           IN THE SUPREME COURT OF THE STATE OF DELAWARE

RASHIE HARRIS,                          §
                                        §      No. 183, 2014
      Defendant Below,                  §
      Appellant,                        §      Court Below:
                                        §
      v.                                §      Superior Court of the
                                        §      State of Delaware, in and for
STATE OF DELAWARE,                      §      New Castle County
                                        §
      Plaintiff Below,                  §      Cr. I.D. No. 1102003278
      Appellee.                         §

                           Submitted: March 4, 2015
                            Decided: April 8, 2015


Before STRINE, Chief Justice, HOLLAND and VALIHURA, Justices.


Upon appeal from the Superior Court. AFFIRMED.


Patrick J. Collins, Esquire, Collins & Roop, Wilmington, Delaware, for Appellant.


Maria T. Knoll, Esquire, Department of Justice, Wilmington, Delaware, for
Appellee.


VALIHURA, Justice:
      In this appeal, we are asked to consider the constitutionality of a show-up

identification of a suspect brought back to the scene of the crime shortly after the

commission of the crime. This case stems from crimes committed by defendant-

below Rashie Harris (“Harris”) at two barbershops -- Runn Way Unisex

Barbershop (“Runn Way”) in Southbridge, and Legends Barbershop (“Legends”)

on Clifford Brown Walk -- on different dates. The cases were consolidated. A

grand jury returned a fifty-count indictment, including charges for Attempted

Murder, Robbery, Burglary, Unlawful Sexual Contact, Kidnapping, Possession of

a Firearm During the Commission of a Felony, Possession of a Deadly Weapon by

a Person Prohibited, Carrying a Concealed Deadly Weapon, Endangering the

Welfare of a Child, Possession of a Non-Narcotic Schedule I Controlled Substance,

and Resisting Arrest. The first nine counts pertained to the Runn Way incident on

January 30, 2011. The remaining counts pertained to the Legends incidents on

February 5, 2011. The State entered a nolle prosequis prior to trial on all but one

of the Kidnapping charges and their corresponding firearm charges.

      After a jury trial, Harris was found guilty of the following offenses:

Attempted Murder First Degree, eight counts of Robbery First Degree, two counts

of Burglary Second Degree, Unlawful Sexual Contact First Degree, Kidnapping

Second Degree, eleven counts of Possession of a Firearm During the Commission

of a Felony, Carrying a Concealed Deadly Weapon, Endangering the Welfare of a



                                          1
Child, Possession of a Non-Narcotic Schedule I Controlled Substance, and

Resisting Arrest. The Superior Court also found Harris guilty of two counts of

Possession of a Deadly Weapon by a Person Prohibited.1 Harris was sentenced as

a habitual offender pursuant to 11 Del. C. § 4214(a). Accordingly, Harris was

sentenced to Level V incarceration for the balance of his natural life plus 524 years

for his felony charges, and three years and five days for his misdemeanor charges.

         Prior to trial, the defense filed a Motion to Sever Charges, a Motion to

Suppress the Photo Lineup Identification, and a Motion to Suppress the Show-up

Identification. After conducting a hearing and receiving post-hearing submissions,

the trial court denied all three motions. After trial but before the verdict, the

defense moved for reconsideration of and reargument on the denial of the Motion

to Suppress the Show-up Identification. The Superior Court reserved judgment

until after the verdict. Following a jury verdict of guilty on all counts, the pending

Motion for Reargument was converted into a Motion for a New Trial. After

hearing oral arguments, the Superior Court denied the motion.

         On appeal, Harris argues that the Superior Court erred in denying his Motion

for a New Trial. He contends that the admission into evidence of his show-up

identification by witnesses to the incident in question violated his Due Process



1
    These charges had been severed and were heard in a simultaneous bench trial.



                                                 2
rights. We disagree, and for the reasons stated herein, we AFFIRM the judgment

below.

                 I.     FACTUAL AND PROCEDURAL HISTORY

         On January 30, 2011, Harris walked into Runn Way. Harris asked Jonathan

Wilson (“Wilson”),2 who operated the barbershop, how much a haircut would cost.

Before Wilson could respond, Harris pulled out a .38 revolver, and put his hand up

to his mouth, indicating that everyone in the barbershop should remain quiet.

Harris turned his attention to one of the patrons, and when he did, Wilson punched

Harris in the face. Harris fired his revolver three times and hit Wilson in the chest.

