An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-553 NORTH CAROLINA COURT OF APPEALS Filed: 18 March 2014 STATE OF NORTH CAROLINA
Union County v. Nos. 10 CRS 56325-26, 11 CRS 2520-21, 12 CRS 2040
OTIS REDDING HOWIE, JR.
Appeal by defendant from judgments entered 18 October 2012
by Judge Anna Mills Wagoner in Union County Superior Court.
Heard in the Court of Appeals 24 October 2013.
Attorney General Roy Cooper, by Special Deputy Attorney General David N. Kirkman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Kathleen M. Joyce, for Defendant.
ERVIN, Judge.
Defendant Otis Redding Howie, Jr., appeals from judgments
sentencing him to two terms of 260 to 321 months imprisonment
based upon his convictions for two counts of attempted murder
while having the status of an habitual felon, to two terms of
115 to 147 months imprisonment based upon his convictions for
two counts of robbery with a dangerous weapon while having the
status of an habitual felon, to a term of 115 to 147 months
imprisonment based upon his conviction of possession of a -2- firearm by a convicted felon while having the status of an
habitual felon, all to be served consecutively, and to a
concurrent term of 100 to 129 months based upon his conviction
for conspiracy to commit robbery with a dangerous weapon while
having the status of an habitual felon. On appeal, Defendant
contends that the trial court erred by denying his motion to
suppress evidence concerning in-court and out-of-court
identifications of him as the perpetrator of the offenses at
issue in this case, failing to correctly instruct the jury
concerning the manner in which they should evaluate the
eyewitness identification evidence, and denying his motion to
dismiss the conspiracy charge for insufficiency of the evidence.
After careful consideration of Defendant’s challenges to the
trial court’s judgments in light of the record and the
applicable law, we conclude that the trial court’s judgment in
the conspiracy case should be vacated and that the trial court’s
other judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
At the time of trial, Robbie and Crystal Jordan had been
married for ten years. Since 1995, Ms. Jordan had worked for a
license tag agency in Monroe. In 2003, the Jordans purchased -3- the agency, which they operated pursuant to contract with the
Division of Motor Vehicles.
In the course of operating the agency, the Jordans made a
practice of taking the proceeds received each day to First
Citizens, which was the bank at which the agency’s account was
maintained, for deposit. More specifically, after Mr. Jordan
counted the day’s receipts, the relevant cash and checks would
be placed in a locked First Citizens moneybag that was, in turn,
placed inside a black Harley Davidson bag that Ms. Jordan used
to take the day’s proceeds to the bank.
On 1 November 2010, Mr. Jordan counted the day’s receipts,
which totaled $33,000 in cash and checks, as usual and handed
them to Ms. Jordan, who put them in the First Citizens and
Harley Davidson bags. In addition, Ms. Jordan had another bag
that contained nearly $800 for use on the following day. At
that point, Mr. Jordan cut off the lights while Ms. Jordan
looked outside to make sure that there were no suspicious people
in the vicinity of the building in which the agency was housed.
As the Jordans left the building and approached their
vehicles, Mr. Jordan noticed someone standing near the wall of
an adjoining building and watched as he began to move toward
them, reached into the front of his pants, and pulled out a
firearm. Although Mr. Jordan asked the individual with the -4- firearm to refrain from shooting him, the person in question
asked Ms. Jordan to give him the bag containing the days’
proceeds; shot her once immediately after making this demand,
causing her to fall to the ground; and then shot Ms. Jordan
again as she lay on the ground. Ms. Jordan sustained two
gunshot wounds to the chest, one to her hand, and at least one
to her ear, injuring her so severely that one of her lungs had
to be removed and creating the possibility that she may never
walk again. As Mr. Jordan struggled with the man who assaulted
Ms. Jordan, the assailant, who appeared to be missing some front
teeth, shot Mr. Jordan in his knee, foot, shoulder, and face.
After taking the proceeds from the licensing agency, $1,200 that
Mr. Jordan had on his person, and $600 and a .38 caliber pistol
that Ms. Jordan had in her pocketbook, the assailant ran away,
turning back and looking at Mr. Jordan before continuing to run
up a hill.
Billy Montgomery and Eric Cruz worked for an automobile
detailing establishment located across the street from the
Jordans’ business. Mr. Montgomery observed the person who shot
the Jordans pacing around the agency’s parking lot for
approximately twenty minutes prior to the robberies and
shootings. After robbing and shooting the Jordans, the
assailant, who was an African American male wearing what Mr. -5- Cruz identified as Jabo jeans, ran toward a hospice office
located behind the Jordans’ business. A few minutes later, a
gray or silver Dodge Charger, apparently driven by a light-
skinned African-American female, appeared from the direction
toward which the assailant had run and drove off toward
Charlotte.
Defendant had a good friend named Melvin Luckey, who lived
with his girlfriend, Tanika Ingram, in October and November
2010. In October 2010, Defendant began keeping clothes at Ms.
Ingram’s residence because his girlfriend had ejected him from
the residence that they had shared. Although Defendant was
unemployed, he drove a gray Dodge Charger rental car. At some
point prior to his arrest, Defendant told Ms. Ingram that he had
shot someone in order to get money. In addition, Ms. Ingram
indicated that Defendant owned a long revolver. Ms. Ingram also
observed that Defendant and Mr. Luckey appeared to have a lot of
money after 1 November 2010, having reached this conclusion
because the two men had purchased new clothes, and were jittery
in the days prior to their arrest.
