                                     NO. COA14-122

                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 2 September 2014


STATE OF NORTH CAROLINA

    v.                                            Vance County
                                                  No. 12CRS052725-26
DONTE MACON,
     Defendant.


    Appeal by defendant from Judgment entered on or about 10

July 2013 by Judge Henry W. Hight, Jr. in Superior Court, Vance

County.     Heard in the Court of Appeals 12 August 2014.


    Attorney General Roy A. Cooper, III, by Assistant Attorney
    General Jonathan Shaw, for the State.

    Wait Law,         P.L.L.C.,      by      John      L.    Wait,    for       defendant-
    appellant.


    STROUD, Judge.


    Donte Macon (“defendant”) appeals from the judgment entered

after   a   Vance   County      jury      found     him      guilty     of      carrying    a

concealed    weapon     and    possession         of    a     firearm      by    a    felon.

Defendant argues that the trial court erred in admitting in-

court identifications by two police officers whose testimony was

tainted by impermissibly suggestive out-of-court identification

procedures.    We     hold    that     the    trial         court    did     not     err   by

admitting the in-court identifications.
                                               -2-
                                    I.        Background

      On 8 October 2012, defendant was indicted for carrying a

concealed      weapon    and       possession          of    a   firearm         by   a      felon.

Defendant    pled     not     guilty.         Before    trial,        defendant       moved      to

suppress both the in-court and out-of-court identifications of

him by Officer D.L. Ragland and Sergeant J. Ragland.                                  He argued

that the officers violated the Eyewitness Identification Reform

Act   (EIRA)    and     his    constitutional           rights        by      viewing     only   a

single photograph to identify defendant as the perpetrator.

      By   order      entered      11    July    2013,        the     trial      court       denied

defendant’s      motion       to    suppress.           Based       on     the    uncontested

findings of fact, around noon on a sunny 31 August 2012, Officer

Darryl     Ragland     and    Sergeant         Jamie        Ragland      of    the    Henderson

Police Department were on patrol when they saw a green Honda

parked behind a convenience store. When they returned to the

convenience store thirty minutes later, the same green Honda was

still parked in the same location. Based on their experience

with drug transactions in this area, they suspected that the

occupants      were     engaging         in    the      sale     of      heroin,        so     they

approached the vehicle to make an investigatory stop. They saw

one person sitting on the driver’s side of the Honda when a

person with dreadlocks got into the passenger’s side. As the
                                           -3-
officers     approached,         the     Honda    pulled      off,     drove       a    short

distance, then stopped. The passenger got out of the Honda and

looked    directly     at    Officer       Ragland.        Officer    Ragland          had    an

unobstructed view of the passenger’s face from about 10 feet

away. He noticed that the passenger was a light-skinned black

male with long dreadlocks and green eyes. The passenger took off

running, so Officer Ragland followed him. Officer Ragland asked

the passenger to stop, but he refused. During the pursuit, the

passenger discarded an object before jumping over a fence.

      Sergeant      Ragland      noticed    that      the    passenger    was          running

away but did not initially get a good look at him. Sergeant

Ragland got back into his police car to try to cut off the

fleeing     passenger.      As     the     passenger        jumped     over    a       fence,

Sergeant Ragland saw him from about 5 to 7 yards away. He had an

unobstructed view of the fleeing man, who then climbed another

fence and escaped. The officers could not catch him.

      Two    more    officers      arrived       on    scene,     including            Officer

Burrell. Officer Ragland told Officer Burrell what he had seen

and   described      the    passenger.       Officer        Burrell    said    that          the

person he described “sounds like Donte Macon.” Officer Ragland

and   Sgt.    Ragland       then       returned       to    the      Henderson         Police

Department and entered the name “Donte Macon” into their RMS
                                            -4-
database. When the system returned a photograph of defendant,

Sgt.    Ragland      said,    “That’s       him.”    Both     Officer    Ragland       and

Sergeant Ragland recognized the person in the photograph as the

passenger     who    fled     from    the   green     Honda.    The     officers      then

pulled up another photograph of defendant and confirmed that he

was the man they saw earlier. At the hearing, both officers

“identified the defendant in open Court as the person they saw

on August 31, 2012 with 100% certainty.”