Harris went through Wilson’s pockets and removed $50. He then left the

barbershop.

         On February 5, 2011, Ricky Cook (“Cook”) was working at Legends.

Deidrick Boyd (“Deidrick”) and Darrel Boyd (“Darrel”) were also working at

Legends that day. Around noon, Harris entered the barbershop. Cook asked

Harris if he wanted a haircut. Harris pointed to Darrel, indicating that he was

waiting for Darrel to cut his hair. After about a half hour, Harris got up, covered

his face, locked the door, and took out a .38 revolver. Harris told everyone to get

down on the floor and keep his or her eyes down. Several customers were in the



2
    Wilson changed his name from Jonathan Simmons to Jonathan Wilson in February 2011.



                                              3
barbershop at this time, namely, David Lewis (“Lewis”), Heleema Bland

(“Bland”), Shaun Powell (“Powell”), and Powell’s thirteen-year-old stepson

(“K. P.”). Harris directed K. P. to close the blinds, take everyone’s wallets, cash,

keys, cell phones, and jewelry, and put them in Bland’s purse. Harris warned K. P.

that if he did not stay in school and get good grades that Harris was going to come

back and shoot him. Harris then went around checking to see whether everyone

had put his or her belongings into the purse. When Harris reached Bland, he

turned her over and groped her breasts to see if she had any money hidden in her

bra. Harris told K. P. to take off his clothes and go to the bathroom. Harris then

started talking about a barbershop in Southbridge, claiming responsibility for the

robbery. 3 Before leaving Legends, Harris said that he would shoot anyone who got

up and looked out the window after he left.

       Everyone at Legends had been lying on the ground, but a couple seconds

after Harris left, everyone got up and looked out the window.4 Deidrick saw Harris

walk northbound on Clifford Brown Walk and turn onto Sherman Street. Diedrick

followed Harris and watched him turn left on Lombard Street, and then turn onto



3
  App. to Appellant’s Opening Br. at A471 (referencing the Southbridge robbery, Harris said
“the dude . . . shouldn’t have tried me.”).
4
  App. to Appellant’s Opening Br. at A472. Before Harris left, he opened and closed the door
two times to see what everyone would do when he left. When he saw that Deidrick got up the
first time he threatened to kill someone. Id.



                                               4
11th Street, heading towards Pine Street. Diedrick hailed a motorist, Jimmie

Gordon (“Gordon”), at 11th and Pine Streets. Gordon called 911 and helped

Diedrick track Harris as the Wilmington Police Department responded to the call.

       Officers Cain and Verna responded to the 911 call. When Harris saw the

police officers, he dropped both of the bags he was carrying and began running.

Officer Verna apprehended Harris while Officer Cain stayed with the two bags

Harris had dropped. Officer Reiss arrived at the scene as Harris was being taken

into custody. Officer Reiss searched Harris and found a plastic bag in Harris’ front

right pocket that contained five rounds of silver Winchester .38 special

ammunition, and found ten clear blue plastic bags in Harris’ rear left pocket that

contained marijuana.

       Officer Reiss took Harris to central booking. Sergeant Stevenson, the police

officer in charge, then ordered Officer Reiss to bring Harris back to Legends for a

show-up identification. 5 Officer Reiss brought Harris back to Clifford Brown

Walk, arriving twenty or thirty minutes after the arrest. Officers Verna and Reiss

each stood on either side of Harris as they brought him up to the window of the

barbershop. The handcuffs on Harris were not removed. A majority of the



5
 Notably, Officer Reiss later testified that he was not involved in the show-up identification and
had no recollection of it. He testified that he stood outside the car and let the other officers
handle the show-up portion of the investigation.



                                                5
witnesses were standing at the window.6 They nodded their heads up and down,

and pointed at Harris when he was brought up to the window of the barbershop.

       That same day Harris made a custodial statement to the police. He

explained that he committed the robbery at Legends because he owed money to a

person named “Willie” who had threatened to kill his mother and sister if Harris

did not pay his debt. Harris further explained that he made K. P. take off his

clothes because he was trying to scare him so he would stay in school. Harris

continued to explain that he felt Bland’s breasts because “[a] lot of women keep

money in they -- in they breast’s area, in the bra.” However, Harris denied being

involved in the incident at Runn Way in Southbridge. He stated, “I didn’t have

nothing to do with no Southbridge shooting. This Barber Shop? Clifford Brown?

