- 1 -
No. COA 09-512TWENTY-SEVEN-B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**************************************************
STATE OF NORTH CAROLINA)
)
v.) FROM LINCOLNCOUNTY
)
LARRY RASHAWN WOODRUFF, )
Defendant)
)
**************************************************
DEFENDANT-APPELLANT’S BRIEF
**************************************************
- 1 -
TABLE OF CONTENTS
Table of Authorities
Questions Presented......
Statement of the Case
Statement of Grounds for Appellate Review
Statement of the Facts
Motion to Suppress Hearing
Trial
Argument
I.The trial court erred when it denied Mr. Woodruff’s motion to suppress, because the pretrial identification procedure was so impermissibly suggestive that there is a substantial likelihood of irreparable misidentification and the court’s ruling violated Mr. Woodruff’s due process rights under the fourteenth amendment to the United States Constitution and Article I, § 19 of the North Carolina Constitution.
II.The trial court erred when it overruled Mr. Woodruff’s objection to Mr. Mars’ in-court identification of him, because it was tainted by the improper photo lineup and inherently incredible.
Standard of Review
Argument
Preservation of the Issues
Pre-trial Identification
In-Court Identification
Prejudicial Nature of the Errors
III.The trial court erred when it ordered restitution in an amount that was not supported by the evidence.
Standard of Review
Argument
Conclusion
Certificate of Service
- 1 -
Table of Authorities
Cases
Henderson v. North Carolina, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976) 19
Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) 19
Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967,
19 L.Ed.2d 1247 (1968)...... 15
State v. Al-Bayyinah, 356 N.C. 150, 567 S.E.2d 120 (2002)
14, 15
State v. Buchanan, 108 N.C. App. 338, 423 S.E.2d 819 (1992) 22
State v. Calvino, 179 N.C. App. 219, 632 S.E.2d 839 (2006)
23
State v. Campbell, 188 N.C.App. 701, 656 S.E.2d 721 (2008)
13
State v. Flowers, 318 N.C. 208, 347 S.E.2d 773 (1986)...... 18
State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983)...... 18
State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978)...... 19
State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972)...... 15
State v. Oglesby, 361 N.C. 550, 648 S.E.2d 819 (2007)...... 13
State v. Pickard, 178 N.C.App. 330, 631 S.E.2d 203 (2006)
13
State v. Pigott, 320 N.C. 96, 357 S.E.2d 621 (1987)...... 15
State v. Pulliam, 139 N.C.App. 437, 533 S.E.2d 280 (2000)
12
State v. Reynolds, 161 N.C. App. 144, 587 S.E.2d 456 (2003)
22
State v. Riggs, 62 N.C.App. 111, 302 S.E.2d 315 (1983).....19
State v. Rogers, 355 N.C. 420, 562 S.E.2d 859 (2002)...15, 16
State v. Shelton, 167 N.C. App. 225, 605 S.E.2d 228 (2004)
22, 23
State v. Wilson, 340 N.C. 720, 459 S.E.2d 192 (1995)...... 22
State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977)...15, 19
Constitutional Provisions
N.C. Const. art. I, § 19...... 14
U.S. Const. amend. XIV...... 14
Rules
N.C. R. App. P. 10...... 13
Statutes
N.C. Gen. Stat. § 15A-1446...... 22
N.C. Gen. Stat. § 7A-27...... 3
- 1 -
No. COA 09-512TWENTY-SEVEN B JUDICIAL DISTRICT
NORTH CAROLINA COURT OF APPEALS
**************************************************
STATE OF NORTH CAROLINA)
)
v.) FROM LINCOLNCOUNTY
)
LARRY RASHAWN WOODRUFF, )
Defendant)
______)
Questions Presented
- Whether the trial court erred when it denied Mr. Woodruff’s motion to suppress, because the pretrial identification procedure was so impermissibly suggestive that there is a substantial likelihood of irreparable misidentification and the court’s ruling violated Mr. Woodruff’s due process rights under the fourteenth amendment to the United States Constitution and Article I, § 19 of the North Carolina Constitution.
- Whether the trial court erred when it overruled Mr. Woodruff’s objection to Mr. Mars’ in-court identification of him, because it was tainted by the improper photo lineup and inherently incredible.
- Whether the trial court erred when it ordered restitution in an amount that was not supported by the evidence.
