State v. Griffin ( 2014 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permit ted in
accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of
A p p e l l a t e P r o c e d u r e .
NO. COA13-1093
NORTH CAROLINA COURT OF APPEALS
Filed: 1 April 2014
STATE OF NORTH CAROLINA
v. Cabarrus County
Nos. 10 CRS 4678, 51075
GREGORY AUSTIN GRIFFIN
Appeal by Defendant from judgments entered 9 May 2013 by
Judge Tanya T. Wallace in Cabarrus County Superior Court. Heard
in the Court of Appeals 5 February 2014.
Attorney General Roy Cooper, by Special Deputy Attorney
General Mary L. Lucasse, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Constance E. Widenhouse, for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
Defendant Gregory Austin Griffin appeals from the judgments
entered 9 May 2013 upon his convictions of felonious breaking
and entering, possession of burglary tools, and having attained
the status of habitual felon. The evidence at trial tended to
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show the following: In the early morning hours of 2 April 2010,
Christopher Andrew Shoe, Douglas Harwood, and a third employee
were stocking shelves inside a closed Bi-Lo grocery store in
Kannapolis. As Shoe worked near the front of the store, he
heard loud popping noises coming from the front door. After
calling out to the other employees that something was happening,
Shoe went to the customer service desk about twenty feet from
the front door. From that location, Shoe could see a man he
later identified as Defendant prying open the door with what
appeared to be a long metal screwdriver. Shoe saw Defendant’s
face in the crack of the doorway as the door popped open and the
store alarm began to sound. On hearing the alarm, Defendant ran
across the store parking lot, jumped into a van, and drove away
down South Cannon Boulevard.
Harwood testified that he had come to the front of the
store when Shoe called out to him. From a distance of about ten
feet, Harwood saw a man wearing a plaid hooded jacket and jeans
prying open the front door with a screwdriver. Harwood saw the
face of the man whom he later identified as Defendant and, after
the alarm sounded and Defendant fled in a red van, Harwood
called 911.
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Several officers with the Kannapolis Police Department,
including Timothy Lafferty and Steven Webb, responded to the 911
call, and a red Ford Aerostar van was stopped a few minutes
later on South Cannon Boulevard, about a mile and a half from
the grocery store. After removing the driver and passenger from
the van, the officers searched the cargo area. They found,
inter alia, a fifty-five-gallon trash can, a large screwdriver,
and a duffel bag filled with plastic bags of clothing which
still had price tags and security sensors attached.
Harwood, who was still on the phone with a 911 operator,
was told that police “had him [the perpetrator] in custody
already.” Webb picked up Shoe and Harwood from the grocery
store and drove them in a patrol car to the location where the
van had been stopped. Shoe and Harwood identified Defendant,
who was standing behind the red van, as the man who had pried
open the door. Harwood was also able to identify the van as the
vehicle in which Defendant had fled the grocery store parking
lot. Shoe testified that he had been shown two men during the
show-up,1 one of whom he identified as the perpetrator. Harwood
testified that he had seen only Defendant at the show-up.
1
“Show-ups are typically defined as a procedure where the police
take a witness, shortly after the commission of an observed
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Discussion
On appeal, Defendant argues that the trial court (1) erred
by admitting irrelevant evidence from Shoe, (2) committed plain
error by admitting improper lay opinion testimony from two
police officers that Defendant was guilty, and (3) committed
plain error by admitting identification testimony which resulted
from an “inherently suggestive” show-up. We find no prejudicial
error in Defendant’s trial.
I. Relevancy of Shoe’s Testimony
Defendant first argues that the trial court erred by
admitting irrelevant testimony from Shoe that Shoe had (1)
previously identified another man as the perpetrator of an
unrelated crime during a police line-up and (2) been trained to
watch shoplifters so that he could identify them to police. We
disagree.
“Relevant evidence means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than
crime, to where the police are detaining the suspect, in order
to give them an opportunity to make an identification.” State
v. Rawls, 207 N.C. App. 415, 420-21, 700 S.E.2d 112, 116 (2010)
(citation and internal quotation marks omitted).
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it would be without the evidence.” N.C. Gen. Stat. § 8C-1, Rule
401 (2013) (internal quotation marks omitted).
Although the trial court’s rulings on
relevancy technically are not discretionary
and therefore are not reviewed under the
abuse of discretion standard applicable to
Rule 403, such rulings are given great
deference on appeal. Because the trial
court is better situated to evaluate whether
a particular piece of evidence tends to make
the existence of a fact of consequence more
or less probable, the appropriate standard
of review for a trial court’s ruling on
relevancy pursuant to Rule 401 is not as
deferential as the “abuse of discretion”
standard which applies to rulings made
pursuant to Rule 403.