Yes. But this Southbridge? That? No.”

       On February 10, 2011, police interviewed Wilson at the hospital regarding

the incident at Runn Way. Wilson was shown two photographic lineups. He did

not identify anyone from the first lineup, but identified Harris from the second

lineup as the person who shot and robbed him at Runn Way.




6
  App. to Appellant’s Opening Br. at A694. Powell and K. P. were not present for the show up
identification. Id. at A501 (“Q. You left with [K. P.] shortly after this thing happened, right? A.
Yes. Q. So you didn’t stay behind for the police to arrive and things like that? A. No.”).



                                                 6
         On February 17, 2011, police arrested Harris on charges relating to the

incident at Runn Way. The delay between the incident and arrest was due to

Wilson being intubated and unable to speak to officers until February 10, 2011.7

         At trial, Wilson unequivocally testified that Harris was the person who shot

him. Specifically, Wilson testified that he was “a thousand percent sure” that

Harris shot him. Harris also testified at his trial. He continued to deny any

involvement in the Runn Way robbery and shooting. He explained that he

encountered an individual who sold him marijuana and offered to sell him a

handgun. Harris stated that he grabbed the gun, examined it, and walked into a

nearby alleyway where he prepared to smoke marijuana. He was then apprehended

by police. Harris explained that he knew a lot about the incident at Legends when

he gave his custodial statement because he was “absorbing it like a sponge,

absorbing everything that [the female officer is] telling me and, then, using it when

I went to the room.” Harris contended that if he admitted to the robbery, he

believed he would “get unsecured bail or, later on down the road, get found not

guilty.” He further contended that “none of the officers gave [him] information

about a Southbridge shooting.” Otherwise, Harris argued that he would have

falsely admitted to that incident as well.



7
    The bullet lodged in Wilson’s spine and rendered him paralyzed in his legs.



                                                  7
      In addition to the testimony from the witnesses to the incidents at Runn Way

and Legends, the State presented testimony from expert witnesses. Carl Rone

(“Rone”), the State police firearms examiner, testified that a bullet recovered from

Runn Way was fired from the handgun found in the purple purse recovered after

the incident at Legends. Paul Gilbert (“Gilbert”), a DNA analyst at the Office of

the Chief Medical Examiner, testified that the gun recovered by police after the

incident at Legends contained a mixed profile of Harris’ and at least one other

individual’s DNA. Gilbert also testified that the DNA on the gun matched Harris

to a “99.9999%” degree of certainty.

      At the close of the evidence, the defense sought reargument of the denial of

the Motion to Suppress the show-up identifications and subsequent in-court

identifications. The basis for the application was the divergence in Sergeant

Stevenson’s testimony at the motion hearing versus at trial. The trial court

reserved its decision until after the jury rendered its verdict. The defense’s

challenge to the show-up and in-court identifications then formed the sole basis for

the Motion for a New Trial -- the denial of which is now the sole issue raised on

appeal.




                                          8
                                       II.     DISCUSSION

          This Court reviews a trial court’s denial of a Motion for a New Trial and

denial of a Motion to Suppress for an abuse of discretion.8 However, where a

Motion for a New Trial raises a constitutional violation, we review that issue de

novo.9

          Harris argues that the show-up identification violated the Due Process

Clause of the United States Constitution and that the in-court identifications were

