State v. Howie

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-553
NORTH CAROLINA COURT OF APPEALS
Filed: 18 March 2014
STATE OF NORTH CAROLINA

Union County
v. Nos. 10 CRS 56325-26, 11 CRS
2520-21, 12 CRS 2040

OTIS REDDING HOWIE, JR.

Appeal by defendant from judgments entered 18 October 2012

by Judge Anna Mills Wagoner in Union County Superior Court.

Heard in the Court of Appeals 24 October 2013.

Attorney General Roy Cooper, by Special Deputy Attorney
General David N. Kirkman, for the State.

Appellate Defender Staples Hughes, by Assistant Appellate
Defender Kathleen M. Joyce, for Defendant.

ERVIN, Judge.

Defendant Otis Redding Howie, Jr., appeals from judgments

sentencing him to two terms of 260 to 321 months imprisonment

based upon his convictions for two counts of attempted murder

while having the status of an habitual felon, to two terms of

115 to 147 months imprisonment based upon his convictions for

two counts of robbery with a dangerous weapon while having the

status of an habitual felon, to a term of 115 to 147 months

imprisonment based upon his conviction of possession of a
 -2-
firearm by a convicted felon while having the status of an

habitual felon, all to be served consecutively, and to a

concurrent term of 100 to 129 months based upon his conviction

for conspiracy to commit robbery with a dangerous weapon while

having the status of an habitual felon. On appeal, Defendant

contends that the trial court erred by denying his motion to

suppress evidence concerning in-court and out-of-court

identifications of him as the perpetrator of the offenses at

issue in this case, failing to correctly instruct the jury

concerning the manner in which they should evaluate the

eyewitness identification evidence, and denying his motion to

dismiss the conspiracy charge for insufficiency of the evidence.

After careful consideration of Defendant’s challenges to the

trial court’s judgments in light of the record and the

applicable law, we conclude that the trial court’s judgment in

the conspiracy case should be vacated and that the trial court’s

other judgments should remain undisturbed.

I. Factual Background

A. Substantive Facts

At the time of trial, Robbie and Crystal Jordan had been

married for ten years. Since 1995, Ms. Jordan had worked for a

license tag agency in Monroe. In 2003, the Jordans purchased
 -3-
the agency, which they operated pursuant to contract with the

Division of Motor Vehicles.

In the course of operating the agency, the Jordans made a

practice of taking the proceeds received each day to First

Citizens, which was the bank at which the agency’s account was

maintained, for deposit. More specifically, after Mr. Jordan

counted the day’s receipts, the relevant cash and checks would

be placed in a locked First Citizens moneybag that was, in turn,

placed inside a black Harley Davidson bag that Ms. Jordan used

to take the day’s proceeds to the bank.

On 1 November 2010, Mr. Jordan counted the day’s receipts,

which totaled $33,000 in cash and checks, as usual and handed

them to Ms. Jordan, who put them in the First Citizens and

Harley Davidson bags. In addition, Ms. Jordan had another bag

that contained nearly $800 for use on the following day. At

that point, Mr. Jordan cut off the lights while Ms. Jordan

looked outside to make sure that there were no suspicious people

in the vicinity of the building in which the agency was housed.

As the Jordans left the building and approached their

vehicles, Mr. Jordan noticed someone standing near the wall of

an adjoining building and watched as he began to move toward

them, reached into the front of his pants, and pulled out a

firearm. Although Mr. Jordan asked the individual with the
 -4-
firearm to refrain from shooting him, the person in question

asked Ms. Jordan to give him the bag containing the days’

proceeds; shot her once immediately after making this demand,

causing her to fall to the ground; and then shot Ms. Jordan

again as she lay on the ground. Ms. Jordan sustained two

gunshot wounds to the chest, one to her hand, and at least one

to her ear, injuring her so severely that one of her lungs had

to be removed and creating the possibility that she may never

walk again. As Mr. Jordan struggled with the man who assaulted

Ms. Jordan, the assailant, who appeared to be missing some front

teeth, shot Mr. Jordan in his knee, foot, shoulder, and face.

After taking the proceeds from the licensing agency, $1,200 that

Mr. Jordan had on his person, and $600 and a .38 caliber pistol

that Ms. Jordan had in her pocketbook, the assailant ran away,

turning back and looking at Mr. Jordan before continuing to run

up a hill.

Billy Montgomery and Eric Cruz worked for an automobile

detailing establishment located across the street from the

Jordans’ business. Mr. Montgomery observed the person who shot

the Jordans pacing around the agency’s parking lot for

approximately twenty minutes prior to the robberies and

shootings. After robbing and shooting the Jordans, the

assailant, who was an African American male wearing what Mr.
 -5-
Cruz identified as Jabo jeans, ran toward a hospice office

located behind the Jordans’ business. A few minutes later, a

gray or silver Dodge Charger, apparently driven by a light-

skinned African-American female, appeared from the direction

toward which the assailant had run and drove off toward

Charlotte.

