Smith's Criminal Case Compendium
Smith's Criminal Case Compendium
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Smith's Criminal Case Compendium
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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.
Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.
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In this Duplin County case, defendant appealed his convictions for sale and delivery of cocaine, arguing error (1) in denying his motion to suppress certain eyewitness testimony for due process violations, (2) denying the same motion to suppress for Eyewitness Identification Reform Act (“EIRA”) violations, (3) in permitting the jury to examine evidence admitted for illustrative purposes only, and (4) in entering judgment for both selling and delivering cocaine. The Court of Appeals affirmed the denial of defendant’s motion and found no plain error with the jury examining illustrative evidence, but remanded for resentencing due to the error of sentencing defendant for both the sale and delivery of cocaine.
In December of 2017, the Duplin County Sheriff’s Office had confidential informants performing drug buys from defendant in a trailer park. The informants purchased crack cocaine on two different days from defendant, coming within three to five feet of him on clear days. At a trial preparation meeting in October of 2020, the prosecutor and a detective met with the lead informant; at the meeting, the informant saw a DMV picture of defendant with his name written on it, and responded “yes” when asked if that was the person from whom the informant purchased cocaine. No other pictures were shown to the informant at this meeting. Defense counsel subsequently filed a motion to suppress the testimony of the informant based on this meeting, as well as motions in limine, all of which the trial court denied.
The Court of Appeals first considered (1) the denial of defendant’s motion to suppress, where defendant argued that the identification procedure violated his due process rights. The due process inquiry consists of two parts: whether the identification procedure was “impermissibly suggestive,” and if the answer is yes, “whether the procedures create a substantial likelihood of irreparable misidentification” after a five-factor analysis. Slip Op. at 9-10, quoting State v. Rouse, 284 N.C. App. 473, 480-81 (2022). Applying the Rouseframework and similar circumstances in State v. Malone, 373 N.C. 134 (2019) and State v. Jones, 98 N.C. App. 342 (1990), the court determined that “[the informant] seeing the photo of Defendant in the file during the trial preparation meeting was impermissibly suggestive,” satisfying the first part. Id. at 18. However, when the court turned to the five-factor analysis, it determined that only the third factor (accuracy of the prior description of the accused) and the fifth factor (the time between the crime and the confrontation of the accused) supported finding of a due process violation. The court concluded that “[b]ecause there was not a substantial likelihood of irreparable misidentification, the identification did not violate due process.” Id. at 24.
The court also considered (2) defendant’s argument that the EIRA applied and supported his motion to suppress. After reviewing the scope of the EIRA, the court applied State v. Macon, 236 N.C. App. 182 (2014), for the conclusion that a single-photo identification could not be a lineup for EIRA purposes. Slip Op. at 28. The court then considered whether the procedure was a show-up:
In contrast to our longstanding description of show-ups, the procedure here was not conducted in close proximity to the crime and, critically, it was not conducted to try to determine if a suspect was the perpetrator. The identification here took place during a meeting to prepare for [trial]. As a result, the State, both the police and the prosecution, had already concluded Defendant was the perpetrator. The identification acted to bolster their evidence in support of that conclusion since they would need to convince a jury of the same. Since the identification here did not seek the same purpose as a show-up, it was not a show-up under the EIRA.
Id. at 30. The court emphasized the limited nature of its holding regarding the scope of the EIRA, and that this opinion “[did] not address a situation where the police present a single photograph to a witness shortly after the crime and ask if that was the person who committed the crime or any other scenario.” Id. at 32.
Moving to (3), the court rejected defendant’s argument of plain error in allowing the jury to review his DMV photograph as substantive evidence when it was admitted for illustrative purposes, pointing to the “overwhelming evidence” of defendant’s guilt in the record, including other photographs and recordings of defendant. Id. at 34.