tainted. This Court has noted that show-up identifications “generally are

inherently suspect and widely condemned.” 10 But we have also acknowledged that

“an immediate on-the-scene confrontation between victim and suspect is essential

both to law enforcement and to fairness toward innocent suspects alike.”11



8
  State v. Abel, 2012 WL 6055799, at *2 (Del. Dec. 5, 2012) (“In general, we review the trial
judge’s grant of a motion to suppress for an abuse of discretion.” (citing Lopez-Vazquez v. State,
956 A.2d 1280, 1284 (Del. 2008))); Barriocanal v. Gibbs, 697 A.2d 1169, 1171 (Del. 1997)
(“An appeal from a trial court’s denial of a motion for new trial is governed by an abuse of
discretion standard of review.” (citing Strauss v. Biggs, 525 A.2d 992, 996-97 (Del. 1987))).
9
 Swan v. State, 28 A.3d 362, 382 (Del. 2011) (citing Zebroski v. State, 12 A.3d 1115, 1119 (Del.
2010)).
10
     Clark v. State, 344 A.2d 231, 237 (Del. 1975).
11
  Harris v. State, 350 A.2d 768, 771 (Del. 1975) (citing Watson v. State, 349 A.2d 738, 740
(Del. 1975)). The Harris Court explained its concern “with any police-arranged simultaneous
viewing of one suspect by more than one victim.” Id. at 771, n.5. The Court noted that it agreed
with the statement by the United States Court of Appeals for the District of Columbia Circuit in
United States v. Wilson, namely:
          If it is feasible for each witness, victim or otherwise, to stand alone when asked to
          make the identification, aye nor nay, this is the course that should be followed.
          While the benefit of a prompt on-the-scene confrontation makes acceptable the



                                                    9
Specifically, a show-up identification serves the police, “who should not lose

valuable time in looking for the offender if an apprehended suspect goes

unidentified,” and serves the innocent suspect, “who should not suffer undue

custody awaiting police station identification.”12 Thus, we explained the test used

for determining the admissibility of an out-of-court identification when it is

challenged under the Due Process Clause as follows:

          An identification procedure will not pass constitutional muster where
          it is “so impermissibly suggestive as to give rise to a very substantial
          likelihood of irreparable misidentification.” That a confrontation is
          suggestive, without more, however, cannot amount to a due process
          violation; the unnecessarily suggestive identification procedure must
          also carry with it the increased danger of an irreparable
          misidentification. In other words, if the Court determines under the
          totality of the circumstances that a line-up is impermissibly
          suggestive, but nonetheless reliable, evidence of the confrontation will
          not be excluded at trial.13

Essentially, the test for determining whether there was a violation of the Due

Process Clause has two prongs, namely, whether: “(1) the confrontation was




          necessary suggestiveness of presentation of a single subject (a “show-up”), there
          is ordinarily no need for the additional element of suggestiveness of identification
          made at the same time by two or more witnesses in each other’s company.
Id. (citing United States v. Wilson, 435 F.2d 403, 405 (D.C. Cir. 1970)).
12
     Watson v. State, 349 A.2d 738, 740 (Del. 1975).
13
  Richardson v. State, 673 A.2d 144, 147 (Del. 1996) (quoting Younger v. State, 496 A.2d 546,
550 (Del. 1985)).



                                                   10
unnecessarily suggestive, and (2) there existed a likelihood of [irreparable]

misidentification.”14

               A.      The Identification Was Not Unnecessarily Suggestive

          The trial court held that the identification was not unnecessarily suggestive,

and therefore, the court denied Harris’ Motion for a New Trial.15 We have noted

that the issue of whether an identification of a suspect is unnecessarily suggestive

“is invariably fact-driven.” 16

          Harris argues that the show-up identification was overly suggestive because

the show-up was not supervised by police officers, Harris was brought to the

window at Legends in handcuffs by two uniformed police officers, the group of

victims stood together, the victims were left to discuss the incident after it had

occurred, and the process took less than ten seconds.17



14
     Id. (citing Harris, 350 A.2d at 770).
15
  Appellant’s Opening Br. Ex. A. at 15-16 (“The case sub judice is similarly a permissible
show-up. Within a half hour after the robbery, the Defendant, who was in police custody, was
shown to a group of six victims, all of whom identified the Defendant as the robber. There was
no indication of any hesitation or doubt by the victims when they made their identification. The
officers did not in any way suggest to the victims that they had to make an identification.
Additionally, the officers did not group the victims together purposefully. This case is similar to
Watson in that the show-up could be considered a natural development and was not ‘arranged’
by the police.”).
16
     Swan, 28 A.3d at 382 (citing Zebroski, 12 A.3d at 1119).
17
  Harris also urges us to consider the discrepancy of Sergeant Stevenson’s testimony at the
hearing concerning the Motion to Suppress the Show-up Identification and his testimony at trial.
At the hearing, Sergeant Stevenson testified that he was inside Legends when Harris was brought
up to the window for the witnesses to identify. He testified that each witness was “directed to go



                                                 11
           In Richardson v. State, the victim was told prior to the identification that the

police had the suspect in custody and they needed her to identify the suspect. 18