Dunn v. Custer, 162 N.C. App. 259, 266, 591 S.E.2d 11, 17 (2004)
(citation and internal quotation marks omitted).
After defense counsel challenged Shoe’s identification of
Defendant on cross-examination, the State asked Shoe, who had
testified that he was “a hundred percent” certain of his
identification, how he could be so sure. Shoe stated, “I’ve
been held up at gunpoint before at a past job.” Defendant
objected, but did not move to strike Shoe’s answer. On voir
dire, Shoe testified that he had previously identified a man who
had held him up at work and that he had been trained to observe
shoplifters for future identification to police. Defendant then
renewed his objection, which the trial court overruled. Once
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the jury returned to the courtroom, Shoe resumed his testimony
on re-direct:
A[.] I just — I’m pretty good with faces.
I know faces pretty good. I just remember
them.
. . .
Q[.] How is it then that you know faces?
How is it that you’re confident that you’re
familiar with picking out faces?
A[.] I’ve been trained to remember people
that shoplift and things, what they wear,
and to get a description for the police for
when they do come, so . . .
Q[.] Have you ever had to identify someone
before?
A[.] Yes, sir, I have. I’ve had to —
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
. . .
Q[.] And what was the situation like?
A[.] I was held at gunpoint and I had to
pick a person out of a 12-man line[-]up, and
I have.
Q[.] So before this you’ve had experience
where you’ve had to actually identify
someone —
A[.] Yes, sir. I mean, I fully understand
that somebody could be an innocent man could
be, you know, something like that. I
understand that and I face that burden. I’m
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not going to put someone away for something
they didn’t do.
Q[.] So how sure are you that this is the
guy?
A[.] I’m a hundred percent sure. I don’t
have no reason to lie. I was at work.
We first note that Defendant did not object to Shoe’s
statement that he had been trained to identify shoplifters.
Accordingly, he has waived any prior objection to that
testimony. See State v. Alford, 339 N.C. 562, 570, 453 S.E.2d
512, 516 (1995) (“Where evidence is admitted over objection and
the same evidence has been previously admitted or is later
admitted without objection, the benefit of the objection is
lost.”).
As for Defendant’s objection when Shoe was asked whether he
had ever previously “had to identify someone[,]” Defendant
argues to this Court that this question was asked in an attempt
to bolster Shoe’s credibility by showing the jury that Shoe was
“better qualified” than an ordinary person to make an
identification when in fact the line-up identification Shoe had
previously taken part in was different from the show-up
identification procedure in this case. These arguments are
misplaced. The exchange quoted above plainly reveals that Shoe
did not perceive the question about his past experience as
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relating in any way to his “qualifications” to identify criminal
suspects. Shoe’s response was simply that he had previously
picked a suspect out of a police line-up and felt the burden of
not choosing an innocent person. Thus, while Shoe’s response
suggested that he was taking the matter of Defendant’s
identification seriously, he made no claim that his previous
experience gave him any special qualification and ability to
identify Defendant at the show-up. The fact that an eyewitness
has had a previous identification experience which led him to
reflect on the importance of accuracy and honesty in making such
determinations has some relevance with regard to the witness’s
credibility. Accordingly, we conclude that the trial court did
not err in admitting Shoe’s testimony as relevant.
II. Lay Opinion Testimony
Defendant next argues that the trial court committed plain
error by admitting improper lay opinion testimony, primarily
from Webb. We are not persuaded.
“In criminal cases, an issue that was not preserved by
objection noted at trial and that is not deemed preserved by
rule or law without any such action nevertheless may be made the
basis of an issue presented on appeal when the judicial action
questioned is specifically and distinctly contended to amount to
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plain error.” N.C.R. App. P. 10(a)(4). Plain error arises when
the error is “so basic, so prejudicial, so lacking in its
elements that justice cannot have been done[.]” State v. Odom,
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and
internal quotation marks omitted). “Under the plain error rule,
[the] defendant must convince this Court not only that there was
error, but that absent the error, the jury probably would have
reached a different result.” State v. Jordan, 333 N.C. 431,
440, 426 S.E.2d 692, 697 (1993). Plain error review is
available for alleged “(1) errors in the judge’s instructions to
the jury, or (2) rulings on the admissibility of evidence.”
