An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA04-1677

NORTH CAROLINA COURT OF APPEALS

Filed: 2 August 2005

STATE OF NORTH CAROLINA

         v.                        Mecklenburg County
                                Nos.    03 CRS 230846-47
DAVID WAYNE WILLIAMS,
    Defendant-Appellant
    

    Appeal by defendant from judgment entered 22 July 2004 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 18 July 2005.

    Attorney General Roy Cooper, by Special Deputy Attorney General J. Allen Jernigan, for the State.

    Bryan Gates for defendant-appellant.

    MARTIN, Chief Judge.

    Defendant was indicted for three counts of robbery with a dangerous weapon. His pretrial motion to suppress identification evidence was denied and after reserving his right to appeal the denial of his motion, defendant entered an Alford plea to three counts of common law robbery. See North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162 (1970). The trial court consolidated the offenses for judgment and sentenced defendant to a term of sixteen to twenty months imprisonment. Defendant appeals.
    The evidence at the suppression hearing tended to show the following: On 27 April 2003, a man with a gun robbed Robert Brooks at the door of Teddi Daniels' residence. Both Mr. Brooks and Ms.Daniels provided descriptions of the perpetrator to the police. On 20 May 2003, a man with a gun robbed David and Regina Czerr as they were about to exit their vehicle in their driveway. They also provided police with a description of the perpetrator.
    Detective Randy Carroll was assigned to investigate both robberies. He received an anonymous tip suggesting defendant had committed the Brooks robbery and gave the address of the apartment where defendant was staying. On 12 June 2003, Detective Carroll went to the apartment and spoke with defendant and other individuals who were there. Defendant identified himself as David Williams during the conversation.
    After leaving the apartment, Detective Carroll returned to his office and created a photographic lineup. To do so, Detective Carroll entered the name “David Williams” into an arrest database system. From the matches generated by the system, Detective Carroll selected a photograph which he thought was a photograph of the suspect to whom he had just spoken. The system identified the individual in that photograph as “Scotty Williams” and listed “David Williams” as an alias. Detective Carroll next obtained additional photographs from the system which matched the description of the perpetrator. He selected five additional photographs to place in the photographic lineup with the photograph of “David Williams.”
    Detective Carroll made arrangements with each of the victims to examine the photographic lineup. Ms. Daniels viewed the photographic lineup on 16 June 2003, but was only able to narrowher selection to photograph number one (“David Williams”) and photograph number five. Later that same morning, Mr. Brooks identified photograph one (“David Williams”) as the perpetrator after examining the photographs for approximately ten minutes. When Mr. Czerr viewed the photographic lineup, he also narrowed his selection to photographs one and five. He stated those two photographs looked the most like the perpetrator, but neither one was the perpetrator. Similarly, Mrs. Czerr narrowed her selection to photographs one and five, but she said she did not think the perpetrator was in the photographic lineup.
    On the basis of Mr. Brooks' identification, Detective Carroll obtained an arrest warrant for “Scotty a/k/a David Williams” on 19 June 2003. Officers arrested defendant that same day. When Detective Carroll showed the photographic lineup to defendant, he informed the detective that photograph one was of his brother Scotty. Defendant explained that his brother had previously given his name after being arrested, and defendant commented that he and his brother looked very much alike. Detective Carroll then released defendant and had a second photographic lineup prepared which contained defendant's photograph. He obtained the photographs of defendant and five other men for the second photographic lineup from the Gaston County jail.
    Detective Carroll then returned to each of the victims with the second photographic lineup, but he did not explain why he was showing it to them. He repeated the instructions which he had given them when they viewed the original photographic lineup: thatthe victims did not have to choose a photograph; that the perpetrator might not be among the photographs; and that hairstyles and facial hair can change.
    Mr. Brooks viewed the second photographic lineup on 24 June 2003, and he identified defendant's photograph in approximately three to five seconds. When Mr. Czerr viewed the second photographic lineup, he was again only able to narrow his selection to two individuals. He indicated if he had to choose, however, he would choose photograph five (defendant's photograph). Mrs. Czerr pointed to defendant's photograph in the second photographic lineup and said, “I really think that's him. I'm not a hundred percent, but I really think that's him.” Ms. Daniels was unable to positively identify anyone in the second photographic lineup, but she narrowed her selection to photographs of defendant and one other individual. Detective Carroll did not comment afterwards upon any of the selections made by the victims. Mr. Brooks, Mr. Czerr and Mrs. Czerr each testified that they learned of the mix-up in the first photographic lineup at some point well after they viewed the second photographic lineup.
