in the Supreme Court on 9 April 2019.
pursuant to N.C. G.S. § 7A-30(2) from the decision of a
divided panel of the Court of Appeals, 256 N.C.App. 275, 807
S.E.2d 639 (2017), finding prejudicial error upon appeal from
judgments entered on 7 April 2016 by Judge James K. Roberson
in Superior Court, Alamance County. On 1 March 2018, the
Supreme Court allowed the State's petition for
discretionary review as to additional issues.
H. Stein, Attorney General, by Jess D. Mekeel, Special Deputy
Attorney General, for the State-appellant.
Gerding, Appellate Defender, by James R. Grant, Assistant
Appellate Defender, for defendant-appellee.
approximately 6 p.m. on 23 October 2012, twenty-two year old
Anthony Kevette Jones was shot and killed on the front porch
of his mother's home in Burlington in a confrontation
with two men. One of those men was identified soon after the
shooting as Marquis Spence. The identity of the other man,
who carried the gun and pulled the trigger, was the central
issue in the trial of defendant Brandon Malone. Following a
two-week trial, Mr. Malone was convicted of first-degree
murder and assault with a deadly weapon with intent to kill
inflicting serious injury. On appeal, he argued that the
trial court erred in denying his motions to suppress the
testimony of two eyewitnesses, Claudia Lopez and Cindy
Alvarez, including their in-court identifications of
defendant as the perpetrator of the crimes. In a divided
opinion, the Court of Appeals majority agreed, concluding
that the eyewitness testimony at issue was the result of
identification procedures that were impermissibly suggestive
in violation of defendant's due process rights and that
the testimony was prejudicial to defendant, requiring a new
trial. State v. Malone, 256 N.C.App. 275, 291-95,
807 S.E.2d 639, 651-53 (2017). We affirm in part and reverse
in part. The Court of Appeals was correct in holding that the
identification procedures at issue here were impermissibly
suggestive, but we conclude that they ultimately did not
violate defendant's statutory or due process rights
because Cindy Alvarez's identification of defendant was
of independent origin, based on what she saw at the time of
was still shining on the early fall evening in Burlington
when a neighbor's security camera recorded two men
pulling up to the house across the street in a blue car and
exiting. Less than two minutes later, the same two men are
seen in the video running back to the car, getting in and
driving off in haste. Although there were several people on
the porch at the time Mr. Jones was fatally shot, no
eyewitness to the shooting was able to identify defendant
Malone within the first few days of the murder. Witnesses
agreed that during the confrontation, one of the two men who
had arrived in the blue car drew a handgun and fired multiple
shots, killing Mr. Jones and wounding another man, Micah
White. In the hours following the shooting, police focused
their investigation on Marquis Spence, who was identified by
eyewitnesses immediately afterwards, and defendant, who
witnesses said was with Mr. Spence within two hours before
being arrested two days after the murder, defendant submitted
to a three- to four-hour police interview without counsel in
which he maintained that he was not in Burlington on October
23rd. The only direct evidence that defendant was the man who
shot Jones and White was the courtroom testimony of two women
who did not know him but who were on the porch of the house
at the time of the shooting, Claudia Lopez and her friend
Cindy Alvarez. Other circumstantial evidence was submitted by
the State, including the testimony of witnesses who placed
defendant in the blue car with Mr. Spence earlier that day.
They also testified that he was part of the drug transaction
alleged to have led to the shooting.
State's theory of the case, based on various witness'
testimony, is that Spence and Malone, who lived on the same
street in Durham, were virtually inseparable drug dealers. On
the afternoon in question, they arranged to purchase "a
pound of weed" for $1, 200 from Mr. Jones and another
man, Jared "Skip" Alston. Mr. Malone gave Skip the
money, expecting him to return in five minutes with the
drugs. However, true to his name, Skip disappeared. Three
women from Durham testified to being present during some or
all of these events, Calen Burnette, Arianna McCray, and
Lakreisha Shoffner. After efforts to locate Skip were
unsuccessful, the three women drove separately to Skip's
house while Spence and Malone told the women not to worry,
and that they were "going back to Raleigh to make some
the blue car driven by Mr. Spence pulled up outside Mr.
Jones's house in Burlington just before 6 p.m. that
evening, Mr. Jones was sitting on the steps. Claudia Lopez
was sitting on the arm of a chair approximately ten feet from
Jones, and Cindy Alvarez was sitting in a chair approximately
five to six feet from the shooter. Also on the porch were
Skip's brother Jordan, and the other victim, Micah White.
Tabias Sellars, Marcus Clayton and Gavin Jackson had just
gone inside the house. Two men exited the car and approached
the steps. A short conversation ensued between the driver and
Jones concerning Skip's location. When Mr. Jones said
that he did not have a phone number for Skip, four to six
shots were fired, and the two men ran back to the blue car
and fled the scene.