Statement of the Case
Appellant Larry R. Woodruff was charged in a two-count Indictment with Robbery with a Dangerous Weapon and Assault by Pointing a Gun. (R. p. 4.) He filed a pre-trial motion to suppress witness identification. (R. pp. 6-12.) The Honorable Superior Court Judge James W. Morgan conducted a hearing on the motion immediately before trial during the 17 November 2008 Criminal Session of Lincoln County Superior Court. (T. pp. 1-55.) Judge Morgan hold that the pre-trial identification procedure “was somewhat suggestive,” but not “impermissibly suggestive” and denied the motion to suppress. (T. p. 55, lines 16-20.)
The jury returned verdicts of guilty of Assault by Pointing a Gun and Robbery with a Dangerous Weapon on 21 November 2008. Judge Morgan found that Mr. Woodruff had no prior Record and was a Level I. (R. pp. 21-23.) He sentenced Mr. Woodruff to a consolidated term of 60 to 81 months in the North Carolina Department of Corrections and ordered restitution of $574.75. (R. pp. 23-24.) Through counsel, Mr. Woodruff gave oral Notice of Appeal in open court immediately after sentencing. (T. p. 228, lines 18-21.)
The Clerk ordered the transcripts on 21 November 2008. (R. p. 26.) The trial court extended the due date until 24 February 2009. (R. p. 28-29.) The Court Reporter delivered the transcripts by mailing to the attorneys on 4 February 2009. (R. p. 30.) Counsel for Mr. Woodruff served the Proposed Record on Appeal on the State by mailing on 4 March 2009 and the Record was settled by operation of the Rules on 6 April 2009. (R. p. 31.) The Record was filed in the Court of Appeals on 16 April 2009 and docketed on 29 April 2009. (R. p. 1.) The Clerk mailed the printed Record to the parties on 4 May 2009.
Statement of Grounds for Appellate Review
The verdict and sentencing were final ordersthat resolved all matters at issue. The right to appellate review is granted by N.C. Gen. Stat. §§ 7A-27(e).
Statement of the Facts
Motion to Suppress Hearing
William Mars owns Fox’s Pizza, which is located in a strip mall in Denver, North Carolina. (T. p. 25, lines 2-4.) The store was robbed by two men around 8:00 pm on 8 December 2007. (T. p. 25, lines 5-19.) Mr. Mars was working at the time of the robbery. (T. p. 25, lines 9-10.) When the perpetrators entered the store, one man came directly to Mr. Mars, put a gun to his head, and told him to open the cash drawers. (T. p. 29, lines 4-17.) As he complied, Mr. Mars focused on the man’s face and got a “good look at him.” The man wore a black ball cap, diamond-like earrings, and dark clothing. (T. p. 30, lines 12-17.)
Lincoln County Sheriff’s Deputy, Sergeant Lester White, responded to the armed robbery call after the two men fled. (T. p. 2, lines 11-19.) Mr. Mars showed officers the store video of the robbery and they took it with them. (T. p. 3, lines 7-9; p. 5, line 15-p. 6, line 2.)
An employee had followed a car that quickly left the shopping center just after the robbery. (T. p. 4, lines 1-3.) Based on eyewitness descriptions of the vehicle and a license plate number given by the employee,Charlotte-Mecklenburg police went to the vehicle owner’s home and found Mr. Woodruff’s mother and her husband, who was the titled owner of the car. Mrs. Woodruff said her son had the car and police told her he might be a suspect in a robbery. (T. p. 4, lines 13-25.) After the officers left, Mrs. Woodruff contacted her son at his apartment andthen brought him to the Lincoln County Sheriff’s office to speak with investigating officers. (T. p. 6, line 24-p. 7, line 1.) Mr. Woodruff declined to speak with Sergeant White without an attorney, but allowed the officer to photograph him. (T. p. 7, lines 10-24.) Mr. Woodruff wore black tennis shoes, gray sweatpants, and a white shirt. (T. p. 7, line 9.)
A few days later, Sergeant White had a secretary create a lineup from DMV photographs including Mr. Woodruff’s photo. (T. p. 9, lines 3-4.) He took the photos to Fox’s Pizza and showed it to Mr. Mars and other employees who had been in the store when it was robbed. (T. p. 10, lines 9-13.) When he presented the photos to Mr. Mars, Sergeant Whitesaid the person who robbed the store may or may not be in the lineup. Mr. Mars reviewed the photos and did not pick out Mr. Woodruff. (T. p. 11, lines 8-14.) No other employee selected Mr. Woodruff’s photograph from the lineup. (T. p. 12, lines 16-24.)
