NO. COA14-122

NORTH CAROLINA COURT OF APPEALS

Filed: 2 September 2014

STATE OF NORTH CAROLINA

v. Vance County

No. 12CRS052725-26

DONTE MACON,

Defendant.

Appeal by defendant from Judgment entered on or about 10 

July 2013 by Judge Henry W. Hight, Jr. in Superior Court, Vance

County. Heard in the Court of Appeals 12 August 2014.

Attorney General Roy A. Cooper, III, by Assistant Attorney 

General Jonathan Shaw, for the State.

Wait Law, P.L.L.C., by John L. Wait, for defendantappellant.

STROUD, Judge.

Donte Macon (“defendant”) appeals from the judgment entered 

after a Vance County jury found him guilty of carrying a 

concealed weapon and possession of a firearm by a felon. 

Defendant argues that the trial court erred in admitting incourt identifications by two police officers whose testimony was 

tainted by impermissibly suggestive out-of-court identification 

procedures. We hold that the trial court did not err by 

admitting the in-court identifications. 
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I. Background

On 8 October 2012, defendant was indicted for carrying a 

concealed weapon and possession of a firearm by a felon. 

Defendant pled not guilty. Before trial, defendant moved to 

suppress both the in-court and out-of-court identifications of 

him by Officer D.L. Ragland and Sergeant J. Ragland. He argued 

that the officers violated the Eyewitness Identification Reform 

Act (EIRA) and his constitutional rights by viewing only a 

single photograph to identify defendant as the perpetrator.

By order entered 11 July 2013, the trial court denied 

defendant’s motion to suppress. Based on the uncontested 

findings of fact, around noon on a sunny 31 August 2012, Officer

Darryl Ragland and Sergeant Jamie Ragland of the Henderson 

Police Department were on patrol when they saw a green Honda 

parked behind a convenience store. When they returned to the 

convenience store thirty minutes later, the same green Honda was 

still parked in the same location. Based on their experience 

with drug transactions in this area, they suspected that the 

occupants were engaging in the sale of heroin, so they 

approached the vehicle to make an investigatory stop. They saw 

one person sitting on the driver’s side of the Honda when a 

person with dreadlocks got into the passenger’s side. As the 
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officers approached, the Honda pulled off, drove a short 

distance, then stopped. The passenger got out of the Honda and 

looked directly at Officer Ragland. Officer Ragland had an 

unobstructed view of the passenger’s face from about 10 feet 

away. He noticed that the passenger was a light-skinned black 

male with long dreadlocks and green eyes. The passenger took off 

running, so Officer Ragland followed him. Officer Ragland asked 

the passenger to stop, but he refused. During the pursuit, the 

passenger discarded an object before jumping over a fence.

Sergeant Ragland noticed that the passenger was running 

away but did not initially get a good look at him. Sergeant

Ragland got back into his police car to try to cut off the 

fleeing passenger. As the passenger jumped over a fence,

Sergeant Ragland saw him from about 5 to 7 yards away. He had an 

unobstructed view of the fleeing man, who then climbed another 

fence and escaped. The officers could not catch him. 

Two more officers arrived on scene, including Officer 

Burrell. Officer Ragland told Officer Burrell what he had seen 

and described the passenger. Officer Burrell said that the 

person he described “sounds like Donte Macon.” Officer Ragland 

and Sgt. Ragland then returned to the Henderson Police 

Department and entered the name “Donte Macon” into their RMS 
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database. When the system returned a photograph of defendant, 

Sgt. Ragland said, “That’s him.” Both Officer Ragland and 

Sergeant Ragland recognized the person in the photograph as the 

passenger who fled from the green Honda. The officers then 

pulled up another photograph of defendant and confirmed that he 

was the man they saw earlier. At the hearing, both officers 

“identified the defendant in open Court as the person they saw 

on August 31, 2012 with 100% certainty.”

Based on these facts, the trial court concluded that the 

EIRA did not apply here and that the procedure used to identify 

defendant was not unduly suggestive. The trial court further 

concluded that the in-court identifications made by both 

officers were “of independent origin” from the procedure used to 

identify defendant. Therefore, the trial court denied 

defendant’s motion to suppress.

At trial, the State’s evidence tended to show the facts as 

found by the trial court. Additionally, Officer Ragland 

testified that he looked on the ground where defendant had 

discarded the object during the chase and found a small caliber 

handgun. Officer Ragland picked it up with a leaf and brought it 

back to the police department’s evidence locker. Both officers 

testified, over objection, that defendant was the person they
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saw fleeing on 31 August 2012. The police tested the recovered 

firearm for fingerprints, but were unable to find any prints 

sufficient for testing. The State also introduced evidence of 

defendant’s prior felony conviction.

