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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THE STATE OF WASHINGTON, No. 83043-1-I Respondent, DIVISION ONE v. PUBLISHED OPINION MALCOLM OTHA MCGEE
Appellant.
BIRK, J. — As the State acknowledges, a sheriff’s deputy unconstitutionally
seized Malcolm McGee, questioned him, searched him, and collected his phone
number and other information. In a later murder investigation, the State relied on
the evidence it had unconstitutionally gathered to connect McGee to the crime and
obtain at least four warrants for his phone records, cell site location information,
and, among other things, his arrest, all leading to McGee’s conviction for second
degree murder. The State asks us to hold under Washington’s attenuation
doctrine the homicide attenuated the taint of the deputy’s unconstitutional conduct.
Because the State fails to show attenuation, we reverse.
I
A
On June 3, 2017, King County Sheriff’s Deputy Alexander Hawley, while
working as a plainclothes narcotics detective, observed a man, later identified as
Keith Ayson, pacing back and forth on the sidewalk. Hawley observed Ayson For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83043-1-I/2
continually look down at a cell phone and then look around the area as if waiting
for someone. A silver Chrysler Sebring approached, and Ayson got into the front
passenger seat. The vehicle drove approximately one block, then stopped on the
side of the road. After no more than two minutes, Ayson exited the Chrysler.
Hawley saw Ayson put something small into his pocket. Ayson walked back
towards where he had been.
Hawley followed the Chrysler to an apartment complex. Hawley called for
backup support. Detective Hawley put on his marked exterior sheriff’s vest, exited
his vehicle at “about the same time” the driver “exit[ed] his vehicle.” Hawley did
not recognize the driver. Hawley “announced [himself] as law enforcement and
ordered [the driver] to stay in the vehicle.”
Detective Hawley made contact with the driver. The driver identified himself
as Malcolm McGee. Before June 3, 2017, Hawley had never met or seen McGee.
Hawley ordered McGee out of the vehicle and provided Miranda1 warnings.
Hawley explained he had “just watched” the interaction with Ayson and asked
McGee, “[W]here’s the dope?” McGee initially said it was all gone, but then
produced a “baggie” of cocaine. Hawley asked to search McGee’s car. McGee
granted permission. Hawley found a bag filled with smaller baggies. McGee said
Ayson was his supplier, and he had purchased the cocaine from Ayson during the
interaction Hawley observed. Hawley invited McGee to “work off” his possession
charge by entering into a confidential informant agreement to provide information
1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83043-1-I/3
and conduct a controlled buy. McGee signed a written agreement. McGee
provided Hawley with his phone number. McGee never contacted Hawley.
Hawley returned to his original location to look for Ayson. Hawley found
Ayson and interviewed him. Ayson said he knew McGee as “TJ.” Ayson reported
he had purchased cannabis from TJ. According to Ayson, he had known TJ for
about two months, and regularly bought cocaine and cannabis from him. He
denied being a drug dealer. Ayson did not have any illegal drugs on his person.
He also did not have any items of contraband suggesting he was selling drugs,
and he had no money.
Hawley showed McGee’s latest King County Jail booking photo to Ayson,
who confirmed McGee was the person he knew as TJ. Hawley concluded McGee
was the dealer and had fabricated the story about Ayson. Hawley placed a report
from this incident into a police database. Later, Hawley completed a certification
for determination of probable cause and McGee was charged with Violation of the
Uniform Controlled Substances Act (VUCSA).
B
The next day, June 4, 2017, witness Ronald Elliott called 911. Elliott lived
on a dead-end street adjacent to a forested creek bed. Elliott testified he saw two
men walking away towards the dead-end and a car he estimated was about a 2000
Chrysler, silver or silver-gray, with tinted windows.2 After an unknown period of
2 We acknowledge the existence of inconsistencies between Elliott’s and
another witness’s reports, but these inconsistencies are not material to our analysis concerning the information Hawley learned from McGee during the June 3 stop.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83043-1-I/4
time, Elliott heard gunshots and called 911. Within minutes of hearing the
gunshots, Elliott saw the silver car drive away. Police responded to Elliott’s 911
call, arriving between 4:25 p.m. and 4:29 p.m. The police searched the forested
creek bed but found nothing amiss.
