Appeal by defendant from judgment entered 30 January 2003 by
Judge Catherine C. Eagles in Guilford County Superior Court. Heard
in the Court of Appeals 24 May 2004.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General W. Dale Talbert, for the State.
James N. Freeman, Jr. for defendant-appellant.
HUNTER, Judge.
Courie Angelo Whitfield (“defendant”) appeals from a judgment
filed 30 January 2003 entered consistent with a jury verdict
finding him guilty of robbery with a dangerous weapon. Defendant
was sentenced to a minimum prison term of sixty-four months with a
corresponding maximum term of eighty-six months. For the reasons
stated herein, we conclude there was no error at trial.
The State's evidence tends to show the following. On the
evening of 17 November 2001, two armed men robbed the Pizza Hut
restaurant located on Guilford College Road in Greensboro, North
Carolina. Jonathan Bozarth (“Bozarth”) was one of the restaurant
managers on duty that evening. He testified that the taller of the
two robbers was wearing dark pants, a dark coat, and a dark “skitype” mask made of material no thinner than panty hose but not any
thicker than a pullover and carrying a gun. Bozarth was taking an
order over the phone and the two robbers demanded that he “get off
the phone,” while the taller robber held his gun to Bozarth's head.
Bozarth held out the telephone so the robbers could take it. As
the taller of the two robbers reached out for the phone, the jacket
the robber was wearing brushed against Bozarth's arm. Bozarth was
wearing a short sleeved shirt and could feel the jacket on his
skin. Bozarth described the feel of the jacket as “[s]oft, fleecie
[sic], almost cottony material.” At trial, Bozarth identified a
jacket marked as State's Exhibit 2 as the jacket the tall robber
was wearing.
After the robbery, the two robbers fled through the back of
the restaurant, and Anthony Robinson, another restaurant manager
followed them. Bozarth called 911 and Greensboro police officers
responded to the call. In a written statement to police, Bozarth
described the taller robber as being six-feet two-inches to six-
feet three-inches tall.
Officer John E. Morris, III (“Officer Morris”) of the
Greensboro Police Department was on routine patrol the night of the
robbery when he observed two men, one tall, one short, dressed in
dark clothes at some dumpsters behind the Pizza Hut restaurant on
Guilford College Road. The area was well-lit and Officer Morris
could see the two men clearly. The two men began running through
a wooded area up a slope in Officer Morris' general direction. His
suspicion aroused, Officer Morris moved to intercept the men at thetop of the slope. Officer Morris saw one of the men, whom he
recognized as one of the two men seen running into the woods
wearing a rolled up stocking toboggan. The man was about six-feet
two-inches tall and had a thin moustache. In addition, the man was
wearing a dark three-quarter length coat, which Officer Morris
identified as State's Exhibit 2. Officer Morris asked the man,
“[w]hat are you running for?” to which the man responded he was not
running but then ran away into another wooded area. Just then,
Officer Morris received a call that the Pizza Hut restaurant had
been robbed, and almost immediately after, Anthony Robinson ran out
of the woods and told Officer Morris that the restaurant had been
robbed. At trial, Officer Morris identified defendant as the man
he had intercepted running from the back of the Pizza Hut.
After calling for backup, Officer Morris more closely observed
his surroundings and noticed two cars parked end to end in an
alley. One was a tan Toyota Camry. The second was a burgundy
Nissan Sentra. Afifah Dupass (“Dupass”) was sitting in the
passenger seat of the burgundy car.
Dupass testified that she was on a dinner date with defendant
when he received what appeared to be an urgent page. Defendant was
driving a burgundy car and he drove to an alley by a wooded area
where he parked facing a tan car. Defendant and the driver of the
tan car, who was shorter than defendant, went into the woods in the
direction of Guilford College Road. Defendant was wearing the same
jacket identified in court by Bozarth and Officer Morris. Shortlyafter, Dupass observed the shorter man return, put something in the
trunk of the tan car and run away.
Officer Scott M. Russell (“Officer Russell”) of the
Greensboro Police Department was on his way to assist Officer
Morris when he received the call that the Pizza Hut had been
robbed. Officer Russell stopped to form a perimeter a few blocks
from the Pizza Hut. While he was maintaining a look-out for the
robbers, Officer Russell observed a taxi cab pull into a nearby
restaurant and leave shortly after, apparently without a passenger.
Based on his experience patrolling the area, Officer Russell found
this to be a strange occurrence and elected to perform an
investigatory stop of the taxi cab. After initiating the traffic
stop, Officer Russell saw someone's head appear in the back seat of
the cab. When he asked the taxi driver to step out of the cab,
Officer Russell observed the man in the back pick up a newspaper
and begin reading. Officer Russell identified the passenger as
defendant.
While defendant was sitting in the back of the cab, Officer
Russell asked him about his recent whereabouts and his activities.