Identifications in 2012
arriving at the home shortly after the shooting spoke with
witnesses. Micah White initially said he did not know which
man had the gun, the driver or the passenger. Claudia Lopez
told police at the scene that "she saw one of the
guys' hand in his pocket, could not remember which one,
but could see a silver part of a gun." She also said,
referring to the shorter man, that she "did not remember
. . . any features of him." Cindy Alvarez told the
officer on the scene that the shooter had dark freckles.
days after the shooting, Burlington Police prepared and
administered two photo lineups to witnesses, one including a
picture of Marquis Spence and one with a picture of Brandon
Malone. Of the eyewitnesses to the shooting, Claudia Lopez
identified Mr. Spence as the man who spoke with Mr. Jones
with confidence of 8 out of 10. She did not identify Mr.
Malone. Upon viewing the lineup a second time, Ms. Lopez
"paused" at Mr. Malone's photo and said
"That looks like him, but I'm not sure." The
record of the photo lineup indicates no positive
identification made by the witness. Cindy Alvarez identified
Mr. Spence as "the one who shot Kevette" with
confidence of 8 out of 10. She did not recognize Mr.
Malone's photo at all and identified an entirely
different photo as someone who "looks like" the man
who accompanied the shooter, but she stated she was not sure
because she "focused on [the] shooter because he had his
hand in his pocket the whole time." Approximately a week
or two after the shooting, Cindy Alvarez saw a photo of
defendant on Facebook and was immediately certain "that
that was the guy that shot Kevette." Ms. Lopez saw the
same photo, but did not recognize defendant. Micah White, who
was shot in the ankle, was unable to make a positive
identification of either Mr. Spence or Mr. Malone when shown
a photo lineup.
November 2012, defendant was indicted for first-degree murder
and assault with a deadly weapon with intent to kill
inflicting serious injury. For three and a half years, the
eyewitnesses had no contact with law enforcement. On 29
February 2016, approximately two weeks before the trial of
this case was set to begin, Iris Smith, a legal assistant at
the District Attorney's office, asked Lopez and Alvarez
to come to the old courthouse in Burlington where the
District Attorney's office was located, to "confirm
[their] identification of Malone." Alvarez testified
that "They wanted to make sure that I was - I was - I
mean, that I was saying who really - like, who is who. Like,
if I recognized them." Smith testified that "I told
them I had pictures I wanted them to look at, updated
pictures of the defendants." Smith also gave both
witnesses copies of their video-recorded police interviews.
Smith showed them current photos of Malone and Spence, and
asked Lopez and Alvarez if they recognized them. According to
Ms. Alvarez's courtroom testimony, when she saw Mr.
Malone's picture that day, she pointed to him and said
that "he's the one that killed Kevette."
Alvarez was upset about having to go through a trial and
asked Iris Smith what Mr. Malone was saying about the
incident. Ms. Smith mentioned Mr. Malone's police
interview and Ms. Alvarez asked to see it. They moved to
another room in the courthouse, and Ms. Lopez sat down
because she was having health issues. Ms. Alvarez was
standing near a window as the women waited for the video
interview to load. Ms. Smith showed Lopez and Alvarez
somewhere between two to five minutes of the video of Mr.
Malone's police interview. At some point Ms. Alvarez
looked out the window and said "that's him,
that's the guy that shot Kevette." The other two
women also came to the window and watched Mr. Malone, in
prison clothes and handcuffs, being escorted by a police
officer from a police car and into the courthouse. Mr. Malone
was in court that day for a hearing in his case. After that
the witnesses left and Ms. Smith went in the court for the
hearing. Ms. Alvarez told defendant's investigator that
she went to the door of the courtroom, looked through the
glass, and "looked into the courtroom while he [Malone]
was inside the courtroom."
March 2016, defendant filed motions to suppress
identification evidence from two eyewitnesses to the
shooting, Claudia Lopez and Cindy Alvarez, arguing that the
State subjected the witnesses to impermissibly suggestive
identification procedures. On 14 March 2016, the trial court
held a hearing on defendant's motions to suppress. The
State called several witnesses at the hearing, including
Lopez and Alvarez. In denying defendant's suppression
motion, the trial court made extensive oral findings of fact,
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. [Ms. Lopez] and [Ms. Alvarez] each
gave some description of the two males giving some
information about clothing. [Ms. 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 [Ms. Lopez] and
with [Ms. Alvarez]. Those procedures involved photographic
arrays, sometimes referred to by the officer as photo
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.
[Ms. 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, [Ms. 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
[Ms. 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.
[Ms. 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 ...