State v. Malone, ___ N.C. ___, 833 S.E.2d 779 (Nov. 1, 2019)

Two men were angry about being cheated in a drug deal. They approached a house and shot two other men – one fatally – who they thought were involved in the rip-off. The victims were on the front porch at the time of the shooting. Two women who were also on the porch viewed photo lineups in an attempt to identify the perpetrators. They both identified one suspect. Neither identified the defendant as the other man, though one said that his picture “looked like” the suspect. The defendant was charged with murder and other offenses. Several years later, a legal assistant with the district attorney’s office asked the women to come to the office for trial preparation. The legal assistant showed the women part of the defendant’s video-recorded interview with police as well as updated pictures of the defendant. One of the women looked out the window and saw the defendant, in a jail uniform and handcuffs, being led into the courthouse for a hearing. She immediately stated that he was one of the killers. The other woman came to the window and also saw the defendant. Both women later identified the defendant at trial as one of the perpetrators. The defendant argued that the identification was tainted by what he contended was a suggestive identification procedure conducted by the legal assistant. The trial judge found that the procedure was not unduly suggestive, and that in any event, the women’s in court testimony was based on their independent recollection of the events in question. The defendant was convicted and appealed. The court of appeals found the procedure to be impermissibly suggestive and reversed the defendant’s conviction. The State appealed, and the supreme court ruled: (1) The trial preparation session was an “impermissibly suggestive” identification procedure. Given that the women had not previously identified the defendant as a participant in the crime, the legal assistant’s “actions in showing [the women] the video of [the defendant’s] interview and recent photographs of [the defendant and the co-defendant] are exactly the kind of highly suggestive procedures that have been widely condemned as inherently suggestive” and amounted to improper “witness coaching.” (2) However, the procedure did not give “rise to a substantial likelihood of irreparable misidentification . . . because the trial court’s findings of fact support the legal conclusion that [one of the women’s] in-court identification of defendant was of independent origin and sufficiently reliable.” Among other factors, the court highlighted the woman’s proximity to the perpetrators, her opportunity to observe them, and the fact that when she saw a picture of the defendant online shortly after the crime – wearing his hair in a style different from his lineup photo and apparently more similar to his appearance at the time of the crime – she identified him as a perpetrator. (3) Because one of the women made a valid in-court identification, any error in admitting the other woman’s identification of the defendant was harmless. Three Justices, dissenting in part, would not have addressed whether the procedure at issue was unduly suggestive and would have decided the case based only on the “independent origin” holding.