State v. MaloneÂ, 256 N.C. App. 275

Background

Defendant Malone was indicted for first-degree murder and assault (Nov 2012); convicted by jury and sentenced to life without parole plus concurrent term for assault; appeals denial of motion to suppress eyewitness ID evidence.
Two eyewitnesses (Lopez and Alvarez) were near the victim (10 ft and ~4 ft) during a 75–90 second shooting; both gave inconsistent or non-positive identifications soon after the crime.
Police conducted photo arrays two days after the shooting; neither witness made a confident ID of Malone then (Lopez hesitated; Alvarez identified co-defendant Spence in one array).
About 3.5 years later, a DA legal assistant (Iris Smith) met with Lopez and Alvarez before trial, showed them internet photos, a surveillance video, and part of Malone’s recorded police interview; Alvarez saw Malone exit a patrol car in handcuffs and an orange jumpsuit outside the courthouse.
At trial both Lopez and Alvarez made in-court identifications of Malone as the shooter; Defendant moved to suppress arguing the pretrial procedures were impermissibly suggestive and tainted identifications.
The trial court found the pretrial meeting was not impermissibly suggestive and that identifications had independent origin; the Court of Appeals reversed, finding due process violation and ordering a new trial.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pretrial ID procedures were impermissibly suggestive (due process)	State: meeting by DA staff was investigatory/preparatory, not suggestive; witnesses’ in-court IDs had independent origin	Malone: showing photos, video, and in-person viewing shortly before trial was highly suggestive and likely caused misidentification	Court: Procedures were impermissibly suggestive and violated due process; reversal and new trial ordered
Whether in-court IDs were of independent origin (reliability)	State: witnesses had opportunity to view shooter at crime and later independently saw photos/news; thus IDs reliable	Malone: initial descriptions were vague/inconsistent; no positive IDs shortly after crime; subsequent IDs likely result of suggestive procedures	Court: Factors (attention, prior description, earlier non-identifications, time lapse) do not support independent origin; court erred in finding independence
Whether the 29 Feb viewing constituted a prohibited show-up under EIRA	State: meeting was by legal assistant, not law enforcement, so EIRA inapplicable; viewing through courthouse window was uncoordinated	Malone: actions functioned like a show-up and violated EIRA/show-up rules (single-person display)	Court: No evidence of coordinated show-up; not treated as EIRA show-up, but procedures nonetheless violated due process
Harmlessness of error	State: any error harmless given other evidence tying Malone/Spence to scene (multiple witness testimony, car, co-defendant)	Malone: constitutional error prejudicial unless harmless beyond a reasonable doubt; record is equivocal and eyewitness IDs were critical	Court: Error not harmless beyond a reasonable doubt given contradictory evidence and reliance on tainted IDs; new trial required

Key Cases Cited

State v. Smith, 278 N.C. 476 (N.C. 1971) (due process forbids impermissibly suggestive ID procedures)
State v. Fowler, 353 N.C. 599 (N.C. 2001) (two-part test for suggestive pretrial ID: impermissibility and likelihood of misidentification)
State v. Hannah, 312 N.C. 286 (N.C. 1984) (totality-of-circumstances standard for suggestiveness)
State v. Pigott, 320 N.C. 96 (N.C. 1987) (factors for independent origin/reliability of in-court ID)
State v. Garner, 136 N.C. App. 1 (N.C. Ct. App. 2000) (in-court ID admissible if shown to be of independent origin despite pretrial unreliability)
State v. Oliver, 302 N.C. 28 (N.C. 1981) (discussion of show-ups and their inherent suggestiveness)
State v. Watkins, 218 N.C. App. 94 (N.C. Ct. App. 2012) (show-ups not per se unconstitutional; governed by statute and totality analysis)
State v. Fisher, 321 N.C. 19 (N.C. 1987) (identifications based on media/newspaper photos are not state action and do not necessarily violate due process)
State v. Cooke, 306 N.C. 132 (N.C. 1982) (standard of review for suppression hearings)
State v. Hughes, 353 N.C. 200 (N.C. 2000) (trial court conclusions of law fully reviewable on appeal)