Defendant had a good friend named Melvin Luckey, who lived

with his girlfriend, Tanika Ingram, in October and November

2010. In October 2010, Defendant began keeping clothes at Ms.

Ingram’s residence because his girlfriend had ejected him from

the residence that they had shared. Although Defendant was

unemployed, he drove a gray Dodge Charger rental car. At some

point prior to his arrest, Defendant told Ms. Ingram that he had

shot someone in order to get money. In addition, Ms. Ingram

indicated that Defendant owned a long revolver. Ms. Ingram also

observed that Defendant and Mr. Luckey appeared to have a lot of

money after 1 November 2010, having reached this conclusion

because the two men had purchased new clothes, and were jittery

in the days prior to their arrest.

According to information developed during the investigation

into the robberies and shootings, Defendant and Mr. Luckey had

purchased various items, including clothing, at Sports Trax in

Charlotte at 7:41 p.m. on 1 November 2010, approximately two
 -6-
hours after the robberies and shootings. In addition,

investigating officers determined that Defendant had made

deposits totaling $4,160 into his accounts on 2 November 2010.

During a search of the residence of Brittany Fulwiley, who is

the mother of Defendant’s children, investigating officers

discovered jeans on which Ms. Jordan’s blood was subsequently

detected. In addition, investigating officers conducting the

search of Mr. Luckey’s residence found Ms. Jordan’s purse, the

Harley Davidson moneybag, and a .44 caliber pistol from which

the projectiles recovered following the robberies and shootings

could have been fired.

B. Procedural Facts

On 9 November 2010, warrants for arrest charging Defendant

with two counts of attempted murder, two counts of robbery with

a dangerous weapon, larceny of a firearm, and possession of a

firearm by a felon were issued. On 5 July 2011, the Union

County grand jury returned bills of indictment charging

Defendant with two counts of attempted murder, two counts of

robbery with a dangerous weapon, two counts of conspiracy to

commit robbery with a dangerous weapon, one count of possession

of a firearm by a felon, and one count of larceny of a firearm.

On 24 August 2012, the State filed a notice that it intended to

prove that Defendant “induced others to participate in the
 -7-
commission of the offense”; that Defendant “occupied a position

of leadership or dominance of other participants in the

commission of the offense”; that the offense was committed “for

the purpose” of “avoiding or preventing a lawful arrest” and

“effecting an escape from custody”; that “[t]he offense was

especially heinous, atrocious or cruel”; that Defendant

“knowingly created a great risk of death to more than one person

by means of a weapon or device which would normally be hazardous

to the lives of more than one person”; that Defendant “was armed

with a deadly weapon at the time of the crime” and “used a

deadly weapon at the time of the crime”; that Defendant

“committed the offense while on pretrial release on another

charge”; that Defendant “has, during the 10-year period prior to

the commission of the offense for which [he] is being sentenced,

been found by a court of this State to be in willful violation

of the conditions of probation imposed pursuant to a suspended

sentence or been found by the Post-Release Supervision and

Parole Commission to be in willful violation of a condition of

parole or post-release supervision imposed pursuant to release

from incarceration”; that “[t]he offense involved” “an attempted

taking of property of great monetary value” and “the actual

taking of property of great monetary value”; that Defendant

“does not support [his] family”; and that “[t]he victim of this
 -8-
offense suffered serious injury that is permanent and

debilitating.” On 4 September 2012, the Union County grand jury

returned a bill of indictment charging Defendant with having

attained the status of an habitual felon.

On 1 October 2012, Defendant filed a motion seeking to have

evidence of any out-of-court and in-court identification of

Defendant made by Mr. Jordan suppressed on the grounds that the

evidence in question had been obtained in violation of N.C. Gen.

Stat. § 15A-284.52. After a hearing held on 8 October 2012, the

trial court entered an order denying Defendant’s suppression

motion on 27 March 2013.

The charges against Defendant came on for trial before the

trial court and a jury at the 8 October 2012 criminal session of

the Union County Superior Court. On 18 October 2012, the jury

returned verdicts convicting Defendant as charged. After the

jury returned these verdicts, Defendant pled guilty to having

attained the status of an habitual felon and admitted the

existence of the aggravating factors that “[t]he offense was

especially heinous, atrocious or cruel”; that he had “knowingly

created a great risk of death to more than one person by means

of a weapon or device which would normally be hazardous to the

lives of more than one person”; that he “used a deadly weapon at

the time of the crime;” and that “[t]he victim of this offense
 -9-
suffered serious injury that is permanent and debilitating.”