According to information developed during the investigation
into the robberies and shootings, Defendant and Mr. Luckey had
purchased various items, including clothing, at Sports Trax in
Charlotte at 7:41 p.m. on 1 November 2010, approximately two -6- hours after the robberies and shootings. In addition,
investigating officers determined that Defendant had made
deposits totaling $4,160 into his accounts on 2 November 2010.
During a search of the residence of Brittany Fulwiley, who is
the mother of Defendant’s children, investigating officers
discovered jeans on which Ms. Jordan’s blood was subsequently
detected. In addition, investigating officers conducting the
search of Mr. Luckey’s residence found Ms. Jordan’s purse, the
Harley Davidson moneybag, and a .44 caliber pistol from which
the projectiles recovered following the robberies and shootings
could have been fired.
B. Procedural Facts
On 9 November 2010, warrants for arrest charging Defendant
with two counts of attempted murder, two counts of robbery with
a dangerous weapon, larceny of a firearm, and possession of a
firearm by a felon were issued. On 5 July 2011, the Union
County grand jury returned bills of indictment charging
Defendant with two counts of attempted murder, two counts of
robbery with a dangerous weapon, two counts of conspiracy to
commit robbery with a dangerous weapon, one count of possession
of a firearm by a felon, and one count of larceny of a firearm.
On 24 August 2012, the State filed a notice that it intended to
prove that Defendant “induced others to participate in the -7- commission of the offense”; that Defendant “occupied a position
of leadership or dominance of other participants in the
commission of the offense”; that the offense was committed “for
the purpose” of “avoiding or preventing a lawful arrest” and
“effecting an escape from custody”; that “[t]he offense was
especially heinous, atrocious or cruel”; that Defendant
“knowingly created a great risk of death to more than one person
by means of a weapon or device which would normally be hazardous
to the lives of more than one person”; that Defendant “was armed
with a deadly weapon at the time of the crime” and “used a
deadly weapon at the time of the crime”; that Defendant
“committed the offense while on pretrial release on another
charge”; that Defendant “has, during the 10-year period prior to
the commission of the offense for which [he] is being sentenced,
been found by a court of this State to be in willful violation
of the conditions of probation imposed pursuant to a suspended
sentence or been found by the Post-Release Supervision and
Parole Commission to be in willful violation of a condition of
parole or post-release supervision imposed pursuant to release
from incarceration”; that “[t]he offense involved” “an attempted
taking of property of great monetary value” and “the actual
taking of property of great monetary value”; that Defendant
“does not support [his] family”; and that “[t]he victim of this -8- offense suffered serious injury that is permanent and
debilitating.” On 4 September 2012, the Union County grand jury
returned a bill of indictment charging Defendant with having
attained the status of an habitual felon.
On 1 October 2012, Defendant filed a motion seeking to have
evidence of any out-of-court and in-court identification of
Defendant made by Mr. Jordan suppressed on the grounds that the
evidence in question had been obtained in violation of N.C. Gen.
Stat. § 15A-284.52. After a hearing held on 8 October 2012, the
trial court entered an order denying Defendant’s suppression
motion on 27 March 2013.
The charges against Defendant came on for trial before the
trial court and a jury at the 8 October 2012 criminal session of
the Union County Superior Court. On 18 October 2012, the jury
returned verdicts convicting Defendant as charged. After the
jury returned these verdicts, Defendant pled guilty to having
attained the status of an habitual felon and admitted the
existence of the aggravating factors that “[t]he offense was
especially heinous, atrocious or cruel”; that he had “knowingly
created a great risk of death to more than one person by means
of a weapon or device which would normally be hazardous to the
lives of more than one person”; that he “used a deadly weapon at
the time of the crime;” and that “[t]he victim of this offense -9- suffered serious injury that is permanent and debilitating.”
After accepting Defendant’s admissions, the trial court found
the existence of the aggravating factors to which Defendant had
admitted,1 found as a mitigating factor that Defendant “has a
support system in the community,” and that the findings in
aggravation outweighed the findings in mitigation. Based upon
the jury’s verdicts, Defendant’s guilty plea, and its findings
in aggravation and mitigation, the trial court entered judgments
sentencing Defendant to a term of 260 to 321 months imprisonment
for the attempted murder of Ms. Jordan, to a consecutive term of
115 to 147 months imprisonment for the robbery of Ms. Jordan
with a dangerous weapon, to a consecutive term of 260 to 321
months imprisonment for the attempted murder of Mr. Jordan, to a
consecutive term of 115 to 147 months imprisonment for the
robbery of Mr. Jordan with a dangerous weapon, to a consecutive
term of 115 to 147 months imprisonment for possession of a
firearm by a felon, and to a concurrent term of 100 to 129
months imprisonment for conspiracy to commit robbery with a
dangerous weapon. On the other hand, the trial court arrested
1 As we read the findings in aggravation and mitigation made in each case, the trial court did not find that Defendant “was armed with a deadly weapon at the time of the crime” or that “the offense” involved “an attempted taking of property of great monetary value” or “the actual taking of property of great monetary value,” since the trial court did not check the relevant blocks on Form AOC-CR-614. -10- judgment with respect to Defendant’s conviction for larceny of a
firearm and one count of conspiracy to commit robbery with a
dangerous weapon. Defendant noted an appeal to this Court from
the trial court’s judgments.
