Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Douglas R. Herman, Judge.
The opinion of the court was delivered by: Sandstrom, Justice
[¶1] Elijah Addai appeals from a criminal judgment entered after a jury found him guilty of murder. We conclude the district court did not err in denying Addai's motion to suppress evidence of the stop, the eyewitness identification procedure used in this case was not unnecessarily suggestive and the identification was reliable, the court did not abuse its discretion by denying Addai's motion to dismiss for discovery violations, and competent evidence supports the jury's verdict. We affirm the judgment.
[¶2] In the early morning hours of Sunday, August 19, 2007, a group of people gathered at an apartment in south Fargo, including Addai; Addai's friend, Semereab Tesafaye; David Delonais ("Delonais"); and Eric Delonais, Delonais's cousin. There was tension at the gathering between Tesafaye and Eric Delonais. When Delonais and Eric Delonais left the apartment, Addai and Tesafaye followed and a fight broke out behind the apartment building. Addai, Tesafaye, and Delonais were involved in the altercation and had knives. At some point during the altercation, Delonais stabbed Tesafaye in the head, and other individuals from the party later found him lying behind the apartment building in a pool of blood. There was also evidence Tesafaye and Addai may have stabbed Delonais during the fight. Delonais and Eric Delonais attempted to run away from the scene of the fight, but they became separated and witnesses saw Addai following Delonais.
[¶3] Two newspaper carriers, Roslynn Bolgrean and Mary Albertson, were delivering newspapers approximately one block away from the apartment building at the time of the altercation. They heard footsteps and a commotion and saw two men running down the street toward them. They testified one of the men was black, wearing a light blue shirt with white numbers on the shirt and a white scarf on his head, and he was chasing the other man, who had a lighter complexion. The man being chased was later identified as Delonais, and Albertson and Bolgrean identified Addai as the man who was chasing Delonais. Albertson testified she heard Addai say, "I'm going to cut you, I'm going to kill you," and saw Addai swinging something at Delonais. Albertson testified she was standing in the driveway of a house when Delonais ran up to her and was close enough she could have touched him. The two men began struggling with each other by Albertson. Albertson testified Delonais was panicking and asked her to help him, and then Addai stabbed Delonais in his side, although she admitted she did not see a knife. Bolgrean testified Addai jumped on Delonais, tousled with him, and then ran off. Albertson testified Delonais said he had been stabbed, blood was coming out of his side, and he asked her to help him. Albertson and Bolgrean called 911.
[¶4] Delonais was taken to a hospital, where he died from his injuries, including potentially lethal stab wounds to his chest and in his kidney area on the lower right part of his back. There was evidence the injury to his kidney area was the more serious injury, hitting a major artery, and would have caused Delonais to lose blood very quickly.
[¶5] At approximately 5:48 a.m., Fargo Police officers were dispatched after they received a call about the fight outside the apartment building. While officers were responding to the fight call, dispatch notified them there was a second call about a stabbing approximately one block from the fight and a black male was seen running from the location of the stabbing. While driving to the location of the stabbing, Officer DaLee Wilkinson observed a vehicle "driving strangely," make a U-turn, and drive quickly through the parking lot of a private elementary school. The parking lot was located in the block between the addresses given for the fight at the apartment and the location of the stabbing. Wilkinson observed a black male wearing a blue jersey in the passenger seat of the vehicle. Wilkinson radioed Sergeant Michael Bernier, who was following her, informing him that the passenger in the vehicle was black.
[¶6] Bernier observed the vehicle in the parking lot and noted there was a black male in the vehicle's passenger seat, who appeared to have been running and was under a lot of stress because he was having difficulty breathing and was rocking his body back and forth as if trying to catch his breath. The vehicle stopped in the parking lot and Bernier initiated a stop of the vehicle. Bernier testified the stop occurred within minutes of the dispatch regarding the stabbing and there were no other vehicles in the area. Bernier testified he believed the stabbing suspect was a black male fleeing the scene on foot at the time he stopped the vehicle.
[¶7] Bernier ordered the passenger out of the vehicle and noted the passenger's lip was bleeding and there was blood on his jeans and shirt. Bernier placed the passenger in handcuffs, asked for his name, searched him for weapons, and advised him of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). The passenger was identified as Addai. After the vehicle was stopped, dispatch radioed that witnesses reported the stabbing suspect was wearing a light blue jersey-type shirt. Addai was wearing a light blue jersey-type shirt with white numbers on the shirt. Addai was handcuffed behind his back and placed in the back of a patrol vehicle.
[¶8] Albertson and Bolgrean went to the scene of the stop. Albertson testified that when they arrived at the scene of the stop, they immediately recognized Addai as the man who had stabbed Delonais, and they told an officer right away. Bernier testified Bolgrean and Albertson immediately pointed to the patrol vehicle and said the man in the back seat was the one who stabbed Delonais. Bernier testified Albertson and Bolgrean then agreed to identify the man in the patrol vehicle if he did not face them. As Addai was removed from the backseat of the vehicle his face was briefly visible. Albertson and Bolgrean identified Addai as the man who stabbed Delonais. Albertson and Bolgrean testified they recognized the man because of the clothing he was wearing, he was black, and his size and age matched. Albertson and Bolgrean testified the identification occurred within fifteen minutes to an hour of the stabbing.
