An unpublished opinion of the North Carolina Court of Appeals does not constitute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

perpetrator of the robberies and shootings.

                             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).