II. Legal Analysis
A. Conspiracy Judgment
In his first challenge to the trial court’s judgments,
Defendant contends that the trial court erred by denying his
motion to dismiss the conspiracy to commit robbery with a
dangerous weapon charge that had been lodged against him based
upon the insufficiency of the evidence. More specifically,
Defendant contends that the record is devoid of any evidence
tending to show that he and Mr. Luckey conspired to rob the
Jordans other than that tending to show that the two of them
committed the relevant criminal acts together and that such
evidence is not sufficient to sustain a conspiracy conviction.
As the State candidly concedes, Defendant’s contention has
merit.
According to well-established North Carolina law, a
defendant’s dismissal motion should be denied in the event that
“there is substantial evidence (1) of each essential element of
the offense charged, or of a lesser offense included therein,
and (2) of defendant’s being the perpetrator of such offense.” -11- State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)
(quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980)). In making this determination, the record evidence must
be considered in the light most favorable to the State. State
v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982). “We
review the trial court’s denial of a motion to dismiss de novo,”
“consider[ing] the matter anew and freely substitut[ing our] own
judgment for that of the trial court.” State v. Sanders, 208
N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010) (citing State v.
Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) and State
v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)).
“A criminal conspiracy is an agreement between two or more
persons to do an unlawful act or do a lawful act in an unlawful
way or by unlawful means.” State v. Massey, 76 N.C. App. 660,
661-62, 334 S.E.2d 71, 72 (1985). A conspiracy conviction does
not require proof that the defendant committed any particular
overt act; instead, proof of an agreement between two or more
persons to commit a crime, without more, is sufficient to
support a conspiracy conviction. State v. Brewer, 258 N.C. 533,
538, 129 S.E.2d 262, 266 (1963) (citing State v. Knotts, 168
N.C. 173, 188, 83 S.E. 972, 979 (1914), and State v. Davenport,
227 N.C. 475, 494, 42 S.E.2d 686, 699 (1947)). “[T]he beginning
of a conspiracy to commit a crime must[, however,] precede the -12- commission of the crime itself,” State v. Locklear, 8 N.C. App.
535, 537, 174 S.E.2d 641, 642 (1970), with proof that the crime
that was the alleged object of the conspiracy was actually
committed not being sufficient to support a conspiracy
conviction. State v. Arnold, 329 N.C. 128, 142, 404 S.E.2d 822,
831 (1991).
According to the record, Mr. Luckey and Defendant were
friends and lived together at the time that the Jordans were
shot and robbed. In addition, the record shows that Mr. Luckey
possessed both the firearm used in the robbery and proceeds from
the robbery after 1 November 2010. However, even when taken in
the light most favorable to the State, the record contains no
evidence tending to show that the commission of the crimes at
issue here stemmed from an agreement between Defendant and Mr.
Luckey to engage in criminal conduct, a fact that makes this
case similar to decisions such as State v. Wellborn, 229 N.C.
617, 618, 50 S.E.2d 720, 721 (1948) (holding that the
defendant’s conspiracy conviction should be overturned given
that “there is no evidence that [the alleged co-conspirator] had
ever communicated to [the defendant] his purpose or that prior
to the actual fatal encounter [the defendant] had any knowledge
of the intent”). For example, the record contains no evidence
tending to show prior planning of the type that has been held to -13- be sufficient to support a conspiracy conviction in other cases.
State v. Colvin, 90 N.C. App. 50, 57, 367 S.E.2d 340 344
(holding that evidence tending to show that Defendant
participated in preparing for a robbery sufficed to support a
conspiracy conviction), cert. denied, 322 N.C. 608, 370 S.E.2d
249 (1988). As a result, as the State concedes, the trial court
erred by denying Defendant’s motion to dismiss the charge that
he conspired with Mr. Luckey to commit the crime of robbery with
a dangerous weapon.
B. Eyewitness Identification
Secondly, Defendant contends that the trial court erred by
denying his motion to suppress all evidence tending to show that
Mr. Jordan had identified him as the perpetrator of the crimes
for which Defendant was convicted in a pretrial identification
procedure; allowing Mr. Jordan to make an in-court
identification of Defendant as the perpetrator of the crimes for
which he was convicted; and by failing to instruct the jury to
consider violations of the Eyewitness Identification Reform Act
in assessing the credibility of Mr. Jordan’s identification
testimony. We do not find Defendant’s arguments persuasive.
