              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA19-932

                                  Filed: 5 May 2020

Mecklenburg County, No. 16 CRS 246543

STATE OF NORTH CAROLINA

             v.

DEVANTEE MARQUISE REAVES-SMITH, Defendant.


      Appeal by defendant from judgment entered 28 March 2019 by Judge Karen

Eady-Williams in Mecklenburg County Superior Court.            Heard in the Court of

Appeals 15 April 2020.


      Attorney General Joshua H. Stein, by Assistant Attorney General Michael E.
      Bulleri, for the State.

      W. Michael Spivey for defendant-appellant.


      BERGER, Judge.


      On March 28, 2019, a Mecklenburg County jury convicted Devantee Marquise

Reaves-Smith (“Defendant”) of attempted robbery with a dangerous weapon.

Defendant appeals, arguing the trial court erred when it (1) denied his motion to

suppress evidence of a show-up identification, and (2) failed to instruct the jury about

purported noncompliance with the North Carolina Eyewitness Identification Reform

Act (the “Act”). We disagree.

                         Factual and Procedural Background
                                STATE V. REAVES-SMITH

                                   Opinion of the Court



      On December 16, 2016, two men attempted to rob Francisco Alejandro

Rodriguez-Baca (the “victim”) in a McDonald’s restaurant parking lot. The victim did

not give the men any money, but instead offered to buy them something to eat. One

of the suspects, armed with a revolver, fired a shot in the air, and the two perpetrators

fled the scene on foot. The victim ran to a nearby parking lot. There, he found Officer

Jon Carroll (“Officer Carroll”) and told him what had just occurred.

      The victim described the man armed with the revolver as a “slim African-

American male” who was wearing a grayish sweatshirt, a black mask, a backpack,

and gold-rimmed glasses. The victim later identified Defendant as the individual

armed with the revolver.

       Officer Carroll testified that he had heard a gunshot just before the victim

approached him. According to Officer Carroll, the victim described the suspects as:

“two black males, approximately five-foot ten-inches in height . . . both had grayish

colored hoodies, . . . had book bags, face mask[s] and gold-rimmed glasses.” Officer

Carroll relayed this description to law enforcement officers over the radio. The victim

stayed with Officer Carroll while other officers searched for the suspects.

      Approximately seven minutes later, Officer Rodrigo Pupo (“Officer Pupo”)

spotted “two black males . . . . One of them had a grey hoodie. The other one had a

black hoodie . . . they were both wearing backpacks” leaving a Bojangles restaurant.

Officer Pupo reported the sighting over the radio. As another officer arrived at the



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restaurant, Defendant fled the area on foot. Defendant was apprehended a short time

later wearing a black ski mask, and he had 80 .22-caliber bullets inside his backpack.

The other suspect was not apprehended at the time. Defendant later identified Koran

Hicks as his accomplice.

      Officer Carroll transported the victim to Defendant’s location to conduct a

show-up identification.    Officer Jones testified that the show-up was conducted

around dusk and the spotlights from Officer Carroll’s vehicle were activated. The

victim identified Defendant as the assailant with the gun. Officer Jones’ body camera

recorded the identification.

      On January 3, 2017, Defendant was indicted for attempted robbery with a

dangerous weapon. On October 2, 2018, Defendant filed a motion to suppress the in-

court and out-of-court identifications by the victim.          The trial court denied

Defendant’s motion regarding the out-of-court identification, and reserved ruling on

the in-court identification for the trial judge. At trial, the jury found Defendant guilty

of attempted robbery with a dangerous weapon.

      Defendant appeals, alleging the trial court erred when it (1) denied his motion

to suppress evidence of the show-up identification, and (2) failed to instruct the jury

concerning purported noncompliance with the Act. We disagree.

                                        Analysis

I. Motion to Suppress



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      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). “The trial court’s

conclusions of law . . . are fully reviewable on appeal.” State v. Hughes, 353 N.C. 200,

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

A. Compliance with the Act

      A show-up is “[a] procedure in which an eyewitness is presented with a single

live suspect for the purpose of determining whether the eyewitness is able to identify

the perpetrator of a crime.” N.C. Gen. Stat. § 15A-284.52(a)(8) (2019). The purpose

of a show-up is to serve as “a much less restrictive means of determining, at the

earliest stages of the investigation process, whether a suspect is indeed the

perpetrator of a crime, allowing an innocent person to be released with little delay

and with minimal involvement with the criminal justice system.” State v. Rawls, 207

N.C. App. 415, 422, 700 S.E.2d 112, 117 (2010) (purgandum). A show-up is just one

identification method that law enforcement may use “to help solve crime, convict the

guilty, and exonerate the innocent.” N.C. Gen. Stat. § 15A-284.51 (2019).

      To comply with the requirements set forth by the General Assembly, a show-

up must meet the following requirements:



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             (1) 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.

