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 80, 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 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.
Harris was sentenced as a habitual offender pursuant to 11
Del. C.
§ 4214(a). Accordingly, Harris was sentenced to Level V incar
ceration 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 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”),
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. Deid-rick Boyd (“Deidrick”) and Dárrel 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 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.
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.
Deidrick saw Harris walk northbound on Clifford Brown Walk and turn onto Sherman Street. Deidrick followed Harris and watched him turn left on Lombard Street, and then turn onto 11th Street, heading towards Pine Street. Deidrick hailed a motorist, Jimmie Gordon (“Gordon”), at 11th and Pine Streets. Gordon called 911 and helped Deidrick 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.
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 witnesses were standing at the window.
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 South-bridge 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.
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.
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 South-bridge shooting.” Otherwise, Harris argued that he would have falsely admitted to that incident as well.
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.
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.
However, where a Motion for a New Trial raises a constitutional violation, we review that issue
de
novo.
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.”
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.”
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.”
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 im-permissibly 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.
Essentially, the test for determining whether there was a violation of the Due Process Clause has two prongs, namely, whether: “(1) the confrontation was unnecessarily suggestive, and (2) there existed a likelihood of [irreparable] misidentification.”
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.
We have noted
that the issue of whether an identification of a suspect is unnecessarily suggestive “is invariably fact-driven.”
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.
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.
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.
We noted that since the show-up identification happened shortly after the offense, it weighed in favor of the identification not being unnecessarily suggestive.
Here, Harris was in handcuffs and standing next to uniformed police officers when the 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.
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.”
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.”
Rather, the confrontations were “prompt, practically on-the-scene, and of a ‘res gestae’ nature.”
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 Misidentifícation
This Court has used the factors outlined by the United States Supreme Court in
Manson v.
Brathwaite
to determine the likelihood of irreparable misidentifieation.
In
Manson,
the Supreme Court set forth the following five factors to determine the reliability of the identification: (1) the opportunity of the 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.
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.
Bland testified that she did not identify anyone in the show-up identification because she could only see the robber’s mask and jacket.
Lewis
testified that because he was ■ on his stomach on the ground, he was unable to identify Harris.
Collins did not appear for trial so there was no specific testimony •regarding any identification by him.
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.”
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 Harris’ face.
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.
Deidrick also testified that he was able to see Harris’ face.
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 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.”
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.
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 Harris was in very close physical proximity to him.
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.
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.
3. The Accuracy of the Witnesses’ Prior Description of the Suspect
The trial court property noted that “[p]oliee confirmed that there was not a prior description of the suspect given before the show-up, so this factor does not affect the determination.”
Accordingly, this factor is not at issue on appeal.
A
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.
Additionally, Deidrick testi-
fled 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.”
Lastly, Cook testified that he was “[e]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.
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 to the verdict obtained.”
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.”
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 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 .88 special ammunition and ten clear blue plastic bags in Harris’ rear left pocket that contained marijuana.
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.