1. Motion to Suppress
In his initial challenge to the admission of evidence that
Mr. Jordan identified him as the perpetrator of the robberies -14- and shootings both prior to and at trial, Defendant contends
that certain of the findings of fact contained in the trial
court’s suppression order lacked sufficient evidentiary support
and that the trial court’s findings did not support its
conclusions of law. Although we agree that a number of
Defendant’s challenges to the trial court’s findings have merit
and that one of the trial court’s conclusions of law conflicts
with the trial court’s findings, we do not believe that
Defendant is entitled to receive relief from the trial court’s
judgments as the result of the denial of his suppression motion.2
a. Hearing Evidence3
2 As an initial matter, we note that Defendant’s suppression motion merely alleged a violation of the provisions of N.C. Gen. Stat. § 15A-284.52 and that the argument advanced by Defendant’s trial counsel at the conclusion of the suppression hearing was couched in essentially statutory terms as well. On the other hand, the argument advanced by the State at the conclusion of the suppression hearing focused on more traditional due process considerations. Although the trial court’s order contains some language that reflects the sort of analysis required by the due process clause, that order is also primarily focused on the issue of whether the procedures that resulted in Mr. Jordan’s identification of Defendant as the perpetrator of the robberies and shootings violated N.C. Gen. Stat. § 15A-284.52. As a result, Defendant’s appellate counsel has advanced separate statutory and due process arguments in her brief, an approach that seems to us to be consistent with the manner in which the eyewitness identification issue was litigated in the court below. Thus, we will address the denial of Defendant’s suppression motion on the basis of an analysis of the relevant statutory provisions, holding Defendant’s due process argument for a later section of this opinion. -15- On 8 November 2010, Detective Glen Jenkins of the Monroe
Police Department learned from a Crime Stoppers’ tip that two
individuals had information about the crimes in question that
was not known to the general public, including the caliber of
the weapon used in the commission of these crimes, the make and
model of the vehicle that had been seen leaving the crime scene,
and the identities of the persons whom investigating officers
suspected of involvement in the commission of these crimes. At
a meeting with Detective Jenkins, Ronald and Darius Phifer, who
were related to Ms. Fulwiley, stated that Defendant and Mr.
Luckey had been bragging about having committed the robberies
and shootings. As a result, Detective Jenkins instructed Ginger
Pope, an administrative employee who worked at the Monroe Police
Department, to compile two six item photographic lineups, one of
which contained Defendant’s photograph and one of which
contained Mr. Luckey’s photograph.4 According to Detective
Jenkins, photos in the possession of the Division of Motor 3 The evidence received at trial concerning the events that occurred in connection with the identification procedures challenged in Defendant’s suppression motion was substantially similar to the evidence presented during the hearing held in connection with the consideration of Defendant’s suppression motion. 4 Although Detective Jenkins indicated in his notes that he had prepared the photographic lineup, he clarified this statement in his testimony by stating that he meant to say that he had ordered the preparation of the photographic lineup instead. -16- Vehicles were used in the photographic lineups because the
investigating officers did not have another photograph of
Defendant and because they wanted the backgrounds in each
photograph included in the lineups to be identical.
On 9 November 2010, Detective Jenkins, Special Agent Gisela
Jasmin Cruz of the State Bureau of Investigation, and Officer
Vivian Nieves Caldwell of the Monroe Police Department went to
the shopping center at which the crime had occurred for, among
other things, the purpose of showing the photographic lineups to
Mr. Jordan. The photographic lineups were presented to Mr.
Jordan in a back room in the license tag agency that he and his
wife operated.
At the time that the photographic lineups were shown to Mr.
Jordan, Detective Jenkins and Special Agent Cruz “stood in the
doorway” and “were not involved in the lineup.” The actual
identification procedure was conducted by Officer Nieves, who
did not know the identity of the individuals suspected of
committing the robberies and shootings. Although Detective
Jenkins could see the process that Officer Nieves utilized in
conducting the photographic lineup, he did not look inside the
folders prior to the lineups, was unable to see which folder
Officer Nieves presented to Mr. Jordan first, and could not see
the actual photos or the markings on the folders while the -17- lineup was being conducted. Finally, Detective Jenkins denied
that he had ever provided a description of the suspect upon whom
their investigation had become focused to Mr. Jordan, suggested
that Mr. Jordan should pick a particular photo out of the lineup
that had been presented to him, or done anything else that would
have focused Mr. Jordan’s attention upon a particular
photograph. As a result, Detective Jenkins asserted that he
followed the procedures mandated by law during the process of
the challenged identification procedure.
At the time that she presented the folders containing the
photographic lineups to Mr. Jordan, Officer Nieves instructed
Mr. Jordan that he was under no pressure to make an
identification and that the exclusion of innocent individuals
was just as important as identifying the actual culprits. As
confirmation that he received and understood the information
that Officer Nieves communicated to him, Mr. Jordan signed a
statement indicating that he had received appropriate
instructions concerning the purpose of the lineup and the manner
in which it was to be conducted. In conducting the photographic
lineup, Officer Nieves handed Mr. Jordan one folder at a time,
let him look at each photo separately, and waited to see any
reaction he would have, including statements made. In the event
that Officer Nieves observed that Mr. Jordan reacted to a -18- particular photo, she would instruct him to focus on the
photographs instead of some sort of an emotional reaction.
After viewing the photographic lineups, Mr. Jordan
indicated that he could not identify anyone depicted in the
folder that contained Mr. Luckey’s image. However, Officer
Nieves noticed that Mr. Jordan became nervous and unsteady at
the time that he viewed Photograph No. 4 in the photographic
lineup that contained Defendant’s picture. Similarly, Detective
Jenkins observed that, after picking up one of the photographs,
Mr. Jordan began to shake and appeared to have recognized the
individual depicted in the photograph that he was examining at
that time. After putting the photograph down and looking at a
number of additional photographs, Mr. Jordan looked at Detective
Jenkins in frustration. In response, Detective Jenkins said,
“all we need you to do is just pick the person out who you saw
crossing the parking lot.” However, neither Mr. Jordan nor
Officer Nieves heard Detective Jenkins’ comment. After making
that comment, Detective Jenkins and Special Agent Cruz left the
agency building while Mr. Jordan returned to one of the photos
and made a selection.
