State v. Malone

• Decision Date: 07 November 2017
• Docket Number: No. COA16-1290,COA16-1290
• Citation: 256 N.C.App. 275,807 S.E.2d 639
• Parties: STATE of North Carolina v. Brandon MALONE, Defendant.
• Court: North Carolina Court of Appeals

256 N.C.App. 275

807 S.E.2d 639

STATE of North Carolina

v.Brandon MALONE, Defendant.

No. COA16-1290

Court of Appeals of North Carolina.

Filed: November 7, 2017

Attorney General Joshua H. Stein, by Assistant Attorney General Jess D. Mekeel, for the State.

Office of the Appellate Defender, by Assistant Appellate Defender Paul M. Green and Appellate Defender Glenn Gerding, for defendant-appellant.

HUNTER, JR., Robert N., Judge.

Brandon Malone ("Defendant") appeals following a jury verdict convicting him of first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. Following the verdicts, the trial court imposed concurrent sentences of life imprisonment without parole for murder and 83 to 112 months imprisonment for assault. On appeal, Defendant contends the trial court erred in allowing eyewitness testimony in violation of the North Carolina Eyewitness Identification Reform Act of 2007 ("EIRA") and due process of law. After review we find the court erred to the prejudice of Defendant and order a new trial.

I. Factual and Procedural Background

On 5 November 2012, an Alamance County Grand Jury indicted Defendant for first-degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. On 12 March 2016, Defendant filed a written motion to suppress eyewitness identification evidence. In his written motion, Defendant argued the State subjected two eyewitnesses, Claudia Lopez and Cindy Alvarez, to an impermissibly suggestive identification procedure when they were "put in a location where [Defendant] could not see [them] and asked to watch him walk from the transport vehicle to the [c]ourthouse for hearings in his case. He was handcuffed and alone, with no co-defendants or other prisoners and he was dressed in a jail jumpsuit." Defendant contends this constituted an impermissible, single-person show-up of Defendant. Therefore, Defendant argued their in-court identification of Defendant, as well as any discussion of what occurred during the show-up, should be suppressed as irreparably tainted. On 14 March 2016, the Alamance County Superior Court called Defendant's case for trial and began a voir dire hearing on Defendant's pretrial motion to suppress.

In defense of the motion the State called Claudia Salas Lopez. Lopez is an eyewitness to the murder of Kevette Jones. On 23 October 2012, Lopez sat on the front porch of Jones's house, approximately ten feet away him, when he was shot. While on the stand, she recalled two men were involved in the shooting. The shooter wore a white t-shirt, had shoulder length hair, and exited the passenger side of a blue vehicle; the other man drove the vehicle, spoke to Jones, and had an eyebrow piercing.

The day after the shooting Lopez gave the following description of the two men to detectives. She stated one of the black males is tall with braids and wore a hat, and the other man is shorter, but she could not then remember any of his distinguishing features. She told the detectives one of the men had his hand in his pocket, but she could not remember which one. She testified when she first spoke to the detectives she was in a state of shock from having witnessed her good friend get shot.

During a second interview on 25 October, Lopez stated one of the men wore dark pants, a black and white plaid shirt, and had shoulder length dreadlocks. The only description she gave of the second suspect was he had shorter hair. Lopez further testified "I never really paid much attention to [Defendant's] face because the whole time he was standing in front of us he just had his hand in his pocket."

On 25 October Detective Kevin King of the Burlington Police Department prepared a photographic lineup for Lopez. He selected Defendant's photograph from the police department's database, along with seven other subjects having the same general description. The same day another officer administered the line-up to Lopez, showing her each of the eight photographs one at a time. Upon viewing Defendant's photograph, Lopez did not identify him. However, when shown the eight photographs a second time, Lopez paused on Defendant's picture for a longer period of time than the other pictures. She stated the picture looked like him, but she was not sure. Because Lopez was not confident in her identification, the administering officer did not consider her remarks to be a positive identification.

The photograph of Defendant which was used in the line-up was taken approximately a year and a half prior to the date of the offense. In the photo Defendant had a hairstyle described as plats which were pulled back; however, a more recent photograph showed Defendant's hair in "dreadlocks that come down the side."

