               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA18-29

                              Filed: 6 November 2018

Mecklenburg County, No. 14 CRS 202289

STATE OF NORTH CAROLINA

             v.

STANLEY MELVIN MITCHELL


      Appeal by defendant from judgment entered 6 October 2017 by Judge Carla

Archie in Mecklenburg County Superior Court. Heard in the Court of Appeals 22

August 2018.


      Attorney General Joshua H. Stein, by Special Deputy Attorney General Olga
      Vysotskaya de Brito, for the State.

      Richard Croutharmel for defendant.


      ELMORE, Judge.


      Defendant Stanley Melvin Mitchell entered an Alford guilty plea to robbery

with a dangerous weapon following the trial court’s denial of his motions to suppress

evidence obtained from a search of his home as well as evidence of his identification

by the robbery victim. Pursuant to the terms of his plea agreement with the State,

defendant appeals the denial of his two motions. We affirm.

                                    I. Background
                                  STATE V. MITCHELL

                                   Opinion of the Court



      On 17 January 2014, Officers Nicole Saine and Marvin Francisco of the

Charlotte-Mecklenburg Police Department (CMPD) responded to a report of domestic

violence at the home defendant shared with his girlfriend, Kristy Fink. In addition

to reporting the domestic violence incident, the 9-1-1 caller had further alleged that

Ms. Fink suspected defendant of being involved in the armed robbery of a Game Stop

store a few days prior to the incident.

      The officers knocked on the front door upon arriving at the home, and

defendant and Ms. Fink eventually answered and exited the home together.

Pursuant to CMPD policy, the officers then separated defendant and Ms. Fink for

questioning. Officer Saine remained outside the home with defendant, while Officer

Francisco entered the home with Ms. Fink after being authorized by her to do so.

      Inside the home, Ms. Fink confirmed that she had been assaulted by

defendant; she also corroborated the 9-1-1 caller’s allegation by telling Officer

Francisco that the incident began when she confronted defendant about the robbery.

Ms. Fink then led Officer Francisco to the shared upstairs bedroom to view

potentially incriminating evidence she had found prior to the incident, which included

money and clothing that matched the description of the robbery suspect’s clothing.

When Officer Saine entered the home at defendant’s request for warmer clothing

while he waited outside, Ms. Fink gave her the same information she had given




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Officer Francisco.    The officers subsequently obtained a search warrant and

conducted a search of the home based on the information provided by Ms. Fink.

      On 12 May 2014, a grand jury indicted defendant for one count of robbery with

a dangerous weapon. The State alleged that on 15 January 2014, defendant robbed

a Game Stop store and threatened to use a firearm against an employee, Robert

Cintron, in the commission of the robbery. Although Mr. Cintron had failed to

identify any alleged perpetrator in a photographic lineup shown to him two days after

the robbery, he later identified defendant when shown a single still-frame photograph

obtained from the store’s surveillance video. Mr. Cintron then identified 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 defendant showing his

neck tattoos.

      Prior to trial, defendant filed a motion to suppress evidence obtained from the

search of his home “because valid consent was not obtained” for the officers’ initial

entry into the home, and because the subsequent search warrant “was issued without

probable cause and was invalid to authorize the search.” Defendant also filed a

motion to suppress both in-court and out-of-court identification by Mr. Cintron “of the

defendant . . . as the person that robbed the Game Stop, because the out[-]of[-]court

identification was so unnecessarily suggestive as to create a substantial likelihood of

irreparable misidentification and any in-court identification would not be



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independent in origin from the impermissible out-of-court identification.” After a

hearing in which Officer Saine, Officer Francisco, defendant, and Mr. Cintron

testified, the trial court denied defendant’s two motions in written orders entered 20

April 2017.

      On 6 October 2017, defendant pled guilty to robbery with a dangerous weapon

pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160 (1970), as well as a

plea agreement that preserved his right to appeal the trial court’s denial of his

motions to suppress. This appeal followed.

                                    II. Discussion

      Our review of a trial court’s denial of a motion to suppress is “strictly limited

to determining whether the trial judge’s underlying findings of fact are supported by

competent evidence, in which event they are conclusively binding on appeal, and

whether those factual findings in turn support the judge’s ultimate conclusions of

law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted).

We review the trial court’s conclusions of law de novo. State v. Hughes, 353 N.C. 200,

208, 539 S.E.2d 625, 631 (2000).