C
On July 11, 2017, after investigating a concerning odor, Elliott discovered a
body in the forested creek bed. Responding police recovered a wallet containing
Ayson’s identification with the body. The King County Medical Examiner’s office
later confirmed identification of the body as Ayson. Police found a phone with the
body and recovered its SIM (subscriber identity module) card, but could not
otherwise access the phone’s contents.
Within 15 minutes of discovering Ayson’s identification, a detective
searched for Ayson’s name in a police database. This inquiry produced Hawley’s
report of his interaction with McGee and Ayson on June 3, 2017. The report
included McGee’s name, his phone number and his association with the Chrysler
he was driving on June 3, 2017. A search for McGee’s number in the database
found another report showing McGee was investigated on March 13, 2017. A later
search of Facebook for McGee’s phone number led to McGee’s Facebook profile.
Although the record does not indicate when, officers investigating the death also
spoke to Hawley about the June 3 stop.
The search for Ayson’s name in the database identified Desiree Burchette
as connected to him. On July 11 and July 19, 2017, police interviewed Burchette,
who stated Ayson was her boyfriend. During the July 19 interview, they showed
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Burchette a photograph of McGee from a jail booking database. Burchette said,
“That’s him” and identified McGee as Ayson’s drug dealer. Burchette testified that
McGee had once picked her up near the same location where Hawley had seen
him with Ayson. She stated she recognized McGee by his hairstyle and car and
as “the guy that [Ayson] got in the car with all the time.” She had observed McGee
with Ayson numerous times over four or five months.
On July 13, 2017, police obtained a warrant for service provider records for
two phone numbers: the phone number associated with the SIM card found with
Ayson’s body and, relying on information from the June 3 stop, the phone number
Hawley had obtained from McGee. On July 26, 2017, police received responsive
records with call data for Ayson’s and McGee’s phones. These records indicated
the last two outgoing calls from Ayson’s phone had been placed to McGee’s phone
on June 4 at 3:20 p.m. and 3:43 p.m. The records included cell site location
information suggesting both phones were in the same vicinity at 3:43 p.m., the
vicinity of Hawley’s June 3 observation of McGee and Ayson. The cell site location
information showed that at 4:07 p.m., McGee’s phone connected to a cell tower
approximately one quarter mile from the place where Ayson’s body was found.
Between 4:09 p.m. and 4:11 p.m., McGee’s phone received several calls
connecting through the same cell tower. His phone did not connect to that tower
any other time that day.
Relying on information obtained during the June 3 stop and the July 13
warrant, police obtained subsequent warrants: for service provider records of
phone numbers that called McGee’s phone around the time of the June 4, 2017
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911 call; for searching the apartment of McGee’s girlfriend, the silver Chrysler
Sebring, McGee’s cell phone, and another vehicle associated with McGee; and for
additional service provider records for McGee’s phone, a cell phone belonging to
McGee’s girlfriend, and to search a third vehicle associated with McGee.
On August 1, 2017, police obtained a warrant to arrest McGee based on the
VUCSA charge stemming from the June 3 stop. McGee was not told he was the
subject of a homicide investigation. After the arrest, and while police were
transporting McGee, McGee stated he had not called the other detective back
because the person he was going to provide information on had been murdered.
While being interviewed, McGee acknowledged his cell phone number, the June
3 interaction with Ayson, and speaking by phone with Ayson the next day. McGee
denied meeting Ayson on June 4, 2017, and invoked his right to counsel when
confronted with the cell site location information.
D
McGee’s first trial ended in a hung jury. McGee was convicted of second
degree murder at a second trial. During McGee’s first trial, the court ruled that
Hawley did not have reasonable articulable suspicion for the June 3 stop. The
State does not challenge this ruling. The trial court suppressed reference to the
drugs Hawley found when searching McGee in the June 3 stop and the arrest. On
McGee’s motion and without objection by the State, the trial court dismissed the
VUCSA charge. The pretrial motions and evidentiary rulings from the first trial
remained in effect for the second.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/. No. 83043-1-I/7
Before his second trial, McGee moved to suppress evidence from the
warrants, including the July 13, 2017 warrant and the subsequent warrants. The
trial court denied this motion, concluding the causal chain between the June 3 stop
and the warrants was “severed by the murder of Keith Ayson that occurred after
the stop of June 3rd and the ensuing investigation.” The trial court concluded
McGee’s “privacy rights were protected by dismissing the items that were directly
the result of the illegal detention.” McGee also moved to suppress the identification
made by Burchette. The trial court admitted the photo identification because,
although it was impermissibly suggestive, it did not create a substantial likelihood
of irreparable misidentification.
