STATE OF NORTH CAROLINA
v. Mecklenburg County
No. 03CRS29304
JOEL ALEXANDER McCULLOUGH
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Leonard G. Green, for the State.
Brannon Strickland, P.L.L.C., by Anthony M. Brannon, for
defendant-appellant.
HUNTER, Judge.
Joel Alexander McCullough (“defendant”) was charged with
possession of cocaine with the intent to sell or deliver. Prior to
trial, defendant moved to suppress certain identification evidence
and a hearing was held on that motion. The State's evidence tended
to show that Officer Seth Greene (“Officer Greene”), a four-and-
one-half-year veteran of the Charlotte-Mecklenburg Police
Department, was participating in an undercover drug investigation
in the downtown area of Charlotte on 27 March 2003. At about 6:00
p.m., Officer Greene observed defendant walking along the sidewalk
on West Trade Street. Defendant approached Officer Greene's
unmarked truck and inquired of the officer whether he was “'lookingfor some dope[.]'” When the officer told him yes, defendant got
into Officer Greene's truck and asked the officer to drive around
the block. Officer Greene told defendant that he wanted to buy
some crack cocaine, and defendant pulled a packet, containing what
was later determined to be crack cocaine, from his pocket. Officer
Greene stopped the truck and defendant gave him the packet of crack
cocaine, whereupon the officer gave defendant $15.00 in United
States currency. Officer Greene then drove defendant to a location
on Bungalow Road, where defendant got out of the truck.
After defendant got out of Officer Greene's vehicle, Officer
Greene radioed Officer K. D. Faulkner (“Officer Faulkner”), also an
officer with the Charlotte-Mecklenburg Police Department and who
was serving as the identification officer for the undercover team.
Officer Greene gave Officer Faulkner a description of defendant
based upon the four or five minute drug exchange with defendant:
5'9”, 220 pounds, black male, middle-aged, wearing a white hat,
gray sweat pants, a white t-shirt and sunglasses.
About ten seconds after receiving Officer Greene's radio
transmission, Officer Faulkner saw a person fitting the description
just given by Officer Greene walking on Bungalow Road. The person
was counting money as he walked. Significantly, there were no
other persons fitting the description given by Officer Greene in
the immediate area at that time. Officer Faulkner stopped his
vehicle, and defendant walked over to the driver's side of the car
and he and Officer Faulkner had a brief conversation. Officer
Faulkner recognized defendant because he had arrested him severaltimes before and had seen him on numerous occasions in the
neighborhood. After his brief conversation with defendant, Officer
Faulkner reported to Officer Greene that he had made a positive
identification of the person who had sold him cocaine. Officer
Faulkner then returned to the investigation briefing area.
Officer Greene thereafter saw defendant again on West Trade
Street, and he pulled to the curb and initiated contact with
defendant, saying “'I need a dime.'” Defendant responded to
Officer Greene, telling him that he could get the drugs and
directing the officer to drive around the block. Officer Greene
complied, and drove about three blocks. After about a minute and
a half, Officer Greene returned and defendant got into the truck.
Defendant told the officer that he could only get a “dove,” which
is slang for a $20.00 piece of crack cocaine, whereupon Officer
Greene told him that all he had was $10.00. Defendant broke the
rock of cocaine in half and gave it to Officer Greene, and the
officer paid defendant $10.00 in United States currency. Defendant
then exited the vehicle.
Once defendant was out of Officer Greene's vehicle, the
officer reported his second purchase from defendant to Officer
Faulkner. In response, Officer Faulkner drove to the 2500 block of
West Trade Street, where he observed defendant.
Officers Greene and Faulkner subsequently met back at the
briefing area, at which time Officer Faulkner showed Officer Greene
a picture of defendant obtained from a group of pictures that had
been previously compiled by the police. Officer Greene identifiedthe person in the picture as the same person who had twice sold him
cocaine on the evening of 27 March 2003.
After hearing the evidence and arguments of counsel, the trial
court rendered judgment on 6 October 2003 denying the motion to
suppress. The matter thereafter came on for trial-- with the State
presenting the testimony of Officers Greene and Faulkner, which was
in conformity with their earlier testimony at the suppression
hearing. Additionally, defendant presented the testimony of an
investigator, who processed defendant at the Mecklenburg County
Jail, that defendant was measured at “[a]pproximately 63 and three
quarter inches[]” tall with his shoes off.
