Converted WP file 070173-1

Appeal by defendant from judgments entered 12 September 2006 by Judge Henry W. Hight, Jr., in Granville County Superior Court. Heard in the Court of Appeals 20 August 2007.

Attorney General Roy A. Cooper, III, by Assistant Attorney General Richard Bradford, for the State.

Terry F. Rose, for defendant-appellant.

JACKSON, Judge.

    Dewondo Levon Carroll (“defendant”) was convicted by a jury of possession with intent to sell and deliver cocaine and sale and delivery of cocaine. From the judgments entered upon his convictions, defendant appeals. For the following reasons, we hold no error.
    On 30 June 2005, undercover agent Leland Gadson (“Gadson”) pulled his car over on a street in a high-crime area targeted by police in an undercover operation. A man walked up to the car, and Gadson asked him for drugs. The man got into Gadson's car, they drove around, and then parked. Gadson purchased a small bag ofcocaine from the man for $20.00. The man left Gadson's car. The total encounter lasted twenty to thirty minutes.
    Nearby police officers listened to the transaction over a wiretap hidden on Gadson's person. Over the wire, Gadson described the man as a black male wearing a black “wife beater” shirt, blue jeans, a gray shirt around his neck, black ball cap on his head, and an empty gun holster on his hip. The police drove to the targeted area and identified defendant, who was standing alone, as the man matching Gadson's description. The police met with Gadson to obtain the evidence collected from the purchase. Gadson relayed the details on the encounter, including another description of the man. The police went to the police station, obtained a photograph of defendant, and returned to show the photograph to Gadson. Gadson identified the man in the photograph as the man who sold him the cocaine. No other photographs were shown to Gadson.
    At trial, Gadson identified defendant as the man who sold him the cocaine. Defense counsel objected to “any identification” of defendant in court based upon the highly suggestive and prejudicial use of only one photograph for Gadson's out of court identification. Voir dire was held outside the presence of the jury. The trial court sustained the objection as to the photographic evidence but allowed Gadson's in-court identification. The trial court ruled the in-court identification was based upon clear and convincing evidence and of independent origin and based solely upon what Gadson saw during the undercover operation. The court also found that the in-court identification was “not taintedby any pretrial identification procedure.” The court made several findings of fact to support its ruling, including that (1) Gadson had ample opportunity to observe defendant; (2) his attention was focused on defendant; and (3) his identification of defendant was made with a high degree of certainty. Defense counsel preserved a general objection for appeal. The photograph was mentioned twice more during testimony but was not offered or admitted into evidence. Defendant did not present any evidence.
    Defendant assigns as error the trial court's allowance of identification testimony of defendant on the basis of a photographic lineup consisting of only one photograph. He contends the use of a single photograph constituted an improper photographic lineup that was so suggestive as to taint the in-court identification. We disagree.
    We first note defendant does not challenge the trial court's findings of fact on appeal and therefore is bound by them. See State v. Watkins, 337 N.C. 437, 438, 446 S.E.2d 67, 68 (1994) (“The trial court's findings of fact were not excepted to on appeal; therefore, they are not reviewable.”).
    A pretrial identification based upon a single photograph may constitute an improper identification if it is “'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'” State v. Knight, 282 N.C. 220, 225, 192 S.E.2d 283, 287 (1972) (quoting Simmons v. United States, 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253 (1968)). However, exclusion of an in-court identification of a witness based on anillegal pretrial identification is not required if “it is first determined by the trial judge on clear and convincing evidence that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure.” State v. Yancey, 291 N.C. 656, 660, 231 S.E.2d 637, 640 (1977) (citations omitted). As our Supreme Court has noted, an in-court identification based on an independent origin establishes the absence of a “'substantial likelihood of irreparable misidentification.'” Knight, 282 N.C. at 226.27, 192 S.E.2d at 287.88.
    In the instant case, the trial court sustained defendant's objection regarding the photographic evidence. In addition, the trial court expressly found that Gadson's in-court identification of defendant as the man who sold him the cocaine on 30 June 2005 was independent of the photograph. Thus, the in-court identification was not tainted by any potentially illegal pretrial identification. The trial court's findings of fact _ specifically, those concerning Gadson's opportunity to observe defendant during the encounter and his level of certainty in identifying defendant in court as the perpetrator of the crime _ support its ruling. Accordingly, we find no error in the trial court's admission of Gadson's in-court identification of defendant as the perpetrator of the offenses.