Lopez had no further contact with anyone from the court system, including the District Attorney's office, for approximately three and a half years. Then, a few weeks before trial Iris Smith, a legal assistant with the Alamance County District Attorney's office, contacted her to arrange a meeting in order to "talk about coming in to testify." Smith told Lopez a hearing related to this case would take place on 29 February 2016. Lopez and Alvarez met Smith on that day and Smith showed them photographs of Defendant and Marquis Spence—who had already been convicted for his role in the shooting. Smith also showed them a surveillance video, taken from a security camera outside a house on the street where the incident occurred; as well as part of Defendant's recorded interview with police officers.¹ While they were watching Defendant's interview, Alvarez stood near a window and happened to see Defendant exiting a police car. Alvarez directed Lopez's attention outside, and Lopez also watched Defendant exit the police car. He was wearing an orange jumpsuit, in handcuffs, and escorted by an officer.

Lopez stated her testimony regarding Jones's shooting is based on her memory of the events of 23 October 2012, and not on the photographs Smith showed her. Lopez made an in-court identification of Defendant as the man who "shot the gun." This identification was the first time she positively identified Defendant as the shooter.

Next, the State called Cindy Alvarez. Alvarez testified she is also an eyewitness to the shooting. She and Lopez were on the front porch of Jones's house when two men arrived in a blue car. Alvarez recalled the men began to ask Jones questions and "one of the guys pulled out a gun and then just started shooting him." Alvarez was approximately four feet away from the shooter.

When the police arrived, Alvarez gave officers a description of the two men involved in the shooting. She stated one of the men wore a blue ball cap and the other was quiet, had dark dreadlocks to his shoulders, and had dark freckles. She did not know the heights of the men because she took off running as soon as the shooting began. However, the same day she told an officer the shooter was taller than the driver. When the Defense counsel questioned her regarding the relative heights of the two men she stated "I don't know how tall [either] of them are. I was on the top of the front porch so ... I was shaken up that day so I couldn't really tell ... who was taller." Alvarez conceded Defendant does not have dark freckles and she stated "I wasn't really paying attention like seeing if he had freckles or not. I was just ... I know it was him. I just remember I messed up on the freckles."

The day after the shooting officers showed Alvarez two different photo arrays. In the first line-up she identified Spence, not Defendant, as the shooter. She stated she was 80% sure photo number six, which was Spence, was the shooter, but she would be 100% sure if he had long dreadlocks. On cross-examination defense counsel asked Alvarez whether her identification of Spence as the shooter was "an accurate portrayal of what happened," to which Alvarez responded "I mean, yes. But at that time when I did this, ... I was shocked. ... Like, it had just happened so I couldn't really ... say which one it was because my head was just everywhere. I was just [emotional]...." For the second array, which included a photograph of Defendant, Alvarez stated number seven—which was not Defendant's photograph—looked like the suspect. She stated she was not sure, because at the time of the incident she was focused on the shooter, again implying she believed Spence to be the man who shot Jones.

The State showed Alvarez a photograph of Defendant which Alvarez testified she saw on the Internet a week or two after the shooting. She testified the picture looked more like Defendant as she recalled from the day of the shooting, than the photos used in the array, because his hair was different. She stated when she first saw the photograph on the Internet she was certain it was the man who shot Jones. Alvarez made an in-court identification of Defendant.

Alvarez further confirmed Lopez's testimony regarding the 29 February meeting with Smith. Lopez had previously asked Smith to keep her "informed of what's going to be happening in the courts" so Smith told her about the hearing taking place on 29 February, and Alvarez decided to go. As soon as Smith showed Lopez and Alvarez the updated photographs of Defendant, Alvarez instantly knew it was the shooter.

Alvarez asked Smith to view the video of Defendant's interview with officers. She stated:

[W]e didn't even watch it ... five minutes because when that happened I was standing up. And I looked out the window and that's when I saw him. And then I was, like, that's him, that's the guy that shot Kevette. And then after that, I told [Smith] I was, ... leaving, and then [Claudia and I] both decided just to leave.... We didn't stay to hear, ... the court or anything.

She confirmed Lopez's testimony regarding watching Defendant exit the police car in handcuffs and a jumpsuit. Alvarez stated no one told them the hearing taking place was for the shooter, Smith did not indicate who was in the...