Converted WP file 070333-1

Appeal by defendant from judgments entered 28 November 2006 by Judge W. Russell Duke, Jr. in Superior Court, Wilson County. Heard in the Court of Appeals 27 August 2007.

Attorney General Roy Cooper, by Assistant District Attorney Kimberley A. D'Arruda, for the State.

Leslie C. Rawls, for defendant-appellant.

WYNN, Judge.

    If a photographic lineup is so impermissibly suggestive as to lead to a “substantial likelihood of irreparable misidentification,” then it must be suppressed at trial.   (See footnote 1) Here, Defendant Kevin Jay Barnes has failed to show that his pretrial and in-trial identification as the individual who sold drugs to an undercover police officer were impermissibly suggestive. We therefore find no error in the denial of his motion to suppress.
    At trial, the State offered evidence tending to show that on 18 November 2005, Rocky Mount police officer Brenda Robertson wasworking in an undercover drug operation in Wilson. Officer Robertson drove through the targeted area until she saw Defendant on the side of the road. She pulled over and rolled down the passenger side window, and Defendant leaned in and asked her what she wanted. After responding that she “wanted twenty,” Officer Robertson gave Defendant twenty dollars, and he handed her a small bag of cocaine. Officer Robertson's car was equipped with an electronic transmitter by which two surveillance teams could listen to the exchange. When she pulled away in her car, she gave a description over the transmitter of a heavyset black male wearing a black hat, a large black jacket, and black jeans. One of the teams arrived at the address given by Officer Robertson within one minute of receiving her call. The team identified Defendant, who was the only person standing there, as the person matching Officer Robertson's description.
    In December 2005, Sergeant Jeff Boykin of Wilson used the police department's computer system to produce a photographic lineup consisting of six photos, including Defendant's, of people matching Defendant's general description, build, and age. On 15 December, Officer Tim Keating of Wilson took the lineup to the Rocky Mount police station and met with Officer Robertson. Because she had participated in several operations in Wilson, Officer Keating reminded Officer Robertson of the place, date, and time of the undercover operation, and she then reviewed the photos. Within approximately a minute Officer Robertson signed her name underneath Defendant's photograph, identifying him as the person from whom shepurchased cocaine on 18 November. Officer Robertson testified she clearly saw Defendant's face during the 18 November transaction, which took place on a sunny clear afternoon, and that she would not have signed her name on the photo lineup unless she was one hundred percent certain she made the correct identification. She also identified Defendant in court as the man from whom she purchased the cocaine on 18 November 2005.
    Defendant filed a pretrial motion to suppress any identification based on the pretrial photo lineup on the grounds that the lineup was so impermissibly suggestive as to violate Defendant's due process rights. He also moved to suppress any subsequent in-court identification of Defendant on the grounds it would have been tainted by the illegal pretrial photo lineup. Defendant argued his motion at trial, and the trial court denied the motion, finding as fact that Officer Robertson “gave the proper attention and had a sufficient opportunity to clearly observe the Defendant at the crime scene” and that “[t]here was no evidence indicating that the Defendant was 'singled out'” in the photo lineup. The trial court concluded that, given all the circumstances, the pretrial identification procedure was not impermissibly suggestive, and that the credibility of the identification evidence was for the jury to weigh. Defendant continued to object to evidence of the photo lineup as well as to Officer Robertson's in-court identification of defendant; those objections were overruled.    Defendant was subsequently convicted by a jury of possession with intent to sell and deliver cocaine and of selling cocaine. The trial court entered judgment and sentenced Defendant to eleven to fourteen months' imprisonment for possession with intent to sell, and a consecutive sentence of twenty to twenty-four months' imprisonment for selling cocaine. Defendant now appeals, arguing that the trial court erred by (I) denying Defendant's motion to suppress the photographic lineup and identification, and (II) admitting Officer Robertson's in-court identification of Defendant. Because Defendant's arguments are substantially the same as to each argued assignment of error, we consider them together.
    Our standard of review of a trial court's ruling on a motion to suppress is whether the trial court's findings of fact are supported by competent evidence. State v. Buchanan, 353 N.C. 332, 336, 543 S.E.2d 823, 826 (2001). Additionally, the conclusions of law must be supported by the findings of fact. State v. Campbell, 359 N.C. 644, 662, 617 S.E.2d 1, 13 (2005), cert. denied, 547 U.S. 1073, 164 L. Ed. 2d 523 (2006).
    Here, Defendant specifically contends that the photographic lineup was so impermissibly suggestive as to lead to a “substantial likelihood of irreparable misidentification.” State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983) (citing Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247 (1968). Determination of whether an identification has violated a defendant's rights is undertaken in two steps, namely, first considering whether the procedures were impermissibly suggestive, and, if so, thendetermining whether they were substantially likely to lead to irreparable misidentification. State v. Johnson, 161 N.C. App. 68, 73, 587 S.E.2d 445, 448 (2003), disc. review denied, 358 N.C. 239 (2004).
    When determining whether identification procedures were impermissibly suggestive, we examine the totality of the circumstances surrounding the identification, including “'the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty shown by the witness, and the time between the offense and the identification.'” Id. (quoting State v. Rogers, 355 N.C. 420, 432, 562 S.E.2d 859, 868 (2002)). Only if the procedures are deemed impermissibly suggestive will the second step of the process be addressed, determining whether the procedures are substantially likely to lead to irreparable misidentification. Rogers, 355 N.C. at 433, 562 S.E.2d at 869.
    In the instant case, Officer Robertson had the opportunity to see Defendant's face on a sunny day, she gave a description of Defendant immediately after the transaction took place to the surveillance team, and the surveillance team identified Defendant from Officer Robertson's description within a minute after her communication. Moreover, a photographic lineup was arranged using photos of six men having similar physical characteristics to Officer Robertson's description; Officer Robertson then studied the photographs and selected Defendant within about a minute. Based onthe record and transcript before us, Officer Robertson's selection of Defendant's photograph, as well as her in-court identification of Defendant, were made with confidence and certainty. There is no evidence to suggest Officer Robertson was improperly influenced in choosing Defendant's photo from the lineup, nor that the lineup itself was impermissibly suggestive.
    Given these facts, we find that the photographic lineup was not impermissibly suggestive as a matter of law. The evidence presented supports the trial court's findings of fact and conclusions of law denying Defendant's motion to suppress Officer Roberton's pretrial and in-court identifications of Defendant. Accordingly, these assignments of error are overruled.
    No error.
    Judges BRYANT and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1