State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996).
Defendant asserts that Webb offered improper lay opinion
that Defendant was guilty when he testified that (a) he had seen
large screwdrivers like the one found in Defendant’s van used as
burglary tools, (b) Shoe and Harwood had “picked the right guy”
when they identified Defendant at the show-up, (c) after those
identifications and the discovery of the items in the van,
officers had “probable cause[,]” (d) the clothing in the duffel
bag had not been purchased, and (e) the large trash can could
have been used to carry large amounts of merchandise out of a
store quickly. Defendant contends that these comments
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constituted impermissible lay opinion that a screwdriver
satisfied the legal standard for a burglary tool, that Defendant
was the perpetrator of the grocery store break-in, and that
Defendant was guilty of other crimes (such as stealing the
clothes found in the van). Defendant did not object to any of
this testimony at trial. Accordingly, we review only for plain
error, which, as noted supra, requires Defendant to establish
that, had the testimony not been admitted, he would probably
have been acquitted. Jordan, 333 N.C. at 440, 426 S.E.2d at
697. After careful review of all the evidence at trial, we
conclude that, even assuming arguendo that admission of the
challenged testimony was error, Defendant fails to show
prejudice.
“If the witness is not testifying as an expert, his
testimony in the form of opinions or inferences is limited to
those opinions or inferences which are (a) rationally based on
the perception of the witness and (b) helpful to a clear
understanding of his testimony or the determination of a fact in
issue.” N.C. Gen. Stat. § 8C-1, Rule 701 (2013). However, Rule
704
provides that testimony in the form of an
opinion or inference is not objectionable
because it embraces an ultimate issue to be
decided by the trier of fact.
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Rule 704 does allow admission of lay opinion
evidence on ultimate issues, but to qualify
for admission the opinion must be helpful to
the jury. Meaningless assertions which
amount to little more than choosing up sides
are properly excludable as lacking
helpfulness under the Rules. Furthermore,
while opinion testimony may embrace an
ultimate issue, the opinion may not be
phrased using a legal term of art carrying a
specific legal meaning not readily apparent
to the witness.
State v. Elkins, 210 N.C. App. 110, 124, 707 S.E.2d 744, 754
(2011) (citations, internal quotation marks, and brackets
omitted; emphasis in original). “However, where the witness
uses a term as a shorthand statement of fact rather than as a
legal term of art or an opinion as to the legal standard the
jury should apply, the testimony is admissible.” State v.
Anthony, 354 N.C. 372, 408, 555 S.E.2d 557, 581 (citation
omitted), cert. denied, 354 N.C. 575, 559 S.E.2d 184 (2001),
cert. denied, 536 U.S. 930, 153 L. Ed. 2d 791 (2002).
a. Testimony about the screwdriver
If any person shall be found armed with any
dangerous or offensive weapon, with the
intent to break or enter a dwelling, or
other building whatsoever, and to commit any
felony or larceny therein; or shall be found
having in his possession, without lawful
excuse, any picklock, key, bit, or other
implement of housebreaking; or shall be
found in any such building, with intent to
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commit any felony or larceny therein, such
person shall be punished as a Class I felon.
N.C. Gen. Stat. § 14-55 (2013).
Regarding the screwdriver, Webb agreed that the tool seized
from the van was a 14- or 16-inch flathead screwdriver which, in
Webb’s experience, “could be used to pry things open. . . like
a burglary tool[.]” Defendant cites State v. Turnage, 190 N.C.
App. 123, 660 S.E.2d 129, reversed in part and remanded on other
grounds, 362 N.C. 491, 666 S.E.2d 753 (2008), in support of his
argument that admission of Webb’s testimony that screwdrivers
could be used “like a burglary tool” constituted plain error.
Specifically, Defendant asserts that Webb opined “that the
screwdriver was a burglary tool.” We find Turnage easily
distinguishable and Defendant’s argument misplaced. In Turnage,
a police officer “stated that, ‘[w]e searched him and found . .
. a screwdriver and a metal rod in his pockets indicating that
he was just probably in the process of breaking into a
residence. Those types of tools used [sic] to break into
residences.’” Id. at 129, 660 S.E.2d at 133. This Court found
those “statements, particularly the first, to have impermissibly
invaded the province of the jury, as [the officer] drew
inferences from the evidence — a task reserved for the jury — to
express an opinion as to [the d]efendant’s guilt.” Id.-13-
(citation omitted). In other words, the error in the Turnage
testimony was the suggestion that the defendant possessed the
specific tools for the purpose of housebreaking and that he had
just used them for that purpose. See id.In contrast, Webb merely stated that a screwdriver like the
one Defendant possessed could be an implement for housebreaking.