After accepting Defendant’s admissions, the trial court found

the existence of the aggravating factors to which Defendant had

admitted,1 found as a mitigating factor that Defendant “has a

support system in the community,” and that the findings in

aggravation outweighed the findings in mitigation. Based upon

the jury’s verdicts, Defendant’s guilty plea, and its findings

in aggravation and mitigation, the trial court entered judgments

sentencing Defendant to a term of 260 to 321 months imprisonment

for the attempted murder of Ms. Jordan, to a consecutive term of

115 to 147 months imprisonment for the robbery of Ms. Jordan

with a dangerous weapon, to a consecutive term of 260 to 321

months imprisonment for the attempted murder of Mr. Jordan, to a

consecutive term of 115 to 147 months imprisonment for the

robbery of Mr. Jordan with a dangerous weapon, to a consecutive

term of 115 to 147 months imprisonment for possession of a

firearm by a felon, and to a concurrent term of 100 to 129

months imprisonment for conspiracy to commit robbery with a

dangerous weapon. On the other hand, the trial court arrested

1
As we read the findings in aggravation and mitigation made
in each case, the trial court did not find that Defendant “was
armed with a deadly weapon at the time of the crime” or that
“the offense” involved “an attempted taking of property of great
monetary value” or “the actual taking of property of great
monetary value,” since the trial court did not check the
relevant blocks on Form AOC-CR-614.
 -10-
judgment with respect to Defendant’s conviction for larceny of a

firearm and one count of conspiracy to commit robbery with a

dangerous weapon. Defendant noted an appeal to this Court from

the trial court’s judgments.

II. Legal Analysis

A. Conspiracy Judgment

In his first challenge to the trial court’s judgments,

Defendant contends that the trial court erred by denying his

motion to dismiss the conspiracy to commit robbery with a

dangerous weapon charge that had been lodged against him based

upon the insufficiency of the evidence. More specifically,

Defendant contends that the record is devoid of any evidence

tending to show that he and Mr. Luckey conspired to rob the

Jordans other than that tending to show that the two of them

committed the relevant criminal acts together and that such

evidence is not sufficient to sustain a conspiracy conviction.

As the State candidly concedes, Defendant’s contention has

merit.

According to well-established North Carolina law, a

defendant’s dismissal motion should be denied in the event that

“there is substantial evidence (1) of each essential element of

the offense charged, or of a lesser offense included therein,

and (2) of defendant’s being the perpetrator of such offense.”
 -11-
State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002)

(quoting State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117

(1980)). In making this determination, the record evidence must

be considered in the light most favorable to the State. State

v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 652 (1982). “We

review the trial court’s denial of a motion to dismiss de novo,”

“consider[ing] the matter anew and freely substitut[ing our] own

judgment for that of the trial court.” State v. Sanders, 208

N.C. App. 142, 144, 701 S.E.2d 380, 382 (2010) (citing State v.

Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007) and State

v. Williams, 362 N.C. 628, 632-33, 669 S.E.2d 290, 294 (2008)).

“A criminal conspiracy is an agreement between two or more

persons to do an unlawful act or do a lawful act in an unlawful

way or by unlawful means.” State v. Massey, 76 N.C. App. 660,

661-62, 334 S.E.2d 71, 72 (1985). A conspiracy conviction does

not require proof that the defendant committed any particular

overt act; instead, proof of an agreement between two or more

persons to commit a crime, without more, is sufficient to

support a conspiracy conviction. State v. Brewer, 258 N.C. 533,

538, 129 S.E.2d 262, 266 (1963) (citing State v. Knotts, 168

N.C. 173, 188, 83 S.E. 972, 979 (1914), and State v. Davenport,

227 N.C. 475, 494, 42 S.E.2d 686, 699 (1947)). “[T]he beginning

of a conspiracy to commit a crime must[, however,] precede the
 -12-
commission of the crime itself,” State v. Locklear, 8 N.C. App.

535, 537, 174 S.E.2d 641, 642 (1970), with proof that the crime

that was the alleged object of the conspiracy was actually

committed not being sufficient to support a conspiracy

conviction. State v. Arnold, 329 N.C. 128, 142, 404 S.E.2d 822,

831 (1991).

According to the record, Mr. Luckey and Defendant were

friends and lived together at the time that the Jordans were

shot and robbed. In addition, the record shows that Mr. Luckey

possessed both the firearm used in the robbery and proceeds from

the robbery after 1 November 2010. However, even when taken in

the light most favorable to the State, the record contains no

evidence tending to show that the commission of the crimes at

issue here stemmed from an agreement between Defendant and Mr.