The jury found defendant guilty as charged. The trial court
then entered judgment on that verdict sentencing defendant to a
presumptive term of twenty-nine to thirty-five months imprisonment.
Defendant appeals.
On appeal, defendant argues that the trial court erred in
denying his motion to suppress both the pre-trial identification
and in-court identification testimony of Officers Greene and
Faulkner. Defendant contends that the identification process was
unnecessarily suggestive and created a substantial likelihood of
pre-trial and in-court misidentification in violation of his due
process rights. We disagree.
It is well settled that identification evidence must be
excluded on due process grounds if a pre-trial identification
procedure was “so suggestive as to create a very substantial
likelihood of irreparable misidentification.” State v. Capps, 114N.C. App. 156, 161-62, 441 S.E.2d 621, 624 (1994). In determining
whether an identification procedure was so suggestive as to create
a substantial likelihood of irreparable misidentification, the
court employs a two-step inquiry. State v. Fowler, 353 N.C. 599,
617, 548 S.E.2d 684, 697-98 (2001), cert. denied, 535 U.S. 939, 152
L. Ed. 2d 230 (2002). First, the court must inquire as to whether
“'the totality of the circumstances reveals a pretrial procedure so
unnecessarily suggestive and conducive to irreparable mistaken
identity as to offend fundamental standards of decency and
justice.'” Id. at 617, 548 S.E.2d at 698 (quoting State v. Hannah,
312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984)). Next, “if the
procedures were impermissibly suggestive, the Court must then
determine whether the procedures created a substantial likelihood
of irreparable misidentification.” Id.
In the event that a pre-trial identification procedure is
determined to be “impermissibly suggestive,” the identification
evidence may, however, still be properly admitted if the trial
court determines that viewing the totality of the circumstances,
the pre-trial identification did not create “substantial likelihood
of irreparable misidentification.” Id. at 617, 548 S.E.2d at 697-
98. Factors to be considered in making this determination include
the following: “'(1) the opportunity of the witness to view the
criminal at the time of the crime; (2) the witness's degree of
attention; (3) the accuracy of the witness's prior description of
the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time betweenthe crime and the confrontation.'” Capps, 114 N.C. App. at 162,
441 S.E.2d at 624-25 (quoting State v. Harris, 308 N.C. 159, 164,
301 S.E.2d 91, 95 (1983)).
“Our review of a ruling on a motion to suppress is limited to
whether the trial court's findings are supported by competent
evidence and whether those findings support its ultimate
conclusions.” State v. McHone, 158 N.C. App. 117, 120, 580 S.E.2d
80, 83 (2003). In this case, our review is further limited,
however, by defendant's failure to assign error to any of the trial
court's findings of fact. The court's findings are, therefore,
presumed correct and are binding on this Court on appeal. See
Okwara v. Dillard Dep't Stores, Inc., 136 N.C. App. 587, 591, 525
S.E.2d 481, 484 (2000) (“[w]here findings of fact are challenged on
appeal, each contested finding of fact must be separately assigned
as error, and the failure to do so results in a waiver of the right
to challenge the sufficiency of the evidence to support the
finding”). To that end, our review is limited to a determination
as to whether the trial court's findings support its conclusions of
law.
Employing the requisite factors to be used in making the
determination of whether the pre-trial identification procedure
created a substantial likelihood of irreparable misidentification,
the trial court made the following pertinent findings:
1. On March 27, 2003, Officer Seth
Greene was a Charlotte-Mecklenburg police
officer assigned to the Street Crimes Unit.
On that date he was working as an undercover
narcotics officer and was operating an
unmarked Ford pickup truck. He wasparticipating in a drug investigation in the
Smallwood neighborhood of Charlotte, located
off West Trade Street.
2. Officer Greene had prior training in
making identifications of drug suspects.
3. Officer Greene observed the
Defendant walking along a sidewalk on West
Trade Street during the early evening hours of
March 27, 2003. The weather was clear.
Officer Greene had no problems observing the
Defendant on that occasion.
4. The Defendant asked Officer Greene
whether he was looking for some “dope”. The
Defendant got into the officer's pickup truck
on the passenger side and engaged in
conversation with Officer Greene.