       Based on these facts, the trial court concluded that the

EIRA did not apply here and that the procedure used to identify

defendant was not unduly suggestive. The trial court further

concluded     that     the     in-court       identifications         made     by    both

officers were “of independent origin” from the procedure used to

identify      defendant.        Therefore,          the      trial     court        denied

defendant’s motion to suppress.

       At trial, the State’s evidence tended to show the facts as

found    by    the     trial     court.       Additionally,          Officer    Ragland

testified     that    he     looked    on   the     ground    where     defendant     had

discarded the object during the chase and found a small caliber

handgun. Officer Ragland picked it up with a leaf and brought it

back to the police department’s evidence locker.                        Both officers

testified, over objection, that defendant was the person they
                                             -5-
saw fleeing on 31 August 2012.                    The police tested the recovered

firearm for fingerprints, but were unable to find any prints

sufficient for testing.              The State also introduced evidence of

defendant’s prior felony conviction.

      After       the      State     rested       its      case-in-chief,          defendant

testified       on   his    own    behalf.    He     denied      that     he    was   at   the

convenience store on 31 August 2012 and denied possessing a

firearm of any kind.               He testified that on the day in question

he   was   with      his   “baby’s     mother”      at     her    house    in     Henderson.

Defendant stated that he was aware that, as a felon, he was not

allowed to possess firearms, so he stayed away from them.

      The jury found defendant guilty of both charges. The trial

court      sentenced        defendant        to     14-26        months        imprisonment.

Defendant gave notice of appeal in open court.

                              II.    Motion to Suppress

      Defendant argues that the trial court erred in denying his

motion     to    suppress     the    in-court       identifications            made   by   the

officers        because     the     procedure       they     used    to        identify    him

violated the EIRA and his constitutional due process rights. We

disagree.

A.    Standard of Review
                                       -6-
      “This Court’s review of a trial court’s denial of a motion

to suppress in a criminal proceeding is strictly limited to a

determination of whether the court’s findings are supported by

competent evidence, even if the evidence is conflicting, and in

turn, whether those findings support the court’s conclusions of

law.” State v. Boozer, 210 N.C. App. 371, 378, 707 S.E.2d 756,

763 (2011) (citation and quotation marks omitted), disc. rev.

denied, ___ N.C. ___, 720 S.E.2d 667 (2012). “However, when, as

here, the trial court’s findings of fact are not challenged on

appeal, they are deemed to be supported by competent evidence

and are binding on appeal.” State v. Robinson, ___ N.C. App.

___, ___, 727 S.E.2d 712, 715 (2012) (citation and quotation

marks omitted). We review questions of statutory interpretation

de   novo.   Johnson   v.     Robertson,     ___    N.C.   App.    ___,   ___,   742

S.E.2d 603, 605 (2013).

B.    North Carolina Eyewitness Identification Reform Act

      Defendant argues that the police failed to abide by the

lineup procedures required by the EIRA, codified at N.C. Gen.

Stat. § 15A-284.52 (2011). The State counters, and the trial

court   concluded,     that    the   EIRA    does   not    apply   here.   At    the

hearing on defendant’s motion to suppress, the State argued that

the EIRA did not apply because the use of a single photograph to
                                     -7-
identify   a   suspect   is    not    a     “photo   lineup,”      and   that,

furthermore, it does not apply to identifications made by police

officers in the course of their investigation.                We agree that

the   identification   based   on    two    photographs     here   was   not   a

“lineup”   and,   therefore,   was    not    subject   to    the   procedures

outlined in the EIRA.