“[I]t is common knowledge that . . . screwdrivers can be, and
may be, used as implements of housebreaking.” State v. Cadora,
13 N.C. App. 176, 178, 185 S.E.2d 297, 298 (1971) (citation
omitted). For example, in State v. Robinson, the
defendant was found inside a private office
in a private establishment without
permission, standing behind the owner’s
desk, in possession of a screwdriver and an
icepick. The owner heard [the] defendant
shake the desk drawer. Upon being
discovered, [the] defendant tried to leave.
He gave conflicting statements as to his
purpose in being there. Although the tools
possessed by [the] defendant were capable of
legitimate use, under the circumstances
shown by the State, a legitimate inference
can be drawn that [the] defendant possessed
the screwdriver and icepick for the purpose
of breaking into the building.
115 N.C. App. 358, 363, 444 S.E.2d 475, 478, cert. denied, 337
N.C. 697, 448 S.E.2d 538 (1994). Similarly, here, Harwood and
Shoe both testified that they saw Defendant using a large
screwdriver to pry open the locked doors of the grocery store,
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and that when Defendant saw them and heard the alarm sound, he
fled the scene. In light of the eyewitness testimony from
Harwood and Shoe, we cannot conclude that, absent Webb’s remark
about the screwdriver being of a sort which could be used for
housebreaking, the jury would probably have acquitted Defendant
of the charge brought pursuant to section 14-55.
b. Testimony the witnesses “picked the correct guy”
Defendant also argues that the trial court committed plain
error in admitting, without objection, Webb’s responses to
questions from the State about the show-up, where Harwood and
Shoe were shown Defendant and the other man discovered in the
red van:
Q[.] So [Harwood and Shoe] were actually
given two people to pick from.
A[.] Yes.
Q[.] One of which [sic] they had seen, one
of which they had presumably never seen as
far as we know, and they picked the correct
guy.
A[.] Exactly, yes, sir.
Defendant contends that this testimony is analogous to the
testimony by a law enforcement officer held inadmissible in
Elkins: “I felt like I was building a solid case. [The
defendant] was, indeed, the offender in this case.” 210 N.C.
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App. at 125, 707 S.E.2d at 755. This Court observed that, while
Rule 704 does allow admission of lay opinion
evidence on ultimate issues, Rule 701
requires that, to qualify for admission, the
opinion evidence must be helpful to the
jury. Here, we do not believe that the
statement, “I felt like I was building a
solid case; [the defendant] was, indeed, the
offender in this case,” is helpful, pursuant
to Rule 701, to the determination of a fact
in issue. Rather, the foregoing statement
is solely and simply an opinion of the
ultimate issue of [the d]efendant’s guilt,
and as such, the statement’s admission was
error.
Id. at 125-26, 707 S.E.2d at 755 (citations, some internal
quotation marks, and some brackets omitted).
Here, we note that both Defendant and the other man in the
van were suspected of involvement in the break-in at the grocery
store, and both were eventually charged with that offense.
Webb’s agreement to the prosecutor’s question can be read as an
attempt to clarify the show-up procedure, to wit, that Harwood
and Shoe were shown two men, only one of whom they had seen
prying open the door, and that they both identified Defendant,
rather than the other man in the van, as the man they had seen.
In that light, the comment could have been “helpful, pursuant to
Rule 701, to” the jury in understanding the show-up and thus in
assessing the weight to be given to the identification of
Defendant by Harwood and Shoe. See id. at 126, 707 S.E.2d at
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755. If so, its admission was not error.
Further, even if the testimony from Webb was “solely and
simply an opinion of the ultimate issue of Defendant’s guilt,”
id., such that its admission was error, we conclude it is not
probable that, absent this brief testimony, Defendant would have
been acquitted. Two witnesses positively identified Defendant
as the man they saw prying open the door with a screwdriver and
then fleeing in a van, and Defendant was quickly stopped in a
van nearby in possession of a screwdriver like that used to pry
open the door. In light of the strong evidence of his guilt,
Defendant cannot show plain error in the admission of Webb’s
testimony.
c. Testimony about “probable cause”
Defendant also contends that the court committed plain
error when it admitted testimony from Webb and Lafferty that
Harwood’s and Shoe’s identification of Defendant gave them
probable cause to continue their investigation of the grocery
store break-in. However, as noted supra, “where the witness
uses a term as a shorthand statement of fact rather than as a
legal term of art or an opinion as to the legal standard the
jury should apply, the testimony is admissible.” Anthony, 354
N.C. at 308, 555 S.E.2d at 581.