After the State rested its case-in-chief, defendant 

testified on his own behalf. He denied that he was at the 

convenience store on 31 August 2012 and denied possessing a 

firearm of any kind. He testified that on the day in question 

he was with his “baby’s mother” at her house in Henderson.

Defendant stated that he was aware that, as a felon, he was not 

allowed to possess firearms, so he stayed away from them.

The jury found defendant guilty of both charges. The trial 

court sentenced defendant to 14-26 months imprisonment. 

Defendant gave notice of appeal in open court.

II. Motion to Suppress

Defendant argues that the trial court erred in denying his 

motion to suppress the in-court identifications made by the 

officers because the procedure they used to identify him 

violated the EIRA and his constitutional due process rights. We 

disagree.

A. Standard of Review
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“This Court’s review of a trial court’s denial of a motion 

to suppress in a criminal proceeding is strictly limited to a 

determination of whether the court’s findings are supported by 

competent evidence, even if the evidence is conflicting, and in 

turn, whether those findings support the court’s conclusions of 

law.” State v. Boozer, 210 N.C. App. 371, 378, 707 S.E.2d 756, 

763 (2011) (citation and quotation marks omitted), disc. rev. 

denied, ___ N.C. ___, 720 S.E.2d 667 (2012). “However, when, as 

here, the trial court’s findings of fact are not challenged on 

appeal, they are deemed to be supported by competent evidence 

and are binding on appeal.” State v. Robinson, ___ N.C. App. 

___, ___, 727 S.E.2d 712, 715 (2012) (citation and quotation 

marks omitted). We review questions of statutory interpretation 

de novo. Johnson v. Robertson, ___ N.C. App. ___, ___, 742 

S.E.2d 603, 605 (2013).

B. North Carolina Eyewitness Identification Reform Act

Defendant argues that the police failed to abide by the 

lineup procedures required by the EIRA, codified at N.C. Gen. 

Stat. § 15A-284.52 (2011). The State counters, and the trial 

court concluded, that the EIRA does not apply here. At the 

hearing on defendant’s motion to suppress, the State argued that 

the EIRA did not apply because the use of a single photograph to 
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identify a suspect is not a “photo lineup,” and that, 

furthermore, it does not apply to identifications made by police 

officers in the course of their investigation. We agree that 

the identification based on two photographs here was not a 

“lineup” and, therefore, was not subject to the procedures 

outlined in the EIRA.

The trial court made the following findings of fact, none 

of which are challenged by defendant:

6. That on August 31, 2012 Detective 

Darryl L. Ragland and Sgt. Jamie Ragland 

were on routine patrol as police officers 

with the City of Henderson Police Department 

assigned to the narcotics unit.

7. That Darryl Ragland has been employed 

with the Henderson Police Department for 3 

years and seven months and was so employed 

on August 31, 2012.

8. That Jamie Ragland was employed with 

the City of Henderson Police Department for 

21 years and was so employed August 31, 

2012.

9. That as the officers were driving an 

unmarked police vehicle in the City of

Henderson on August 31, 2012, they noticed a 

green Honda motor vehicle with a person on 

the driver’s side parked behind Alex Market 

Store at the corner of Maple Street and 

Nicholas Street in Henderson.

10. That as the officers continued on 

patrol they drove by the Alex Market and

noticed that the green Honda remained parked 
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behind the market for a period of thirty 

minutes.

11. That this was suggestive of drug 

activity (sale of heroin) to the officers.

12. That the officers drove up behind the 

green Honda to initiate an investigative 

stop.

13. That it was approximately 12 noon with 

bright sunlight when the officers drove up 

behind the Honda.

14. That the officers viewed a person enter 

the passenger side of the Honda.

15. That there was a person sitting on the 

driver[’s] side[] of the green Honda.

16. That Officer D. L. Ragland and Sgt. 

Ragland noted that the person getting into 

the Honda had dread locks.

17. That the Honda pulled off as the 

officers approached, went a short way and 

then stopped.

18. That the passenger got out of the 

Honda.

19. That Officer Darryl Ragland got out of 

the unmarked police vehicle.

20. That the passenger then looked directly 

at Officer Ragland.

21. That at this point, Officer Darryl 

Ragland had an unobstructed view of the

passenger and most specifically the 

passenger’s face.

22. That Officer Darryl Ragland was 10 feet 

from the passenger when he saw his face.
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23. That from this face to face between 

Officer D. L. Ragland and the passenger, 

Officer[] Ragland noticed that the passenger 

was an African-American male, light skinned, 

long dreads and green eyes.

