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State v. Malone

Court of Appeals of North Carolina

November 7, 2017


          Heard in the Court of Appeals 7 September 2017.

         Appeal by Defendant from judgments entered 7 April 2016 by Judge James K. Roberson in Alamance County Superior Court Nos. 12CRS057102, 12CRS057103.

          Attorney General Joshua H. Stein, by Assistant Attorney General Jess D. Mekeel, for the State.

          Office of the Appellate Defender, by Assistant Appellate Defender Paul M. Green and Appellate Defender Glenn Gerding, for defendant-appellant.


         Brandon 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.

         I. Factual and Procedural Background

         On 5 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 to suppress.

         In 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 eyebrow piercing.

         The day 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.

         During 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."

         On 25 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.

         The 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."

         Lopez 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.[1] 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.

         Lopez 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.

         Next, 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.

         When 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."

         The day 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.

         The 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.

         Alvarez 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 shooter.

         Alvarez 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.

         She 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 photographs.

         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 stated:

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. . . .

         When 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 recognized Defendant.[2]

         Defendant 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 following facts.

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 death.
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 positive [identification].
[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 the arrays.
. . . [W]hen [Alvarez] saw the online newspaper photos of . . . [D]efendant and Marquis Spence, she thought to herself that these photos showed how they ...

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