      The trial court made the following findings of fact, none

of which are challenged by defendant:

           6.   That on August 31, 2012 Detective
           Darryl L. Ragland and Sgt. Jamie Ragland
           were on routine patrol as police officers
           with the City of Henderson Police Department
           assigned to the narcotics unit.

           7.   That    Darryl Ragland has been employed
           with the    Henderson Police Department for 3
           years and    seven months and was so employed
           on August   31, 2012.

           8.   That Jamie Ragland was employed with
           the City of Henderson Police Department for
           21 years and was so employed August 31,
           2012.

           9.   That as the officers were driving an
           unmarked police vehicle in the City of
           Henderson on August 31, 2012, they noticed a
           green Honda motor vehicle with a person on
           the driver’s side parked behind Alex Market
           Store at the corner of Maple Street and
           Nicholas Street in Henderson.

           10. That as the officers continued on
           patrol they drove by the Alex Market and
           noticed that the green Honda remained parked
                       -8-
behind the    market   for   a   period   of    thirty
minutes.

11. That    this  was   suggestive  of   drug
activity (sale of heroin) to the officers.

12. That the officers drove up behind the
green Honda to initiate an investigative
stop.

13. That it was approximately 12 noon with
bright sunlight when the officers drove up
behind the Honda.

14. That the officers viewed a person enter
the passenger side of the Honda.

15. That there was a person sitting on the
driver[’s] side[] of the green Honda.

16. That Officer D. L. Ragland and Sgt.
Ragland noted that the person getting into
the Honda had dread locks.

17. That the Honda pulled off as the
officers approached, went a short way and
then stopped.

18. That     the   passenger     got   out     of   the
Honda.

19. That Officer Darryl Ragland got out of
the unmarked police vehicle.

20. That the passenger then looked directly
at Officer Ragland.

21. That at this point, Officer Darryl
Ragland had an unobstructed view of the
passenger   and   most  specifically the
passenger’s face.

22. That Officer Darryl Ragland was 10 feet
from the passenger when he saw his face.
                      -9-


23. That from this face to face between
Officer D. L. Ragland and the passenger,
Officer[] Ragland noticed that the passenger
was an African-American male, light skinned,
long dreads and green eyes.

24. That Officer Darryl Ragland did       not
know the passenger before this time.

25.   That the passenger began running.

26. That Officer Darryl Ragland asked the
fleeing man to stop.

27. That Officer Darryl Ragland pursued the
fleeing man who did not stop.

28. That during the pursuit, Officer D. L.
Ragland saw the fleeing man discard an
object before he jumped over a fence.

29. That Officer D. L. Ragland stopped his
pursuit and discovered a small caliber
handgun which had been discarded by the
fleeing passenger.

30. That until the passenger ran, Sgt.
James J. “Jamie” Ragland saw no interaction
between Officer Darryl Ragland and the
exiting passenger as he focused on the
person on the driver’s side of the green
Honda.

31. That at the point in time when Sgt.
Ragland noticed that Officer Darryl Ragland
began to chase the fleeing passenger, Sgt.
Ragland noted only that the passenger was an
African-American male with light skin and
dreads.

32. That Sgt. Ragland tried to follow the
chase by car in hopes of being able to cut
off the fleeing passenger.
                      -10-


33. That as Sgt. Ragland drove he could see
the chase behind houses that faced Nicholas
Street.

34. That     Sgt. Ragland saw that the fleeing
passenger    was coming upon a fence and drove
his car     behind a house in an effort to
apprehend   the passenger.

35. That as the passenger came over a fence
. . . he turned around.

36. That    Sgt.   Ragland  had  a   clear
unobstructed view of the fleeing passenger
who looked straight at him.

37. That Sgt. Ragland was about       5   to   7
yards from the fleeing passenger.

38. That    Sgt.  Ragland   noted that the
fleeing passenger was an African-American
male with light skin and dreads.

39. That the fleeing passenger was able to
climb another fence and escaped.

40. That other Henderson Police Officers
Sgt. Collier and Officer Burrell arrived on
the scene.

41. That Officer D. L. Ragland reported to
Sgt. Collier and Officer Burrell what had
occurred together with a description of the
person who fled.