When she made the identification, the victim was surrounded by her relatives, and

the suspect was handcuffed and standing next to a uniformed police officer. 19 We

noted that since the show-up identification happened shortly after the offense, it

weighed in favor of the identification not being unnecessarily suggestive. 20 Here,

Harris was in handcuffs and standing next to uniformed police officers when the

up one at a time inside of the barber shop looking out of the large pane glass window.” Sergeant
Stevenson described that “when each victim made the identification, they were standing by
themselves viewing the person in police custody by themselves with no one around them to
basically influence them.” Sergeant Stevenson indicated that the witnesses were never
sequestered.
At trial, however, Sergeant Stevenson testified that he was both inside and outside of Legends
when Harris was brought back for the show-up identification. He testified that while he was
outside, he did not know what identification procedure was followed. Further, Sergeant
Stevenson testified that he was outside while certain witnesses identified Harris, but walked in as
others identified Harris. He received information from other officers that while he was outside a
positive identification of Harris had been made. Sergeant Stevenson maintained that the
witnesses were never sequestered. See App. to Appellant’s Opening Br. at A808 (“Q: Did you
make the judgment call that this was one of those cases that you couldn’t sequester the
witnesses? A: Yes. That was one of my observations once I got to the crime scene, that,
apparently, the victims and witnesses had been talking prior to and they were not sequestered.
The barber shop was one big room, so it was not like there was a room that was off that we could
sequester the witnesses, since there were so many.”).
Although we acknowledge that Sergeant Stevenson’s testimony is not entirely consistent with his
earlier testimony, even if we were to interpret the testimony in the light most favorable to Harris,
it does not persuade us that the show-up identification procedure was unnecessarily suggestive as
discussed further in this decision.
18
     Richardson, 673 A.2d at 147.
19
     Id.
20
  Id. at 148 (“She viewed him approximately one hour and fifteen minutes after the carjacking.
The confrontation occurred shortly after the offense while Ludwig’s memory was fresh and
while Richardson was in the clothing that she stated he wore when he committed the offense.”).



                                                12
identification occurred. Further, the identification occurred between twenty or

thirty minutes after the incident, which is more quickly than the show-up

identification that occurred in Richardson.

          In Watson v. State, the defendant robbed a woman in her car while another

woman was with the victim. 21 The victim gave police a description of the

defendant shortly after the incident. Approximately thirty minutes after the

robbery, the defendant was brought to the police car where both the victim and her

friend were waiting. The victim, after overhearing a police radio transmission that

a man who fit the victim’s description had been apprehended, unequivocally

identified the defendant. After the victim identified the defendant in front of her

friend, her friend also made a positive identification by commenting on the

defendant’s distinctive shirt. We held that “absent unnecessary and unfair police

suggestion, prompt on-the-scene confrontations, per se, are not so unnecessarily

suggestive as to constitute violations of due process rights.”22 The simultaneous

identification in Watson was not unnecessarily suggestive because it was “a natural

development under all of the circumstance and was not ‘arranged’ by the police.”23




21
     Watson, 349 A.2d at 739.
22
     Id. at 740.
23
     Id. at 741.



                                           13
Rather, the confrontations were “prompt, practically on-the-scene, and of a ‘res

gestae’ nature.”24

           Here, the victims knew that a suspect was being brought for them to identify.

Harris was accompanied by two police officers during the identification. Although

the witnesses here all saw and identified Harris simultaneously, there was no

indication that this procedure was purposefully arranged by the police. Instead, it

is likely the result of how quickly Harris was brought back for identification.

Accordingly, the simultaneous identification of Harris followed by individual

identifications was a natural development under all of the circumstances. The

show-up identification procedure was not unnecessarily suggestive, and thus, the

identification did not violate Harris’ constitutional rights under the Due Process

Clause.

           B.     There Was Not a Likelihood of Irreparable Misidentification

           This Court has used the factors outlined by the United States Supreme Court

in Manson v. Brathwaite25 to determine the likelihood of irreparable

misidentification.26 In Manson, the Supreme Court set forth the following five

factors to determine the reliability of the identification: (1) the opportunity of the


24
     Id.
25
     432 U.S. 98, 114 (1977).
26
     See Richardson, 673 A.2d at 148.



                                             14
witness to view the criminal at the time of the crime; (2) the witness’ degree of

attention; (3) the accuracy of the witness’ 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.27 We address each of

these factors with respect to each witness who identified Harris at the show-up

identification and in court -- namely, Darrell, Deidrick, and Cook. The other

witnesses -- namely, Powell and his stepson K. P., Bland, Lewis, and Collins -- did

not identify Harris. Powell and K. P. left before the police arrived, and therefore,

were not present for the show-up identification and did not identify Harris at the

trial.28 Bland testified that she did not identify anyone in the show-up

identification because she could only see the robber’s mask and jacket. 29 Lewis

testified that because he was on his stomach on the ground, he was unable to

identify Harris.30 Collins did not appear for trial so there was no specific testimony

regarding any identification by him.