Officer Russell also observed a dark coat lying on the floor of the
cab. Defendant denied the coat was his, but the taxi driver stated
the coat had not previously been in the cab. Subsequently, Officer
Russell asked defendant to sit in the back of the patrol car while
he investigated a robbery at the Pizza Hut, to which defendant
agreed. Defendant was not, however, placed under arrest. Officer
Russell testified at trial, over defendant's objection, thatdefendant was cooperative, explaining that “I just know [defendant]
from the past, and once that he remembered who I was . . . he was
very cooperative.”
Both Officer Morris and Bozarth came to the scene where
defendant was sitting in Officer Russell's patrol car. Officer
Morris identified defendant as one of the men he saw running from
the Pizza Hut. Bozarth was unable to positively identify
defendant, but noted that defendant generally matched the height
and build of the taller robber. Bozarth asked if he could see some
of defendant's clothing, and Officer Russell produced the coat,
which Bozarth identified as having been worn by the taller robber
based on its feel, color, and style. Defendant's motion to
suppress the evidence of this “show-up” identification by Bozarth
was denied.
Following the identification of the coat by Bozarth, and of
defendant by Officer Morris, defendant was placed in the back of a
patrol car. Over defendant's objection, Officer Russell stated
that when he had asked defendant his recent whereabouts, defendant
had responded that he had spent the evening in a restaurant. Based
on this response, Officer Russell drove defendant to that
restaurant in order to investigate defendant's alibi and concluded
it was false. Defendant was subsequently arrested and charged with
the robbery. Re-direct testimony clarified that Officer Russell
had actually questioned defendant as to his whereabouts before he
placed defendant in the patrol car. A K-9 search beginning from where the tan and burgundy cars
had been parked along the wooded path where Officer Morris had
observed defendant running revealed several five dollar bills and
a silver handgun, which was identified by Bozarth based on its
size, make, and shininess as the one used during the robbery.
The issues presented on appeal are whether: (I) the
procedures used in the “show-up” identification by Bozarth were
impermissibly suggestive; (II) Officer Russell violated defendant's
Miranda rights by questioning him as to his whereabouts on the
evening of the robbery; (III) the trial court erred in allowing
testimony that Officer Russell knew defendant “from the past”; and,
(IV) there was sufficient evidence identifying defendant as one of
the robbers to survive a motion to dismiss.
I.
Defendant first contends that the procedures used in the pre-
trial “show-up” identification in order to elicit Bozarth's
identification on the night of the robbery were impermissibly
suggestive in violation of defendant's constitutional due process
rights.
(See footnote 1)
We disagree.
“Whether a pretrial identification procedure is impermissibly
suggestive depends on the totality of the circumstances and
requires a two-part analysis.”
State v. Johnson, 161 N.C. App. 68,
72, 587 S.E.2d 445, 448 (2003). “'First, the Court must determine
whether the identification procedures were impermissiblysuggestive. Second, if the procedures were impermissibly
suggestive, the Court must then determine whether the procedures
created a substantial likelihood of irreparable
misidentification.'”
Id. (quoting
State v. Fowler, 353 N.C. 599,
617, 548 S.E.2d 684, 698 (2001)). “Show-ups, the practice of
showing suspects singly to witnesses for purposes of
identification, have been criticized as an identification procedure
by both [our State Supreme Court] and the U.S. Supreme Court.”
State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982).
This is because, “[t]his identification procedure may be inherently
suggestive for the reason that witnesses would be likely to assume
that the police presented for their view persons who were suspected
of being guilty of the offense under investigation.”
Id. While,
however, the “show-up” procedure is both suggestive and
unnecessary, it is not
per se a violation of a defendant's due
process rights.
Id. “The primary evil sought to be avoided is the
substantial likelihood of irreparable misidentification.”
Id.
Thus, a court's focus in reviewing the constitutionality of a
pretrial “show-up” identification should rest on the second part of
the analysis outlined in
Johnson and
Fowler: whether the
procedures created a substantial likelihood of irreparable
misidentification.
See Fowler, 353 N.C. at 617, 548 S.E.2d at 698;
Johnson, 161 N.C. App. at 72, 587 S.E.2d at 448.
In this case, defendant's argument is fundamentally flawed, as
Bozarth was unable to identify defendant as one of the robbers.
Instead, Bozarth merely identified the jacket found in the taxiwith defendant as the same jacket which Bozarth had seen and felt
during the robbery and noted that defendant was the same general
height and build as the taller of the two robbers. Thus, under the
totality of the circumstances, we conclude that there was no
likelihood the use of the “show-up” identification procedure would
have resulted in an irreparable misidentification by Bozarth,
because Bozarth did not identify defendant.
Nevertheless, even if Bozarth's identification of defendant's
coat could some how be imputed to defendant, such that Bozarth's
identification of the coat was, in effect, an identification of
defendant as the robber, we conclude there was no error in the use
of the pretrial identification procedure.
In analyzing whether identification procedures
are impermissibly suggestive, North Carolina
courts look to various factors including:
“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 shown by the
witness, and the time between the offense and
the identification.”
Johnson, 161 N.C. App. at 73, 587 S.E.2d at 448 (quoting
State v.
Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002)).
