STATE OF NORTH CAROLINA
v. Craven County
No. 02CRS54511
LAVORIS MONTEIZ BATTLE
Attorney General Roy Cooper, by Assistant Attorney General W.
Wallace Finlator, Jr., for the State.
Michael J. Reece for defendant-appellant.
TIMMONS-GOODSON, Judge.
Defendant Lavoris Monteiz Battle was charged with robbery with
a firearm. The State's evidence tends to show that on the evening
of 23 July 2002, Phyllis Whitehurst was working at the Fisher Fuel
Market. At approximately 9:15 p.m., Whitehurst began getting ready
to close and put all of the money from the cash register, "other
than a couple of tens, fives, ones," in a cigar box below the
register. Around 9:20 p.m., Whitehurst noticed a man slumped
against the wall by the door. Whitehurst then realized that the
man was holding a gun which was a ".22, .25, or .380" and appeared
to be "chrome, nickel-plated silver." The man said to Whitehurst,
"Give me the cash and you won't get hurt." Initially, Whitehurst moved towards the cigar box containing
the "major money." However, the man moved to the front of the
counter and directed her to remove the money from the cash register
and she complied. The man then asked Whitehurst two times where
the safe was and she responded that it was under the rug. He
demanded that she open the safe and she told him that she did not
have the keys. He took some keys from another cigar box and
instructed Whitehurst to open the safe. However, none of the keys
fit the safe. At that point, Whitehurst told the man that he
better leave because a car had pulled up to the fuel pump and the
customer would want to pay. The man left and Whitehurst activated
the panic button, which signaled that she had been robbed. She
then went outside to see if anyone had noticed in which direction
the thief had gone. During the course of the robbery, Whitehurst
noticed that the man was wearing either baseball or golf gloves.
Lieutenant Dalton Hardison of the Craven County Sheriff's
Department responded to a call reporting the robbery at Fisher Fuel
Market at approximately 9:21 p.m. Lieutenant Hardison met Deputy
Todd Swindell, also of the Craven County Sheriff's Department, at
a road block approximately five miles down the road from Fisher
Fuel Market. Deputy Swindell pointed out a maroon Mustang and
informed Lieutenant Hardison that the three occupants were "acting
very suspicious." Defendant was seated in the back of the vehicle
and appeared sweaty and nervous. Defendant and the two other
occupants of the vehicle were taken into custody. A search of the
vehicle produced a .25 handgun, white baseball gloves, a red shirtand a blue shirt.
After taking defendant into custody, police officers asked
Whitehurst to identify a suspect they had in custody. The officers
walked Whitehurst out to a police car, in which defendant was
sitting alone. Based on defendant's physical appearance,
Whitehurst did not recognize him and she "thought they had the
wrong person." However, defendant said something to Whitehurst in
a low voice. When he repeated himself louder, she recognized the
voice, "without a doubt," as the person who had robbed her.
Defendant was then transported to the Craven County Sheriff's
Department, where Investigator Lee Thomas read him his Miranda
rights, whereupon defendant responded that he better get an
attorney. Then, unprovoked, defendant stated, "The two people with
me had nothing to do with this. Let them go. I did this on my
own." When Investigator Thomas searched defendant's person, he
found $31 (comprised of one, five, and ten-dollar bills) in
defendant's front pocket.
At trial, Whitehurst again identified defendant as the person
who robbed her at gunpoint on 23 July 2002. She also identified
both the gun and the gloves, which were found in the vehicle in
which defendant was a passenger on the evening of the robbery, as
those used in the robbery. Additionally, two videotapes produced
by store surveillance cameras in operation during the robbery were
played for the jury at trial. The videotapes showed a man with a
gun wearing a hood, dark pants, a red shirt and baseball gloves.
A jury found defendant guilty as charged, and the trial courtsentenced him to a presumptive term of 117-150 months imprisonment.
Defendant appeals.
Defendant's sole argument on appeal is that the trial court
erred in denying his motion to suppress Whitehurst's voice
identification. Specifically, defendant argues that the
identification procedure was unduly suggestive. Defendant contends
that he was "the only person presented to Ms. Whitehurst. He was
presented while in police custody. Ms. Whitehurst had been told
defendant was a suspect before she identified him.” We disagree.
Our Supreme Court has held that voice identification is
admissible, unless barred by constitutional grounds. State v.