27
     Manson, 432 U.S. at 114; see also Neil v. Biggers, 409 U.S. 188 (1972).
28
  App. to Appellant’s Opening Br. at A501 (“Q. You left with [K. P.] shortly after this thing
happened, right? A. Yes. Q. So you didn’t stay behind for the police to arrive and things like
that? A. No.”).
29
   App. to Appellant’s Opening Br. at A491 (“Q. Once everyone as a group said yes or what
have you -- well, let me ask you about what you said, did you identify -- A. No. Q. You didn’t
right? A. Because all I seen was his jacket and his mask.”).
30
  App. to Appellant’s Opening Br. at A508 (“Q. And when he’s brought to the window, a
suspect is brought to the window and you are saying that other people told you he changed his
clothes from what he had on earlier? A. I said hoodie, jacket, whatever. People were saying it



                                                 15
                1. The Witnesses Had Ample Opportunity to View the Suspect

          The trial court noted that the witnesses had “clear opportunity to confront

and observe the Defendant; the scene of the confrontation was well-lit and small in

size.” 31 Our de novo review of the record supports a finding that the witnesses had

ample opportunity to view Harris. The evidence indicated that Harris entered

Legends around noon. The barbershop was “very small” and was approximately

150 square feet in size. When Harris entered the barbershop, Cook asked Harris if

he wanted a haircut, and Harris pointed to Darrel indicating that he was waiting for

Darrel to cut his hair. Harris remained waiting for Darrel for about half an hour,

without doing anything to hide his appearance. Harris then stood up and covered

his face for the first time. During the time Harris was waiting, the witnesses had

ample opportunity to observe Harris.

          Darrell testified that he observed Harris for fifteen to twenty minutes before

Harris put his mask on: “Funny thing is, he put the mask on when he decided to do

the robbery.” In making this comment, Darrell testified that he did in fact see




was him. I was saying I don’t know, kind of look like his build, but I wasn’t sure. Q. You
didn’t make an identification of an individual? A. Right.”).
31
     Appellant’s Opening Br. Ex. A. at 16.



                                              16
Harris’ face.32 Darrell also testified that he had ample opportunity to view Harris

because Harris “sat down next to [him].”

       Deidrick testified that Harris was about six to seven feet from him while

Harris was waiting for a haircut.33 Deidrick also testified that he was able to see

Harris’ face.34 Further, Deidrick followed Harris out of the barbershop, eventually

hailing a motorist, and calling the police.

       Cook testified that he thought “it was funny because [Harris] was sitting

there for a whole half an hour, [and he’d] seen [Harris’] face.” Cook also testified

that he watches “out for whoever come[s] in [the shop], being[] as though [he’s]

the owner, so [he] feel[s] like everybody is [his] responsibility.” He testified

further that he “notice[d] [Harris] come in and left back out for a couple seconds

. . . [he] noticed him sitting there like he’s waiting for a haircut.”

       Accordingly, each of the witnesses who identified Harris had ample

opportunity to view the suspect based on the amount of time Harris was at




32
  App. to Appellant’s Opening Br. at A535 (“Q. And how much of the individual’s face could
you see at the time, before the black thing comes up? A. His face.”).
33
  App. to Appellant’s Opening Br. at A557 (“Probably about -- I would give him a good seven
feet, six, seven feet, not that far away from me.”).
34
  App. to Appellant’s Opening Br. at A556 (“Q. Okay. So, prior to that, were you able to
actually see his face? A. Yes. . . . Q. And how long do you think you were able to clearly see
his face before he put the hood up? A. Clearly see his face? Q. Yeah. A. A good five
minutes.”).



                                               17
Legends, the close physical proximity of each witness to Harris, and the fact that

Deidrick followed Harris until Harris’ ultimate arrest.