II
Article I, section 7 of the Washington constitution states in part, “No person
shall be disturbed in [their] private affairs . . . without authority of law.” Washington
courts apply an exclusionary rule for evidence obtained in violation of this
provision. State v. Mayfield, 192 Wn.2d 871, 888-89, 434 P.3d 58 (2019). The
attenuation doctrine is a recognized exception to exclusion and applies, generally,
when the connection between official misconduct and the discovery of evidence
may “ ‘become so attenuated’ ” as to dissipate the taint of the misconduct and allow
the evidence to be used despite the misconduct playing a role in its discovery. See
Wong Sun v. United States, 371 U.S. 471, 491, 83 S. Ct. 407, 9 L. Ed. 2d 441
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(1963) (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S. Ct. 266, 84 L.
Ed. 307 (1939)).
Article 1, section 7 is more protective of privacy than the Fourth Amendment
of the United States Constitution. Mayfield, 192 Wn.2d at 878. Washington follows
a “nearly categorical” rule of excluding from trial evidence obtained in violation of
article 1, section 7, with “no exceptions that rely on speculation, the likelihood of
deterrence, or the reasonableness of official misconduct.” Id. at 888. The “narrow,
Washington-specific attenuation doctrine” applies “if, and only if, an unforeseeable
intervening act genuinely severs the causal connection between official
misconduct and the discovery of evidence.” Id. at 897-98. To determine whether
an intervening act is sufficiently attenuating, Washington looks to the tort law
doctrine of superseding cause. Id. at 897. Under this standard, when “ ‘an
independent, intervening act of a third person is one which was not reasonably
foreseeable then there is a break in the causal connection between the . . .
negligence and the . . . injury.’ ” Id. at 897 (quoting Schooley v. Pinch’s Deli Mkt.,
Inc., 134 Wn.2d 468, 482, 951 P.2d 749 (1998)).
“[T]he ‘theoretical underpinning of an intervening cause which is sufficient
to break the original chain of causation [i.e., constitute a superseding cause] is the
absence of its foreseeability.’ ” Campbell v. ITE Imperial Corp., 107 Wn.2d 807,
813, 733 P.2d 969 (1987) (alteration in original) (quoting Herberg v, Swartz, 89
Wn.2d 916, 927, 578 P.2d 17 (1978)).3 “Reasonable foreseeability does not
3 Campbell identifies nonexclusive factors in assessing the foreseeability of
an alleged intervening act, including, “whether (1) the intervening act created a different type of harm than otherwise would have resulted from the actor’s
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require that the precise manner or sequence of events in which a plaintiff is harmed
be foreseeable. . . . ‘[I]f the likelihood that a third person may act in a particular
manner is . . . one of the hazards which makes the [defendant] negligent, such an
act whether innocent, negligent, intentionally tortious, or criminal does not prevent
the [defendant] from being liable’ for the injury caused by the defendant’s
negligence.” Albertson v. State, 191 Wn. App. 284, 297, 361 P.3d 808 (2015)
(some alterations in original) (quoting Campbell, 107 Wn.2d at 813). “[I]ntervening
criminal acts may be found to be foreseeable, and if so found, actionable
negligence may be predicated thereon.” McLeod v. Grant County Sch. Dist. No.
