in the Court of Appeals 8 February 2017.
by defendant from judgment entered 25 January 2016 by Judge
Hugh B. Lewis in Mecklenburg County No. 14 CRS 238731, 15 CRS
25911 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney
General Susannah P. Holloway, for the State.
John Edgerton, IV, for defendant-appellant.
Donye Gullette (defendant) appeals from the judgment entered
upon his conviction of trafficking in heroin and having
attained the status of a habitual felon. On appeal, defendant
argues that the trial court erred by denying his motion to
suppress "any in-court and out-of-court identifications
conducted in violation of the Eyewitness Identification
Reform Act." We have carefully reviewed the record and
the transcript of the proceedings in this case, and conclude
that defendant did not preserve this issue for appellate
review. Accordingly, we do not reach the merits of
defendant's argument. Given that this is the only basis
upon which defendant has challenged his convictions, we
conclude that defendant had a fair trial, free of reversible
Factual and Procedural Background
April 2014, Charlotte-Mecklenburg Police Officer Charlie
Davis was acting as an undercover detective who was assigned
to make a purchase of heroin from a suspected drug dealer. In
the course of this investigation, Officer Davis met with
defendant, who sold the officer heroin for which Officer
Davis paid $600. The day after the undercover drug buy,
another officer showed Officer Davis a photograph of
defendant and Officer Davis confirmed that the photograph
depicted the person from whom he had purchased the drugs.
Officer Davis had not met defendant prior to conducting the
undercover purchase. However, during the sale, Officer Davis
spent several minutes in close proximity to defendant, and
identified defendant in court as the man who had sold him the
October 2014, the Mecklenburg County Grand Jury indicted
defendant for trafficking in heroin by selling a quantity of
heroin greater than four grams but less than fourteen grams.
On 27 July 2015, defendant was indicted for being a habitual
felon. On 15 December 2015, defendant filed a motion to
suppress "both the in-court and out-of-court
identification" of defendant by Officer Davis, on the
grounds that when another officer showed Officer Davis a
photograph of defendant, this constituted "a 'show
up' procedure seeking identification of the
defendant" that was "unnecessarily suggestive"
and that was conducted "in deliberate disregard of the
identification procedures required by the Eyewitness
Identification Reform Act."
charges against defendant came on for trial at the 18 January
2016 criminal session of Mecklenburg County Superior Court
before the Honorable Hugh B. Lewis, judge presiding.
Immediately prior to trial, the trial court conducted a
hearing on defendant's suppression motion. The court
heard testimony from the law enforcement officers involved in
the investigation that resulted in defendant's arrest.
The arguments of counsel focused on whether the provisions of
the Eyewitness Identification Reform Act, N.C. Gen. Stat.
§ 15A-284.52 (2015), applied to the facts of this case.
The State argued that under the version of N.C. Gen. Stat.
§ 15A-284.52 in effect at the time that Officer Davis
was shown a photograph of defendant, "a single photo did
not constitute a lineup and did not fall under the
[Eyewitness Identification Reform Act]." The prosecutor
cited several cases from this Court in support of this
position. The prosecutor also argued that in a subsequent
amendment to the Eyewitness Identification Reform Act, under
which the Act would arguably be applicable to the situation
in this case, the General Assembly explicitly stated that the
amended version of the statute was "effective December
1st of 2015 and applies to anything after that
did not dispute the accuracy of the State's
characterization of the history of the Eyewitness
Identification Reform Act. Instead, defendant asserted that
the State was asking the trial court to "use a
technicality in the statute" and asserted that he did
not "believe the intent of the legislature was merely to
give somebody who was in court on November 30th, versus
someone who was in court on December 1st, different
treatment." Thus, defendant argued that for equitable
reasons the trial court should apply the current version of
the statute to this case, despite the fact that the show-up
took place prior to the effective date of the amendment.
hearing the law enforcement officers' testimony and the
arguments of counsel, the trial court ruled that it was
denying defendant's motion to suppress. The court found
that Officer Davis was an experienced law enforcement officer
who had been in defendant's presence during the sale of
heroin. Regarding the applicability of the Eyewitness
Identification Reform Act, the trial court stated that:
[T]he Court concludes that the identification by Detective
Davis on April 9 of 2014 was appropriate and followed the law
that was enforced on that date. The Court also finds that the
photo lineup act, as is presently enforced and came into
force on December the 1st, 2015, was not in place or
applicable law at the time of the identification by Detective
the trial, Officer Davis testified about his undercover
purchase of heroin from defendant and about the photograph of
defendant that he was shown the following day. Defendant did
not object when Officer Davis identified defendant as the
person from whom he had bought heroin, or when the officer
testified about the photograph of defendant he had been ...