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State v. Malone

Supreme Court of North Carolina

November 1, 2019


          Heard in the Supreme Court on 9 April 2019.

         Appeal 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.

          Joshua H. Stein, Attorney General, by Jess D. Mekeel, Special Deputy Attorney General, for the State-appellant.

          Glenn Gerding, Appellate Defender, by James R. Grant, Assistant Appellate Defender, for defendant-appellee.

          EARLS, JUSTICE.

         At 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 the shooting.


         The sun 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 the shooting.

         Upon 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.

         The 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 money."

         When 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.

         Eyewitness Identifications in 2012

         Police 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.

         Two 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.

         Subsequent Proceedings

         On 5 November 2012, defendant was indicted for first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury.[1] 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."

         Ms. 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."

         On 12 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, including:

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 line-ups.
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 positive [identification].
[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 ...

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