[¶9] Addai was taken into custody. At the time of his arrest, there was blood on his hands, and swabs of the blood were taken. A DNA test was performed on the samples, and the results established the blood belonged to Delonais. During the investigation law enforcement recovered at least six knives, including a knife located in the parking lot where Addai was arrested and one in the vehicle. The knife found in the parking lot was analyzed for DNA, and the results established there was blood on the knife belonging to Delonais.
[¶10] On August 20, 2007, Addai was charged with murdering Delonais in violation of N.D.C.C. § 12.1-16-01(1)(a), a class AA felony. Addai moved to suppress the evidence seized during the stop of the vehicle, arguing the officer did not have reasonable suspicion to stop the vehicle. Addai also moved to prohibit any testimony about the showup identification or any in-court identifications by Bolgrean and Albertson, arguing the initial identification was unnecessarily suggestive and unreliable. The district court denied his motions.
[¶11] Addai requested discovery in August 2007, and the State disclosed evidence in response. In September 2008, approximately one week before the trial was scheduled to begin, the State provided Addai with numerous police reports that had not previously been provided to him. Addai moved for dismissal. During a hearing on Addai's motion, he agreed to waive his right to a speedy trial to allow his attorney to review the materials. The district court denied Addai's motion, continued the trial for one month, and ordered the State to provide the defense with a copy of all the evidence in its possession, documenting what was on each disc and what it did and did not send to the defense. On October 21, 2008, Addai requested the court reconsider his previous motion to dismiss. The court later denied this motion.
[¶12] On October 28, 2008, four days before the trial was scheduled to begin, the State disclosed some pictures that had not been disclosed to the defense before. The pictures included one of a knife described as a tanto knife. The knife allegedly belonged to Tesafaye, and the picture showed the knife had blood on the blade, which was later determined to be Delonais's blood, and blood on the handle, which was later determined to be Tesafaye's blood. Addai moved to dismiss the case and suppress the evidence because of the late disclosure of this evidence, arguing the State's failure to follow the discovery rules and disclose the picture of the knife violated his constitutional rights and placed him at an unfair disadvantage. After a hearing, the court denied the motion to dismiss, but ordered a continuance to allow the defense to get DNA analysis of the knife and ordered the pictures be suppressed.
[¶13] After a jury trial, Addai was found guilty of murdering Delonais. Addai was sentenced to life in prison with the possibility of parole.
[¶14] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal from the criminal judgment is timely under N.D.R.App.P. 4(b), and this Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.
[¶15] Addai argues the stop of the vehicle was unlawful because there was not reasonable and articulable suspicion to support the stop. Addai contends the stop of the vehicle was based solely on his race, and race alone is an unconstitutional basis for an investigative stop.
[¶16] In reviewing a motion to suppress evidence, "[w]e will affirm a district court's decision if `there is sufficient competent evidence fairly capable of supporting the [district] court's findings, and the decision is not contrary to the manifest weight of the evidence.'" State v. Smith, 2005 ND 21, ¶ 11, 691 N.W.2d 203 (quoting City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D. 1994)). We defer to the district court's findings of fact, resolve conflicts in testimony in favor of affirmance, and evaluate the evidence to determine whether it supports the findings of fact. Smith, at ¶ 11. "Questions of law and the ultimate conclusion about whether the facts support a reasonable and articulable suspicion are fully reviewable on appeal." Id.
[¶17] Under the Fourth Amendment of the United States Constitution and Article I, Section 8 of the North Dakota Constitution, all searches and seizures must be reasonable. A stop, which temporarily restrains a person's freedom, is a seizure within the meaning of the Fourth Amendment. Smith, 2005 ND 21, ¶ 12, 691 N.W.2d 203. During a stop of a vehicle every person in the vehicle is seized, and therefore a passenger in the vehicle may challenge the constitutionality of the stop. Brendlin v. California, 551 U.S. 249, 254-59 (2007).
[¶18] An officer must have a reasonable and articulable suspicion that a law has been or is being violated to stop a vehicle for investigative purposes. State v. Corum, 2003 ND 89, ¶ 10, 663 N.W.2d 151. To decide whether a reasonable and articulable suspicion exists, we apply an objective standard, considering the totality of the circumstances, and determine whether "a reasonable person in the officer's position would be justified by some objective manifestation to believe the defendant was, or was about to be, engaged in unlawful activity." Id. An officer must have more than a "mere hunch," but we do not require the officer to isolate a single factor that alone signals a potential violation of the law. Id. at ¶¶ 10-11. "When assessing reasonableness, we examine all of the information known to the officer at the time of the stop, and we consider inferences and deductions an investigating officer would make which may elude a layperson." Id. at ¶ 11.
[¶19] The district court denied Addai's motion to suppress any evidence seized as a result of the stop. The court found there was not reasonable and articulable suspicion to stop the vehicle, but found the stop was reasonable to "freeze" the scene.
[¶20] Addai argues he was stopped only because he was the first black male the officer came in contact with near the crime scene and he was acting nervous. He contends the officer engaged in selective enforcement of the law based on race, and his proximity to the crime and nervousness alone are not sufficient for reasonable suspicion. We do not isolate each factor and individually consider whether it is sufficient; rather, we consider whether all of the circumstances viewed together create reasonable ...