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Lafferty was asked about the role identifications generally
play in investigations, not about the specific show-up
identifications of Defendant by Shoe and Harwood:
Q[.] And what happens after [a witness is]
positive, after you have the show[-]up I.D.
and it’s positive identification, what
happens next?
A[.] It helps us build our probable cause,
which then we continue our investigation
further. Time is no longer of an essence so
we can conduct searches. You know, when we
get them back to the station, typically
we're going to process them for that felony
crime if it’s a felony or misdemeanor,
Mirandize, attempt to get statements. It
just allows us to continue our
investigation.
Webb used the phrase in discussing his investigation of the
Bi-Lo break-in:
Q[.] Did [Shoe and Harwood] give you a
percentage of certainty [about their
identifications of Defendant]?
A[.] They said they were 100 percent
[certain].
Q[.] If it was anything less than a hundred
percent, what would you have done?
A[.] If it was less than a hundred percent,
we probably would have investigated a whole
lot more before we — and I say that not like
we stopped at that point, Hey, we got the
guys. But at that point, we probably
wouldn’t have arrested. We would have had
to dig a little deeper and go after other
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aspects.
Q[.] But with the hundred percent
confidence, you proceeded along to do some
other investigation?
A[.] That along with the things that we
retrieved from the van prior to them even
going up there, we believed that probable
cause had been met.
Here, Lafferty’s testimony was only about his general
investigative process and not about Defendant at all. Webb used
the phrase “probable cause” merely as a shorthand reference to
explain the course of the investigation and why he arrested
Defendant following the identifications by Shoe and Harwood. In
any event, “probable cause” as a legal term of art was utterly
unrelated to any matter before the jury or any legal standard
they were required to apply. Accordingly, the trial court did
not err in admitting this testimony.
d. Testimony about other crimes
Defendant next contends that the court committed plain
error in allowing Webb to testify that they were suspicious that
the clothes found in the duffel bag “were taken without being
purchased” and that the trash can could have been useful for
moving “a bunch of stuff in a hurry[.]” Defendant asserts that
this lay opinion testimony violated Rule 701 by invading the
province of the jury. See N.C. Gen. Stat. § 8C-1, Rule 701.
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Webb’s comments could be construed as suggesting that
Defendant had stolen the clothes found in the duffel bag.
However, Defendant was not being tried for any charges related
to the clothes, and thus Webb’s remarks were not relevant to any
issue before the jury. Accordingly, this testimony was plainly
not invading the province of the jury, and its admission was not
error. Further, in light of the evidence of his guilt, to wit,
the two eyewitness identifications and Defendant’s nearly
immediate apprehension nearby in possession of a screwdriver
like that used in the crime, we see no likelihood that this
testimony had any impact on the jury’s verdict. Thus, Defendant
cannot satisfy either requirement needed to establish plain
error in the admission of Webb’s testimony. These arguments are
overruled.
III. Identification of Defendant via a Show-up
Defendant’s final argument is that the trial court
committed plain error by admitting identification testimony
which resulted from an “inherently suggestive show-up.” We are
not persuaded.
Defendant did not object to Harwood’s or Shoe’s
identification of him as the man they saw pry open the grocery
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store door with a screwdriver. Accordingly, we review only for
plain error.
Our courts apply a two-step process for
determining whether an identification
procedure was so suggestive as to create a
substantial likelihood of irreparable
misidentification. First, the Court must
determine whether the identification
procedures were impermissibly suggestive.
Second, if the procedures were impermissibly
suggestive, the Court must then determine
whether the procedures created a substantial
likelihood of irreparable misidentification.
Even though they may be suggestive and
unnecessary, show-ups are not per se
violative of a defendant’s due process
rights.
Rawls, 207 N.C. App. at 423, 700 S.E.2d at 118 (citations and
internal quotation marks omitted).
In Rawls, an officer “explained to [the witness] what a
show-up is and told her, ‘[T]hey think they found the guy.’ By
the time [the witness] arrived at the apartments and saw [the]
defendant, he was detained and sitting down, and ‘[t]here were
several officers around.’” Id. This Court concluded that the
Show[-]up procedure [wa]s analogous to the
one reviewed in [State v.] Richardson, 328
N.C. [505,] 511, 402 S.E.2d [401,] 405
[(1991)]. In Richardson, three witnesses
identified the defendant as the man they had
seen at their workplace a few hours earlier.