128, 42 Wn.2d 316, 321-22, 255 P.2d 360 (1953) (superseding cause was fact
question for jury where school district created unsupervised place of concealment
in which student raped another).4 When an act of misconduct is followed by a
subsequent criminal act, the subsequent act is not a superseding cause based
negligence; (2) the intervening act was extraordinary or resulted in extraordinary consequences; (3) the intervening act operated independently of any situation created by the actor’s negligence.” 107 Wn2.d at 812-13 (citing RESTATEMENT (SECOND) OF TORTS § 442 (1965)). 4 Accord Christen v. Lee, 113 Wn.2d 479, 492-93498, 780 P.2d 1307 (1989)
(criminal assault not a foreseeable result of furnishing intoxicating liquor to obviously intoxicated person, unless drinking establishment had notice of possibility of harm from prior actions of the person); Whitehead v. Stringer, 106 Wash. 501, 505-06, 180 P. 486 (1919) (King County sheriff’s deputy may be liable in tort based on having reason to know arrestee’s vehicle would be criminally vandalized after warrantless arrest); Johnson v. State, 77 Wn. App. 934, 942, 894 P.2d 1366 (1995) (“A criminal act may be considered foreseeable if the actual harm fell within a general field of danger which should have been anticipated. The court may determine a criminal act is unforeseeable as a matter of law only if the occurrence is so highly extraordinary or improbable as to be wholly beyond the range of expectability. Otherwise, the foreseeability of the criminal act is a question for the trier of fact.”).
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merely on its being criminal, but will be a superseding cause only if it is not
foreseeable as that term is used in tort law.
Washington decisions have in some cases allowed evidence discovered
after an illegal search that came to light because of a new event—in these cases
a new voluntary act by a person other than law enforcement. In State v. Childress,
35 Wn. App. 314, 315, 666 P.2d 941 (1983), police in California conducted an
illegal search and discovered the defendant’s Washington driver’s license, a bank
check showing an Everett, Washington address, and a photograph of two nude
girls. Id. California officers forwarded the information to Everett police, who
canvassed the neighborhood around the address and located the parents of one
of the girls in the photograph. Id. The parents made a general, nonsuggestive
inquiry of their daughter, who disclosed sexual involvement with the defendant. Id.
at 315-16. Under the attenuation doctrine, the daughter’s new, voluntary
disclosure was the cause of the new discovery of her testimony. Id. at 317.
Other Washington decisions have concluded new acts of free will by the
defendant attenuated the taint of earlier official misconduct. In State v. Rousseau,
40 Wn.2d 92, 95-96, 241 P.2d 447 (1952), overruled on other grounds by State v.
Valentine, 132 Wn.2d 1, 935 P.2d 1294 (1997), after an initial illegal search and
detention, a detainee pushed an officer into the path of an oncoming car, giving
the officer a new and legal justification to arrest the detainee and lawfully perform
a search incident to arrest. In State v. Mierz, 72 Wn. App. 783, 794-95, 866 P.2d
65, 875 P.2d 1128 (1994), aff’d, 127 Wn.2d 460, 901 P.2d 289 (1995), after an
initial illegal entry by officers, the defendant initiated assaults on the officers and
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the court allowed evidence of the assaults. In State v. Aydelotte, 35 Wn. App. 125,
127, 132, 665 P.2d 443 (1983), after an illegal entry, the defendant brandished a
weapon towards approaching officers, and the court allowed evidence of these
assaults.
The State points to the homicide of Ayson as a superseding cause of police
discovering the evidence Hawley learned from McGee during the June 3 stop,
arguing the homicide was “an independent act of free will that was not influenced
by any suggestion or coercion from law enforcement.” But the State points to no
new discovery of the information Hawley learned during the June 3 stop. Hawley’s
June 3 stop was the cause of the State’s discovery that day of McGee’s name, his
phone number, his stated reasons for associating with Ayson, and his possession
of cocaine and drug paraphernalia. The homicide that the State believes occurred
the next day, June 4, 2017, was not a cause of any of the State’s June 3, 2017
discoveries. The later recovery of Ayson’s body led the State to look again at its
June 3, 2017 discoveries, but it did not cause those discoveries to occur. The
homicide was not a cause of the discovery of evidence in the June 3 stop, and was
not an intervening act amounting to a superseding cause.
Recognizing the homicide came after its June 3 discoveries, the State
argues the attenuation doctrine applies because the June 4 homicide was the
cause of its “derivative use” of its June 3 discoveries. Mayfield is clear, however,
there must be a superseding cause severing the causal connection “between” the
official misconduct and “the discovery” of the evidence. 192 Wn.2d at 895-96. The
State invokes the attenuation doctrine to justify using its original, illegal June 3
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discoveries, rather than a new discovery attributable to a new, superseding cause.