Finally, the court considered (4) the sentencing issues by the trial court. Here, the trial court improperly sentenced defendant for both selling and delivering cocaine. The court explained that while “a defendant can be tried for both the sale and delivery of a controlled substance, he cannot be sentenced for ‘both the sale and the delivery of a controlled substance arising from a single transfer.’” Id. at 35, quoting State v. Moore, 327 N.C. 378, 382-83 (1990). This error required remand to the trial court for resentencing in keeping with only one conviction for sale or delivery.
In this Brunswick County case, defendant appealed his conviction for habitual impaired driving. The Court of Appeals found no error after examining the trial court’s denial of defendant’s motion to suppress and motion to dismiss, and the jury instruction provided regarding defendant’s flight from the scene.
Evidence admitted at trial showed that a witness heard a crash and ran outside to see defendant with a bloody nose sitting behind the wheel of his truck, which was crashed into a ditch. After talking with the witness for several minutes, defendant walked off down the highway and up a dirt road into the woods. Law enforcement arrived, received a description from the witness, and conducted a search, finding defendant behind a bush in the woods 15 minutes later. After handcuffing defendant, the law enforcement officer conducted a “show-up” identification by taking defendant back to the witness and allowing the witness to identify defendant through the rolled-down window of the police vehicle.
The court first examined defendant’s motion to suppress the eyewitness “show-up” identification on due process and Eyewitness Identification Reform Act grounds (“EIRA”) (N.C.G.S § 15A-284.52(c1)-(c2)). Following State v. Malone, 373 N.C. 134 (2019), the court performed a two-part test, finding that although the “show-up” was impermissibly suggestive, the procedures used by law enforcement did not create a likelihood of irreparable misidentification when examined through the five reliability factors articulated in Malone. Applying EIRA, the court found that all three of the requirements in subsection (c1) were followed, as law enforcement provided a live suspect found nearby a short time after the incident and took photographs at the time of the identification. The court also held that subsection (c2) imposes no duty on law enforcement, and instead imposes a duty to develop guidelines on the North Carolina Criminal Justice Education and Training Standards Commission.
The court then reviewed defendant’s motion to dismiss for insufficient evidence showing that he was driving the vehicle. Applying State v. Burris, 253 N.C. App. 525 (2017), and State v. Clowers, 217 N.C. App. 520 (2011), the court determined that circumstantial evidence was sufficient to support a conclusion that defendant was driving the vehicle. Because the circumstantial evidence was substantial and supported the inference that defendant was driving, the lack of direct evidence did not support a motion to dismiss.
Finally, the court examined the jury instruction given regarding defendant’s flight from the scene, Pattern Jury Instruction 104.35. Defendant argued that the evidence showed only that he was leaving the scene of the accident and walking towards his home, actions that did not represent evidence of consciousness of guilt. The court applied the extensive caselaw finding no error in a flight jury instruction when evidence shows the defendant left the scene and took steps to avoid apprehension. Because evidence in the record showed that defendant fled and hid behind a bush, the court found sufficient evidence to support the use of the jury instruction, despite defendant’s alternate explanation of his conduct.
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.
In this case involving armed robbery and other convictions, the trial court did not err by denying the defendant’s motion to suppress evidence which asserted that the pre-trial identification was impermissibly suggestive. Three victims were robbed in a mall parking lot by three assailants. The defendant was apprehended and identified by the victims as one of the perpetrators. The defendant unsuccessfully moved to suppress the show-up identification made by the victims, was convicted and appealed. On appeal the defendant argued that the show-up identification should been suppressed because it was impermissibly suggestive. Before the robbery occurred the defendant and the other perpetrators followed the victims around the mall and the parking lot; the defendant was 2 feet from one of the victims at the time of the robbery; the show-up occurred approximately 15 minutes after the crime; before the show-up the victims gave a physical description of the defendant to law enforcement; all three victims were seated together in the back of a police car during the show-up; the defendant and the other perpetrators were handcuffed during the show-up and standing in a well-lit area of the parking lot in front of the police car; the defendant matched the description given by the victims; upon approaching the area where the defendant and the others were detained, all three victims spontaneously shouted, “That’s him, that’s him”; and all of the victims identified the defendant in court. Although these procedures “were not perfect,” there was not a substantial likelihood of misidentification in light of the reliability factors surrounding the crime and the identification. “Even though the show-up may have been suggestive, it did not rise to the level of irreparable misidentification.”
