{ "id": 12130171, "name": "STATE OF NORTH CAROLINA v. MARAITHEON E. PINCHBACK", "name_abbreviation": "State v. Pinchback", "decision_date": "2000-11-07", "docket_number": "No. COA99-1160", "first_page": "512", "last_page": "521", "citations": [ { "type": "official", "cite": "140 N.C. App. 512" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "330 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "470", "parenthetical": "trial court's findings of fact are binding on appeal when supported by competent evidence" } ], "opinion_index": 0 }, { "cite": "313 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725454 ], "year": 1985, "pin_cites": [ { "page": "544", "parenthetical": "trial court's findings of fact are binding on appeal when supported by competent evidence" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0539-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "198", "parenthetical": "likelihood of misidentification violates defendant's right to due process" }, { "page": "410-11", "parenthetical": "likelihood of misidentification violates defendant's right to due process" } ], "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "402 S.E.2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "405", "parenthetical": "identification \"reliable\" when witness's description accurately described defendant's clothing, bag, and approximate height and weight" } ], "opinion_index": 0 }, { "cite": "328 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543102 ], "year": 1991, "pin_cites": [ { "page": "512", "parenthetical": "identification \"reliable\" when witness's description accurately described defendant's clothing, bag, and approximate height and weight" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0505-01" ] }, { "cite": "357 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1987, "pin_cites": [ { "page": "633" }, { "page": "633-34" }, { "page": "634" } ], "opinion_index": 0 }, { "cite": "320 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726337 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "99" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/320/0096-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "94" } ], "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] } ], "analysis": { "cardinality": 656, "char_count": 21219, "ocr_confidence": 0.744, "pagerank": { "raw": 9.304764682338367e-08, "percentile": 0.5125748644032915 }, "sha256": "4f072c87e345f0075be0e47db8ec11907800a4b7bfd6b5c42903094608063e6e", "simhash": "1:2a6d468773ccd8f6", "word_count": 3460 }, "last_updated": "2023-07-14T16:18:32.795698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges EDMUNDS and SMITH concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MARAITHEON E. PINCHBACK" ], "opinions": [ { "text": "GREENE, Judge.\nMaraitheon E. Pinchback (Defendant) appeals a judgment dated 25 February 1999, finding him guilty of robbery with a firearm.\nThe evidence shows that on 9 May 1998, Christopher Penn (Penn) was sitting in his vehicle by himself at an ABC store in Yanceyville, North Carolina. Penn was waiting in the parking lot for his sister and sister-in-law to return from their dates, and he was supposed to meet them in the parking lot at approximately 11:00 p.m. While Penn was sitting in his vehicle, a red Toyota Tercel pulled into the parking lot. Someone in the Tercel then blew the vehicle\u2019s horn, and Penn stepped out of his vehicle and approached the driver\u2019s side door of the Tercel. Two men were seated in the front seats of the Tercel. The man seated in the driver\u2019s side of the Tercel asked Penn whether he knew \u201ca guy by the name of Tim.\u201d Penn responded, \u201c \u2018No, I don\u2019t.\u2019 \u201d The driver of the vehicle then stated, \u201c \u2018Well, he sells gats.\u2019 \u201d Penn responded, \u201c \u2018No, I don\u2019t. I don\u2019t even know him.\u2019 \u201d Penn \u201calmost started back to [his] vehicle\u201d when the passenger of the Tercel exited the Tercel and walked toward Penn. The passenger had a gun in his hand, and he told Penn to give him his wallet and all of his money. After the passenger took Penn\u2019s wallet, the passenger walked over to Penn\u2019s vehicle and looked in the dashboard, seat, and floorboard. The passenger then told Penn to \u201cl[ie] down on the ground face down\u201d and, while Penn was still on the ground, the passenger returned to the Tercel and the robbers drove away in the Tercel.\nApproximately ten minutes after the robbery, Penn\u2019s sister arrived at the ABC store and Penn told her that he had been robbed. Penn\u2019s sister called the Yanceyville Police Department from her cellular telephone to report the robbery. Approximately five minutes later, Steve Perkins (Perkins), a sergeant with the Yanceyville Police Department, arrived at the ABC parking lot. Penn told Perkins he had been robbed by \u201ctwo black males . . . riding in a red Toyota Tercel.\u201d Penn stated that \u201cboth [robbers] had on black clothing and [had] real short almost bald hairstyle[s].