Several days later, officers got the store video to run on their equipment. Sergeant White thought that one perpetratorin the video appeared to be wearingclothing similar to the clothing worn by Mr. Woodruff when Sergeant White took his photo. (T. p. 14, lines 2-6.) Therefore, ten days after the robbery and three or four days after showing the multi-photo lineup, Sergeant White took a single photograph of Mr. Woodruff to Fox’s Pizza to show Mr. Mars. (T. p. 13, lines 16-24 and p. 14, lines 9-10.) Before showing the single photo, the Sergeant told Mr. Mars that he “had a possible suspect. And then [Sergeant White] asked [Mr. Mars,] does this guy look familiar,” showinghim the photograph of Mr. Woodruff. (T. p. 14, lines 13-14.) Mr. Mars identified the photograph as the person who held the gun on him during the robbery. (T. p. 14, lines 14-15.)
Mr. Woodruff moved to suppress the pretrial identification by Mr. William R. Mars. (R. pp. 6-12 and T. p. 1, lines 13-17.) The trial court denied the motion. (T. p. 55, line 16-20.)
Trial
The Defendant did not present any evidence at trial. (T. p. 209, line 15-p. 211, line 19.) The State’s evidence tended to show the following.
The evening of 8 December 2007, Amy Forney, Mathew Kwiatkoski, Austin Stortz, Rachel Wright, William Mars, and two other persons were working at Fox’s Den Pizza, Denver, North Carolina. (T. p. 64, lines 22-23; p. 86, lines 3-4; p. 102, lines 19-20; p. 113, lines 17-21; p. 127, lines 13-22; p. 91, lines 14-15.) Mr. Mars owns the pizza store. Ms. Forney was a delivery driver that evening; the others were working inside the store. (T. p. 64, lines 22-23; p. 127, lines 19-20.) Mr. Mars and Rachel Wright were near the front of the store when the door chime rang, signaling that someone had entered the store. They looked up. (T. p. 128, line 8-p. 129, line 4; p. 114, lines 7-24; p. 87, lines 2-3.)
A black male with a gun entered the store. (T. p. 88, lines 19-20; p. 100, lines 8-14; p. 104, lines 14-16; p. 115, line 8; p. 130, lines 18-20.) He wore black jeans, a black jacket, boots, a black hat, and diamond or rhinestone earrings. (T. p. 89, line 23; p. 104, line 25-p. 105, line 1; p. 115, line 25; p. 132, lines 13-22.) He approached Mr. Mars with the gun and pointed the gun at him, yelling. The man directed Mr. Mars to open the cash registers and took the money from the drawers. He also took currency bills from a cash bag and change box. (T. p. 133, lines 2-p. 134, line 3.) Right after the first man entered, a second man came in. (T. p. 130, lines 22-23.) The second man went to the rear of the store and asked Mr. Stortz for money, but he had none. (T. p. 105, lines 14-18.) The man did not show any weapon. (T. p. 106, lines 1-3.) He returned to the front of the store and took Rachel Wright’s cell phone from her apron pocket. (T. p. 117, lines 8-16.) The men then left through the front door. (T. p. 118, lines 8-12.) They were in the store somewhere between ninety seconds and three to four minutes. (T. p. 108, lines 3-5; p. 27, lines 1-3.)
Employee Matthew Kwiatkowski headed to the back of the store as soon as he saw the gunman enter. (T. p. 88, lines 19-20.) Via a camera monitor in the rear of the store, Mr. Kwiatkowski saw the second man enter the front door. (T. p. 90, lines 7-19.) He continued out the back door and into the alley, where he saw an unoccupied, silver, four-door sedan. (T. p. 91, lines 14-16; p. 91, line 22-p. 92, line 1.) It was unusual to see a car in that area. (T. p. 92, lines 6-10.) Mr. Kwiatkowski ran to a nearby business, where he borrowed a cell phone and called 911. (T. p. 92, lines 14-25.) While reporting the robbery, he saw the car from the alley leaving and heard Mr. Mars yelling for returning delivery driver, Amy Forney, to follow it. (T. p. 93, lines 1-3; p. 94, lines 12-14.)