      A. Motion to Suppress Evidence Obtained from Search

      Defendant first contends the trial court erred in denying his motion to suppress

evidence discovered in the search of his home “because it was obtained in violation of

his constitutional rights to be free from unreasonable searches and seizures.”



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                                   Opinion of the Court



According to defendant, the officers’ initial entry into the home was illegal; thus, the

fruits of the subsequent search should have been suppressed. We disagree.

      Defendant relies primarily on the United States Supreme Court’s holding in

Georgia v. Randolph, 547 U.S. 103, 126 S. Ct. 1515 (2006), to support his argument

that the officers were not justified in their initial entry into his home. In Randolph,

officers asked a married couple for permission to search their marital residence; one

spouse refused permission, while the other spouse consented to the search. Id. at

107, 126 S. Ct. at 1519. The non-consenting spouse was later charged with possession

of cocaine based on evidence the officers obtained during their search. Id. at 10708,

126 S. Ct. at 151920. At trial, the non-consenting spouse moved to suppress the

evidence as a “product[ ] of a warrantless search of his house unauthorized by his

wife’s consent over his express refusal.” Id. The trial court denied the defendant’s

motion to suppress, holding that the consenting spouse “had common authority to

consent to the search.” Id. The Supreme Court disagreed, holding that “one occupant

may [not] give law enforcement effective consent to search shared premises, as

against a co-tenant who is present and states a refusal to permit the search.” Id. at

108, 126 S. Ct. at 1520.

      In response to defendant’s argument, the State contends that Randolph is

inapposite here for the reasons set forth in Fernandez v. California, 571 U.S. 292, 134

S. Ct. 1126 (2014). The Supreme Court refined Randolph in Fernandez, emphasizing



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that Randolph’s “holding was limited to situations in which the objecting occupant is

physically present” and refusing to extend that holding “to the very different situation

in [Fernandez], where consent was provided by an abused woman well after her male

partner had been removed from the apartment they shared.” Fernandez, 571 U.S. at

294, 134 S. Ct. at 1130. We likewise conclude that Randolph’s holding does not

extend to the facts of the instant case.

      Here, the trial court made the following findings of fact in its order denying

defendant’s motion to suppress evidence obtained from the search of his home:

             4. In order to fulfill their policy of separating the parties in
             domestic calls, Officer Saine stayed on the front steps with
             the defendant, and Officer Francisco was authorized by
             Miss Fink to enter the residence, where he conducted his
             original domestic disturbance interview of Miss Fink.

             

             7. During Officer Francisco’s investigation in the home
             with Miss Fink, the defendant was outside on the front
             steps with Officer Saine.

             8. Although the defendant indicated that he wanted to be
             in the residence while any officers were in the residence,
             the defendant never expressly refused permission of the
             officers to enter the residence themselves.

             9. Officers did not conduct a warrantless search, but were
             simply shown evidence items by Miss Fink in support of
             her suspicion that the defendant committed the robbery,
             which had been the subject of the domestic altercation.

             10. On the basis of the display of these items of possible
             evidence, the officers subsequently obtained a search


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                                   Opinion of the Court



             warrant and conducted a search of the residence per search
             warrant duly obtained.

             

             14. Neither Officer Saine nor Francisco were sure if the
             defendant asked other officers who arrived later in the
             scene not to enter the residence, but the Court finds
             specifically, based on the totality of the circumstances, that
             in point of time [sic], had the defendant requested the later
             arriving officers not to enter the residence, this would have
             been after Kristy Fink had already told Francisco what she
             suspected about the robbery and after she had already
             displayed the potential robbery evidence to them.

             

             17. The defendant testified at the hearing and stated that
             Miss Fink had told him that she and Whitney, a friend
             [who defendant suspected as the 9-1-1 caller], had
             discussed Miss Fink’s suspicion that the defendant had
             robbed the store in question.

Based on its findings of fact, the trial court concluded as a matter of law:

             4. The police in this matter did not conduct a warrantless
             search of the residence, but were simply shown certain
             items of evidence of the robbery of a particular video game
             store possibly perpetrated by the defendant.

             5. The defendant never expressly refused Officers Saine or
             Francisco to enter into the residence. He only indicated his
             desire to be present inside if and when the officers were
             inside the residence.

             6. Miss Fink’s statements to Officers Francisco and Saine
             during the initial domestic investigation, which concerned
             possible implication of the defendant in a particular
             robbery, provided probable cause to them to obtain a search
             warrant and to arrest the defendant for the robbery.


