestive to trigger the second stage of the Capps
analysis. See State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368,
373 (1982). The inquiry thus turns to whether the procedures used
by Officer Price were so suggestive as to create a substantial
likelihood of misidentification by Turner. In assessing the
likelihood of misidentification, the trial court was obliged to
consider the circumstances in which the show-up was conducted,
including ”(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 of thecriminal; (4) the level of certainty demonstrated by the witness at
the confrontation; and (5) the length of time between the crime and
the confrontation.” State v. Harris, 308 N.C. 159, 164, 301 S.E.2d
91, 95 (1983).
The trial court's denial of the motion to suppress was proper
in all respects. The court applied the appropriate legal standard
as articulated in Capps. It made specific, detailed findings of
fact on each of the Capps factors, including Turner's ability to
see the intruder as he committed the break-in, her level of
attentiveness during the incident, the extent and accuracy of her
initial description of the intruder to Officer Price, see State v.
Richardson, 328 N.C. 505, 512, 402 S.E.2d 401, 405 (1991), her
immediate and positive identification of defendant at the show-up,
and the short amount of time between the break-in and the
identification. Moreover, the trial court took into account the
possible “corrupting effect” of the show-up procedure, specifically
noting that Turner arrived at Stadium Drive already believing that
Price had caught the perpetrator. See Turner, 305 N.C. at 364-365,
289 S.E.2d at 373-374 (quoting Manson v. Brathwaite, 432 U.S. 98,
114, 53 L. Ed. 2d 140, 154 (1977)). Finally, we conclude that the
facts found by the trial court support its legal conclusion that,
under the totality of the circumstances, there was no substantial
likelihood of misidentification. See Capps, 114 N.C. App. at 163,
441 S.E.2d at 625.
Defendant also faults the trial court for overruling his
objection to Turner's testimony about the pre-trial identification. Having found that defendant's motion to suppress was properly
denied, we further find Turner's testimony admissible. We note
that defendant failed to raise a due process challenge to Turner's
testimony in the trial court and is precluded from doing so now.
See State v. Cooke, 306 N.C. 132, 137, 291 S.E.2d 618, 621 (1982)
(citations omitted) (constitutional questions not raised in the
trial court will not be considered on appeal). Accordingly, his
argument is not properly before this Court.
To the extent that defendant's second assignment of error in
the record on appeal is not addressed in his brief to this Court,
it is deemed abandoned. See N.C.R. App. P. 28(b)(6) (2002).
For the reasons discussed above, we conclude that defendant
received a fair trial free from prejudicial error.
No error.
Judges WYNN and McGEE concur.
Report per Rule 30(e).
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