Although Mr. Jordan expressed the desire to make sure that
he identified the correct photograph and, for that reason, went
back and forth between two photographs included in the lineup -19- that contained Defendant’s photograph, he ultimately identified
Defendant as a participant in the robberies and shootings.
After Mr. Jordan selected Defendant’s photograph from the
lineup, Officer Nieves left the agency building to tell
Detective Jenkins that Mr. Jordan had picked someone out of the
lineup and showed him the photo. At that point, Detective
Jenkins informed Officer Nieves that she needed to have Mr.
Jordan indicate the extent to which he was certain that he had
made a correct identification on a percentage basis. In
response to Officer Nieves’ inquiry, Mr. Jordan stated that he
was seventy percent certain that he had correctly identified the
perpetrator of the robberies and shootings. However, when asked
to indicate the degree to which he was certain that he had made
a correct identification on a scale of one to ten, he circled
the number eight.5
Mr. Jordan claimed to have gotten a chill when he saw
Defendant’s photo while examining the relevant photographic
lineup and stated that he had not needed to see any additional 5 Contrary to Officer Nieves’ statement to the effect that she had returned to ask Mr. Jordan about the extent of his confidence in the accuracy of his identification after speaking with Detective Jenkins, Detective Jenkins testified that Officer Nieves had already learned that Mr. Jordan rated his certainty about the correctness of his identification as eight on a scale of one to ten at the time that she came outside to tell him about the identification and that he asked Officer Nieves to get Mr. Jordan to give a percentage number after learning of his rating on the one to ten scale. -20- photographs before making an identification given his knowledge
that Defendant was the person who had attacked and robbed him
and his wife. In explaining his original statement to the
effect that he was seventy percent certain that his
identification of Defendant as the perpetrator of the robberies
and shootings was correct, Mr. Jordan explained that he
remembered from school that seventy percent was a passing score.
He later told Officer Nieves that his level of confidence in the
correctness of his identification was eight on a scale of ten on
the grounds that, if “seventy was passing, . . . an eight out of
ten . . . was pretty good odds.” In a further attempt to
clarify his position, Mr. Jordan testified that, in his view,
seventy percent “was a very good percentage.” After having
initially picked Defendant out of the lineup, Mr. Jordan asked
to see the lineup again; however, Mr. Jordan claimed that he had
not really needed to take another look at the photographs in the
lineup since he was certain of Defendant’s involvement in the
robberies and shootings.
In addition, Mr. Jordan testified that the weather was nice
and it was still light outside at the time that he and his wife
were attacked. Mr. Jordan remembered having seen Defendant’s
face twice, with the first view having occurred when Defendant
was over by the wall prior to the attack and the second view -21- having occurred when Defendant turned to run away. Mr. Jordan
also testified that the descriptions of the suspect that had
appeared in news reports were inaccurate given that, even though
these news reports had stated that the suspect had dreadlocks,
that was not actually the case. In addition to his out-of-court
identification of Defendant as one of his assailants, Mr. Jordan
made an in-court identification of Defendant as one of the
perpetrators of the robberies and shootings at issue in this
case.
b. Standard of Review
In considering the denial of a defendant’s motion to
suppress, this Court determines “only whether the trial court’s
findings of fact are supported by competent evidence, and
whether these findings of fact support the court’s conclusions
of law.” State v. Pulliam, 139 N.C. App. 437, 439-40, 533
S.E.2d 280, 282 (2000). The trial court’s conclusions of law
are, however, reviewed by this Court on a de novo basis. State
v. Hernandez, 170 N.C. App. 299, 304, 12 S.E.2d 420, 423 (2005).
c. Validity of Defendant’s Challenges to the Suppression Order
i. Sufficiency of the Record Support for the Trial Court’s Findings
In his initial challenge to the denial of his suppression
motion, Defendant contends that a number of the trial court’s -22- findings of fact lack adequate evidentiary support. Although we
agree that Defendant’s challenges to certain of the trial
court’s findings are valid, we do not believe that this
deficiency in the trial court’s order justifies a decision to
award Defendant a new trial.
First, Defendant challenges the sufficiency of the evidence
to support Finding of Fact No. 4, in which the trial court
determined that the investigating officers “were aware of the
procedures set out in the Eye Witness Reform Act.” In support
of this argument, Defendant directs our attention to Detective
Jenkins’ testimony that he was unaware that the “lineup law” had
changed and that he was utilizing the “old law” and to other
portions of the record. After carefully reviewing the record,
we agree with Defendant’s contention that the record evidence
does not support a determination that Detective Jenkins, Special
Agent Cruz, and Officer Nieves were aware of the requirements of
the North Carolina Eyewitness Identification Reform Act.
However, nothing in the relevant statutory provisions requires
investigating officers to be aware of these relatively new
statutory provisions. See N.C. Gen. Stat. § 15A-284.50 et seq.