As Ms. Forney waited in the turning lane of the main road, a car sped out of the parking lot. She heard Mr. Mars yellingfor her to follow the car, because the store had just been robbed. (T. p. 64, line 23-p. 65, line 4.) The car was a tan or champagne Mercury Sable or Ford Taurus with two black males inside. (T. p. 66, lines 1-6.) Ms. Forney immediately pulled back onto the road and began following. (T. p. 66, line 25-p. 67, line 13.) About a mile from the restaurant, the car turned onto South Little Egypt Road. (T. p. 68, lines 14-22.) A short distance down South Little Egypt, the car stopped and at least one of the men got out. He opened the trunk and threw things on the side of the road. (T. p. 69, lines 3-7.) Ms. Forney was four or five car lengths away. (T. p. 69, lines 11-15.) She saw the man wave something at her but could not tell what it was because of the dark. (T. p. 70, lines 18-24.) Ms. Forney was on her cell phone with 911, having called as soon as she started following the car. (T. p. 71, lines 17-20.)
Ms. Forney backed into a nearby driveway on South Little Egypt. The other car turned around and pulled past her toward the main road. She continued to follow. (T. p. 72, lines 17-20; p. 73, lines 1-3.) The car picked up speed and after stopping briefly, ran a red light. (T. p. 73, lines 5-11.) Ms. Forney got the license plate number and gave it to 911. (T. p. 73, line 23-p. 74, line 4.) When the light turned green, she followed what she thought was the same car, but it was someone else. (T. p. 74, lines 11-15.)
After she lost the car, Ms. Forney returned to South Little Egypt Road. (T. p. 75, lines 4-8.) In the area where the car had stopped, she found an empty cardboard box and Rachel Wright’s cell phone. (T. p. 75, lines 10-15.) She took the items back to the store and gave them to the investigating officers who had already arrived. (T. p. 76, lines 1-8.) The next day, Ms. Forney and Mr. Mars returned to South Little Egypt Road and found two or three twenty-dollar bills beside the road. (T. p. 79, lines 9-20.)
Lincoln County Sheriff’s Detective Lester White responded to the Fox’s Den robbery call that night. (T. p. 177, lines 9-15.) He arrived around 9:10 or 9:15 and spoke with officers on the scene. (T. p. 177, line 19-p. 178, line 6.) The tag number provided by Ms. Forney was registered to a Charlotte resident and Detective White arranged for Charlotte-Mecklenburg police to go to the owner’s home. (T. p. 178, lines 16-21.) With phone numbers provided by Charlotte officers, Detective White called and spoke with the car’s owner, Lamar Stevens, as well as his wife, Yulanda Woodruff. (T. p. 179, lines 3-8; p. 178, lines 23-24; p. 179, lines 16-17.) Mr. Stevens’ car was a peanut butter and tan Ford Taurus with bumper damage. (T. p. 202, lines 17-20.) Ms. Woodruff told the officers that her son, Appellant Larry Rashawn Woodruff, had the car. (T. p. 179, lines 9-10; p. 180, lines 2-3.) The Taurus was usually driven by Mr. Woodruff, although registered in his stepfather’s name. (T. p. 202, lines 7-14.) Detective White said he wanted to speak with her son and Ms. Woodruff said she would try to locate him. (T. p. 179, lines 10-12.)
Ms. Woodruff then phoned her son at his apartment and went to pick him up and take him to the Sheriff’s office. (T. p. 202, line 23-p. 203, line 7.) When she arrived, Mr. Woodruff was at his apartment and his car was not there. (T. p. 204, lines 12-20.) Ms. Woodruff took her son to the Sheriff’s Office to speak with Detective White. (T. p. 203, lines 8-14.) Detective White gave Mr. Woodruff his Miranda rights and told him he was a suspect in the robbery. Mr. Woodruff said he would speak with the detective but wanted an attorney present. (T. p. 203, lines 18-22; p. 181, line 6-p. 183, line 19.) Detective White terminated the interview, but said he wanted to continue when Mr. Woodruff got a lawyer. With Mr. Woodruff’s permission, the detective photographed him before he left. (T. p. 183, line 22-p. 184, line 1; p. 186, lines 11-13.) Mr. Woodruff worea white shirt, gray jacket, gray sweatpants, and black tennis shoes. (T. p. 184, lines 6-7; p. 195, line 7.)
