State v. Reaves-Smith, ___ N.C. App. ___, ___ S.E.2d ___ (May. 5, 2020)

Two men attempted to rob the victim in a McDonald’s parking lot. One of the suspects fired a gun, and both suspects fled. The victim ran to a nearby parking lot, where he found a law enforcement officer. The victim told the officer what had occurred and described the suspects. Two suspects matching the description were located nearby a few minutes later. When officers approached, the defendant ran. He was apprehended a few minutes later. The victim was taken to the location where the defendant was apprehended, and the victim identified the defendant as the person with a gun who had tried to rob him earlier. The identification was recorded on one of the officer’s body cameras.

The defendant was indicted for attempted robbery with a dangerous weapon. He moved to suppress the victim’s show-up identification. The trial court denied the motion, and the defendant was convicted at trial. The defendant appealed, arguing that the trial court erred when it denied his motion to suppress evidence of the show-up identification and when it failed to instruct the jury about purported noncompliance with the North Carolina Eyewitness Identification Reform Act (“the Act”).

(1) G.S. 15A-284.52(c1) of the Act provides that

• A show-up may only be conducted when a suspect matching the description of the perpetrator is located in close proximity in time and place to the crime, or there is reasonable belief that the perpetrator has changed his or her appearance in close time to the crime, and only if there are circumstances that require the immediate display of a suspect to an eyewitness;
• A show-up may only be performed using a live suspect; and
• Investigators must photograph a suspect at the time and place of the show-up to preserve a record of the suspect’s appearance at the time of the show-up.

The Court of Appeals determined that the trial court made findings that supported each of these requirements. The defendant, who matched the victim’s description, was detained less than a half-mile from the site of the attempted robbery. He was suspected of a violent crime that involved the discharge of a firearm and he fled when officers first attempted to detain him. These circumstances required an immediate display of the defendant. An armed suspect who is not detained poses an imminent threat to the public. And had the victim determined that the defendant was not the perpetrator, officers could have released the defendant and continued their search. Finally, the show-up involved a live suspect and was recorded on camera.

The Court of Appeals rejected the defendant’s argument that the Act requires law enforcement officers to obtain a confidence statement and information related to the victim’s vision. G.S. 15A-284.52(c2) requires the North Carolina Criminal Justice Education and Training Standards Commission to develop a policy regarding standard procedures for show-ups. The policy must address “[c]onfidence statements by the eyewitness, including information related to the eyewitness’ vision, the circumstances of the events witnessed, and communications with other eyewitnesses, if any.” The court reasoned that because G.S. 15A-284.52 does not place additional statutory requirements on law enforcement, but instead requires the North Carolina Criminal Justice Education and Training Standards Commission to develop nonbinding guidelines, only G.S. 15A-284.52(c1) sets forth the requirements for show-up identification compliance.

The court further determined that the show-up did not violate the defendant’s due process rights as it was not impermissibly suggestive and did not create a substantial likelihood of misidentification.

(2) G.S. 15A-284.52(d)(3) provides that when evidence of compliance or noncompliance with “this section” of the Act is presented at trial, the jury must be instructed that it may consider credible evidence of compliance or noncompliance to determine the reliability of eyewitness identifications. The defendant argued on appeal that he was entitled to a jury instruction on noncompliance with the Act because the officer did not obtain an eyewitness confidence level under G.S. 15A-284.52(c2)(2). The Court of Appeals rejected that argument on the basis that G.S. 15A-284.52(c2) concerns policies and guidelines established by the North Carolina Criminal Justice Education and Training Standards Commission, not the requirements for show-up identifications. Because the officers complied with the show-up procedures in G.S. 15A-284.52(c1), the defendant was not entitled to a jury instruction on noncompliance with the Act.