             (2) A show-up shall only be performed using a live suspect
             and shall not be conducted with a photograph.

             (3) Investigators shall photograph a suspect at the time
             and place of the show-up to preserve a record of the
             appearance of the suspect at the time of the show-up
             procedure.

N.C. Gen. Stat. § 15A-284.52(c1) (omitting requirements for juvenile offenders).

      Defendant contends that “the trial court did not make any findings of

circumstances that required an immediate display of [Defendant] to the witness.”

The trial court’s findings of fact, which were each supported by competent evidence,

are set forth below:

             1. On December 16th, 2016 Charlotte Mecklenburg Police
             Department Officer J.J. Carroll heard a loud pop that be
             (sic) believed was a gun shot while he was sitting in his
             patrol vehicle.

             2. Within a few moments, Mr. Francisco Rodriguez-Baca
             approached Officer Carroll and told him he was just robbed
             by two black males. Both males were about 5’ 10”, wearing
             grey colored hoodies, black masks, both had book bags, and
             both were wearing glasses.

             3. Mr. Francisco Rodriguez-Baca had a brief conversation
             with the suspects. As such, the victim had an opportunity
             to view the suspects.


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4. Mr. Francisco Rodriguez-Baca stated that one of the
suspects fired a shot and then fled off on foot towards South
Boulevard.

5. Officer Carroll put out a “be on the lookout” (BOLO)
request over the radio, giving the description of the
suspects.

6. Within seven minutes of the BOLO, two suspects were
seen at a nearby Bo Jangles (sic) restaurant. The two
suspects matched the description given by the victim in
every way, except for the glasses.

7. Officers attempted to detain the suspects, but they fled
on foot.

8. A nine minute foot chase ensued by officers. Sgt. Adam
Jones of the Charlotte Mecklenburg Police Department
was able to detain one of the suspects, later identified as
the Defendant.

9. The Defendant was detained less than 1/2 of a mile from
the site of the robbery.

10. Sgt. Jones placed the Defendant in handcuffs for the
purposes of detention.

11. Ofc. Carroll drove Mr. Francisco Rodriguez-Baca to the
Defendant’s location in order to do a show-up.

12. Mr. Francisco Rodriguez-Baca was inside a police
vehicle with Officer Carroll, while Sgt. Jones escorted the
defendant in front of the police vehicle. It was dark out
when the show-up was conducted, however the vehicles
headlights were used for illumination.

13. The Defendant was approximately 15 yards from the
front of the vehicle. The Defendant was in handcuffs, being
held by the arm of a uniformed police officer, and standing
in front of a marked police cruiser.


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             14. Mr. Francisco Rodriguez-Baca identified the Defendant
             as one of the suspects, and indicated he was the shooter.
             He did not say how confident he was in his identification.

             15. The show-up identification procedure was recorded on
             body-worn camera (BWC) by Sgt. Adam Jones.

             16. The show-up identification procedure was done close in
             time to the robbery and was no more than 30 minutes after
             it occurred.

             17. As a result of the identification the Defendant was
             charged with attempted robbery with a dangerous weapon,
             conspiracy, assault with a deadly weapon, resisting a
             public officer, possession of a schedule IV controlled
             substance, and possession of marijuana paraphernalia.

      These findings established that Defendant and an accomplice were suspected

of a violent crime that included the discharge of a firearm. Defendant matched the

description provided by the victim, and he fled when officers attempted to detain him.

Defendant’s actions forced officers to pursue him on foot for more than nine minutes.

As the trial court noted, “given the nature of the crime, [and] the efforts on the part

of [Defendant] to flee[,]” the circumstances required immediate display of Defendant.

Because an armed suspect, who is not detained, poses an imminent threat to the

public, the trial court’s findings supported immediate display of Defendant to the

victim. See e.g., State v. Guy, ___ N.C. App. ___, ___, 822 S.E.2d 66, 72 (2018) (“Even

though the suspects had already fled [the crime scene], there was still an ongoing

emergency that posed danger to the public.”). Moreover, had the victim determined



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                                   Opinion of the Court



that Defendant was not the perpetrator, officers could have immediately released

Defendant and continued their search for the suspects. Thus, the officers’ actions in

conducting the show-up identification were consistent with the purpose of the Act,

i.e., “solve crime, convict the guilty, and exonerate the innocent.” N.C. Gen. Stat. §

15A-284.51.

      Based on the findings of fact set forth above, the trial court made the following

conclusions of law:

              1. The show-up conducted in this case complied with the
                 North Carolina Eyewitness Identification Reform Act,
                 G.S. 284.52.

