State v Donevan, (02-899) 09/02/2003

Appeal by defendant from judgment entered 1 August 2001 by Judge W. Osmond Smith, III, in Person County Superior Court. Heard in the Court of Appeals 20 May 2003.

Attorney General Roy Cooper, by Assistant Attorney General V. Lori Fuller, for the State.

Maitri “Mike” Klinkosum for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Phillip Vincent Donevan was indicted 14 August 2000 for felonious breaking and entering and felony larceny. Defendant was also separately indicted as an habitual felon.
    The evidence at trial tended to show that on the day of 19 June 2000, Doug Leary and Jody Allison were traveling down Hassell Horton Road in Person County when they noticed two strangers loading furniture into a truck from an absent neighbor's house. The weather that day had been sunny, but it was raining when the two passed by the house. The two pulled up to the house and parked by the tailgate of the strange truck. They saw one individual, later identified as Mark Frazier, loading the truck. The other individual, later identified as defendant, was bringing furnitureout of the house. Doug Leary stated that he was about 15 to 20 feet away from defendant at the time, and that nothing blocked his view. Leary had just completed law enforcement training a month before the incident. He got out of their vehicle and yelled at the two. Frazier got in the truck and drove off, while defendant ran toward the woods.
    The next morning Leary and Allison went to Investigator Jones' office and looked through some pictures. They both picked out the photograph of defendant. Defendant was arrested on 18 August 2000.
    Defendant was tried on 30 July 2001. The jury returned a verdict of guilty on both charges on 31 July 2001. Defendant then entered a plea of guilty to being an habitual felon, while preserving his right of appeal. Judgment was entered on 1 August 2001. Defendant was sentenced to a minimum of 132 months and a maximum of 168 months.
    Defendant presents the following questions on appeal: (I) Did the trial court err by denying his motion to suppress impermissibly suggestive identifications of defendant? (II) Did the trial court err by failing to allow defendant's court-appointed counsel to withdraw from representing defendant? (III) Were defendant's convictions obtained in violation of defendant's right to effective assistance of counsel? (IV) Were defendant's state and federal constitutional rights violated due to prosecutorial misconduct in failing to disclose pertinent evidence to the defense?

    Defendant first contends that the trial court erred by denying defendant's motion to suppress impermissibly suggestive identifications. Defendant contends that the photographic lineup was highly suggestive, as were the circumstances surrounding it.
    “'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. Pinchback, 140 N.C. App. 512, 518, 537 S.E.2d 222, 225-26 (2000) (quoting State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983)). Therefore, “[t]he first inquiry when a motion is made to suppress identification testimony is whether the pretrial identification procedure is impermissibly suggestive.” State v. Powell, 321 N.C. 364, 368-69, 364 S.E.2d 332, 335, cert. denied, 488 U.S. 830, 102 L. Ed. 2d 60 (1988). “If it is determined that the pretrial identification procedure is impermissibly suggestive the court must then determine whether the suggestive procedure gives rise to a substantial likelihood of irreparable misidentification.” Id. In determining whether this substantial likelihood exists, the trial court, looking at the totality of the circumstances, should consider:
            1)    The opportunity of the witness to view the criminal at the time of the crime;
            2)    witness' degree of attention;
            3)    the accuracy of the witness' prior description;
            4)    the level of certainty demonstrated at the confrontation; and
            5)    the time between the crime and the confrontation.
State v. Pigott, 320 N.C. 96, 99-100, 357 S.E.2d 631, 633-34 (1987). If supported by competent evidence, a trial court's findings of fact regarding these issues are conclusive on appeal. State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 470 (1985).
    The trial transcript reveals that defendant did not know of the photo lineup prior to trial. Rather, defendant objected to testimony regarding the photographs as soon as it had begun to be discussed. A voir dire was then held by the trial court as to the validity of the photo lineup identification.
    During voir dire, the witnesses, Doug Leary and Jody Allison, and Detective Jones testified. Based on their testimony, the trial court made findings of fact. In sum, the trial court found that the witnesses observed defendant, another individual and what they believed to be their truck at the house of a neighbor. It was raining at the time. Both witnesses saw two men, one by the truck and one coming out of the house, from about 15 to 20 feet away. Further,
        [t]hat both Allison and Leary had full and ample opportunity to observe the two men without anything obscuring their vision of the two persons at the scene. That Leary had, the month before, completed basic law enforcement training and had received training in observation and identification of suspects. That in making the observations it is apparent that Allison and Leary were suspicious that this was an illegal activity going on and that they heightened thier [sic] focus on those two persons at the scene, giving them reason to pay particular attention to those two persons on the scene.

