in the Court of Appeals 7 September 2017.
by Defendant from judgments entered 7 April 2016 by Judge
James K. Roberson in Alamance County Superior Court Nos.
Attorney General Joshua H. Stein, by Assistant Attorney
General Jess D. Mekeel, for the State.
of the Appellate Defender, by Assistant Appellate Defender
Paul M. Green and Appellate Defender Glenn Gerding, for
N. HUNTER, JR., JUDGE.
Malone ("Defendant") appeals following a jury
verdict convicting him of first-degree murder and assault
with a deadly weapon with intent to kill inflicting serious
injury. Following the verdicts, the trial court imposed
concurrent sentences of life imprisonment without parole for
murder and 83 to 112 months imprisonment for assault. On
appeal, Defendant contends the trial court erred in allowing
eyewitness testimony in violation of the North Carolina
Eyewitness Identification Reform Act of 2007
("EIRA") and due process of law. After review we
find the court erred to the prejudice of Defendant and order
a new trial.
Factual and Procedural Background
November 2012, an Alamance County Grand Jury indicted
Defendant for first-degree murder and assault with a deadly
weapon with intent to kill inflicting serious injury. On 12
March 2016, Defendant filed a written motion to suppress
eyewitness identification evidence. In his written motion,
Defendant argued the State subjected two eyewitnesses,
Claudia Lopez and Cindy Alvarez, to an impermissibly
suggestive identification procedure when they were "put
in a location where [Defendant] could not see [them] and
asked to watch him walk from the transport vehicle to the
[c]ourthouse for hearings in his case. He was handcuffed and
alone, with no co-defendants or other prisoners and he was
dressed in a jail jumpsuit." Defendant contends this
constituted an impermissible, single-person show-up of
Defendant. Therefore, Defendant argued their in-court
identification of Defendant, as well as any discussion of
what occurred during the show-up, should be suppressed as
irreparably tainted. On 14 March 2016, the Alamance County
Superior Court called Defendant's case for trial and
began a voir dire hearing on Defendant's pre-trial motion
defense of the motion the State called Claudia Salas Lopez.
Lopez is an eyewitness to the murder of Kevette Jones. On 23
October 2012, Lopez sat on the front porch of Jones's
house, approximately ten feet away him, when he was shot.
While on the stand, she recalled two men were involved in the
shooting. The shooter wore a white t-shirt, had shoulder
length hair, and exited the passenger side of a blue vehicle;
the other man drove the vehicle, spoke to Jones, and had an
after the shooting Lopez gave the following description of
the two men to detectives. She stated one of the black males
is tall with braids and wore a hat, and the other man is
shorter, but she could not then remember any of his
distinguishing features. She told the detectives one of the
men had his hand in his pocket, but she could not remember
which one. She testified when she first spoke to the
detectives she was in a state of shock from having witnessed
her good friend get shot.
a second interview on 25 October, Lopez stated one of the men
wore dark pants, a black and white plaid shirt, and had
shoulder length dreadlocks. The only description she gave of
the second suspect was he had shorter hair. Lopez further
testified "I never really paid much attention to
[Defendant's] face because the whole time he was standing
in front of us he just had his hand in his pocket."
October Detective Kevin King of the Burlington Police
Department prepared a photographic lineup for Lopez. He
selected Defendant's photograph from the police
department's database, along with seven other subjects
having the same general description. The same day another
officer administered the line-up to Lopez, showing her each
of the eight photographs one at a time. Upon viewing
Defendant's photograph, Lopez did not identify him.
However, when shown the eight photographs a second time,
Lopez paused on Defendant's picture for a longer period
of time than the other pictures. She stated the picture
looked like him, but she was not sure. Because Lopez was not
confident in her identification, the administering officer
did not consider her remarks to be a positive identification.
photograph of Defendant which was used in the line-up was
taken approximately a year and a half prior to the date of
the offense. In the photo Defendant had a hairstyle described
as plats which were pulled back; however, a more recent
photograph showed Defendant's hair in "dreadlocks
that come down the side."
had no further contact with anyone from the court system,
including the District Attorney's office, for
approximately three and a half years. Then, a few weeks
before trial Iris Smith, a legal assistant with the Alamance
County District Attorney's office, contacted her to
arrange a meeting in order to "talk about coming in to
testify." Smith told Lopez a hearing related to this
case would take place on 29 February 2016. Lopez and Alvarez
met Smith on that day and Smith showed them photographs of
Defendant and Marquis Spence―who had already been
convicted for his role in the shooting. Smith also showed
them a surveillance video, taken from a security camera
outside a house on the street where the incident occurred; as
well as part of Defendant's recorded interview with
police officers. While they were watching Defendant's
interview, Alvarez stood near a window and happened to see
Defendant exiting a police car. Alvarez directed Lopez's
attention outside, and Lopez also watched Defendant exit the
police car. He was wearing an orange jumpsuit, in handcuffs,
and escorted by an officer.