Id. During the identification, the
defendant “was sitting alone or with
uniformed personnel in the security office
at the hospital” and “investigating officers
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told [two of] the witnesses [the] defendant
was a suspect” before those witnesses saw
him. Id. The Supreme Court determined that
“[t]he identification procedures the
officers chose, coupled with their
statements to two of the three witnesses
that ‘they had a suspect,’ were unduly
suggestive.” Id. See also [State v.]
Oliver, 302 N.C. [28,] 45, 274 S.E.2d [143,]
194 [(1981)] (holding show-up procedure
unduly suggestive when coupled with
statement by officers to witness that he
would have chance, at police station, to see
again man who attacked his grandfather).
Id. at 423-24, 700 S.E.2d at 118.
Here, the 911 operator told Harwood “they had him [the
suspect] in custody already[,]” and Shoe testified that he was
told “they had gotten a person and we had to go and see if it
was the right person.” When Harwood and Shoe viewed Defendant
from the patrol car, he was handcuffed and standing behind the
van in the presence of several police cars and officers. These
circumstances are not meaningfully distinguishable from those in
Richardson and Oliver, and thus we conclude that the show-up
procedure here was unduly suggestive.
However, just as in Rawls, “even though the show-up was
impermissibly suggestive, we find that there was no substantial
likelihood of irreparable misidentification.” Id. at 424, 700
S.E.2d at 118.
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When evaluating whether such a likelihood
exists, courts apply a totality of the
circumstances test. For both in-court and
out-of-court identifications, there are five
factors to consider in determining whether
an identification procedure is so inherently
unreliable that the evidence must be
excluded from trial: (1) the opportunity of
the witness to view the criminal at the time
of the crime; (2) the witness’s degree of
attention; (3) the accuracy of the witness’s
prior description of the criminal; (4) the
level of certainty demonstrated by the
witness at the confrontation; and (5) the
length of time between the crime and the
confrontation.
Id. at 424, 700 S.E.2d at 118-19 (citations and internal
quotation marks omitted).
As for the first factor, Harwood saw the man prying open
the door from a distance of ten feet and “got a good look at . .
. what he was wearing[,]” while Shoe testified that he saw the
man from a distance of only twenty feet and that the light lit
up the man’s face so that he was able to get a good look at him.
Both witnesses were entirely focused on the man prying open the
door. Only Harwood provided a description of the man’s clothes
and vehicle: “a black male wearing a plaid shirt with gray hair
or a gray hood, blue jeans.” Harwood also described the vehicle
as a red van headed south on South Cannon Boulevard. Defendant
is a black man who was wearing a plaid shirt and blue jeans and
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who was stopped minutes later in a red van headed south on South
Cannon Boulevard.
Both Harwood and Shoe testified to being 100 percent
certain about their identification of Defendant at the show-up
and in court during trial. Finally, only about five to ten
minutes passed between the crime and the show-up identifications
here. In sum, the totality of the circumstances establish that
impermissibly suggestive show-up procedures did not create a
“substantial likelihood of irreparable misidentification.” See
id. at 424, 700 S.E.2d at 118. Accordingly, this argument is
overruled.
Defendant also briefly argues that, because there could be
no strategic reason for trial counsel’s failure to move to
suppress the identification evidence or object to its admission,
Defendant received ineffective assistance of counsel. “In
general, claims of ineffective assistance of counsel should be
considered through motions for appropriate relief and not on
direct appeal.” State v. Stroud, 147 N.C. App. 549, 553, 557
S.E.2d 544, 547, cert. denied, 356 N.C. 623, 575 S.E.2d 758(2001). The record before this Court does not permit us to
review the merits of this claim, and accordingly, we dismiss it
without prejudice to Defendant’s right to raise it in a motion
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for appropriate relief. See id. at 554, 557 S.E.2d at 547 (“Our
Supreme Court has instructed that should the reviewing court
determine the IAC claims have been prematurely asserted on
direct appeal, it shall dismiss those claims without prejudice
to the defendant’s rights to reassert them during a subsequent
MAR proceeding.”) (internal quotation marks omitted).
NO ERROR in part; NO PREJUDICIAL ERROR in part; DISMISSED
in part.
Judges BRYANT and DILLON concur.
Report per Rule 30(e).