               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                      No. COA18-526

                                  Filed: 15 January 2019

Guilford County, Nos. 16CRS085458-61, 16CRS085469

STATE OF NORTH CAROLINA

              v.

DARIEUS ANDREW JUENE, Defendant.


       Appeal by Defendant from judgments entered 15 February 2017 by Judge

David L. Hall in Guilford County Superior Court. Heard in the Court of Appeals 27

November 2018.


       Attorney General Joshua H. Stein, by Assistant Attorney General Christine
       Wright, for the State.

       William D. Spence for the Defendant.


       DILLON, Judge.


       Defendant Darieus Andrew Jeune1 appeals judgments against him for robbery

with a dangerous weapon and other crimes based on a robbery which occurred at a

shopping mall. Defendant argues that the trial court erred in denying his motion to

suppress evidence because the pre-trial identification was impermissibly suggestive.

We disagree and conclude that Defendant had a fair trial, free from prejudicial error.




       1 We note that the correct spelling of Defendant’s last name is “Jeune.”   However, the
indictments and judgments below all spell Defendant’s last name as “Juene.”
                                     STATE V. JEUNE

                                    Opinion of the Court



                                     I. Background

      In September 2016, three victims were robbed in the Four Seasons Mall

parking lot in Greensboro by three assailants. Defendant was apprehended and

identified by the victims as one of the assailants of the robbery. Defendant was

indicted on robbery with a dangerous weapon and other charges.

      In February 2017, Defendant filed a motion to suppress the show-up

identification made by the three victims.        In open court, the trial court denied

Defendant’s motion to suppress and made findings of fact and conclusions of law from

the bench.

      Defendant was found guilty of all charges by a jury and was sentenced in the

presumptive range for each charge, to be served consecutively. Defendant gave oral

notice of appeal in open court.

                                       II. Analysis

      On appeal, Defendant argues that the trial court erred in denying his Motion

to Suppress Evidence.      More specifically, Defendant argues that the show-up

identification should have been suppressed.

                                  A. Standard of Review

      We review the trial court’s denial of Defendant’s motion to suppress for

whether “competent evidence supports the trial court’s findings of fact and whether

the findings of fact support the conclusions of law.” State v. Biber, 365 N.C. 162, 167-



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                                   Opinion of the Court



68, 712 S.E.2d 874, 878 (2011). Findings of fact are “conclusive and binding . . . when

supported by competent evidence,” while conclusions of law are reviewed de novo.

State v. Brooks, 337 N.C. 132, 140-41, 446 S.E.2d 579, 585 (1994).

                        B. Pre-Trial Identification of Defendant

      Defendant argues that the show-up procedure was impermissibly suggestive

and created a substantial likelihood of irreparable misidentification, thereby

violating his due process rights under the United States and North Carolina

constitutions.

      Identification evidence, such as a show-up, “must be excluded as violating the

due process clause where the facts of the case reveal a pretrial identification

procedure so impermissibly suggestive that there is a substantial likelihood of

irreparable misidentification.” State v. Thompson, 303 N.C. 169, 171, 277 S.E.2d 431,

433 (1981).      Using a totality of the circumstances test, the central question is

“whether . . . the identification was reliable even though the confrontation procedure

was suggestive.” Neil v. Biggers, 409 U.S. 188, 199 (1972).

      Our Supreme Court has identified factors to consider when evaluating the

reliability of the identification: “the opportunity of the witness to view the criminal

at the time of the crime; [] the witness's degree of attention; [] the accuracy of the

witness's prior description of the criminal; [] the level of certainty demonstrated by

the witness at the confrontation; and [] the length of time between the crime and the



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                                  STATE V. JEUNE

                                 Opinion of the Court



confrontation.” State v. Harris, 308 N.C. 159, 164, 301 S.E.2d 91, 95 (1983) (citing

Manson v. Brathwaite, 432 U.S. 98, 109-16 (1976)).

      Show-ups, while potentially inherently suggestive, are not per se violative of a

defendant’s due process rights. State v. Turner, 305 N.C. 356, 364, 289 S.E.2d 368,

373 (1982) (“An 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.”). For example, in Turner, our Supreme Court held that a one-man

show-up was admissible, though suggestive, where the victim’s identification of the

defendant was based on the victim attentively observing the defendant in poor

lighting conditions during the alleged crime, having seen the defendant in the

neighborhood previously, and a general physical description given to the police.

Turner, 305 N.C. at 365, 289 S.E.2d at 374.

      In the present case, the facts and circumstances surrounding the show-up are

as follows: Before the alleged robbery occurred, Defendant and the other perpetrators

followed the victims around in the mall and the parking lot. Defendant was two feet

away from one of the victims at the time of the robbery. The show-up occurred

approximately fifteen minutes after the robbery. Prior to the show-up, the victims

gave a physical description of Defendant to the police. All three victims were seated

together in the back of a police officer’s squad car during the show-up. Defendant



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                                  Opinion of the Court



and the other perpetrators were handcuffed during the show-up. Defendant and the

other perpetrators were standing in a well-lit area of the parking lot, in front of the

squad car, during the show-up. Defendant matched the physical description given by

the victims. Upon approaching the area where Defendant and the other perpetrators

were detained, all three victims spontaneously shouted, “That’s him, that’s him!” All

the victims also identified Defendant in court.

       While these procedures were not perfect, we conclude that there was not a

substantial likelihood of misidentification in light of the reliability factors

surrounding the crime and the identification. Turner, 305 N.C. at 364, 289 S.E.2d at

373.

                                   III. Conclusion

       The pre-trial identification of Defendant was reliable. Even though the show-

up may have been suggestive, it did not rise to the level of irreparable

misidentification. As such, the trial court did not err in denying Defendant’s motion

to suppress.

       NO ERROR.

       Judges Bryant and Zachary concur.




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