The State cites no case applying the attenuation doctrine in this manner. The State
fails to show attenuation as defined in Mayfield allowing the use of the information
Hawley illegally discovered from McGee on June 3, 2017.5
The State last argues its recognition of the relationship between McGee and
Ayson after recovering Ayson’s body “merely spurred a separate investigation that
was conducted by different personnel, served an unrelated purpose, and occurred
much later than Detective Hawley’s initial detention.” The trial court concluded,
“Detectives found McGee’s phone number in their database from a March 2017
contact”—a contact whose legality is not questioned before this court—“and from
a search of McGee’s public Facebook profile.”6 Separate from the June 3 stop,
the State discovered Ayson’s SIM card, obtained the records associated with that
SIM card, from those records learned the last number dialed from Ayson’s phone
and that it was dialed twice on the afternoon of June 4, 2017, near in time to the
5 The State argues that Hawley’s illegal seizure and search were not the
“legal cause” of the discoveries he made that day, referring to the legal causation prong of the tort proximate cause rule. The State’s brief then turns to cases analyzing superseding cause. This comingles different doctrines. The tort doctrine of legal causation is relevant to establishing a causal connection. “The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability. A determination of legal liability will depend upon ‘mixed considerations of logic, common sense, justice, policy, and precedent.’ ” Schooley, 134 Wn.2d at 478-79 (internal quotation marks omitted) (quoting King v. City of Seattle, 84 Wn.2d 239, 250, 525 P.2d 228 (1974)). The question the attenuation doctrine poses under Mayfield is whether an existing causal connection between the official misconduct and the discovery of evidence was severed by an intervening act amounting to a superseding cause. 6 These conclusions were in connection with the trial court’s analysis of the
independent source doctrine. The State does not rely on the independent source doctrine on appeal. Therefore we do not address it.
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911 call, learned the number was associated with McGee based on the March
2017 encounter and Facebook entries, and learned Ayson’s drug dealer, known
as “TJ” drove a silver Chrysler. These circumstances were not causes of the
State’s June 3 discoveries from McGee. The State’s argument amounts to an
inevitable discovery argument, because, through Ayson’s phone records and other
evidence, “the police would have discovered” McGee’s identity and connection to
Ayson “notwithstanding the violation of [McGee’s] constitutional rights” in the June
3 stop. State v. Winterstein, 167 Wn.2d 620, 634, 220 P.3d 1226 (2009). But the
inevitable discovery exception to the exclusionary rule is inconsistent with article
1, section 7 because it “is necessarily speculative and does not disregard illegally
obtained evidence.” Id. That Ayson’s information would have led to McGee is
insufficient.
The State says it is “unnecessary” to “individually analyze[] each search
warrant and [McGee’s] August 1, 2017, arrest,” because “Hawley’s detention was
a cause-in-fact for this entire body of evidence.” “Thus,” the State says, “the
admissibility of each portion depends on the answer to the same legal question,”
that is, the application of the attenuation doctrine. We understand the State to
concede that if Hawley’s June 3 discoveries from McGee cannot be used under
the attenuation doctrine, then each subsequent warrant fails. In light of Mayfield
and Winterstein, it is necessary to suppress the June 3 discovery of McGee’s
name, his phone number, his stated reasons for associating with Ayson, and his
possession of cocaine and drug paraphernalia. Because each subsequent warrant
including the August 1, 2017 arrest warrant depended on this information for
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probable cause, it is necessary to suppress the information learned from these
warrants, including McGee’s custodial statements on August 1, 2017. The State
does not contend there was “untainted evidence admitted at trial” that was “so
overwhelming that it necessarily leads to a finding of guilt.” State v. Elwell, 199
Wn.2d 256, 270, 505 P.3d 101 (2022). We therefore reverse McGee’s conviction.