The trial court properly denied the defendant’s motion to suppress a victim’s identification of the defendant as the perpetrator. The defendant was charged with armed robbery of a Game Stop store and threatening use of a firearm against a store employee, Cintron, during the robbery. Although Cintron failed to identify an alleged perpetrator in a photographic lineup shown to him two days after the robbery, he later identified the defendant when shown a single still-frame photograph obtained from the store’s surveillance video. Cintron then identified the defendant as the perpetrator in the same photographic lineup shown to him two days after the robbery and again in four close-up, post-arrest photographs of the defendant showing his neck tattoos. The defendant unsuccessfully moved to suppress Cintron’s in-court and out-of-court identifications.
On appeal the defendant argued that the State conducted an impermissibly suggestive pretrial identification procedure that created a substantial likelihood of misidentification. The court rejected that argument, finding that the trial court’s challenged findings and conclusions—that the authorities substantially followed statutory and police department policies in each photo lineup and that the substance of any deviation from those policies revolved around the defendant’s neck tattoos—are supported by the evidence. The defendant fit the victim’s initial description of the perpetrator, which emphasized a tattoo of an Asian symbol on the left side of his neck and notable forehead creases. Based on this description, the victim had the ability to identify the defendant both in court and in photographs reflecting a close-up view of the defendant’s tattoos, and he specifically testified to his ability to recognize the defendant as the perpetrator independent of any lineup or photo he had been shown. Thus, the trial court’s ultimate conclusion—that the procedures did not give rise to a substantial likelihood that the defendant was mistakenly identified—is supported by the totality of the circumstances indicating that the identification was sufficiently reliable.
In this felony breaking and entering and larceny case, the trial court did not commit plain error by denying the defendant’s motion to suppress the victim’s show-up identification of the defendant as the person he found in his home on the date in question. Among other things, the court noted that the victim viewed the defendant’s face three separate times during the encounter and that during two of those observations was only 20 feet from the defendant. Additionally, the identification occurred within 15-20 minutes of the victim finding the suspect in his home. Although the show-up identification was suggestive, it was not so impermissibly suggestive as to cause irreparable mistaken identification and violate defendant’s constitutional right to due process.
An out-of-court show-up identification was not impermissibly suggestive. Police told a victim that they “believed they had found the suspect.” The victim was then taken to where the defendant was standing in a front yard with officers. With a light shone on the defendant, the victim identified the defendant as the perpetrator from the patrol car. For reasons discussed in the opinion, the court held that the show-up possessed sufficient aspects of reliability to outweigh its suggestiveness.
A pretrial show-up was not impermissibly suggestive. The robbery victim had ample opportunity to view the defendant at the time of the crime and there was no suggestion that the description of the perpetrator given by the victim to the police officer was inaccurate. During the show-up, the victim stood in close proximity to the defendant, and the defendant was illuminated by spotlights and a flashlight. The victim stated that he was “sure” that the defendant was the perpetrator, both at the scene and in court. Also, the time interval between the crime and the show-up was relatively short.
(1) The Eyewitness Identification Reform Act, G.S. 15A-284.52, does not apply to show ups. (2) Although a show up procedure was unduly suggestive, there was no substantial likelihood of irreparable misidentification and thus the trial judge did not err by denying a motion to suppress the victim’s pretrial identification. The show up was unduly suggestive when an officer told the witness beforehand that "they think they found the guy," and at the show up, the defendant was detained and several officers were present. However, there was no substantial likelihood of irreparable misidentification when, although only having viewed the suspects for a short time, the witness looked "dead at" the suspect and made eye contact with him from a table's length away during daylight hours with nothing obstructing her, the show up occurred fifteen minutes later, and the witness was "positive" about her identification of the three suspects, as "she could not forget their faces."