A few days later, Detective White assembled a photographic lineup using six DMV photographs, including Mr. Woodruff’s photo,and showed it to the Fox’s Den employees. (T. p. 187, line 9-p. 188, line 10.) He handed each employee the photo array, told them the suspect may or may not be in the lineup, and asked if they could identify anyone. (T. p. 188, lines 13-15.) No employees identified Mr. Woodruff as a perpetrator. (T. p. 188, lines 16-25.) One employee thought he recognized an individual, but it was not Mr. Woodruff and the investigation of that lead did not yield any suspects. (T. p. 189, lines 1-11.)
Detective White initially had difficulty getting the store video to work on the Sheriff’s Department equipment. (T. p. 189, lines 16-22.) About ten days after the robbery, he was able to watch the video and thought the gunman’s hair and clothing looked similar to Mr. Woodruff‘s hair and the clothing he wore in the photographtaken the night of the robbery. (T. p. 189, line 21-p. 190, line 9.) Detective White took the single photograph of Mr. Woodruff to show Mr. Mars. (T. p. 190, line 10.) Detective White told Mr. Mars that he had a possible suspect and showed him the single photograph. (T. p. 190, line 19.) Mr. Mars immediately said it was the gunman. (T. p. 190, lines 19-21.) Detective White did not show the photo to any other employees. (T. p. 191, line 20.) He then obtained a warrant for Mr. Woodruff’s arrest from the magistrate. (T. p. 191, lines 22-24.)
Argument
I.The trial court erred when it denied Mr. Woodruff’s motion to suppress, because the pretrial identification procedure was so impermissibly suggestive that there is a substantial likelihood of irreparable misidentification and the court’s ruling violated Mr. Woodruff’s due process rights under the fourteenth amendment to the United States Constitution and Article I, § 19 of the North Carolina Constitution.
Assignment of Error No. 2
R. p. 32
AND
II.The trial court erred when it overruled Mr. Woodruff’s objection to Mr. Mars’ in-court identification of him, because it was tainted by the improper photo lineup and inherently incredible.
Assignment of Error No. 3
R. p. 32
Standard of Review
Only the State presented evidence during the motion to suppress and trial. Although the judge made no specific findings of fact, the facts of the single photo lineup were themselves uncontested. This Court has said the standard of review is “whether the trial court's findings of fact are supported by competent evidence, and whether these findings of fact support the court's conclusions of law.” State v. Pulliam, 139 N.C.App. 437, 439-40, 533 S.E.2d 280, 282 (2000).
This court reviews the trial court’s conclusions of law that the identifications were admissiblede novo. State v. Campbell, 188 N.C.App. 701, 704, 656 S.E.2d 721, 724 (2008), citing State v. Pickard, 178 N.C.App. 330, 334, 631 S.E.2d 203, 206 (2006).
Argument
Preservation of the Issues
Mr. Woodruff’s pretrial Motion asked the court to suppress both pretrial and in-court identifications. The Motion asks for suppression of “any identification made by any witness as a result of improper eyewitness identification procedure, and any evidence, statements or testimony gained as a result of an improper identification.” (R. p. 8.) The trial court conducted a pretrial hearing on the issue of the pretrial identification and denied the motion with respect to the single-photograph lineup presented to Mr. Mars and resulting identification. (T. 55, lines 16-20.) Through counsel, Mr. Woodruff objected to Mr. Mars’ in-court identification as well. (T. p. 163, lines 14-16.) Thus, the issues were preserved for appellate review. State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007); N.C. R. App. P. 10(b)(1).
Pre-trial Identification
The State’s evidence shows three or four days after the robbery, eyewitnesses were unable to pick Mr. Woodruff from a multi-photo array. Ten days after the robbery and several days after the first photo line-up yielded no results, Detective White showed a single-photo of the defendant to eyewitness Mr. Mars, saying he “had a possible suspect” and asking “does this guy look familiar?” (T. p. 13, lines 16-24; p. 14, lines 9-10; and p. 14, lines 13-14.) Without delay, Mr. Mars said the photo was the gunman in the robbery. ((T. p. 14, lines 14-15.) The process was impermissibly suggestive as a matter of law. Its admission violated Mr. Woodruff’s due process rights under the fourteenth amendment to the United States Constitution and Article I, § 19 of the North Carolina Constitution. Thus, the trial court erred when it denied Mr. Woodruff’s motion to suppress.