The opinion of the court was delivered by: Timmons-goodson, Judge.
Appeal by defendant from judgment entered 10 April 1997 by Judge Howard E. Manning, Jr. in Lenoir County Superior Court. Heard in the Court of Appeals 13 May 1998.
Defendant Melvin Curtis Smith appeals his conviction of second degree murder on the grounds that the State failed to produce sufficient evidence of his guilt. Having reviewed defendant's arguments, we find no error.
The testimony of the State's witnesses tended to show that at approximately 8:00 p.m. on 12 September 1995, Paul Wilson (hereinafter "Wilson") hailed a cab in Kinston, North Carolina. Terrence Jones (hereinafter "Jones"), the cabdriver, already had a passenger seated in the front. Wilson sat in back seat behind the passenger. Wilson did not see the passenger's face at any point during the eight-minute ride, but he continually observed the back of the passenger's head, neck and shoulders.
While en route to Wilson's destination, Jones and the passenger engaged in a friendly Discussion about sports. Wilson, who was preoccupied with meeting his wife as scheduled, did not pay close attention to the conversation until it became argumentative. The passenger had told Jones to go one way, but Jones proceeded in the opposite direction. This made the passenger angry, so he ordered Jones to pull over. As Jones slowed the vehicle to a stop, the passenger turned toward him, said "Drive, M___ F___," and struck him in the chest. The force of the blow knocked Jones out of the cab, and Wilson turned out to escape being harmed. The passenger, then, slid behind the wheel and sped away. Wilson ran to a nearby house to call 911, but by the time the rescue squad arrived, Jones was dead. The passenger had stabbed Jones in the chest.
On 18 October 1995, Detective Paul Hinson of the Kinston Sheriff's Department went to Wilson's place of employment to show him a photographic line-up, which Hinson had compiled based on information gathered during his investigation of the stabbing. The line-up consisted of six photographs of black males, one of whom was defendant. When Wilson viewed the line-up, he recognized defendant and said, "if [he] didn't know that [defendant] was still doing time, [he] would swear that that was him in that car who killed the cabdriver." Wilson did not make a positive identification at that time.
Wilson was troubled after viewing the line-up, because he believed that defendant was the passenger who had stabbed Jones. Later that evening, Wilson discussed his concerns with his nephew and his wife. During the course of these Discussions, Wilson learned that defendant was not in jail when the stabbing occurred, so he went to the police station on 21 October 1995 and asked to see the line-up again. At this second viewing, Wilson told the investigating officer, Detective Jennifer Canady, that he was "almost 100 percent sure" that defendant was the front seat passenger in Jones' cab. To be certain, however, Wilson requested an in-person line-up so that he could view the subjects from the back, to see their necks and shoulders and the shapes of their heads. Wilson returned to the police station on 23 October 1995 and saw two in-person line-ups, each consisting of five black, male subjects. Wilson did not pick anyone out of the first line-up, but from the second, he positively identified defendant, stating "there's your murderer."
Prior to trial, defendant moved to suppress Wilson's identification testimony on the grounds that the identification procedure was impermissibly suggestive. Following a voir dire hearing, the trial court denied the motion and allowed the jury to consider Wilson's identification testimony. At the close of all the evidence, the case was submitted to the jury. The jury deliberated and found defendant guilty of second degree murder. The trial court sentenced defendant to imprisonment at the North Carolina Department of Corrections for a minimum term of 180 months and a maximum term of 225 months. Defendant appeals.
Defendant first assigns error to the trial court's failure to suppress Wilson's eye witness identification, alleging that the identification was not the product of independent recollection, but the result of impermissibly suggestive identification procedures. We cannot agree.
A defendant who moves to suppress an out-of-court eyewitness identification must first show that the identification process was unnecessarily suggestive. State v. Capps, 114 N.C. App. 156, 162, 441 S.E.2d 621, 624 (1994). If the defendant successfully makes this showing, he must then prove that under the totality of the circumstances, the suggestive procedures gave rise to a substantial likelihood of irreparable misidentification. Id. Where the defendant fails to show that impermissibly suggestive procedures were used in procuring the identification, the inquiry ends, and the trial court need not exclude the identification. State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 471 (1985).
The fact that the identifying witness is acquainted with the defendant does not, by itself, make a photographic line-up impermissibly suggestive. "`All that is required is that the lineup be a fair one and that the officers conducting it do nothing to induce the witness to select one picture rather than another.'" Freeman, 313 N.C. at 545, 330 S.E.2d at 471 (quoting State v. Grimes, 309 N.C. 606, 610, 308 S.E.2d 293, 295 (1983)).
In the instant case, the trial court conducted a voir dire hearing to determine the admissibility of Wilson's out-of-court identification. The evidence showed that approximately one month after the incident, Wilson viewed a photographic line-up assembled by the Kinston police. The line-up contained photographs of six black males, including defendant. When Wilson saw the line-up, he recognized defendant as Jones' front seat passenger from the "muscles in his arms and muscles up here [his shoulders] and the way his head sticks out." Wilson also stated that he was acquainted with defendant, but except for the 12 September 1995 stabbing, it had been at least seven years since he had last seen defendant. Wilson did not positively identify defendant during the initial line-up, because he believed that defendant was "doing time" when the stabbing occurred.
The evidence further showed that Wilson was "bothered" after viewing the initial line-up, and he requested a second look on 21 October 1995. This time, Wilson was "almost 100 percent sure" that defendant was the killer, but "because he didn't want to accuse anybody unfairly," he asked to see an in-person line-up so that he could view the subjects from the back. At the 23 October 1995 in-person line-up, Wilson positively identified defendant as the "murderer." Explaining the basis for his identification, Wilson stated,
I could see the back of his head and the way his ears stuck out and the way he had leaned his head as I was looking at him and his shoulders. And I was positive that that was the one.
Over the course of the investigation, Wilson viewed 50 to 75 pictures in police "mug books," two photographic line-ups, and two in-person line-ups. At no time did Wilson identify anyone other than defendant. Moreover, there was no evidence whatsoever that the police said or did ...