42. That Officer Burrell       said   that     he
sounds like Donte Macon.

43. That both Sgt. Ragland and Detective
Ragland went directly to the Henderson
Police Department and entered the name of
Donte Macon into the automated RMS system.
                                -11-
         44. That when a photograph of Donte Macon
         was pulled up on the screen, Sgt. Ragland
         said “That’s him.”

         45. That both Detective Ragland and Sgt.
         Ragland immediately recognized    that the
         person in the photo was the same person who
         fled from Alex’s Market.

         46. That    this    identification   occurred
         within 10 to 15 minutes of the encounter
         with the fleeing passenger at Alex’s Market.

         47. That another photo of Donte Macon was
         provided by the RMS system.

         48. That this photo of Donte Macon was also
         identified by both Officers as the person
         who fled from Alex’s Market.

         49. That D. L. Ragland           identified    the
         defendant, Donte Macon, as       the person    who
         fled the area behind Alex’s       Market, as   the
         person who he chased and as       the person   who
         discarded a handgun on August    31, 2012.

         50. That    Jamie  Ragland   identified  the
         defendant, Donte Macon, as the person he saw
         coming over a fence and who escaped on
         August 31, 2012.

         51. That both Officer Ragland and Sgt.
         Ragland identified the defendant in open
         Court as the person they saw on August 31,
         2012 with 100% certainty.

    In general, out-of-court eyewitness identifications can be

classified   as   “lineups,”   “photographic   identifications,”   or

“showups.” See generally, Wayne R. LaFave, et. al., Criminal

Procedure §§ 7.4(d), (e), (f) (3d ed. 2007). Other commentators
                                   -12-
distinguish between three types of out-of-court identifications:

live lineups, photo lineups, and showups. See Robert L. Farb,

Arrest, Search , and Investigation in North Carolina 558 (4th

ed. 2011).    The EIRA defines a lineup as either a live lineup or

a photo lineup. N.C. Gen. Stat. § 15A-284.52(a). Both types of

lineups under the EIRA are defined by the use of a number of

subjects—one suspect and several “fillers.” The statute defines

“photo   lineup”    as    “[a]   procedure      in   which   an      array    of

photographs is displayed to an eyewitness for the purpose of

determining    if   the    eyewitness      is   able    to     identify      the

perpetrator of a crime.” N.C. Gen. Stat. § 15A-284.52(a)(7). It

requires lineups to be conducted by an independent administrator

and specifies the procedure for picking the fillers, among a

number of other quite specific procedures for administering the

lineup. N.C. Gen. Stat. § 15A-284.52(b).

    Interpreted     broadly,     these    provisions   could    be    read   to

prohibit all showups, an effect we have held the Legislature did

not intend. State v. Rawls, 207 N.C. App. 415, 423, 700 S.E.2d

112, 118 (2010). Similarly, these provisions could be read to

prohibit any use of photographs to make an identification other

than in a photo array.
                                            -13-
       We    hold    that    the    EIRA       does    not    apply       to    such    single-

photograph identifications because they are not lineups. The use

of a single photograph (or two photographs of the same person,

as    here)    to    make    an    identification            has    been       criticized     as

“highly suggestive.” LaFave, Criminal Procedure § 7.4(e). The

same is true of showups. See State v. Turner, 305 N.C. 356, 364,

289                 S.E.2d                  368,                    373                  (1982)

(describing          showups        as     “suggestive             and         unnecessary”).

Nevertheless, we held in Rawls that there was no indication that

the    Legislature        intended       the    EIRA    to     ban    showups,         and   the

Legislature         has   not     since    amended       the       statute      to     indicate

otherwise. Rawls, 207 N.C. App. at 423, 700 S.E.2d at 118.