24. That Officer Darryl Ragland did not 

know the passenger before this time.

25. That the passenger began running.

26. That Officer Darryl Ragland asked the 

fleeing man to stop.

27. That Officer Darryl Ragland pursued the 

fleeing man who did not stop.

28. That during the pursuit, Officer D. L. 

Ragland saw the fleeing man discard an 

object before he jumped over a fence.

29. That Officer D. L. Ragland stopped his 

pursuit and discovered a small caliber 

handgun which had been discarded by the 

fleeing passenger.

30. That until the passenger ran, Sgt. 

James J. “Jamie” Ragland saw no interaction 

between Officer Darryl Ragland and the 

exiting passenger as he focused on the 

person on the driver’s side of the green 

Honda.

31. That at the point in time when Sgt. 

Ragland noticed that Officer Darryl Ragland 

began to chase the fleeing passenger, Sgt. 

Ragland noted only that the passenger was an 

African-American male with light skin and

dreads.

32. That Sgt. Ragland tried to follow the 

chase by car in hopes of being able to cut 

off the fleeing passenger.
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33. That as Sgt. Ragland drove he could see 

the chase behind houses that faced Nicholas 

Street.

34. That Sgt. Ragland saw that the fleeing 

passenger was coming upon a fence and drove 

his car behind a house in an effort to 

apprehend the passenger.

35. That as the passenger came over a fence

. . . he turned around.

36. That Sgt. Ragland had a clear 

unobstructed view of the fleeing passenger

who looked straight at him.

37. That Sgt. Ragland was about 5 to 7

yards from the fleeing passenger.

38. That Sgt. Ragland noted that the 

fleeing passenger was an African-American 

male with light skin and dreads.

39. That the fleeing passenger was able to 

climb another fence and escaped.

40. That other Henderson Police Officers 

Sgt. Collier and Officer Burrell arrived on 

the scene.

41. That Officer D. L. Ragland reported to 

Sgt. Collier and Officer Burrell what had 

occurred together with a description of the 

person who fled.

42. That Officer Burrell said that he 

sounds like Donte Macon.

43. That both Sgt. Ragland and Detective 

Ragland went directly to the Henderson 

Police Department and entered the name of 

Donte Macon into the automated RMS system.
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44. That when a photograph of Donte Macon 

was pulled up on the screen, Sgt. Ragland 

said “That’s him.”

45. That both Detective Ragland and Sgt. 

Ragland immediately recognized that the 

person in the photo was the same person who 

fled from Alex’s Market.

46. That this identification occurred 

within 10 to 15 minutes of the encounter

with the fleeing passenger at Alex’s Market.

47. That another photo of Donte Macon was 

provided by the RMS system.

48. That this photo of Donte Macon was also 

identified by both Officers as the person 

who fled from Alex’s Market.

49. That D. L. Ragland identified the 

defendant, Donte Macon, as the person who 

fled the area behind Alex’s Market, as the 

person who he chased and as the person who 

discarded a handgun on August 31, 2012.

50. That Jamie Ragland identified the 

defendant, Donte Macon, as the person he saw 

coming over a fence and who escaped on 

August 31, 2012.

51. That both Officer Ragland and Sgt. 

Ragland identified the defendant in open 

Court as the person they saw on August 31, 

2012 with 100% certainty.

In general, out-of-court eyewitness identifications can be 

classified as “lineups,” “photographic identifications,” or 

“showups.” See generally, Wayne R. LaFave, et. al., Criminal 

Procedure §§ 7.4(d), (e), (f) (3d ed. 2007). Other commentators 
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distinguish between three types of out-of-court identifications: 

live lineups, photo lineups, and showups. See Robert L. Farb, 

Arrest, Search , and Investigation in North Carolina 558 (4th

ed. 2011). The EIRA defines a lineup as either a live lineup or 

a photo lineup. N.C. Gen. Stat. § 15A-284.52(a). Both types of 

lineups under the EIRA are defined by the use of a number of 

subjects—one suspect and several “fillers.” The statute defines 

“photo lineup” as “[a] procedure in which an array of 

photographs is displayed to an eyewitness for the purpose of 

determining if the eyewitness is able to identify the 

perpetrator of a crime.” N.C. Gen. Stat. § 15A-284.52(a)(7). It 

requires lineups to be conducted by an independent administrator 

and specifies the procedure for picking the fillers, among a 

number of other quite specific procedures for administering the 

lineup. N.C. Gen. Stat. § 15A-284.52(b).