Instead, the relevant issue is whether the procedures utilized
by the investigating officers complied with applicable statutory
requirements. As a result, we cannot conclude that the -23- inclusion of this unsupported finding justifies an award of
appellate relief. E.g., State v. Clark, 107 N.C. App. 184, 191,
419 S.E.2d 188, 192 (1992) (holding that a “finding of an
aggravating factor for [a] misdemeanor conviction . . . was
superfluous and non-prejudicial error”).
Secondly, Defendant argues that the trial court erred by
stating in Finding of Fact No. 9 that Special Agent Cruz was in
an “adjoining room” and that Detective Jenkins had stated
“[r]emember the parking lot” to Mr. Jordan during the
identification procedure. Once again, Defendant’s arguments
have merit. Special Agent Cruz testified that both she and
Detective Jenkins were standing in the doorway while the
photographic lineup was being conducted. In addition, Detective
Jenkins testified that he told Mr. Jordan that “all we need you
to do is just pick the person out who you saw crossing the
parking lot,” at which point Mr. Jordan selected a photograph of
Defendant. As a result of the fact that these portions of the
relevant finding of fact lack adequate evidentiary support, we
will now proceed to examine Defendant’s challenges to the trial
court’s conclusions of law in light of the undisputed record
evidence without taking the trial court’s unsupported findings
of fact into consideration. State v. Phillips, 300 N.C. 678,
685, 268 S.E.2d 452, 457 (1980) (stating that, “[i]f there is no -24- material conflict in the evidence on voir dire, it is not error
to admit the challenged evidence without making specific
findings of fact” since the necessary findings of fact “are
implied from the admission of the challenged evidence”)
(citations omitted).
ii. Validity of Trial Court’s Conclusions of Law
In addition to disputing the sufficiency of the evidentiary
support for certain of the trial court’s findings of fact,
Defendant also challenges the validity of certain of the trial
court’s conclusions of law. More specifically, Defendant
contends that the trial court erred by concluding that the
investigating officers complied with the procedures set out in
N.C. Gen. Stat. § 15A-284.52(b) and that Mr. Jordan’s out-of-
court identification of Defendant as the perpetrator of the
robberies and shootings did not result from an impermissibly
suggestive identification procedure. We will address each of
Defendant’s challenges to the trial court’s conclusions of law
in turn.
According to Defendant, Detective “Jenkins and [Special]
Agent Cruz violated EIRA procedures by standing in the doorway
of the room where the lineup was being held” and by making
certain statements to Mr. Jordan while the photographic lineup
was being conducted. The purpose of the Eyewitness -25- Identification Reform Act is to ensure that lineups are
conducted in a fair and reliable manner. N.C. Gen. Stat. § 15A-
284.51 (stating that the purpose of the Act is to “help solve
crime, convict the guilty, and exonerate the innocent in
criminal proceedings by improving procedures for eyewitness
identification of suspects”). In order to achieve that goal,
N.C. Gen. Stat. § 15A-284.52(b)(13) provides that “[t]here shall
not be anyone present during the . . . identification procedures
who knows the suspect’s identity, except the eyewitness and
counsel as required by law.” The uncontroverted evidence
demonstrates that Detective Jenkins was aware of Defendant’s
identity at the time that Mr. Jordan viewed the photographic
lineup. In addition, the fact that Detective Jenkins and
Special Agent Cruz stood in the doorway leading to the room in
which the photographic lineup was being shown to Mr. Jordan
amounted to their being “present” during the identification
procedure. Finally, the statement that Detective Jenkins made
during the identification procedure was certainly inconsistent
with the requirement that “[n]othing shall be said to the
eyewitness regarding the suspect’s position in the lineup or
regarding anything that might influence the eyewitness’
identification.” N.C. Gen. Stat. § 15A-284.52(b)(11). As a
result, the trial court erred by concluding as a matter of law -26- that the investigating officers complied with N.C. Gen. Stat. §
15A-284.52(b) during the identification procedure in which Mr.
Jordan selected Defendant’s photograph and named him as the
perpetrator of the robberies and shootings.
The mere fact that investigating officers violated one or
more of the provisions of N.C. Gen. Stat. § 15A-284.52(b) does
not necessitate a determination that the trial court erred by
denying Defendant’s suppression motion. Instead, N.C. Gen.
Stat. § 15A-284.52(d)(1) provides that a “[f]ailure to comply
with any of the requirements of this section shall be considered
by the court in adjudicating motions to suppress eyewitness
identification.” As a result of the fact that the investigating
officers’ alleged violations of N.C. Gen. Stat. § 15A-284.52(b)
represent the only basis upon which Defendant sought the
suppression of the challenged identification evidence in the
court below, we assume that the Defendant’s suppression motion
was predicated upon the assertion that the challenged evidence
had been obtained as the result of a substantial violation of
Chapter 15A of the North Carolina General Statutes and will
analyze the validity of the trial court’s decision to deny
Defendant’s suppression motion accordingly.
According to N.C. Gen. Stat. § 15A-974(a)(2), evidence
should be suppressed if “[i]t is obtained as a result of a -27- substantial violation of the provisions of this Chapter,” with
the required substantiality determination to be based upon a
consideration of all of the relevant circumstances, including
“[t]he importance of the particular interest violated,” “[t]he
extent of the deviation from lawful conduct,” “[t]he extent to
which the violation was willful,” and “[t]he extent to which
exclusion will tend to deter future violations of this Chapter.”