       The    procedure      used    here       might    be    called      a     photographic

showup;       it    has   similar        benefits       and    suffers         from    similar

weaknesses as a live showup, in which the witness is confronted

with a single suspect, often in handcuffs or otherwise detained.

Compare Turner, 305 N.C. at 364, 289 S.E.2d at 373 (describing

showups as “the practice of showing suspects singly to witnesses

for purposes of identification”) with LaFave, Criminal Procedure

§ 7.4(e) n. 85-86 (collecting cases that describe various uses

of a single photograph to make an identification, many of which

criticize the practice as “suggestive”). In both cases, only a
                                          -14-
small number of suspects were presented to the witness (three in

Rawls, one here) a short time after the crime was committed.

       As we noted in Rawls, our Supreme Court has recognized the

benefits of the showup as an investigative technique. Rawls, 207

N.C. App. at 422, 700 S.E.2d at 117. We observed in Rawls that

“the showup is a much less restrictive means of determining, at

the    earliest     stages    of    the   investigation        process,     whether    a

suspect     is     indeed    the   perpetrator      of     a   crime,    allowing     an

innocent     person    to    be    released      with     little    delay    and   with

minimal     involvement       with    the      criminal    justice      system.”     Id.

(citations, quotation marks, brackets, and ellipses                          omitted).

Like    a   live    showup,    the    photographic         showup    here    was   done

promptly after the officers saw the passenger flee, while their

memory of the incident was still fresh. Even more than a live

showup,     the    technique       used   by    police     here    allowed    them    to

determine at an early stage of their investigation whether the

lead they received from a fellow officer was worth pursuing.                          We

do not believe that the Legislature intended to prevent police

officers from consulting with a photograph in their database to

follow up on leads they are given by other officers. Therefore,

we hold that the trial court correctly concluded that the EIRA

does not apply here.
                                -15-
C.    Impermissibly Suggestive Identification Procedure

      Even if the EIRA does not apply, the normal due process

rules still do. Defendant argues in the alternative that the

procedure employed here was impermissibly suggestive. We hold

that even assuming the procedure was impermissibly suggestive,

the officers’ in-court identification was admissible because it

was based on an independent source.

      The trial court found that Officer Ragland was “10 feet

from the passenger when he saw his face.” The passenger “looked

directly   at   Officer   Ragland.”    Sgt.    Ragland     “had   a    clear

unobstructed view of the fleeing passenger who looked straight

at him[,]” from “about 5 to 7 yards” away. Given that both

officers had a clear and unobstructed view of the suspect, the

trial court concluded that “the in-court identification of the

accused by Officer Darryl Ragland and by Sgt. Jamie Ragland is

of   independent   origin.”   Defendant       does   not   challenge    this

conclusion.

      Even assuming the out-of-court identification procedure was

impermissibly suggestive, the officers’ in-court identifications

would still be admissible if those in-court identifications had

an origin independent of the impermissible procedure. State v.

Knight, 282 N.C. 220, 226, 192 S.E.2d 283, 287 (1972); State v.
                                -16-
Jordan, 49 N.C. App. 561, 566, 272 S.E.2d 405, 409 (1980); State

v. Pulley, 180 N.C. App. 54, 64-65, 636 S.E.2d 231, 239 (2006),

disc. rev. denied, 361 N.C. 574, 651 S.E.2d 375 (2007). Since

the trial court concluded that the in-court identifications had

an “independent origin,” and “were not tainted by any pretrial

identification procedure,” and defendant does not challenge that

conclusion, we must hold that the trial court did not err in

denying     defendant’s   motion   to    suppress   the   in-court

identifications. See Jordan, 49 N.C. App. at 566, 272 S.E.2d at

409.

                           III. Conclusion

       For the foregoing reasons, we hold that the trial court did

not err by denying defendant’s motion to suppress and admitting

the in-court identifications.

       NO ERROR.

       Chief Judge MCGEE and Judge BRYANT concur.