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                                  Opinion of the Court



             [7]. These items of evidence displayed by Miss Fink to
             Officer Saine and Officer Francisco are not fruits of the
             poisonous tree and, therefore, are admissible.

             [8]. Neither the defendant’s constitutional nor statutory
             rights were violated herein.

      Defendant specifically challenges finding no. 8 and conclusion no. 5that

defendant never objected to the officers entering his homeas “legally erroneous

because [defendant] was tricked into believing the officers were not there to search

his residence for evidence of crimes other than domestic violence.”        Defendant

similarly challenges finding no. 9 and conclusion no. 4that officers did not conduct

a warrantless search of the residence. He asserts that “Officer Francisco’s entry into

the residence under the subterfuge of investigating a domestic violence complaint

followed by his participation in a private search of [defendant’s] bedroom and

nightstand for evidence of a robbery was a warrantless search within the meaning of

the Fourth Amendment.” We disagree.

      The trial court’s finding and conclusion that defendant never objected to the

officers entering his home is supported by Officer Saine’s testimony that although

defendant appeared “reluctant to stay outside” and “wanted to go back inside,”

defendant “did not state officers could not be in his residence.” Like Fernandez, this

is a very different situation from the one in Randolph, which involved a co-tenant

“standing at the door and expressly refusing consent.” Randolph, 547 U.S. at 119,

126 S. Ct. at 1526. Moreover, defendant’s contention that the officers’ entry into the


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                                  Opinion of the Court



home to investigate the allegations of domestic violence was a mere subterfuge to

investigate the robbery is meritless. The evidence shows that the officers were

dispatched to the home in response to a 9-1-1 call reporting an incident of domestic

violence. When they arrived at the home, the officers separated the parties pursuant

to CMPD policy, and Ms. Fink corroborated the information provided by the 9-1-1

caller. Finally, the evidence supports the trial court’s finding and conclusion that

officers did not participate in a warrantless search, where Ms. Fink simply showed

the officers items she had discovered prior to their arrival at the home. Cf. State v.

Kornegay, 313 N.C. 1, 10, 326 S.E.2d 881, 890 (1985) (“Mere acceptance by the

government of materials obtained in a private search is not a seizure so long as the

materials are voluntarily relinquished to the government.”).          As defendant’s

contention that the subsequent search warrant was issued without probable cause

and was thus invalid to authorize the search assumes that the officers’ initial entry

into the home and gathering of information was unlawful, this argument is likewise

overruled.

      Because the trial court’s findings of fact are supported by at least some

competent evidence, and because those findings in turn support the trial court’s

conclusions of law, we hold that the trial court properly denied defendant’s motion to

suppress evidence obtained from the search of his home.

      B. Motion to Suppress Identification Evidence



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                                  Opinion of the Court



      In his second and final argument on appeal, defendant contends the trial court

erred in denying his motion to suppress identification evidence “because the State

conducted an impermissibly suggestive pretrial identification procedure that created

a substantial likelihood of misidentification and violated [defendant’s] right to due

process.” We disagree.

      Here, the trial court made the following findings of fact in its order denying

defendant’s motion to suppress in-court and out-of-court identification evidence:

             1. That on January 17, 2014, defendant was arrested for
             robbery of the GameStop store on January 15th, 2014. The
             alleged victim was shown six separate photos in a photo
             lineup on January 17, 2014, which was conducted
             substantially pursuant to procedures outlined in the
             statutes and the CMPD policies. However, the alleged
             victim failed to identify the defendant or any other alleged
             perpetrator during that photo lineup.

             2. On February 18, 2015, in the course of trial preparation,
             the then assistant district attorney and two officers who
             had arrived at the scene of the alleged robbery on January
             15, 2014, showed the alleged victim a single color photo,
             which is asserted by the affidavit of the defendant’s
             counsel, upon information believed to be a single photo of
             one of the frames from the surveillance video, which the
             witness, that is, the alleged victim, identified as the
             defendant. This was the first time that the alleged victim
             identified the defendant. Thereupon, the alleged victim
             was shown the same or similar group of photos as the
             original photo lineup of January 17, 2014 and he identified
             the defendant as the perpetrator who was Number 3 in the
             course of that photo examination.

             3. On March 21, 2017, again in trial preparation, the then
             assistant district attorney met with the alleged victim and


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             showed multiple notes, which included four close-up post-
             arrest photos of the defendant showing his neck tattoos,
             and the victim again identified the defendant in the four
             photos as the alleged perpetrator.