As to the lineup,        [t]hat Allison and Leary both gave identification to Investigator Jones describing them, that is the two persons at the scene, by an age range, one being referred to as having longer hair. That thereafter on the next day June 20, 2000, Allison and Leary were asked to view certain photographs at the Sheriff's Department. That in viewing the photographs some 20 to 25 or more photographs were shown to Allison and Leary by Investigator Jones. These photographs were compiled from [the] department of motor vehicle records, from other photographs in the possession of Investigator Jones and photographs that Investigator Jones had information as to being suspects in larcenies from Durham County. That in asking Allison and Leary to view the photographs, Investigator Jones did not make any suggestions as to the identification of [the other suspect] and [defendant] other than suggesting that some of the photographs included some people suspected to have been suspects in larceny of antiques. . . . That the photographs that the court viewed in considering this matter consisted all of white males. Some with hair that could only be described as short hair, some with hair that could only be described as medium length and some that some people could describe and might describe as long hair. But only one that the Court would describe as significantly or particularly long hair. That the photograph with particularly long hair was Number 6, [defendant]. That Allison and Leary, without suggestion by Investigator Jones or anyone else, identified photograph Number 6 as one of the persons that they observed on the scene on June 19 as one of the perpetrators of the break-in they described on June 19. And that Number 6 is now identified as [defendant]. . . . That both Allison and Leary expressed a great deal of certainty as to the accuracy of their identification. That though those photographs were shown to Allison and Leary together simultaneously it appeared to the Court from the evidence that they were viewed independently by each witness and the identification of photograph Number 6 was identified by each as being the person they saw on the scene. . . . There appeared to beno presence during the photographic line-up procedure of any event or circumstance that singled out or suggested or pointed to [defendant] as being [a suspect] until Leary and Allison, themselves, made such a determination.

These findings are supported by the evidence and thus are conclusive. Upon these findings, the trial court denied defendant's motion to suppress.
    Defendant argues that, because the photo of defendant was the only photo of a person with long hair, plus the suggestive comments that those in the pictures had been arrested for stealing antiques and allowing both witnesses to view the pictures at the same time, rendered the lineup to be impermissibly suggestive. We disagree. Initially, while the State commented that the lineup was “not a typical line-up,” this was merely a comment on the nature of the individuals in the lineup, as it included several suspects. This was not an admission, as defendant appears to intimate, that the lineup was impermissibly suggestive.
    As to the length of hair of defendant and his being the only one in the array to have it,
        [w]here a witness identifies a defendant in a photographic lineup, this Court has considered pertinent aspects of the array, such as similarity of appearance of those in the array and any attribute of the array tending to focus the witness' attention on any particular person therein, as factors in determining whether the identification procedures are impermissibly suggestive. See, e.g., State v. Freeman, 313 N.C. 539, 545, 330 S.E.2d 465, 471 (1985) (affirming that photographic lineup was lawful despite the defendant's contention that he was the heaviest individual in the array and also affirming the trial court'sdenial of the defendant's motion to suppress the in-court identification testimony of three witnesses who had also identified the defendant in the photographic lineup); State v. Gaines, 283 N.C. 33, 40, 194 S.E.2d 839, 844 (1973) (affirming that photographic lineup was lawful despite the defendant's contention that he was the youngest and lightest man in the array); State v. Roberts, 135 N.C. App. 690, 694, 522 S.E.2d 130, 132-33 (1999) (affirming that photographic lineup was lawful despite the defendant's contention that he was the only one with freckles in the array), disc. rev. denied, 351 N.C. 367, 543 S.E.2d 142 (2000). In addition, we have held that “[a] photographic lineup is not impermissibly suggestive merely because defendant has a distinctive appearance.” State v. Freeman, 313 N.C. at 545, 330 S.E.2d at 471. Indeed, “[i]f such were the rule, no lineup would be valid because no two men are alike.” State v. Gaines, 283 N.C. at 40, 194 S.E.2d at 844.