In this case, Bozarth had the opportunity to observe the coat
the robber was wearing and to feel it as it brushed against his
bare arm. Bozarth's attention was focused on the coat during the
robbery, as it was the man in the coat who pointed the gun at him
and grabbed for the phone. Further, it was Bozarth's request
during the “show-up,” to view any clothing defendant might have
with him, without any prompting by the police officers that led tohis identification of the coat, which Bozarth immediately
identified. Finally, Bozarth's identification of the coat occurred
shortly after the Pizza Hut had been robbed and defendant
apprehended. Accordingly, we conclude there was no error in
admitting evidence obtained from the “show-up” identification
procedure against defendant.
II.
Defendant next argues that his statements regarding his
whereabouts in response to questioning by Officer Russell were
inadmissible. Defendant alleges this is so because the questioning
occurred while defendant was in custody in the back seat of Officer
Russell's police cruiser and defendant had not been given his
Miranda rights. The State argues that defendant was, in fact, in
the back of the taxi cab during this questioning. Although there
appears to have been some confusion as to the chronology of these
events, this confusion was resolved by Officer Russell's testimony
on re-direct that defendant was questioned about his whereabouts on
the evening before being placed in the patrol car and told about
the robbery investigation. Thus, taken in context, it is apparent
that the questioning occurred while defendant was in the taxi cab
and Officer Russell was simply explaining that, based on the alibi
defendant had given, he went to the restaurant after the “show-up”
to see if the alibi could be verified.
Thus, the issue before us is whether defendant was entitled to
Miranda warnings prior to questioning as he sat in the taxi cab
during a traffic stop. “The [
Miranda] warning was conceived toprotect an individual's Fifth Amendment right against
self-incrimination in the inherently compelling context of
custodial interrogations by police officers.”
State v. Buchanan,
353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). “'[I]n determining
whether a suspect [is] in custody, an appellate court must examine
all the circumstances surrounding the interrogation; but the
definitive inquiry is whether there was a formal arrest or a
restraint on freedom of movement of the degree associated with a
formal arrest.'”
Id. at 338, 543 S.E.2d at 828 (quoting
State v.
Gaines, 345 N.C. 647, 662, 483 S.E.2d 396, 405 (1997)).
In this case, Officer Russell's questioning occurred while he
was conducting an on-the-scene investigation following the traffic
stop of the taxi.
See State v. Kincaid, 147 N.C. App. 94, 101-02,
555 S.E.2d 294, 300 (2001) (neither
Miranda warnings nor waiver of
counsel required when police questioning during a traffic stop was
limited to general on-the-scene investigation). Defendant was not
under arrest, nor was his freedom of movement restrained to the
degree associated with a formal arrest while he was sitting in the
back of the taxi cab. Thus, Officer Russell was not required to
provide
Miranda warnings prior to questioning defendant regarding
his whereabouts on the evening of the robbery and the trial court
did not err in allowing this testimony.
III.
Defendant also argues Officer Russell's testimony that “I just
know [defendant] from the past, and once that he remembered who I
was . . . he was very cooperative,” was inadmissible characterevidence of prior bad acts by defendant. This statement, however,
is not evidence that defendant committed prior bad acts, but
instead simply shows that defendant and Officer Russell knew each
other. Furthermore, this evidence was not used to improperly
impeach defendant's credibility but instead explained why defendant
cooperated with Officer Russell during his on-the-scene
investigation. We therefore reject this assignment of error.
IV.
Defendant finally argues that his motion to dismiss should
have been granted as there was not substantial evidence that he was
one of the two robbers. We disagree.
“A motion to dismiss is properly denied if 'there is
substantial evidence (1) of each essential element of the offense
charged and (2) that defendant is the perpetrator of the offense.'”
State v. Wheeler, 138 N.C. App. 163, 165, 530 S.E.2d 311, 312
(2000) (citation omitted). Substantial evidence has been defined
as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
State v. Franklin, 327 N.C.
162, 171, 393 S.E.2d 781, 787 (1990). In ruling on a motion to
dismiss, the trial court must consider the evidence in the light
most favorable to the State, allowing the State the benefit of
every reasonable inference derived therefrom.
Wheeler, 138 N.C.
App. at 165, 530 S.E.2d at 312.
In this case, the evidence that defendant was one of the
robbers includes evidence that defendant was seen running away from
the Pizza Hut followed by Anthony Robinson, one of the Pizza Hutmanagers. In addition, the coat worn by the taller of the two
robbers was identified as the same one defendant had with him at
the time of his apprehension. Furthermore, defendant was of the
same general height and build as the taller of the two robbers.
Moreover, there was evidence that defendant, wearing the same coat,
had been on a dinner date with Dupass, which was interrupted when
defendant drove to meet another man with whom he walked off into
the woods near the Pizza Hut. Defendant was identified by Officer
Morris as one of the men seen running from the Pizza Hut. Further,
defendant's alibi that he had spent the evening at a restaurant was
proven false. A subsequent search of the wooded path along which
defendant had been seen running revealed money and the gun used in
the robbery. This is all substantial circumstantial evidence from
which a jury could find that defendant committed the robbery and is
sufficient to withstand a motion to dismiss.
No error.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.
Report per Rule 30(e).
Footnote: 1