\u201d Perkins notified other police officers over the radio to \u201clookout\u201d for two black males driving a \u201csmall four-door red vehicle.\u201d\nApproximately thirty minutes later, Perkins received notification that a police officer in Danville, Virginia, had stopped a vehicle that fit the description given by Penn. The vehicle was stopped at a Kentucky Fried Chicken (KFC) in Danville, which is an approximately twenty-five minute drive from the ABC store. After receiving this notification, Perkins drove Penn to Danville in his patrol vehicle to identify the robbers. Perkins testified that when he and Penn arrived at the KFC, the two suspects were standing in the KFC parking lot. Perkins told Penn to remain in the patrol vehicle and to observe the two suspects, who were standing next to a red Tercel. The Tercel was parked approximately twenty to twenty-five feet from the patrol vehicle and was surrounded by several law enforcement vehicles. Perkins left the patrol vehicle to. speak to a Danville police officer. Perkins testified that when he returned to the patrol vehicle Penn told him \u201che was quite certain that that was the two that just robbed him at the ABC [s]tore.\u201d Penn, however, testified that he told Perkins, \u201c T can give a proper identification on the driver but not the passenger.\u2019 \u201d Penn did not give a positive identification of Defendant as the passenger at trial.\nDefendant made a motion at trial to suppress Perkin\u2019s testimony that Penn identified Defendant at the KFC as the passenger in the robbery. The trial court held a voir dire on this motion during which Penn testified regarding his identification of Defendant at the KFC. Penn testified that when Perkins arrived at the ABC store, Penn told Perkins: \u201c T can\u2019t make a positive identification of the passenger but I can give ... a positive identification of the driver.\u2019 \u201d Penn also told Perkins that the passenger was wearing black clothing and had short hair or was bald. Penn stated the passenger was in his view for approximately five minutes while looking in Penn\u2019s car; however, it was dark in the ABC parking lot. Upon their arrival at the KFC, Penn told Perkins that the two men standing next to the Tercel were the men who had robbed him. Penn then told Perkins that he could identify the driver; however, he could not identify the passenger because he \u201cnever made eye-to-eye contact with him.\u201d Penn testified Defendant, a black male, did have similar hair and complexion to the passenger and also was wearing a black shirt; nevertheless, he was unable to make a positive identification of Defendant as the passenger. Penn testified that at the time of the robbery, he described the passenger as approximately 5 feet, nine inches tall, weighing approximately 160 pounds, and having a \u201cmedium\u201d build.\nPerkins testified during voir dire that the ABC parking lot was \u201cpretty well lit up\u201d at the time of the robbery. He also testified that when he arrived at the KFC with Penn within one hour of the robbery, Penn told him that he was \u201c \u2018positive\u2019 \u201d Defendant was one of the men who had robbed him. Information contained in notes Perkins made subsequent to Defendant\u2019s arrest, however, indicate Defendant was 6 feet, 1 inch tall and at the time of his arrest he weighed 230 pounds. Perkins would have characterized Defendant at the time of his arrest as having a \u201cheavy\u201d or \u201cmuscular\u201d build.\nSubsequent to the voir dire hearing, the trial court made the following findings of fact:\nThe Court finds that. . . the lighting conditions at the crime scene near the ABC Store in Yanceyville when this robbery happened in the nighttime, that the street lights were on. That . . . Penn[] was in the presence of the two robbers for approximately 30 minutes. That he testified he was able to look in the face of the driver of the robber\u2019s vehicle. That he was closer \u2014 he was very close at that time to the driver. That the passenger in the automobile was the person with the firearm that got out of the car but he could not make a positive identification of that passenger with the gun other than to say that he was a black male, had a black T-shirt on and close-cut hair. He was approximately a height of approximately 5/9 and weight was approximately 165 or so. That the degree of the attention of the victim was great. That the perpetrator\u2019s [sic] of the robbery did not wear any masks or other concealing clothing.\nThat after the robbery [Penn] was taken to Danville within one hour. At that time he was shown the two subjects who had been stopped in the red Toyota Tercel automobile that he identified as being the car being operated by the robbers. At that time he saw the two individuals and made an identification. .. .