State v. Rogers, 355 N.C. 420, 432-33, 562 S.E.2d 859, 868-69 (2002); but see State v. Gray, 292 N.C. 270, 289-90, 233 S.E.2d 905, 918 (1977) (“Defendant's hairdo, though different from others in the stack of photographs, was not the basis for [the] identification.”). “'The mere fact that defendant ha[s] specific identifying characteristics not shared by the other participants does not invalidate the lineup.'” Roberts, 135 N.C. App. at 693, 522 S.E.2d at 132 (quoting Gaines, 283 N.C. at 40, 194 S.E.2d at 844). Thus, just because defendant was the only one with substantially long hair in the photographs does not render the lineup impermissibly suggestive per se. The photographs were potential suspects from the surrounding areas who are known to commit this type of crime. With the exception of length of hair, all the men were of the same race, age group, with dark hair. Thewitnesses also based their identification on the facial features of defendant, and not solely on his hair.
    Detective Jones' comment to the witnesses was that some of the photos were of individuals who had committed this type of crime before. This comment is not at all suggestive of any particular photograph, and not impermissible. The officers were silent as the witnesses looked at the pictures. In the present case, each witness was viewing a separate stack of photos. One saw the photo of defendant and positively identified it, and that identification was acknowledged and seconded by the other witness.
    Even if we were to hold the photo lineup was impermissibly suggestive, there was no substantial likelihood of irreparable misidentification. The trial court noted that (1) even though it was raining, the witnesses had a good view of defendant. At the time the witnesses were fairly close to him and had ample opportunity to view him with no obstruction. Leary remarked that he looked at defendant and “he looked right at me.” Both witnesses (2) knew something was amiss and were at a heightened state of attention. Doug Leary had also recently finished law enforcement training. The description (3) by the witnesses to Detective Jones at the crime scene adequately described two middle-aged white males, one with longer hair than the other. The witnesses (4) were very certain at the lineup that defendant was the one whom they saw, and this was with a fresh image in their minds as the identification took place (5) the next morning.    The trial court was correct in denying defendant's motion to suppress, and this assignment of error is overruled.

    Defendant next contends that the trial court erred by denying defendant's court-appointed counsel's motion to withdraw from defendant's representation. On 21 August 2000, James W. Tolin, Jr., was appointed to represent defendant in the present matter. On 16 May 2001, Mr. Tolin filed a motion to withdraw as counsel. In his motion, he noted that defendant had recently filed a grievance with the North Carolina State Bar, and he believed “that he will be unable to provide appropriate representation” in light of the grievance.
    A hearing was held on 16 May 2001 on the matter. According to the transcript of this hearing, defendant also filed a motion to have Mr. Tolin removed as his counsel via letter to the clerk of court dated 5 April 2001. Mr. Tolin believed that the grievance filed against him was unfounded. Apparently, defendant was not getting the proper attention from Mr. Tolin, or copies of all discovery material he wanted. At this time, defendant's trial was scheduled toward the end of May, about a week or so after this hearing. When the trial court asked counsel if he was ready for trial, he responded that he could be. The trial court found that defendant had suffered no prejudice in the defense of his case. The following exchange took place at the end of the hearing:
            THE COURT: Do you feel, Mr. Tolin, that you can at this time communicate with the defendant and explain to him the law and theevidence against him and his possible defense in this case.

            MR. TOLIN: I certainly will try to do that, Your Honor.