Interpreted broadly, these provisions could be read to 

prohibit all showups, an effect we have held the Legislature did 

not intend. State v. Rawls, 207 N.C. App. 415, 423, 700 S.E.2d 

112, 118 (2010). Similarly, these provisions could be read to 

prohibit any use of photographs to make an identification other 

than in a photo array. 
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We hold that the EIRA does not apply to such singlephotograph identifications because they are not lineups. The use 

of a single photograph (or two photographs of the same person, 

as here) to make an identification has been criticized as 

“highly suggestive.” LaFave, Criminal Procedure § 7.4(e). The 

same is true of showups. See State v. Turner, 305 N.C. 356, 364, 

289 S.E.2d 368, 373 (1982) 

(describing showups as “suggestive and unnecessary”). 

Nevertheless, we held in Rawls that there was no indication that 

the Legislature intended the EIRA to ban showups, and the 

Legislature has not since amended the statute to indicate 

otherwise. Rawls, 207 N.C. App. at 423, 700 S.E.2d at 118.

The procedure used here might be called a photographic

showup; it has similar benefits and suffers from similar 

weaknesses as a live showup, in which the witness is confronted 

with a single suspect, often in handcuffs or otherwise detained.

Compare Turner, 305 N.C. at 364, 289 S.E.2d at 373 (describing 

showups as “the practice of showing suspects singly to witnesses 

for purposes of identification”) with LaFave, Criminal Procedure

§ 7.4(e) n. 85-86 (collecting cases that describe various uses 

of a single photograph to make an identification, many of which 

criticize the practice as “suggestive”). In both cases, only a 
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small number of suspects were presented to the witness (three in 

Rawls, one here) a short time after the crime was committed. 

As we noted in Rawls, our Supreme Court has recognized the 

benefits of the showup as an investigative technique. Rawls, 207 

N.C. App. at 422, 700 S.E.2d at 117. We observed in Rawls that 

“the showup is a much less restrictive means of determining, at 

the earliest stages of the investigation process, whether a 

suspect is indeed the perpetrator of a crime, allowing an 

innocent person to be released with little delay and with 

minimal involvement with the criminal justice system.” Id.

(citations, quotation marks, brackets, and ellipses omitted).

Like a live showup, the photographic showup here was done 

promptly after the officers saw the passenger flee, while their 

memory of the incident was still fresh. Even more than a live 

showup, the technique used by police here allowed them to 

determine at an early stage of their investigation whether the 

lead they received from a fellow officer was worth pursuing. We 

do not believe that the Legislature intended to prevent police 

officers from consulting with a photograph in their database to

follow up on leads they are given by other officers. Therefore, 

we hold that the trial court correctly concluded that the EIRA 

does not apply here.
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C. Impermissibly Suggestive Identification Procedure

Even if the EIRA does not apply, the normal due process 

rules still do. Defendant argues in the alternative that the 

procedure employed here was impermissibly suggestive. We hold 

that even assuming the procedure was impermissibly suggestive, 

the officers’ in-court identification was admissible because it 

was based on an independent source. 

The trial court found that Officer Ragland was “10 feet 

from the passenger when he saw his face.” The passenger “looked 

directly at Officer Ragland.” Sgt. Ragland “had a clear 

unobstructed view of the fleeing passenger who looked straight 

at him[,]” from “about 5 to 7 yards” away. Given that both 

officers had a clear and unobstructed view of the suspect, the 

trial court concluded that “the in-court identification of the 

accused by Officer Darryl Ragland and by Sgt. Jamie Ragland is 

of independent origin.” Defendant does not challenge this 

conclusion. 

Even assuming the out-of-court identification procedure was 

impermissibly suggestive, the officers’ in-court identifications 

would still be admissible if those in-court identifications had 

an origin independent of the impermissible procedure. State v. 

Knight, 282 N.C. 220, 226, 192 S.E.2d 283, 287 (1972); State v. 
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Jordan, 49 N.C. App. 561, 566, 272 S.E.2d 405, 409 (1980); State 

v. Pulley, 180 N.C. App. 54, 64-65, 636 S.E.2d 231, 239 (2006), 

disc. rev. denied, 361 N.C. 574, 651 S.E.2d 375 (2007). Since 

the trial court concluded that the in-court identifications had 

an “independent origin,” and “were not tainted by any pretrial 

identification procedure,” and defendant does not challenge that 

conclusion, we must hold that the trial court did not err in 

denying defendant’s motion to suppress the in-court 

identifications. See Jordan, 49 N.C. App. at 566, 272 S.E.2d at 

409.

III. Conclusion

For the foregoing reasons, we hold that the trial court did 

not err by denying defendant’s motion to suppress and admitting 

the in-court identifications.

NO ERROR.

Chief Judge MCGEE and Judge BRYANT concur.