Jackson, 284 N.C. 321, 327, 200 S.E.2d 626, 630 (1973). The same
constitutional "principles found in cases involving identification
by sight" apply to voice identification cases. Id. at 329, 200
S.E.2d at 631. In State v. Turner, our Supreme Court concluded
that show-up identifications, "even though suggestive and
unnecessary, are not per se violative of a defendant's due process
rights." 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982). Rather,
with respect to show-up procedures, the Court noted:
The primary evil sought to be avoided is the
substantial likelihood of irreparable
misidentification. . . . An unnecessarily
suggestive show-up identification does not
create a substantial likelihood of
misidentification where under the totality of
the circumstances surrounding the crime, the
identification possesses sufficient aspects of
reliability.
Turner, 305 N.C. at 364, 289 S.E.2d at 373 (citations omitted). InTurner, the Court also identified five factors to be considered in
determining whether there was substantial likelihood of irreparable
misidentification. These factors include:
The opportunity of the witness to view the
criminal at the time of the crime, the
witness' degree of attention, the accuracy of
[the witness'] prior description of the
criminal, the level of certainty demonstrated
at the confrontation, and the time between the
crime and the confrontation.
Id. at 365, 289 S.E.2d at 373-74 (quoting Manson v. Brathwaite, 432
U.S. 98, 114 (1977)).
Defendant acknowledges that "Ms. Whitehurst was quite certain
of the identification" and that "there was only minimal time
between the crime and the pre-trial identification." Hence, the
fourth and fifth factors of the Turner test are not in dispute.
Moreover, analysis of the remaining factors also support the
admission of the voice identification testimony under the Turner
test.
In addressing the first factor, defendant argues that
Whitehurst's testimony established that the robbery was "very
quick" and, therefore, the incident did not afford her sufficient
opportunity to hear him. We note, however, that Whitehurst
testified that she heard defendant say, "Give me the cash and you
won't get hurt," and subsequently had the opportunity to hear
defendant when he instructed her to remove the money from the cash
register and when he twice asked her where the safe was. Further,
Whitehurst was within close enough physical proximity to defendant
to provide ample opportunity for her to hear him. As Whitehursttestified, defendant was "[i]n [her] ear because at one point,
[she] was on the floor and he was above [her]."
Similarly, we believe that the State presented adequate
evidence to establish that, under the second factor of the Turner
test, Whitehurst's degree of attention to defendant's voice during
the robbery was substantial. In her testimony, Whitehurst not only
recalled the exact words spoken by defendant, but she also
remembered a specific moment during the robbery when she was "only
hearing the voice." This evidence suggests that, during the
robbery, Whitehurst was paying close attention to defendant's
voice.
Finally, we posit that the third Turner factor _ - the
accuracy of the witness' prior description of the criminal _ - is
not applicable to this case, since no prior description of
defendant's voice was given by the witness. In the absence of a
prior voice description altogether, the reliability of the voice
identification is neither strengthened nor weakened.
Even assuming arguendo that the voice identification of
defendant was erroneously admitted at trial, any error in this
regard was non-prejudicial. See State v. Hardy, 104 N.C. App. 226,
238, 409 S.E.2d 96, 102 (1991) ("An error is not prejudicial unless
a different result would have been reached at the trial if the
error in question had not been committed.")(quoting State v. Smith,
87 N.C. App. 217, 222, 360 S.E.2d 495, 498 (1987), disc. reveiw
denied, 321 N.C. 478, 364 S.E.2d 667 (1988)). The jury had before
it testimony that the gun, gloves and shirt, worn by the thiefduring the robbery, were found in the vehicle in which defendant
was traveling shortly after the robbery. Additionally, the State
presented evidence which showed that the money, taken by the thief
during the robbery, was found on defendant's person after his
arrest. Coupled with the videotapes of the robbery and defendant's
subsequent incriminating statement of "I did this on my own," we
conclude that there is no “reasonable possibility that the outcome
of the trial would have been any different" absent the voice
identification of Whitehurst. Id. (quoting State v. Smith, 87 N.C.
App. 217, 222, 360 S.E.2d 495, 498 (1987)).
For these reasons, we hold that defendant received a fair
trial, free of prejudicial error.
No error.
Judges CALABRIA and ELMORE concur.
Report per Rule 30(e).
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