       2. The Witnesses Paid a Sufficient Degree of Attention to Identify the Suspect

          The trial court noted that the witnesses’ “attention was most likely high, as

they were paying attention to the Defendant who had exposed a gun and threatened

to use it.” 35 Our de novo review of the record supports a finding that the witnesses

had paid a sufficient degree of attention to identify Harris. Darrell testified that

Harris was sitting right next to him for approximately twenty minutes while Harris

was waiting for a haircut. Darrell also testified about what Harris was wearing, an

indication that he paid attention to Harris while he was in the barbershop.36 He

further testified that he was paying close enough attention to Harris to get a good

look at his face.

          Deidrick testified that he was looking at Harris intermittently throughout the

time that Harris was waiting to get a haircut, and that he “clearly” saw Harris’ face

for “[a] good five minutes.” Deidrick also testified that he noticed Harris because




35
     Appellant’s Opening Br. Ex. A. at 16.
36
   App. to Appellant’s Opening Br. at A534 (“Q. Okay. And can you describe the hoodie that
the individual was wearing? A. It was red, like black and white diamonds, like, blue diamond,
like -- it just had a bunch of designs on it.”).



                                              18
Harris was in very close physical proximity to him. 37 He stated further that he was

paying particularly close attention to Harris because “[he] just wasn’t familiar with

[Harris].” Further, Deidrick also described what Harris was wearing during the

incident.38

       As discussed above, Cook testified with respect to the attention he paid to

his customers by stating that he watches “out for whoever come[s] in [the shop],

being[] as though [he’s] the owner, so [he] feel like everybody is [his]

responsibility.” He also testified that he “notice[d] [Harris] come in and left back

out for a couple seconds . . . [he] noticed him sitting there like he’s waiting for a

haircut.”

       Accordingly, each of the witnesses paid a sufficient degree of attention to

Harris to identify him as the person who committed the robbery.




37
  App. to Appellant’s Opening Br. at A557 (“Q. So, he was close by, then? A. Very close,
close enough to notice.”).
38
   App. to Appellant’s Opening Br. at A555-56 (“I remember he had on a black-hooded
sweatshirt. It had diamond signs and money signs on it. It had a little bit of green in it, a little
bit of red in it, but it was basically black with the, you know, accessories on it.”).



                                                  19
             3. The Accuracy of the Witnesses’ Prior Description of the Suspect

          The trial court property noted that “[p]olice confirmed that there was not a

prior description of the suspect given before the show-up, so this factor does not

affect the determination.”39 Accordingly, this factor is not at issue on appeal.

                     4. The Witnesses Were Certain of Their Identification

          Darrell, Deidrick, and Cook were all certain of their identifications. Darrell

testified that he was “1000%” certain that Harris was the person who robbed the

barbershop. 40 Additionally, Deidrick testified that he was “105%” certain of his

in-court identification of Harris based upon Harris’ nose, lips, and “everything

about him. [Deidrick] could never forget his face.”41 Lastly, Cook testified that he

was “[c]ertain, very certain” that the person who robbed the barbershop was

Harris. Accordingly, the certainty of the witnesses’ identification suggests that

there was little to no likelihood of misidentification.




39
     Appellant’s Opening Br. Ex. A. at 16.
40
  App. to Appellant’s Opening Br. at A524 (“Q. Mr. Boyd, how certain are you that that’s the
person that came in the barber shop on February 5, 2011? A. I’m a thousand percent sure.”).
41
  App. to Appellant’s Opening Br. at A567-68 (“Q. And the person you’ve identified in the
courtroom today as the person who did all this, how sure are you that that’s him? A. About 105
percent sure. Q. And what is that based upon? A. Based upon his eyes, based upon his nose --
his nose is distinctive. I can remember his nose -- and the lips. I remember everything about
him. I could never forget his face.”).



                                              20
      5. The Length of Time Between the Crime and Identification was Minimal

      The time between the crime and the identification also supports the

conclusion that there was not a likelihood of irreparable misidentification. Officer

Reiss took Harris back to Legends for the show-up identification twenty or thirty

minutes after the arrest. Thus, the time between the crime and the identification

was minimal.

      Accordingly, the opportunity of the witnesses to view Harris at the time of

the crime, their degree of attention, the level of certainty that they demonstrated

with respect to their identification, and the length of time between the crime and

the identification all support the conclusion that there was not a likelihood of

irreparable misidentification.