\nThe Court also finds that the pretrial identification procedure involving a show-up did not violate any of... [Defendant's rights to due process of law, and was reliable and was not the product of a substantial likelihood of any misidentification, given the totality of the circumstances surrounding the robbery and the identification of the perpetrators, the witness\u2019s opportunity to view the accused and observe the physical characteristics of the accused and the automobile was ample and sufficient to gain a reliable impression at the time of the crime. That the witness\u2019s degree of attention was strong and focused. That his description given to the police was reliable.\nThe trial court then made the following conclusion of law: \u201c[T]he show-up at the [KFC] premises in Danville, Virginia was suggestive but it was not so unnecessarily or impermissibly suggestive as to render any identification inadmissible.\u201d Accordingly, the trial court denied Defendant\u2019s motion to suppress Penn\u2019s pretrial identification.\nThe issues are whether: (I) the trial court\u2019s findings of fact regarding Defendant\u2019s motion to suppress Penn\u2019s pretrial identification of Defendant are supported by competent evidence; and (II) the trial court\u2019s findings of fact which are supported by competent evidence support its conclusion of law that Penn\u2019s identification of Defendant \u201cwas not so unnecessarily or impermissibly suggestive as to render [the] identification inadmissible.\u201d\n\u201cIdentification evidence must be excluded as violating a defendant\u2019s right to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.\u201d State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983). Therefore, even when the procedures used at a pretrial identification are suggestive, the pretrial identification is nevertheless admissible unless under the totality of the circumstances \u201cthere is a substantial likelihood of irreparable misidentification.\u201d State v. Pigott, 320 N.C. 96, 99, 357 S.E.2d 631, 633 (1987). In determining whether this substantial likelihood exists, the trial court must consider the following factors:\n1) The opportunity of the witness to view the criminal at the time of the crime;\n2) the witnesses] degree of attention;\n3) the accuracy of the witness\u2019[s] prior description;\n4) the level of certainty demonstrated at the confrontation; and\n5) the time between the crime and the confrontation.\nId. at 99-100, 357 S.E.2d at 633-34. A trial court\u2019s findings of fact regarding these factors are binding on appeal when supported by competent evidence. Freeman, 313 N.C. at 544, 330 S.E.2d at 470.\nI\nIn this case, the trial court made findings regarding each of the factors set forth in Pigott. First, the trial court found that Penn\u2019s \u201copportunity to view the [passenger] and observe the physical characteristics of the [passenger] . . . was ample and sufficient to gain a reliable impression at the time of the crime.\u201d The trial court based this finding on evidence \u201cthat the street lights were on,\u201d Penn was in the passenger\u2019s presence \u201cfor approximately 30 minutes,\u201d and the passenger \u201cdid not wear any masks or other concealing clothing.\u201d This evidence, however, does not support a finding that Penn had an opportunity to actually view the passenger at the time of the crime. Rather, the only evidence regarding Penn\u2019s ability to view the passenger is Penn\u2019s testimony that the passenger was in his sight for approximately five minutes, and he was unable to view the passenger during this time because it was dark. Penn also testified the passenger forced him to lie face down on the ground, and Penn \u201cnever made eye-to-eye contact with him.\u201d The trial court\u2019s finding of fact that Penn had an \u201cample and sufficient\u201d opportunity to view the passenger is, therefore, not supported by competent evidence.\nSecond, the trial court found as fact that \u201cthe witness\u2019s degree of attention [to the identity of the passenger] was strong and focused.\u201d The State argues in its brief to this Court that this finding is \u201csupported by . . . Penn\u2019s description of the crime and of his behavior.\u201d Penn\u2019s description of the commission of the crime, however, was that he was able to focus on the appearance of the driver and not the passenger, the passenger forced Penn to lie face down on the ground, and Penn \u201cnever made eye-to-eye contact with [the passenger].\u201d The trial court\u2019s finding of fact that \u201cthe witness\u2019s degree of attention [to the identity of the passenger] was strong and focused\u201d is, therefore, not supported by competent evidence.\nThird, the trial court found that Penn\u2019s \u201cdescription given to the police was reliable.