III
After the trial court ruled the June 3 stop unconstitutional and suppressed
evidence of the cocaine, drug paraphernalia, and the arrest, the State made a
motion arguing evidence of the June 3 stop and information discovered during the
stop should be admitted as motive evidence supporting the murder charge. The
State’s theory at trial was that McGee thought Ayson “had ‘snitched’ on him” and
had “set him up,” and McGee killed Ayson believing Ayson “was responsible for
his arrest and may also be working with police.” The trial court granted the State’s
motion. The trial court delineated the scope of its ruling as follows:
I am, again, excluding any statements attributed to Mr. McGee that would have been made to the detective. I am excluding any contraband object that would have been found in Mr. McGee’s possession or found in his car. I am not excluding the fact that the detective observed Mr. McGee or the person who he later identified to be Mr. McGee, what happened. And I’m not excluding the fact of the [confidential informant] agreement.
McGee challenges the admission of evidence related to the June 3 stop for the
purpose of showing motive, arguing there is no such exception to the exclusionary
rule.
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We agree with McGee there is no “motive” exception to the exclusionary
rule. But we perceive a distinction between the evidence Hawley obtained illegally
during the June 3 stop, and information he learned that day distinct from the illegal
seizure and search. “Under the limits on surveillance established by our case law,
a police officer’s visual surveillance does not constitute a search if the officer
observes an object with the unaided eye from a nonintrusive vantage point.” State
v. Young, 123 Wn.2d 173, 182, 867 P.2d 593 (1994). Hawley’s discovery on June
3 of McGee’s name, his phone number, his stated reasons for associating with
Ayson, and his possession of cocaine and drug paraphernalia stemmed from the
illegal seizure of McGee and the subsequent search. But to the extent not the
result of the illegal seizure and search, Hawley’s testimony concerning the events
of June 3, 2017 is not subject to exclusion under article 1, section 7, and to the
extent not excluded may be used by the State to establish motive. Provided
evidence obtained in violation of article 1, section 7 is suppressed, the trial court
on remand is in the best position to determine the admissibility of other evidence
relevant to motive.
IV
McGee next asserts the trial court erred by admitting the identification by
Burchette. We disagree.
When reviewing the denial of a CrR 3.6 suppression motion, we review the
trial court’s findings of fact for substantial evidence and its conclusions of law de
novo. State v. Derri, 199 Wn.2d 658, 676, 511 P.3d 1267 (2022) (reviewing trial
court’s application of Manson v. Brathwaite, 432 U.S. 98, 116, 97 S. Ct. 2243, 53
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L. Ed. 2d 140 (1977)).7 “The presentation of a single photograph is, as a matter of
law, impermissibly suggestive.” State v. Maupin, 63 Wn. App. 887, 896, 822 P.2d
355 (1992). “However, impermissible suggestiveness may not constitute a
violation of due process. Rather, [a] court must review the totality of the
circumstances to determine whether that suggestiveness created a substantial
likelihood of irreparable misidentification.” Id. at 896-97 (citation omitted). This is
determined by considering four factors: the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the accuracy of
their prior description of the criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the confrontation. Id. (citing
Brathwaite, 432 U.S. at 114). The identification of a suspect by an acquaintance
does not raise the due process concerns that arise when an eyewitness
identification is tainted by suggestive procedures. State v. Collins, 152 Wn. App.
429, 436, 216 P.3d 463 (2009).
The trial court analyzed each of the Brathwaite reliability factors. The court
ruled, “Even though [the identification] initially was suggestive, it does not show a
substantial likelihood that there would be irreparable misidentification.” The court’s
conclusion was based on evidence including the testimony of detectives who
interviewed Burchette and a transcript of an interview of Burchette conducted by
Greg Walsh, a private investigator for the defense. This evidence showed
7 CrR 3.6(b) requires trial courts to enter written findings of fact and conclusions of law. The trial court did not do so here. However, such an error is harmless “if the court’s oral findings are sufficient to allow appellate review.” State v. Miller, 92 Wn. App. 693, 703, 964 P.2d 1196 (1998). The court’s oral ruling is sufficient to allow review.
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Burchette was identifying an acquaintance she was familiar with, not an individual
she knew only from witnessing a crime. Substantial evidence supported the trial
court’s factual findings, and the findings support the conclusion McGee’s due
process rights were not violated by admitting Burchette’s identification of McGee.8
Reversed and remanded.
WE CONCUR:
8 Because of our disposition, it is not necessary to reach McGee’s remaining
assignments of error.