              2. The Defendant matched the description given by the
                 victim . . . .

              3. The Defendant was located in close in time and
                 proximity to the robbery.

              4. The show-up was done with a live suspect.

      Although conclusions 2, 3, and 4 contain mixed findings of fact and conclusions

of law, “we do not base our review of findings of fact and conclusions of law on the

label in the order, but rather, on the substance of the finding or conclusion.” State v.

Johnson, 246 N.C. App. 677, 683, 783 S.E.2d 753, 758 (2016) (citation omitted). Here,

the trial court’s conclusion of law that the officers complied with the Act is supported

by competent evidence. Defendant matched the victim’s description. Defendant was

located at a Bojangles restaurant less than 800 feet away from the McDonalds

restaurant parking lot within a few minutes of a BOLO being issued. The show-up

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                                   Opinion of the Court



identification was conducted with a live person which was recorded on the officers’

body cameras. In addition, the nature and circumstances surrounding apprehending

an armed, violent suspect required officers to immediately display Defendant. Thus,

the trial court’s findings of fact support its conclusion of law. Accordingly, the show

up conducted here satisfied the requirements of the Act.

B. Eyewitness Confidence Statement

      Defendant also argues that the trial court failed to make findings of fact about

Officer Carroll’s failure to obtain a confidence statement and information related to

the victim’s vision pursuant to N.C. Gen. Stat. Section 15A-284.52(c2)(2).

      “[T]his Court’s duty is to carry out the intent of the legislature. As a cardinal

principle of statutory interpretation, if the language of the statute is clear and is not

ambiguous, we must conclude that the legislature intended the statute to be

implemented according to the plain meaning of its terms.” State v. Crooms, 261 N.C.

App. 230, 234, 819 S.E.2d 405, 407 (2018) (citation and quotation marks omitted).

      Section 15A-284.52(c2) states that

             The North Carolina Criminal Justice Education and
             Training Standards Commission shall develop a policy
             regarding standard procedures for the conduct of show-ups
             in accordance with this section. The policy shall apply to all
             law enforcement agencies and shall address all of the
             following, in addition to the provisions of this section:

             (1) Standard instructions for eyewitnesses.




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             (2) Confidence statements by the eyewitness, including
                 information related to the eyewitness’ vision, the
                 circumstances of the events witnessed, and
                 communications with other eyewitnesses, if any.

             (3) Training of law enforcement officers specific to
                 conducting show-ups.

             (4) Any other matters deemed appropriate              by   the
                 Commission.

N.C. Gen. Stat. § 15A-284.52(c2).

      In North Carolina, policies established by State agencies are “nonbinding

interpretive statement[s] . . . used purely to assist a person to comply with the law,

such as a guidance document.” N.C. Gen. Stat. § 150B-2(7a) (2019) (emphasis added).

“When a term has long-standing legal significance, it is presumed that legislators

intended the same significance to attach by use of that term, absent indications to

the contrary.” State v. Fletcher, 370 N.C. 313, 329, 807 S.E.2d 528, 540 (2017)

(citation and quotation marks omitted). There is no indication that the legislature’s

use of the term “policy” in Section 15A-284.52(c2) was intended to have any other

significance or meaning. In fact, the delegation of authority to establish other policies

the agency deemed appropriate is a clear indication that the guidelines established

pursuant to Section 15A-284.52(c2) were just that: guidelines.

       Statutes are binding acts of the General Assembly. By definition, policies from

State agencies are nonbinding guidelines. The plain language of the statute shows

that the legislature delegated authority to the North Carolina Criminal Justice


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Education and Training Standards Commission to establish nonbinding guidelines to

assist law enforcement. Because the language of Section 15A-284.52(c2) does not

place additional statutory requirements on law enforcement, but rather requires the

North Carolina Criminal Justice Education and Training Standards Commission to

develop nonbinding guidelines, only Section 15A-284.52(c1) sets forth the

requirements for show-up identification compliance.

C. Impermissibly Suggestive or Likelihood of Misidentification

      Next, Defendant claims that the trial court’s findings of fact did not support its

conclusion of law that the show-up was not “impermissibly suggestive or created a

substantial likelihood of misidentification.”

      Our Courts have previously held that show-up identifications “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.” State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368, 373

(1982) (citations omitted). However, “[p]retrial show-up identifications . . . , even

though suggestive and unnecessary, are not per se violative of a defendant’s due

process rights. The primary evil sought to be avoided is the substantial likelihood of

irreparable misidentification.” Id. at 364, 289 S.E.2d at 373 (citations omitted).