            THE COURT: Mr. Donevan, I am going to deny the motion that Mr. Tolin be discharged. I will hear either of you with regard to any specifics of what Mr. Donevan needs to have that he feels like he does not already have at this time.

            MR. TOLIN: I think that Mr. Donevan and I need to set a time to sit down and talk.

            MR. DONEVAN: I've been trying to do that but, I mean, he wouldn't respond to any of my letters, none of my phone calls, he wouldn't talk to my wife. She called him and wanted information and he was rude and told her not to call back anymore.

            THE COURT: Mr. Tolin, are you going to be willing to sit down with the defendant and give him your full attention?

            MR. TOLIN: Yes, sir.

            THE COURT: I am going to deny Mr. Tolin's motion as well. Mr. Donevan, I suggest that both of you sit down and communicate with one another and listen to one another. Mr. Tolin can assist you in your defense but it will require cooperation by you both.

    Defendant contends that the trial court applied an erroneous standard in deciding this matter, that defendant had suffered no prejudice to his case. Defendant argues that the complaints of defendant and the grievance illustrate a “total breakdown in communication and the attorney-client relationship.”
        A disagreement between the defendant and his court-appointed counsel over trial tactics is not sufficient to require the trial court to replace court-appointed counsel with another attorney. In order to be granted substitutecounsel, “the defendant must show good cause, such as a conflict of interest, a complete breakdown in communication, or an irreconcilable conflict which leads to an apparently unjust verdict.” Substitution of counsel rests in the sound discretion of the trial court.

State v. Gary, 348 N.C. 510, 516, 501 S.E.2d 57, 62 (1998) (citations omitted).
    We hold that the relationship between Mr. Tolin and defendant did not warrant his withdrawal from the case or appointment of substitute counsel. Defendant does not have the right to insist that new counsel be appointed merely because he is dissatisfied with his services. State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976). Nor must there be a “'meaningful attorney-client relationship.'” Morris v. Slappy, 461 U.S. 1, 13, 75 L. Ed. 2d 610, 621 (1983) (citation omitted). The record and transcripts of this case fail to show that the trial court abused its discretion in denying the motion of Mr. Tolin to withdraw and ordering substitute counsel. Mr. Tolin appeared to be willing to perform the defense of defendant, and did so in a professional manner. Accordingly, this assignment of error is overruled.

    Defendant's final two assignments of error pertain to whether his case was adversely affected by the trial court's allowing evidence of the photographic lineup to come before the jury. Specifically, defendant claims he was “unfairly ambushed” at trial as he received no discovery regarding the identification issue and the prosecution had nothing in its file concerning the lineup.    Defendant first contends that his convictions were obtained in violation of his constitutional rights to effective assistance of counsel. Defendant argues that, while his counsel was not wholly deficient in his performance, because of the circumstances of this case, no lawyer could have provided effective assistance. See United States v. Cronic, 466 U.S. 648, 659-60, 80 L. Ed. 2d 657, 668 (1984) (citing Powell v. Alabama, 287 U.S. 45, 77 L. Ed. 158 (1932) for an example of when “surrounding circumstances made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial.”). Cronic, 466 U.S. at 661, 80 L. Ed. 2d at 669. Defendant tries to equate the circumstances of his trial, the State not providing the defense with evidence of the identification material with that of Powell. There is no comparison. In Powell, six black defendants were brought to trial in a week from arrest on capital charges. Powell, 287 U.S. at 53, 77 L. Ed. at 162. Counsel for defendants were appointed on the day of their trial. Id. at 56-58, 77 L. Ed. at 164-65. The Supreme Court in Cronic stated in a footnote that “[a]part from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.” Cronic, 466 U.S. at 660, 80 L. Ed. 2d at 668.
    Defendant also attempts to rely on N.C. Gen. Stat. §§ 15A-271 and -282 (2001), dealing with nontestimonial identification. According to defendant, the State was under a duty pursuant to § 15A-282 to provide defendant with a copy of the photo used in the lineup. However, these provisions have no bearing on this case. The photograph of defendant was already on the police file, and not one that defendant had to be ordered to give pursuant to § 15A-271. This assignment of error is overruled.
    Defendant lastly contends that the photographic lineup itself was potential impeachment and exculpatory evidence that should have been disclosed to defendant prior to trial pursuant to Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215 (1963). Defendant points out that, had he been given enough time to examine the evidence, he could have used it as exculpatory evidence or at least damage the State's witnesses' credibility.
    Defendant again notes that the picture of him was the only one in the stack presented at trial that showed a white male in his mid-30's with long, shoulder-length hair, and this fact only got a cursory review during the voir dire. In addition to this, defendant points out that all the pictures have a date and time at the top of the page. This notation shows the date the picture was faxed to Detective Jones, according to defendant. The focus of defendant is that the page with his picture is dated 22 June 2000, while most of the other photos are dated 19 or 20 June 2000. This is significant because the witnesses all testified that they identified the picture of defendant on 20 June 2000. Had defendant had the photo lineup prior to trial with time to inspect it, he could have developed this to attack the witnesses' credibility.            The prosecution is required to turn over to a defendant favorable evidence that is material to the guilt or punishment of the defendant. Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215. Evidence is considered “material” if there is a “reasonable probability” of a different result had the evidence been disclosed. Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d 490, 506. . . . [A] Brady violation may not constitute error if the favorable evidence is provided in time for the defendant to make effective use of it[.] State v. Call, 349 N.C. 382, 399, 508 S.E.2d 496, 507 (1998)[.]