\u201d The evidence shows Penn described the passenger to Perkins as 5 feet, 9 inches tall and weighing approximately 160 pounds. Perkins testified, however, that the notes he made subsequent to Defendant\u2019s arrest indicate Defendant was 6 feet, 1 inch tall and at the time of the arrest weighed 230 pounds. Although Defendant does fit Penn\u2019s description of a black male with short hair who was wearing black clothing, the substantial discrepancy in Penn\u2019s description of the passenger\u2019s height and weight render Penn\u2019s identification unreliable. See State v. Richardson, 328 N.C. 505, 512, 402 S.E.2d 401, 405 (1991) (identification \u201creliable\u201d when witness\u2019s description accurately described defendant\u2019s clothing, bag, and approximate height and weight). The trial court\u2019s finding of fact that Penn\u2019s \u201cdescription given to the police was reliable\u201d is, therefore, not supported by competent evidence.\nFourth, the trial court found Penn stated at the time of the identification that \u201che could not make a positive identification of th[e] passenger.\u201d This finding of fact regarding Penn\u2019s \u201clevel of certainty\u201d at the time of the identification is supported by Penn\u2019s testimony that he was not able to make a positive identification of the passenger. This finding of fact, therefore, is binding on this Court. See Freeman, 313 N.C. at 544, 330 S.E.2d at 470.\nFinally, the trial court found the identification took place \u201cwithin one hour.\u201d This finding regarding the time that elapsed between the commission of the crime and the identification is supported by Perkin\u2019s testimony that the identification took place within an hour of the crime. This finding is, therefore, binding on this Court. See id.\nII\nWhen applying the factors from Pigott to determine whether there is a \u201csubstantial likelihood of irreparable misidentification,\u201d the factors must be weighed against \u201cthe corrupting effect of the suggestive procedure itself.\u201d Pigott, 320 N.C. at 100, 357 S.E.2d at 634.\nIn this case, the trial court\u2019s only findings of fact supported by competent evidence are that Penn \u201ccould not make a positive identification of th[e] passenger\u201d and the identification took place \u201cwithin one hour\u201d of the robbery. Further, the evidence, which was not controverted, shows Penn did not have an opportunity to view the passenger at the time of the robbery, Penn\u2019s degree of attention to the identity of the passenger was minimal because Penn was unable to view the passenger, and Penn\u2019s description of the passenger was not reliable. Although Penn was able to identify the passenger as a black male with short hair who was wearing black clothing, Penn\u2019s description of the passenger\u2019s height and weight differed significantly from Defendant\u2019s actual height and weight. Weighing these factors against the suggestiveness of the identification procedure, \u201cthere is a substantial likelihood\u201d that Penn misidentified Defendant. The trial court\u2019s denial of Defendant\u2019s motion to suppress Penn\u2019s pretrial identification, therefore, was error. Further, as the admission of Penn\u2019s pretrial identification at trial violated his right to due process under the Constitution of the United States, see Neil v. Biggers, 409 U.S. 188, 198, 34 L. Ed. 2d 401, 410-11 (1972) (likelihood of misidentification violates defendant\u2019s right to due process), the burden is upon the State to demonstrate this error was harmless beyond a reasonable doubt, N.C.G.S. \u00a7 15A-1443(b) (1999). The State has not met this burden. Accordingly, Defendant is entitled to a new trial.\nBecause the issues raised by Defendant\u2019s additional assignments of error are unlikely to recur at a new trial, we do not address them.\nReversed.\nJudges EDMUNDS and SMITH concur.\n. Although there is a dispute in the evidence regarding whether Penn actually made a pretrial identification of Defendant, the trial court found as fact that Penn \u201cmade an identification\u201d at the KFC. Because this finding is supported by Perkins\u2019 testimony that Penn identified Defendant at the KFC, we are bound by this finding of fact. See State v. Freemen, 313 N.C. 539, 544, 330 S.E.2d 465, 470 (1985) (trial court\u2019s findings of fact are binding on appeal when supported by competent evidence).\n. Defendant argues in his brief to this Court that his motion to suppress should have been granted because \u201cDefendant did not voluntarily go with police to a show-up ... [and] [t]here is no mention anywhere that Defendant was advised of his right to counsel.\u201d Defendant, however, did not raise this issue during the trial court\u2019s hearing on Defendant\u2019s motion to suppress, and the trial court did not rule on this issue in its order denying Defendant\u2019s motion to suppress. Accordingly, this issue is not properly before this Court. See N.C.E. App. P. 10(b)(1) (\u201cIn order to preserve a question for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make.\u201d).\n. The trial court concluded and the State concedes in its brief to this Court that the pretrial identification procedure was \u201csuggestive.