A careful examination of the record in light of factors made
relevant by N.C. Gen. Stat. § 15A-974(a)(2) establishes that the
violations of N.C. Gen. Stat. § 15A-284.52(b) committed by the
investigating officers at the time of the challenged
identification procedure were not “substantial.” Although any
decision to exclude the challenged evidence would have a
tendency to deter future statutory violations, the fact that the
photographs were shown to Mr. Jordan by an individual who did
not know which photograph depicted the subject in which the
officers were interested, the fact that Detective Jenkins could
not tell when Mr. Jordan was viewing Defendant’s photograph, the
fact that Detective Jenkins’ unfortunate statement did not have
a tendency to suggest that Mr. Jordan should select a particular
photograph, and the fact that neither Officer Nieves nor Mr.
Jordan heard Detective Jenkins’ comment indicates that the
deviation from statutorily required conduct that occurred in -28- this instance was not great, that the statutory violations that
occurred in this instance were not willful, and that Detective
Jenkins’ conduct did not materially increase the likelihood that
Mr. Jordan would select Defendant’s photograph from the lineup
shown to him by Officer Nieves as compared to that of someone
else. As a result, we hold that the trial court did not err by
denying Defendant’s suppression motion.
2. Suggestiveness of Identification Procedures
Secondly, Defendant contends that the admission of evidence
concerning Mr. Jordan’s in-court and out-of-court identification
of Defendant as the perpetrator of the robberies and shootings
violated his due process rights. More specifically, Defendant
contends that the trial court should have excluded Mr. Jordan’s
identification testimony given that the procedures utilized at
the time that he made his out-of-court identification of
Defendant as the perpetrator of the robberies and shootings were
impermissibly suggestive and that his limited opportunity to see
the suspect, the occurrence of other events that would have
distracted his attention, the generality of his description of
the suspect in the immediate aftermath of the shootings and
robberies, and his lack of certainty about the accuracy of his
identification established the existence of a substantial -29- likelihood that he had not made a correct identification. Once
again, we conclude that Defendant’s argument lacks merit.6
According to prior pronouncements of the Supreme Court,
“[i]dentification evidence must be excluded as violating a
defendant’s right to due process where the facts reveal a
pretrial identification procedure so impermissibly suggestive
that there is a very substantial likelihood of irreparable
misidentification.” State v. Harris, 308 N.C. 159, 162, 301
S.E.2d 91, 94 (1983). In making this determination, we must
first determine whether the pretrial identification procedure
was impermissibly suggestive and then examine whether the use of
such an impermissibly suggestive procedure created a substantial
likelihood of irreparable misidentification. State v. Fowler,
353 N.C. 599, 617, 548 S.E.2d 684, 697 (2001), cert. denied, 535
U.S. 939, 122 S. Ct. 1322, 152 L. Ed. 2d 230 (2002). A pretrial
identification procedure is impermissibly suggestive if it, 6 As a result of the fact that Defendant failed to advance a due process argument in the court below and failed to object to Mr. Jordan’s in-court identification of Defendant as the perpetrator of the robberies and shootings at trial, we are required to address Defendant’s due process argument using a “plain error” standard of review, under which an award of appellate relief requires a showing that, “absent the [challenged] error, the jury probably would have reached a different result.” State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). By definition, a convicted criminal defendant is not entitled to relief on “plain error” grounds in the event that no error of law was involved in the admission of the challenged evidence or the delivery of the challenged instruction. -30- under the “‘totality of the circumstances,’” was “‘so
unnecessarily suggestive and conducive to irreparable mistaken
identity as to offend fundamental standards of decency and
justice.’” Id., 353 N.C. at 618, 548 S.E.2d at 698 (quoting
State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984)).
A determination that a particular identification procedure
created a substantial likelihood of irreparable
misidentification depends upon an analysis of the totality of
the circumstances, including the witness’ opportunity to view
the suspect at the time of the crime, the witness’ level of
attention during the commission of the crime, the accuracy of
the witness’ prior description of the suspect, the witness’
level of certainty at the time of the challenged identification
procedure, and the length of time that had elapsed between the
commission of the crime and the time at which the challenged
identification was made. State v. Pigott, 320 N.C. 96, 99-100,
357 S.E.2d 631, 633-34 (1987).
Although Defendant appears to assume that a violation of
N.C. Gen. Stat. § 15A-284.52(b) compels the conclusion that the
identification procedure utilized in this instance was
unnecessarily suggestive, we are not persuaded that this
assumption is correct. As we have already noted, a reviewing
court is simply required to “consider” whether an identification -31- procedure failed to comply with the provisions of N.C. Gen.
Stat. § 15A-284.52(b) in determining whether a suppression
motion should be allowed. Nothing in N.C. Gen. Stat. § 15A-
284.52(d) indicates that the mere existence of a statutory
violation, standing alone, necessitates a determination that the
resulting identification procedure was impermissibly suggestive.
As a result, we must make an independent determination of the
extent to which the challenged identification procedure was
impermissibly suggestive while giving due weight to the fact
that the record reveals the existence of several violations of
the procedures mandated by N.C. Gen. Stat. § 15A-284.52(b).
As we understand the undisputed evidence contained in the
present record, the identification procedure utilized in this
case, while not ideal, was not impermissibly suggestive.