             

             6. . . . [T]he alleged victim asserted that he could identify
             the defendant in the photo from the “creases in his forehead
             and tattoos.”

             7. The statutory and CMPD policy         rules were primarily
             followed with some deviation in the      photo lineups in this
             case, with the January 17, 2014,         photo lineup almost
             precisely following the statutory         and CMPD policy
             requirements.

             8. The substance of any deviation from the statutory
             requirements and the CMPD policies revolved around the
             defendant’s tattoos, and once the victim was shown closeup
             photos of defendant’s tattoos, he made the identification in
             the matter.

Based on its findings of fact, the trial court concluded as a matter of law:

             1. The authorities substantially followed statutory and
             CMPD policies in each photo lineup.

             2. Any deviation was principally the result of earlier photos
             not portraying with sufficient clarity the defendant’s
             tattoos, which the victim had observed at the alleged
             robbery.

             3. This issue is why a less suggestive process could not be
             used and was not used, which would have comported more
             precisely with CMPD policy and the statute.

             4. The totality of the facts and circumstances surrounding
             the question of any in-court or out-of-court identification of
             the defendant by the alleged victim is not unduly or


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             impermissibly suggestive, and no less suggestive procedure
             could reasonably have been used by the authorities.

             5. The procedures used by the authorities herein in regards
             to the identification question of the defendant did not give
             rise to a substantial likelihood that this defendant was
             mistakenly identified as the perpetrator allegedly in this
             case.

      Defendant specifically challenges finding nos. 7 and 8 as well as conclusion no.

4that the authorities substantially followed statutory and CMPD policies in each

photo lineup, and that the substance of any deviation from those policies revolved

around defendant’s tattoos. He contends that “[t]he problem with that reasoning is

that it assumes the police had their man and they merely needed confirmation from

the witness.” According to defendant, “[w]hen the assistant district attorney showed

Mr. Cintron a single, color photo of Mr. Mitchell, he essentially told Mr. Cintron, ‘This

is the guy we think robbed the Game Stop store.’ . . . . Such a procedure was

inherently suggestive.” Defendant ultimately challenges conclusion no. 5that the

procedures used by the authorities “did not give rise to a substantial likelihood that

this defendant was mistakenly identified as the perpetrator.” We disagree with

defendant’s argument.

      A “show-up” identification is the practice of “showing suspects singly to persons

for the purpose of identification, and not as part of a lineup[.]” State v. Oliver, 302

N.C. 28, 44, 274 S.E.2d 183, 194 (1981) (quotation marks omitted). As the State

emphasizes here, the suggestive nature of show-ups is not fatal to their admissibility


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at trial. See State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373 (1982) (“Pretrial

show-up identifications . . . , even though suggestive and unnecessary, are not per

se violative of a defendant’s due process rights.”).       Rather, “[a]n 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.” Id. (citing Manson

v. Brathwaite, 432 U.S. 98, 106, 97 S. Ct. 2243, 2248 (1977)).

      Here, trial court’s challenged findings and conclusionthat the authorities

substantially followed statutory and CMPD policies in each photo lineup and that the

substance of any deviation from those policies revolved around defendant’s neck

tattoosare supported by the evidence.             Defendant fit Mr. Cintron’s initial

description of the perpetrator, which emphasized “a neck tattoo of an Asian symbol

on the left side of his neck” as well as the “lining” or notable creases in the

perpetrator’s forehead. Based on this description, Mr. Cintron had the ability to

identify defendant both in-court and in photographs reflecting a close-up view of

defendant’s tattoos, and he specifically testified to his ability to recognize defendant

as the perpetrator “independent of any lineup . . . or any photo” he had been shown.

Thus, the trial court’s ultimate conclusionthat the procedures used by the

authorities did not give rise to a substantial likelihood that defendant was mistakenly




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                                   Opinion of the Court



identified as the perpetratoris supported by the totality of the circumstances

indicating that the identification was sufficiently reliable.

      Because the totality of the circumstances supported the reliability of Mr.

Cintron’s in-court and out-of-court identification of defendant, we hold that the trial

court properly denied defendant’s motion to suppress identification evidence.

                                   III. Conclusion

      Where officers did not conduct a warrantless search of defendant’s home, and

where the identification of defendant by the robbery victim was sufficiently reliable,

the trial court properly denied defendant’s motions to suppress.

      AFFIRMED.

      Judges DILLON and DAVIS concur.




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