      This Court applies a two-step process to determine “whether identification

procedures violate due process.” State v. Malone, 256 N.C. App. 275, 290, 807 S.E.2d



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639, 650 (2017) (citation and quotation marks omitted), aff’d in part, rev’d in part,

373 N.C. 134, 833 S.E.2d 779 (2019).         First, we must determine “whether an

impermissibly suggestive procedure was used in obtaining the out-of-court

identification.”   Id. at 290, 807 S.E.2d at 650 (citation omitted).     Second, if we

determine that the identification procedures were impermissibly suggestive, we must

then determine “whether, under all the circumstances, the suggestive procedures

employed gave rise to a substantial likelihood of irreparable misidentification.” Id.

at 290, 807 S.E.2d at 650 (citation omitted). This inquiry “depends upon whether

under the totality of circumstances surrounding the crime itself the identification

possesses sufficient aspects of reliability.” State v. Richardson, 328 N.C. 505, 510,

402 S.E.2d 401, 404 (1991) (citation and quotation marks omitted). The central

question is whether under the totality of the circumstances the identification was

reliable even if the confrontation procedure was suggestive. State v. Oliver, 302 N.C.

28, 45-46, 274 S.E.2d 183, 195 (1981).

       To determine the reliability of a pre-trial identification, this Court considers

the following factors:

              (1) the witness’s opportunity 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.




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                                   Opinion of the Court



State v. Gamble, 243 N.C. App. 414, 420, 777 S.E.2d 158, 163 (2015) (citations

omitted).

      The show-up identification proceeding at issue here did not violate Defendant’s

due process rights as it was not impermissibly suggestive, nor did it create a

substantial likelihood of misidentification.

      The evidence presented at the motion to suppress hearing satisfies the

reliability factors in Gamble. The victim had the opportunity to view Defendant

during the robbery and provided a detailed description of the suspects to Officer

Carroll as two black males “approximately five-ten in height wearing gray-colored

hoodies” with “book bags, a black-colored mask or some type of covering over their

face” and “both were wearing glasses.”

      The description enabled officers to identify the two suspects “seven minutes

later” about “800 feet” from the original crime scene.     The victim immediately

recognized Defendant as “one of the suspects” and that he was the “guy who shot at

him.” Finally, the victim identified Defendant as the individual with the revolver

approximately “fourteen minutes” from the time he heard the gunshot to the time of

the show-up identification.

      Therefore, the trial court did not err in concluding that the show-up was not

“impermissibly suggestive or [that it] created a substantial likelihood of

misidentification.”



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                                  Opinion of the Court



II. Jury Instructions

      Defendant concedes that he failed to object to the jury instructions and that he

did not request an instruction concerning compliance or noncompliance with the Act.

However, Defendant argues that the trial court committed plain error by not

instructing the jury that it may consider credible evidence of compliance or

noncompliance to determine the reliability of eyewitness identifications.          We

disagree.

                    For error to constitute plain error, a defendant must
             demonstrate that a fundamental error occurred at trial. To
             show that an error was fundamental, a defendant must
             establish prejudice—that, after examination of the entire
             record, the error had a probable impact on the jury’s
             finding that the defendant was guilty. Moreover, because
             plain error is to be applied cautiously and only in the
             exceptional case, the error will often be one that seriously
             affects the fairness, integrity or public reputation of
             judicial proceedings.

State v. Lawrence, 365 N.C. 506, 516-17, 723 S.E.2d 326, 334 (2012) (purgandum).

      “In instructing the jury, it is well settled that the trial court has the duty to

declare and explain the law arising on the evidence relating to each substantial

feature of the case.” State v. Scaturro, 253 N.C. App. 828, 835, 802 S.E.2d 500, 506

(2017) (purgandum).

      Section 15A-284.52(d) provides various remedies “as consequences of

compliance or noncompliance with the requirements of” Section 15A-284.52. N.C.

Gen. Stat. § 15A-284.52(d). Section 15A-284.52(d)(3) provides that “[w]hen evidence


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                                  Opinion of the Court



of compliance or noncompliance with the requirements of this section has been

presented at trial, the jury shall be instructed that it may consider credible evidence

of compliance or noncompliance to determine the reliability of eyewitness

identifications.” N.C. Gen. Stat. § 15A-284.52(d)(3).

      Defendant argues that he was entitled to jury instructions under Section 15A-

284.52(d)(3) because Officer Carroll did not obtain an eyewitness confidence level

under Section 15A-284.52(c2)(2).     However, Section 15A-284.52(d)(3) specifically

limits remedies for “compliance or noncompliance with the requirements of this

section.” N.C. Gen. Stat. § 15A-284.52(d)(3) (emphasis added). As set forth above,

Section 15A-284.52(c2) concerns policies and guidelines established by the North

Carolina Criminal Justice and Training Standards Commission, it does not establish

the requirements for show-up identifications. Those requirements are specifically

enumerated in subsection (c1). Thus, because officers complied with the show-up

procedures in Section 15A-284.52(c1), Defendant was not entitled to a jury instruction

on noncompliance with the Act.

                                     Conclusion

      For the reasons stated herein, Defendant received a fair trial free of error.

      NO ERROR.

      Judges TYSON and COLLINS concur.




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