stated her testimony regarding Jones's shooting is based
on her memory of the events of 23 October 2012, and not on
the photographs Smith showed her. Lopez made an in-court
identification of Defendant as the man who "shot the
gun." This identification was the first time she
positively identified Defendant as the shooter.
the State called Cindy Alvarez. Alvarez testified she is also
an eyewitness to the shooting. She and Lopez were on the
front porch of Jones's house when two men arrived in a
blue car. Alvarez recalled the men began to ask Jones
questions and "one of the guys pulled out a gun and then
just started shooting him." Alvarez was approximately
four feet away from the shooter.
the police arrived, Alvarez gave officers a description of
the two men involved in the shooting. She stated one of the
men wore a blue ball cap and the other was quiet, had dark
dreadlocks to his shoulders, and had dark freckles. She did
not know the heights of the men because she took off running
as soon as the shooting began. However, the same day she told
an officer the shooter was taller than the driver. When the
Defense counsel questioned her regarding the relative heights
of the two men she stated "I don't know how tall
[either] of them are. I was on the top of the front porch so
. . . I was shaken up that day so I couldn't really tell
. . . who was taller." Alvarez conceded Defendant does
not have dark freckles and she stated "I wasn't
really paying attention like seeing if he had freckles or
not. I was just . . . I know it was him. I just remember I
messed up on the freckles."
after the shooting officers showed Alvarez two different
photo arrays. In the first line-up she identified Spence, not
Defendant, as the shooter. She stated she was 80% sure photo
number six, which was Spence, was the shooter, but she would
be 100% sure if he had long dreadlocks. On cross-examination
defense counsel asked Alvarez whether her identification of
Spence as the shooter was "an accurate portrayal of what
happened, " to which Alvarez responded "I mean,
yes. But at that time when I did this, . . . I was shocked. .
. . Like, it had just happened so I couldn't really . . .
say which one it was because my head was just everywhere. I
was just [emotional] . . . ." For the second array,
which included a photograph of Defendant, Alvarez stated
number seven-which was not Defendant's photograph-looked
like the suspect. She stated she was not sure, because at the
time of the incident she was focused on the shooter, again
implying she believed Spence to be the man who shot Jones.
State showed Alvarez a photograph of Defendant which Alvarez
testified she saw on the Internet a week or two after the
shooting. She testified the picture looked more like
Defendant as she recalled from the day of the shooting, than
the photos used in the array, because his hair was different.
She stated when she first saw the photograph on the Internet
she was certain it was the man who shot Jones. Alvarez made
an in-court identification of Defendant.
further confirmed Lopez's testimony regarding the 29
February meeting with Smith. Lopez had previously asked Smith
to keep her "informed of what's going to be
happening in the courts" so Smith told her about the
hearing taking place on 29 February, and Alvarez decided to
go. As soon as Smith showed Lopez and Alvarez the updated
photographs of Defendant, Alvarez instantly knew it was the
asked Smith to view the video of Defendant's interview
with officers. She stated:
[W]e didn't even watch it . . . five minutes because when
that happened I was standing up. And I looked out the window
and that's when I saw him. And then I was, like,
that's him, that's the guy that shot Kevette. And
then after that, I told [Smith] I was, . . . leaving, and
then [Claudia and I] both decided just to leave . . . . We
didn't stay to hear, . . . the court or anything.
confirmed Lopez's testimony regarding watching Defendant
exit the police car in handcuffs and a jumpsuit. Alvarez
stated no one told them the hearing taking place was for the
shooter, Smith did not indicate who was in the photograph,
nor did she suggest the man getting out of the car was the
shooter. Smith did not pose any questions regarding an
identification of the man exiting the car, or the man in the
State then called Iris Smith. Smith testified she asked Lopez
and Alvarez to come to the courthouse on 29 February to give
them a copy of their interviews to review for trial, and to
show them updated pictures of Defendant and Spence. Smith
I gave [Lopez and Alvarez] copies of their interviews and
told them that [the District Attorney] wanted them to review
their interviews that they had given with the police. And I
pulled . . . some updated pictures, which the girls had
already seen . . . on Facebook. . . .
Smith showed Alvarez the first picture, Alvarez pointed
directly to Defendant's picture and exclaimed
"that's him, that's the shooter, that's the
one that shot Kevette." Smith stated she only played the
video of Defendant's interview with officers for
approximately two or three minutes. Smith "couldn't
get [the video] to work at first and then when [she] did get
it to work . . . he wasn't really saying anything."
