STATE OF NORTH CAROLINA
v. Wake County
No. 00CRS083703
ANTUWON JERMAINE CURTIS
Attorney General Roy Cooper, by Special Deputy Attorney
General Richard E. Slipsky, for the State.
Bridgett Britt Aguirre for defendant-appellant.
McGEE, Judge.
Defendant Antuwon Jermaine Curtis was charged with robbery
with a dangerous weapon. Prior to trial, defendant moved to
suppress all out-of-court and possible in-court identification
evidence of the prosecuting witness, Sarah Abrahams. The State and
defense counsel presented stipulated evidence, after which the
trial court denied defendant's motion to suppress.
The State presented evidence at trial which tended to show
that at about 2:00 a.m. on 18 September 2000, Sarah Abrahams, a
college student, was returning home after watching a movie at a
friend's house. She parked her car in front of her apartment, near
a large streetlight. After exiting the vehicle, Abrahams began to
walk towards the front door of her apartment. Abrahams heard a carpull up. When she turned around, she saw two African-American men
jump out of the back seat of a white, four-door car. Each of the
men had a silver handgun in his right hand. One man stood to
Abrahams' right and the other to her left. The gunman to her left
demanded her money and Abrahams handed her purse to the men. The
armed men asked Abrahams if she had any more money, to which she
responded, "No, no." The gunman to her right grabbed her, and the
gunman on her left patted her down. Finding no additional money,
the two armed men returned to their vehicle. Abrahams noticed two
other men in the front seat of the vehicle but could not see their
faces.
Abrahams telephoned the police and when they arrived
approximately ten minutes later, Abrahams gave them details of the
robbery. She described one assailant as an African-American man,
about eighteen years old, five feet ten inches tall, but a little
taller than the other robber, and weighing two hundred pounds.
Abrahams noted that he was clean-shaven, of medium complexion,
wearing a long-sleeved red and gray shirt with some writing on it,
dark jeans, and a black hat with some sort of "do rag" underneath
that concealed his hair. Abrahams described the other assailant as
an African-American man, about eighteen years of age, five feet ten
inches tall, and weighing two hundred pounds. Abrahams stated this
assailant had short hair and a medium complexion and was wearing a
black or gray fleece shirt and dark pants. She said both of the
men were carrying small handguns. Abrahams said the suspects were
passengers in a white four-door automobile. Police officers stopped a vehicle shortly thereafter, which
matched the description given by Abrahams. Abrahams was taken to
a nearby trailer park to identify her assailants. She immediately
identified the vehicle, but due to poor lighting, was unable to
positively identify the two gunmen who had robbed her. About
forty-five days later, after the probable cause hearing in this
case, Abrahams positively identified defendant and another person
from a photographic lineup.
Defendant presented the testimony of his cousin, Courtney
Antwon Shaw, who stated that he and defendant were riding around in
Shaw's mother's gray Oldsmobile until approximately 12:00 or 1:00
a.m. on 18 September 2000. Shaw dropped defendant off by a "guy
named Dominic's house" and then drove home.
A jury found defendant guilty as charged, and the trial court
sentenced defendant to a presumptive term of seventy-two to ninety-
six months imprisonment. Defendant appeals.
Defendant argues the trial court erred in denying his motion
to suppress Abrahams' in-court identification of him as one of her
assailants. Defendant contends that her in-court identification of
him was tainted by the pretrial photographic array shown to
Abrahams by the district attorney's office. We disagree.
It is well settled that identification evidence must be
excluded on due process grounds if a pretrial identification
procedure was "so suggestive as to create a very substantial
likelihood of irreparable misidentification." State v. Capps, 114
N.C. App. 156, 161-62, 441 S.E.2d 621, 624 (1994). If a pretrialidentification procedure is determined to be "impermissibly
suggestive," the identification evidence may, however, still be
properly admitted if the trial court determines that viewing the
totality of the circumstances, the pretrial identification is
"sufficiently reliable." State v. Breeze, 130 N.C. App. 344, 352,
503 S.E.2d 141, 147, disc. review denied, 349 N.C. 532, 526 S.E.2d
471 (1998). Factors to be considered in making this determination
include:
"(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
the criminal;(4) the level of certainty
demonstrated by the witness at the
confrontation; and (5) the length of time
between the crime and the confrontation."
Capps, 114 N.C. App. at 162, 441 S.E.2d at 624-25 (quoting State v.
Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983)).
Prior to trial, Abrahams had two opportunities to identify her
assailants. The first opportunity was shortly after the early
morning robbery on 18 September 2000, when police officers took her
to a trailer park where the suspects and an automobile matching the
victim's description had been found. Abrahams immediately
identified the vehicle. Officers lined the four occupants of the
vehicle in front of the police car in which Abrahams was sitting.
The four suspects were illuminated by the car's headlights and
officers' flashlights. Abrahams identified two of the men as the
robbers, but could not identify the other two men. She stated that
she was ninety-nine percent certain that the two men she identified
were the two armed men who had robbed her, but admitted she couldnot be one hundred percent certain due to poor lighting conditions.
The second opportunity to identify the gunmen was about one and a
half months later in the district attorney's office, after the
probable cause hearing in this matter. The assistant district
attorney wanted an explanation of what Abrahams' "almost positive"
earlier identification meant. She showed Abrahams five
photographs, depicting four different people. One of the front-
seat passengers was depicted twice, and the remaining three photos
were of the two gunmen and the other front-seat occupant. The
assistant district attorney asked Abrahams, "Are the people who did
this to you in these pictures?" Abrahams responded by identifying
defendant and another man as the gunmen. She still could not
identify the persons in the other three photographs. Abrahams
commented on the difference in defendant's appearance in the
photograph that she picked out, stating, "[t]his is the guy who did
it, but his hair is different. He had on a cap when he did it."
Abrahams also explained that she had not been one hundred percent
positive about her identification at the trailer park on the
morning following the incident, due to the poor lighting. She told
the assistant district attorney that she did not want to unfairly
identify anyone and therefore had hesitated to make a positive
identification. In good lighting, however, Abrahams stated that
she was one hundred percent certain about her identification of the
suspects.
Defendant challenges only the pretrial photo array provided by
the assistant district attorney. After a thorough review of therecord, we conclude that the photo array was not impermissibly
suggestive. Moreover, even if it were, we conclude that the
evidence tends to show that Abrahams' identification was otherwise
reliable under the factors set forth in Harris.
The robbery occurred in a well-lit area of the parking lot and
Abrahams had a good look at the faces of both assailants.
Abrahams's physical description of the assailants, their clothing,
the weapons they used, and the vehicle in which they rode was very
detailed. Abrahams' description was sufficiently accurate to lead
the police to a quick capture of the suspects, within thirty
minutes after the crime. On the first occasion that Abrahams was
asked to identify her assailants, she stated that she was ninety-
nine percent sure that defendant was one of the persons who robbed
her. On the second occasion, which is at issue here, Abrahams
stated that she was one hundred percent sure that defendant was one
of the gunmen who robbed her. Finally, defendant concedes that the
length of the time between the crime and the confrontation of the
two armed assailants was short. The first show-up was within
thirty minutes of the robbery, and the photographic array was shown
to Abrahams about forty-five days later.
The facts tend to show that the photographic lineup was not
impermissibly suggestive, and even if it were, Abrahams' in-court
identification was of independent origin; therefore, we conclude
the trial court did not err in denying defendant's motion to
suppress his pretrial and in-court identification testimony. This
assignment of error is overruled. No error.
Judges WYNN and CAMPBELL concur.
Report per Rule 30(e).
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