State v. Berry, 356 N.C. 490, 517, 573 S.E.2d 132, 149-50 (2002).
    Defendant's argument is essentially that he was unable to make effective use of the photo lineup because of the failure of the State to disclose its existence as it deprived him of the opportunity to investigate the lineup and develop this new-found discrepancy.
        However, similar arguments based on the loss of the defense's ability to use the evidence as an investigatory tool due to the State's failure to disclose in advance of trial have been rejected by this Court as being both speculative, see [State v. Small, 131 N.C. App. 488, 490, 508 S.E.2d 799, 801 (1998)], and not required by law, see State v. Taylor, 344 N.C. 31, 50, 473 S.E.2d 596, 607 (1996) (no due process or Brady violation where State provided officer's notes to defense four days prior to State resting its case; defense counsel had “ample opportunity” to make use of the evidence, including contacting witnesses if defendants so desired).

State v. Rhue, 150 N.C. App. 280, 286, 563 S.E.2d 72, 77 (2002), disc. review denied, appeal dismissed, 356 N.C. 689, 578 S.E.2d 589 (2003).    There are conflicting statements in the transcripts as to whether or not defendant knew something about the lineup before trial. During the hearing on Mr. Tolin's motion to withdraw, defendant himself stated, “Yes. Just I want to agree. Everything I have asked him for, the motion for discovery, I filed several to get it. It, I received those. But he told me something about a line-up and I don't see any of that in the discovery, nothing about a line-up.” The date of the hearing was 16 May 2001, a little over a full month before trial. Then, during sentencing, Mr. Tolin implored the trial court to take into account that had defense known about the lineup, they would have pled and there never would have been a trial.
    While we take into account the fact that the photo lineup was not in the State's file, even though an open file policy was in effect at the time, we hold that no Brady violation occurred in the present case. First, it does not appear that the evidence of the photo lineup is material, as there is not a reasonable possibility that a different result would occur. The date discrepancy, even when taken in the light most favorable to defendant, only attacked the identification after the incident. The in-court identification by witnesses Leary and Allison was based upon their recollection of the crime. Second, defense counsel was allowed by the trial court to conduct a lengthy voir dire of all three witnesses in an effort to determine the admissibility of the lineup. At no point did defense counsel ask for a continuance to have an opportunity to investigate the portion of the lineup at trial, nor did he ask thetrial court to order the State to produce the rest of the alleged evidence. Thus, even if there was a Brady violation, defendant can show no prejudice. See Call, 349 N.C. at 399, 508 S.E.2d at 507.
This assignment of error is overruled.
    No prejudicial error.
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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