Heard in the Court of Appeals August 12, 2014
Vance County. No. 12CRS052725-26.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Jonathan Shaw Mr., for the State.
Wait Law, P.L.L.C., by John L. Wait Mr., for defendant-appellant.
STROUD, Judge. Chief Judge MCGEE and Judge BRYANT concur.
Appeal by defendant from Judgment entered on or about 10 July 2013 by Judge Henry W. Hight, Jr. in Superior Court, Vance County. Heard in the Court of Appeals 12 August 2014.
Donte Macon (" defendant" ) appeals from the judgment entered after a Vance County jury found him guilty of carrying a concealed weapon and possession of a firearm by a felon. Defendant argues that the trial court erred in admitting in-court identifications by two police officers whose testimony was tainted by impermissibly suggestive out-of-court identification procedures. We hold that the trial court did not err by admitting the in-court identifications.
On 8 October 2012, defendant was indicted for carrying a concealed weapon and possession of a firearm by a felon. Defendant pled not guilty. Before trial, defendant moved to suppress both the in-court and out-of-court identifications of him by Officer D.L. Ragland and Sergeant J. Ragland. He argued that the officers violated the Eyewitness Identification Reform Act (EIRA) and his constitutional rights by viewing only a single photograph to identify defendant as the perpetrator.
By order entered 11 July 2013, the trial court denied defendant's motion to suppress. Based on the uncontested findings of fact, around noon on a sunny 31 August 2012, Officer Darryl Ragland and Sergeant Jamie Ragland of the Henderson Police Department were on patrol when they saw a green Honda parked behind a convenience store. When they returned to the convenience store thirty minutes later, the same green Honda was still parked in the same location. Based on their experience with drug transactions in this area, they suspected that the occupants were engaging in the sale of heroin, so they approached the vehicle to make an investigatory stop. They saw one person sitting on the driver's side of the Honda when a person with dreadlocks got into the passenger's side. As the officers approached, the Honda pulled off, drove a short distance, then stopped. The passenger got out of the Honda and looked directly at Officer Ragland. Officer Ragland had an unobstructed view of the passenger's face from about 10 feet away. He noticed that the passenger was a light-skinned black male with long dreadlocks and green eyes. The passenger took off running, so Officer Ragland followed him. Officer Ragland asked the passenger to stop, but he refused. During the pursuit, the passenger
discarded an object before jumping over a fence.
Sergeant Ragland noticed that the passenger was running away but did not initially get a good look at him. Sergeant Ragland got back into his police car to try to cut off the fleeing passenger. As the passenger jumped over a fence, Sergeant Ragland saw him from about 5 to 7 yards away. He had an unobstructed view of the fleeing man, who then climbed another fence and escaped. The officers could not catch him.
Two more officers arrived on scene, including Officer Burrell. Officer Ragland told Officer Burrell what he had seen and described the passenger. Officer Burrell said that the person he described " sounds like Donte Macon." Officer Ragland and Sgt. Ragland then returned to the Henderson Police Department and entered the name " Donte Macon" into their RMS database. When the system returned a photograph of defendant, Sgt. Ragland said, " That's him." Both Officer Ragland and Sergeant Ragland recognized the person in the photograph as the passenger who fled from the green Honda. The officers then pulled up another photograph of defendant and confirmed that he was the man they saw earlier. At the hearing, both officers " identified the defendant in open Court as the person they saw on August 31, 2012 with 100% certainty."
Based on these facts, the trial court concluded that the EIRA did not apply here and that the procedure used to identify defendant was not unduly suggestive. The trial court further concluded that the in-court identifications made by both officers were " of independent origin" from the procedure used to identify defendant. Therefore, the trial court denied defendant's motion to suppress.
At trial, the State's evidence tended to show the facts as found by the trial court. Additionally, Officer Ragland testified that he looked on the ground where defendant had discarded the object during the chase and found a small caliber handgun. Officer Ragland picked it up with a leaf and brought it back to the police department's evidence locker. Both officers testified, over objection, that defendant was the person they saw fleeing on 31 August 2012. The police tested the recovered firearm for fingerprints, but were unable to find any prints sufficient for testing. The State also introduced evidence of defendant's prior felony conviction.
After the State rested its case-in-chief, defendant testified on his own behalf. He denied that he was at the convenience store on 31 August 2012 and denied possessing a firearm of any kind. He testified that on the day in question he was with his " baby's mother" at her house in Henderson. Defendant stated that he was aware that, as a felon, he was not allowed to possess firearms, so he stayed away from them.
The jury found defendant guilty of both charges. The trial court sentenced defendant to 14-26 months imprisonment. Defendant gave notice of appeal in open court.
II. Motion to Suppress
Defendant argues that the trial court erred in denying his motion to suppress the in-court identifications made by the officers because the procedure they used to identify him violated the EIRA and his constitutional due process rights. We disagree.
A. Standard of Review
" This Court's review of a trial court's denial of a motion to suppress in a criminal proceeding is strictly limited to a determination of whether the court's findings are supported by competent evidence, even if the evidence is conflicting, and in turn, whether those findings support the court's conclusions of law." State v. Boozer, 210 N.C.App. 371, 378, 707 S.E.2d 756, 763 (2011) (citation and quotation marks omitted), disc. rev. denied, 365 N.C. 543, 720 S.E.2d 667 (2012). " However, when, as here, the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal." State v. Robinson,
__ N.C.App. __, __, 727 S.E.2d 712, 715 (2012) (citation and quotation marks omitted). We review questions of statutory interpretation de novo. Johnson v. Robertson,
__ N.C.App. __, __, 742 S.E.2d 603, 605 (2013).
B. North Carolina Eyewitness Identification Reform Act
Defendant argues that the police failed to abide by the lineup procedures required by the EIRA, codified at N.C. Gen. Stat. § 15A-284.52 (2011). The State counters, and the trial court concluded, that the EIRA does not apply here. At the hearing on defendant's motion to suppress, the State argued that the EIRA did not apply because the use of a single photograph to identify a suspect is not a " photo lineup," and that, furthermore, it does not apply to identifications made by police officers in the course of their investigation. We agree that the ...