Criminal Practice – Constitutional – Due Process – Evidence – Identification – Photos – School Principal

State v. Jones (Lawyers Weekly No. 11-07-1013, 25 pp.) (Douglas McCullough, J.) (Sanford L. Steelman Jr., J., concurring in the result) Appealed from Martin County Superior Court. (Wayland J. Sermons Jr., J.) N.C. App. Click here for the full-text opinion.

Holding: A school principal was not acting as an agent of the state when he tried to help an upset student identify the man who had broken into her house the previous day by showing her photos of registered sex offenders.

We find no plain error in defendant’s convictions of misdemeanor breaking and entering, assault on a female, and assault on a child under the age of 12 years.

Even though defendant failed to raise his due process argument at trial, since it involves the admission of evidence, we review for plain error.

Both the U.S. Supreme Court and this court have found public school officials to be state actors. However, in all such holdings, school officials are considered state actors for purposes of constitutional guarantees when they are exercising public authority in furtherance of publicly mandated educational and disciplinary policies. In carrying out searches and other disciplinary functions pursuant to publicly mandated educational and disciplinary policies, school officials act as representatives of the state.

Here, when Principal Hart observed Shanta, one of his students, visibly upset and leaving school early, Principal Hart asked her what was wrong. When Shanta informed him that someone had broken into their home, Principal Hart proceeded to show her photographs in an effort to help her determine who had bothered her and her family.

Principal Hart was not acting pursuant to any educational or disciplinary policies, nor was he acting as a law enforcement officer conducting an investigation on behalf of the state. Principal Hart was not affiliated with any law enforcement agency, he had no arrest power, and he had no knowledge of any criminal investigation being conducted. Rather, Principal Hart’s actions were more akin to that of a parent, friend, or other concerned citizen offering to help the victim of a crime.

It is no part of the policy underlying the Fourth and Fourteenth Amendments to discourage citizens from aiding in the apprehension of criminals. Principal Hart was not a state actor when he presented the photographs to Shanta and her sister at school resulting in the girls’ identification of defendant as the perpetrator; therefore, defendant’s due process rights were not implicated.

Even if Principal Hart had been acting as a state agent, we fail to see how the procedure he employed gave rise to a substantial likelihood of irreparable misidentification.

Although the girls gave conflicting testimony regarding the time frame of the encounters, the girls nevertheless had between 10 and 70 minutes to observe the intruder. The intruder was not wearing any clothing or masks to obstruct the girls’ view of his face. During the encounters, the intruder sat on the couch in the home, engaged in conversation with both girls, and grabbed both girls by their arms. Both girls consistently described the intruder’s clothing and hair to the investigating officer.

Upon seeing a photograph of defendant at the school, both girls were absolutely certain that he was the intruder, and both girls again stated they were absolutely certain that defendant was the intruder when asked by the investigating officer. The girls recognized defendant’s photograph as the intruder on the very next day after the crime had occurred, and the girls indicated that other photographs they were shown were not the man who had broken into their home on the previous day. Given these facts, we find the photo identification evidence did not implicate defendant’s due process rights and was properly admissible.

Further, because the photo identification evidence was properly admitted, the trial court also properly admitted the in-court identifications of defendant.

Because we conclude the photo identification evidence and the in-court identifications of defendant by the two witnesses were properly admissible, defendant’s trial counsel did not render ineffective assistance when he failed to move to suppress or object to such evidence.

No error.

Concurrence

(Steelman, J.) While defendant has a right to plain error review of an evidentiary ruling, he does not have the right to use this to bootstrap an unpreserved constitutional issue before this court. The majority opinion has the consequence of allowing defendant to appeal what is not appealable.