\u201d We, therefore, do not address this issue.\n. The State does not argue in its brief to this Court that any error in allowing into evidence Penn\u2019s pretrial identification of Defendant is harmless beyond a reasonable doubt.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Bruce S. Ambrose, for the State.", "Theresa K. Pressley, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARAITHEON E. PINCHBACK\nNo. COA99-1160\n(Filed 7 November 2000)\n1. Identification of Defendant\u2014 armed robbery \u2014 finding of fact \u2014 insufficient opportunity to view perpetrator\nThe trial court\u2019s finding of fact in a robbery with a firearm case that the victim had an ample and sufficient opportunity to view the passenger of another vehicle who took the victim\u2019s wallet in an ABC parking lot at gunpoint is not supported by competent evidence even though the trial court based its finding on evidence that the street lights were on, the victim was in the passenger\u2019s presence for approximately 30 minutes, and the passenger did not wear any masks or other concealing clothing, because: (1) the only evidence regarding the victim\u2019s ability to view the passenger is the victim\u2019s testimony that the passenger was in sight for approximately five minutes and the victim was unable to view the passenger during this time because it was dark; and (2) the victim also testified the passenger forced him to lie face down on the ground and the victim never made eye-to-eye contact with him.\n2. Identification of Defendant\u2014 armed robbery \u2014 finding of fact \u2014 victim\u2019s degree of attention to perpetrator\nThe trial court\u2019s finding of fact in a robbery with a firearm case that the victim\u2019s degree of attention to the identity of the passenger of another vehicle who took the victim\u2019s wallet in an ABC parking lot at gunpoint was strong and focused is not supported by competent evidence, because: (1) the victim\u2019s description of the commission of the crime was that he was able to focus on the appearance of the driver and not the passenger; and (2) the victim testified that the passenger forced him to lay face down on the ground and that the victim never made eye-to-eye contact with the passenger.\n3. Identification of Defendant\u2014 armed robbery \u2014 finding of fact \u2014 reliability of victim\u2019s description to police\nThe trial court\u2019s finding of fact in a robbery with a firearm case that the victim\u2019s description given to the police was reliable is not supported by competent evidence because although defendant does fit the victim\u2019s description of a black male with short hair who was wearing black clothing, the substantial discrepancy in the victim\u2019s description of the passenger\u2019s height and weight render the victim\u2019s identification unreliable.\n4. Identification of Defendant\u2014 armed robbery \u2014 finding of fact \u2014 victim\u2019s level of certainty of identification\nThe trial court\u2019s finding of fact in a robbery with a firearm case that the victim stated at the time of the identification that he could not make a positive identification of the passenger to show the victim\u2019s level of certainty at the time of the identification is supported by the .victim\u2019s testimony and is therefore binding.\n5. Identification of Defendant\u2014 armed robbery \u2014 finding of fact \u2014 time between commission of crime and identification\nThe trial court\u2019s finding of fact in a robbery with a firearm case that the identification took place within one hour to show the time that elapsed between the commission of the crime and the identification is supported by the. officer\u2019s testimony and is therefore binding.\n6. Identification of Defendant\u2014 pretrial \u2014 suggestive nature \u2014 substantial likelihood of misidentification \u2014 error not harmless beyond a reasonable doubt\nThe trial court erred in a robbery with a firearm case by denying defendant\u2019s motion to suppress the victim\u2019s pretrial identification, because: (1) there is a substantial likelihood that the victim misidentified defendant when weighing the suggestiveness of the identification procedure against the facts that the victim\u2019s description of the height and weight of the passenger of another vehicle who took the victim\u2019s wallet in an ABC parking lot at gunpoint differed significantly from defendant\u2019s actual height and weight; and (2) the State failed to meet its burden under N.C.G.S. \u00a7 15A-1443(b) to demonstrate this error was harmless beyond a reasonable doubt.\nAppeal by defendant from judgment dated 25 February 1999 by Judge A. Leon Stanback, Jr. in Caswell County Superior Court. Heard in the Court of Appeals 12 September 2000.\nAttorney General Michael F. Easley, by Assistant Attorney General Bruce S. Ambrose, for the State.\nTheresa K. Pressley, for defendant-appellant." }, "file_name": "0512-01", "first_page_order": 544, "last_page_order": 553 }