Although Detective Jenkins was present during the presentation
of the photographic lineups to Mr. Jordan, the actual
presentation was made by Officer Nieves, who did not know that
her fellow officers had focused their attention upon Defendant.
In addition to the fact that Officer Nieves, rather than
Detective Jenkins, actually presented the folders containing the
photographic lineups to Mr. Jordan, the undisputed record
evidence establishes that Detective Jenkins did not know the
order in which the photographs would be presented to Mr. Jordan -32- and could not see which photograph Mr. Jordan was examining at
any point during the lineup process. Finally, although the
undisputed evidence reflects that Detective Jenkins stated that
Mr. Jordan should select the person that he saw in the parking
lot during the identification procedure, we do not understand
this statement to amount to a suggestion that Mr. Jordan was
required to make an identification from the photographs that had
been presented to him or that he should select a particular
photograph. Finally, we note that both Mr. Jordan and Officer
Nieves testified that they did not hear Detective Jenkins make
the comment in question. As a result, we are unable to conclude
that “the facts reveal[ed the use of] a pretrial identification
procedure [that was] so impermissibly suggestive that there
[was] a very substantial likelihood of irreparable
misidentification,” Harris, 308 N.C. at 162, 301 S.E.2d at 94, a
determination that requires us to reject Defendant’s due process
challenge to the admission of evidence concerning Mr. Jordan’s
in-court and out-of-court identifications of Defendant as the
3. Jury Instructions
Finally, Defendant contends that the trial court erred by
failing to instruct the jury concerning the manner in which it
should evaluate the eyewitness identification testimony -33- contained in the record as required by the relevant statutory
provisions. We do not believe that Defendant is entitled to
relief from the trial court’s judgments on the basis of this
contention.
According to N.C. Gen. Stat. § 15A-284.52(d)(3), a “jury
shall be instructed that it may consider credible evidence of
compliance or noncompliance to determine the reliability of
eyewitness identifications” “[w]hen evidence of compliance or
noncompliance with the requirements of this section has been
presented at trial.” Although the trial court did not instruct
the jury in accordance with N.C. Gen. Stat. § 15A-284.52(d)(3),
Defendant failed to either request the delivery of such an
instruction or object to the trial court’s instructions as
delivered. Although Defendant argues that we are entitled to
consider his appellate challenge to the trial court’s failure to
deliver an identification instruction in accordance with N.C.
Gen. Stat. § 15A-284.52(d)(3) under either a traditional
harmless error standard or on the basis of a plain error
standard of review, we need not resolve the issue of whether
Defendant adequately preserved this issue for appellate review
given our conclusion that Defendant is not entitled to an award
of appellate relief under either approach. -34- As we have already noted, the purpose of the Eyewitness
Identification Reform Act is to ensure that pretrial
identification procedures are conducted in a fair and reliable
manner. N.C. Gen. Stat. § 15A-284.51. According to N.C. Gen.
Stat. § 15A-284.52(d)(3), the purpose of requiring a jury
instruction of the type at issue here is to assist the jury in
“determin[ing] the reliability of eyewitness identifications.”
After carefully reviewing the record, we are unable to conclude
that there is any reasonable possibility that the outcome at
Defendant’s trial would have been different in the event that an
instruction of the nature mandated by N.C. Gen. Stat. § 15A-
284.52(d)(3) had been delivered. N.C. Gen. Stat. § 15A-1443(a)
(stating that “[a] defendant is prejudiced by errors relating to
rights arising other than under the Constitution of the United
States when there is a reasonable possibility that, had the
error in question not been committed, a different result would
have been reached at the trial court of which the appeal
arises”). Aside from the fact that the record fails to
demonstrate any substantial deficiency in the identification
procedures at issue in this case, the record contains
substantial additional evidence tending to identify Defendant as
the perpetrator of the robberies and shootings, including his
access to a Dodge Charger, the spending spree in which he -35- engaged shortly after 1 November 2010, his admission that he had
been involved in a robbery and a shooting, the discovery of
items taken in the robbery in his possession and that of Mr.
Luckey, and the presence of Ms. Jordan’s blood on Defendant’s
clothing. As a result, we conclude that Defendant is not
entitled to any relief from the trial court’s judgments based
upon the trial court’s failure to instruct the jury in
accordance with N.C. Gen. Stat. § 15A-284.52(d)(3).
III. Conclusion
Thus, for the reasons set forth above, we conclude that,
while the trial court erred by failing to grant Defendant’s
motion to dismiss the conspiracy charge for insufficiency of the
evidence, Defendant’s request for relief from his remaining
convictions on the basis of the admission of evidence concerning
Mr. Jordan’s in-court and out-of-court identifications of
Defendant as the perpetrator of the robberies and shootings and
the trial court’s failure to instruct the jury in accordance
with N.C. Gen. Stat. § 15A-284.52(d)(3) lack merit. As a
result, the trial court’s judgment in the case in which
Defendant was convicted of conspiracy to commit robbery with a
dangerous weapon should be, and hereby is, vacated, and the
trial court’s remaining judgments should, and hereby do, remain
undisturbed. -36- NO ERROR IN PART; VACATED IN PART.
Judges GEER and STEPHENS concur.
Report per Rule 30(e).