5. Officer Greene was sitting
approximately two to three feet away from the
Defendant while the Defendant was in his
pickup truck.
6. Officer Greene observed that the
Defendant was wearing a white baseball cap,
sunglasses, gray sweat pants, and a white tee
shirt. Officer Greene also observed that the
Defendant appeared to be a middle aged man,
five foot nine inches in height, and weighing
approximately 200 pounds. He also noticed
that the Defendant was not clean shaven.
7. Officer Greene engaged in a drug buy
from the Defendant. The transaction took
approximately three to four minutes. Officer
Greene observed the Defendant take a piece of
suspected crack cocaine from his left front
pants pocket for which Officer Greene gave the
Defendant $15.00 in U.S. currency.
8. At the Defendant's request, Officer
Greene drove the Defendant to the intersection
of Bungalow Drive and Rozzelles Ferry Road
where the Defendant exited the pickup truck.
Officer Greene subsequently transmitted over
his police radio a description of the suspect
to other police officers participating in the
drug investigation.
9. Following Officer Greene's
transmission, Officer K. D. Faulkner, a
Charlotte-Mecklenburg police officer
participating in the undercover drug
investigation, and acting as the “cover
officer” of Officer Greene, observed the
Defendant near the intersection of Bungalow
Drive and West Trade Street. The Defendant
was wearing gray sweat pants, a white shirt,
white hat, and sunglasses, and was counting
money as he was walked [sic] down the street.
Officer Faulkner recognized the Defendant as
Joel McCullough, an individual whom Officer
Faulkner had arrested at least four times
previously and with whom he had other dealings
over a four to five year period.
10. Officer Faulkner stopped and had a
brief conversation with the Defendant and then
continued on and radioed Officer Greene that
he had identified the suspect.
11. Officer Greene later saw the
Defendant again walking on West Trade Street
and wearing the same items of clothing Officer
Greene had observed previously. Officer
Greene again talked with the Defendant and
again engaged the Defendant in a drug
transaction.
12. On the second encounter with Officer
Greene, the Defendant got into the passenger's
side of Officer Greene's pickup truck to
conduct the drug transaction. The second drug
transaction took approximately 30 seconds.
13. Officer Greene subsequently met with
Officer Faulkner who presented a photograph.
Officer Greene viewed the photograph (State's
Exhibit Number 1) that he identified as being
a photograph of the individual with whom he
had engaged in the two drug transactions. The
photograph was of the Defendant, Joel
McCullough.
14. Neither Officer Faulkner nor any
other police officer suggested that Officer
Greene should identify the Defendant's
photograph as that of the suspect with whom
Officer Greene had engaged in the drug
transactions. Officer Greene did not have any
hesitation in identifying the Defendant as theperson whom he had encountered in the two drug
transactions.
Based on those findings of fact, the trial court made the following
conclusions of law:
1. Officer Seth Greene's out of court
identification and in court identification of
the Defendant are reliable[.]
2. Officer K. D. Faulkner's out of
court identification and in court
identification of the Defendant are reliable.
3. The out of court and in court
identifications of the Defendant by Officer
Seth Greene and Officer K. D. Faulkner are
based upon their opportunities to observe the
Defendant which were sufficient to enable a
positive identification. Officer Faulkner's
identifications are further supported by his
prior dealings with, and knowledge of, the
Defendant. The identifications are not the
result of an impermissibly suggestive
identification procedure.
4. If the use of the single photograph
by Officer Seth Greene and Officer K. D.
Faulkner was impermissibly suggestive, under
the totality of the circumstances, it did not
create a substantial likelihood of irreparable
misidentification.
5. The out of court identifications of
the Defendant by Officer Seth Greene and
Officer K. D. Faulkner, and the in court
identifications of the Defendant by Officer
Seth Greene and Officer K. D. Faulkner, do not
violate any of the Defendant's rights under
the Constitution of the United States of
America or the Constitution of the State of
North Carolina.
After a thorough review of the record evidence, we conclude
that the trial court's findings, which are presumed correct,
support its conclusions of law that both the pre-trial and in-court
identifications of Officers Greene and Faulkner were admissible. We further conclude that the court's conclusions of law support its
decision to deny the motion to suppress. Accordingly, the trial
court did not err in denying defendant's motion to suppress.
Having so concluded, we hold that defendant received a fair
trial, free from prejudicial error.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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