                                 C.   Harmless Error

      Assuming, arguendo, that the show-up identification was unnecessarily

suggestive and there existed a likelihood of irreparable misidentification, the

decision to admit the identification into evidence at trial was harmless error.

Under the harmless error standard, this Court looks to “whether the State has

proved beyond a reasonable doubt that the error complained of did not contribute




                                          21
to the verdict obtained.” 42 We explained the harmless error standard in more detail

by stating:

          [W]hen reviewing claims for harmless error, “[t]he reviewing court
          considers the probability that an error affected the jury’s decision. To
          do this, it must study the record to ascertain the probable impact of
          error in the context of the entire trial.” As a result, “‘[a]ny harmless
          error analysis is a case-specific, fact-intensive enterprise.’” “This
          approach indicates that the reviewing court must consider both the
          importance of the error and the strength of the other evidence
          presented at trial. An error may be important if, for example, it
          concerned a witness giving significant testimony. . . .” “Under a
          harmless error analysis, ‘[t]he defendant has the initial burden of
          demonstrating error,’ and then the State has the burden to demonstrate
          that any error was harmless beyond a reasonable doubt.”43

          Here, the evidence in favor of convicting Harris was overwhelming -- even

without the identification evidence -- such that admitting the identifications into

evidence, if by error, was harmless beyond a reasonable doubt.

          Harris gave a custodial statement on February 5, 2011. During this

statement, Harris explained that he committed the robbery at Legends because he

owed money to a person named “Willie” who had threatened to kill his mother and

sister if he did not pay his debt. Harris also explained that he had K. P. take off his

clothes because Harris was trying to scare K. P. so he would stay in school. Harris




42
  Purnell v. State, 2014 WL 6999040, at *7 (Del. Sept. 24, 2014) (citing Satterwhite v. Texas,
486 U.S. 249, 258-59 (1988)).
43
     Hansley v. State, 104 A.3d 833, 837 (Del. 2014) (internal citations omitted).



                                                  22
continued to explain that he felt Bland’s breasts because “[a] lot of women keep

money in they -- in they breast’s area, in the bra.”

      At trial, Deidrick testified that he followed Harris out of Legends and

maintained nearly constant surveillance of Harris. Deidrick also testified that

while Deidrick was following Harris, Deidrick saw Harris remove his hooded

jacket and toss it on the ground. Deidrick further testified that Harris was “stuffing

something in his -- in a book bag that he had, also. He also had the young lady’s

purse. I remember him stuffing things in her purse. So, I’m standing there,

standing there, watching him.”

      Officer Cain testified that he saw Harris and said, “[c]ome here” and then

Harris dropped both the bags he was carrying and began running. Officer Cain

also testified about the bags Harris was carrying. Specifically, he stated “[t]he one

bag was a purple-in-color purse. The second bag was, like -- it’s a black puffy

nylon material, black bag.” Corporal Snyder testified that in the two bags was

“haircutting equipment, pairs -- numerous pairs of electric clippers.” Corporal

Snyder further testified that “there was a handgun inside of the [purple] bag.”

Additionally, Officer Reiss testified that he searched Harris and found a plastic bag

in Harris’ front right pocket that contained five rounds of silver Winchester .38

special ammunition and ten clear blue plastic bags in Harris’ rear left pocket that

contained marijuana.



                                          23
      Rone, the State police firearms examiner, testified that a bullet recovered

from Runn Way was fired from the handgun found in the purple purse recovered

after the incident at Legends. Gilbert, a DNA analyst at the Office of the Chief

Medical Examiner, testified that the DNA on the gun was a mixed profile of Harris

and at least one other individual. Gilbert also testified that the DNA on the gun

was Harris’ to a “99.9999%” degree of certainty.

      Further, the victim of the attempted murder, Wilson, made a firm in-court

and out-of-court identification, and did not participate in any show-up

identification of Harris. In addition, several of the victims of the Legends incident

heard Harris discuss his participation in the Runn Way incident.

      Accordingly, even if we were to conclude that the show-up identification

was unnecessarily suggestive and there existed a likelihood of irreparable

misidentification, the State has proved beyond a reasonable doubt that the error

complained of did not contribute to the verdict obtained.

                              III.   CONCLUSION

      Based upon the foregoing, the judgment of the Superior Court is hereby

AFFIRMED.




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