    Following arguments by counsel at the close of the evidence, the trial court denied defendant's motion to suppress in open court. In its written order, the trial court found that Detective Carroll did not suggest that the victims select a photograph and that he did not tell them why they were being asked to look at a second photographic lineup. The trial court further found that “[c]onsidering the totality of the circumstances, the twophotographic lineups and the manner in which they were displayed to Mr. Brooks, Ms. Daniels, and Mr. and Mrs. Czerr were not unnecessarily suggestive so as to give rise to a substantial likelihood of irreparable misidentification.” The trial court then concluded that: (1) the two photographic lineups and their display to the victims did not violate any of defendant's rights; (2) the testimony about the photographic lineups and the victims' reactions would not violate any of defendant's rights; and (3) the in-court identification of defendant by the victims would not violate any of his rights. On the basis of its findings of fact and conclusions of law, the trial court denied defendant's motion to suppress.
    Defendant contends the trial court erred by denying his motion to suppress. He argues the use of the second photographic lineup was unnecessarily suggestive and the victims' in-court identifications were tainted by the feedback they received after the identification. We disagree.
    “Due process forbids an out-of-court confrontation which is so unnecessarily 'suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'” State v. Leggett, 305 N.C. 213, 220, 287 S.E.2d 832, 837 (1982) (quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253 (1968)). “The test under the due process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice.”State v. Henderson, 285 N.C. 1, 9, 203 S.E.2d 10, 16 (1974), death penalty vacated, 428 U.S. 902, 49 L. Ed. 2d 1205 (1976). A two- step process is employed in evaluating such claims of denial of due process. Leggett, 305 N.C. at 220, 287 S.E.2d at 837. The first step is to “determine whether an impermissibly suggestive procedure was used in obtaining the out-of-court identification.” Id. Only if the procedure used is determined to be suggestive does this Court proceed to the second step, which “is whether, under all the circumstances, the suggestive procedures employed gave rise to a substantial likelihood of irreparable misidentification.” Id.
    In Leggett, the defendant was the only person whose photograph was in both of the photographic lineups shown to the victim. Our Supreme Court held that “[t]he fact that a defendant's photograph [was] the only one common to two groups of photographs shown a victim [was] not sufficient, standing alone, to support a determination that pretrial photographic identification was conducted in an impermissibly suggestive manner.” Leggett, 305 N.C. at 222, 287 S.E.2d at 838. In contrast, defendant's photograph here was only in the second photographic lineup shown to the victims. Only one of the four victims made a positive identification based upon the first photographic lineup, and that victim selected the photograph of defendant's brother after viewing the photographs for approximately ten minutes. In contrast, three of the four victims identified defendant as the perpetrator from his photograph in the second photographic lineup. Examination of the victims' testimony does not reveal any comments by DetectiveCarroll in presenting the two photographic lineups which could be considered suggestive, nor does examination of the two photographic lineups reveal any extraneous markings or information which would serve to taint the selection process. The three victims who identified defendant in the second photographic lineup testified that they only learned of the photograph mixup at some later point in time. While Mr. Brooks assumed the perpetrator was in the first photographic lineup, he further stated that the detective did not say anything to him about whether the perpetrator was in that photographic lineup.
    The testimony of the victims that the detective made no suggestion to them that they pick any of the photographs is bolstered by the fact that only one of the four victims made a positive identification from the first photographic lineup. The two photographic lineups in the record show that all the subjects were similar in age, facial hair and physical stature. Under all the circumstances, we conclude that the totality of the procedures employed shows they were not impermissibly suggestive. Having concluded that the procedures used in obtaining the three victims' out-of-court identification of defendant were not impermissibly suggestive, this Court need not consider whether the procedures gave rise to a substantial likelihood of irreparable misidentification. The evidence supports the trial court's findings of fact, which in turn support its conclusions of law. Because the procedures were not impermissibly suggestive, the trial court did not err in denying the motion to suppress the victims'identifications of defendant.
    No error.
    Judges HUNTER and STEELMAN concur.
    Report per Rule 30(e).

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