She confirmed both witnesses' testimony regarding seeing
Defendant get out of the police car. Smith stated when
Alvarez or Lopez spoke about the pictures, or viewed
Defendant in person, they were not prompted in anyway and
Smith did not ask them questions about whether they
offered no evidence and the court heard the parties on the
motion to suppress. Defendant argued the District
Attorney's office conducted impermissibly suggestive
identification procedures which created a substantial
likelihood of irreparable misidentification by showing Lopez
and Alvarez Defendant's interview, photos of Defendant
and Spence together after Spence had already been convicted,
and Defendant in-person, exiting the police car. After
hearing both parties on the motion, the trial court found the
On [23 October] 2012, Anthony Kevette Jones was shot and
killed at his residence. Claudia Lopez and Cindy Alvarez were
at the scene of the shooting on Mr. Jones'[s] front
porch, along with Mr. Jones.
A blue car arrived at the scene. There were two black males
in the car. The two males came into the area where Mr. Jones
was located. The driver of the blue car spoke to Mr. Jones
and essentially did most or all of the talking on behalf of
the two males. The other male person, the passenger in the
blue car, pulled a gun and shot Mr. Jones. That led to his
That Claudia Lopez was ten feet away from Mr. Jones when he
was shot. That Cindy Alvarez was four feet from the shooter
when Mr. Jones was shot. [Lopez] and [Alvarez] each gave some
description of the two males giving some information about
clothing. [Lopez] also described that the shooter had on a
white T-shirt with shoulder length hair and the speaker had
[a] body piercing.
On [25 October] 2012, the Burlington Police Department
conducted an identification procedure with [Lopez] and with
[Alvarez]. Those procedures involved photographic arrays,
sometimes referred to by the officer as photo lineups.
In one array the Burlington Police Department used a photo of
Marquis Spence, who's a charged co-defendant in . . .
connection with this matter. So [they] used a photo of
Marquis Spence and seven fillers. Filler being seven folks
who are not involved or have been excluded from involvement
in the incident under investigation.
In the other array the Burlington Police Department used a
photo of [Defendant] and seven fillers. The Burlington Police
Department did not use a current photo of . . . [D]efendant
as reflected the current photo being introduced into evidence
as State's Exhibit No. 3. In part, because the background
in the photo was different from others and that there was
some concern about that causing . . . [D]efendant's photo
to stand out in the array.
Further, Marquis Spence's current photo showed him with
an eyebrow body piercing and Burlington Police Department
made the decision to attempt to locate a photo without such
piercing being in the photo so as not to cause Marquis
Spence's photo to stand out.
In . . . [D]efendant's current photo he had an unusual
expression on his face as interpreted by the officer that the
Burlington Police Department thought might make it stand out.
The Burlington Police Department instead used an older photo
of . . . [D]efendant obtained from the Division of Adult
Correction website. In the photo that the Burlington police
used . . . [D]efendant's hairstyle, which the officer
characterized as being plats, was different from the
hairstyle in the current photo, which the officer
characterized as dreadlocks. So the older photo had plats.
Current photo dreadlocks.
[Lopez] identified [number four] Marquis Spence in the array
involving that co-defendant.
At [the] hearing she referred to that identified person as
the male who did the talking. She reported her level of
confidence on that identification as an eight on a scale of
one to ten.
On the second array, [Lopez] indicated that [number six],
which was . . . [D]efendant, looked like him but she was not
sure and she initialed that she had not -- did not have a
[Alvarez] [identified] [number six], . . . which was Marquis
Spence. She indicated she had an 80% level of confidence and
100% if he had long dreads, and added that . . . looked like
the one that shot Kevette. So she identified Marquis Spence
in that connection.
[Alvarez] in the second array identified [number seven]. This
is the array that in which . . . [D]efendant's photo was
located. [She] [i]dentified [number seven] who is an
individual named Danny Lee Johnson whose photo was included
as a filler. But she indicated that she was not sure. She
noted she focused on the shooter because he had his hands in
his pocket the whole time.
[Lopez] and [Alvarez] each saw photos of . . . [D]efendant
and Marquis Spence in the online newspaper. These photos were
not among those that were shown to each of them by the
Burlington Police Department in the arrays. No law
enforcement officer showed either [Lopez] or [Alvarez]
anymore photos other than the ones shown during the course of
. . . [W]hen [Alvarez] saw the online newspaper photos of . .
. [D]efendant and Marquis Spence, she thought to herself that
these photos showed how they ...