Luckey to engage in criminal conduct, a fact that makes this

case similar to decisions such as State v. Wellborn, 229 N.C.

617, 618, 50 S.E.2d 720, 721 (1948) (holding that the

defendant’s conspiracy conviction should be overturned given

that “there is no evidence that [the alleged co-conspirator] had

ever communicated to [the defendant] his purpose or that prior

to the actual fatal encounter [the defendant] had any knowledge

of the intent”). For example, the record contains no evidence

tending to show prior planning of the type that has been held to
 -13-
be sufficient to support a conspiracy conviction in other cases.

State v. Colvin, 90 N.C. App. 50, 57, 367 S.E.2d 340 344

(holding that evidence tending to show that Defendant

participated in preparing for a robbery sufficed to support a

conspiracy conviction), cert. denied, 322 N.C. 608, 370 S.E.2d

249 (1988). As a result, as the State concedes, the trial court

erred by denying Defendant’s motion to dismiss the charge that

he conspired with Mr. Luckey to commit the crime of robbery with

a dangerous weapon.

B. Eyewitness Identification

Secondly, Defendant contends that the trial court erred by

denying his motion to suppress all evidence tending to show that

Mr. Jordan had identified him as the perpetrator of the crimes

for which Defendant was convicted in a pretrial identification

procedure; allowing Mr. Jordan to make an in-court

identification of Defendant as the perpetrator of the crimes for

which he was convicted; and by failing to instruct the jury to

consider violations of the Eyewitness Identification Reform Act

in assessing the credibility of Mr. Jordan’s identification

testimony. We do not find Defendant’s arguments persuasive.

1. Motion to Suppress

In his initial challenge to the admission of evidence that

Mr. Jordan identified him as the perpetrator of the robberies
 -14-
and shootings both prior to and at trial, Defendant contends

that certain of the findings of fact contained in the trial

court’s suppression order lacked sufficient evidentiary support

and that the trial court’s findings did not support its

conclusions of law. Although we agree that a number of

Defendant’s challenges to the trial court’s findings have merit

and that one of the trial court’s conclusions of law conflicts

with the trial court’s findings, we do not believe that

Defendant is entitled to receive relief from the trial court’s

judgments as the result of the denial of his suppression motion.2

a. Hearing Evidence3

2
As an initial matter, we note that Defendant’s suppression
motion merely alleged a violation of the provisions of N.C. Gen.
Stat. § 15A-284.52 and that the argument advanced by Defendant’s
trial counsel at the conclusion of the suppression hearing was
couched in essentially statutory terms as well. On the other
hand, the argument advanced by the State at the conclusion of
the suppression hearing focused on more traditional due process
considerations. Although the trial court’s order contains some
language that reflects the sort of analysis required by the due
process clause, that order is also primarily focused on the
issue of whether the procedures that resulted in Mr. Jordan’s
identification of Defendant as the perpetrator of the robberies
and shootings violated N.C. Gen. Stat. § 15A-284.52. As a
result, Defendant’s appellate counsel has advanced separate
statutory and due process arguments in her brief, an approach
that seems to us to be consistent with the manner in which the
eyewitness identification issue was litigated in the court
below. Thus, we will address the denial of Defendant’s
suppression motion on the basis of an analysis of the relevant
statutory provisions, holding Defendant’s due process argument
for a later section of this opinion.
 -15-
On 8 November 2010, Detective Glen Jenkins of the Monroe

Police Department learned from a Crime Stoppers’ tip that two

individuals had information about the crimes in question that

was not known to the general public, including the caliber of

the weapon used in the commission of these crimes, the make and

model of the vehicle that had been seen leaving the crime scene,

and the identities of the persons whom investigating officers

suspected of involvement in the commission of these crimes. At

a meeting with Detective Jenkins, Ronald and Darius Phifer, who

were related to Ms. Fulwiley, stated that Defendant and Mr.

Luckey had been bragging about having committed the robberies

and shootings. As a result, Detective Jenkins instructed Ginger

Pope, an administrative employee who worked at the Monroe Police

Department, to compile two six item photographic lineups, one of

which contained Defendant’s photograph and one of which

contained Mr. Luckey’s photograph.4 According to Detective

Jenkins, photos in the possession of the Division of Motor
3
The evidence received at trial concerning the events that
occurred in connection with the identification procedures
challenged in Defendant’s suppression motion was substantially
similar to the evidence presented during the hearing held in
connection with the consideration of Defendant’s suppression
motion.
4
Although Detective Jenkins indicated in his notes that he
had prepared the photographic lineup, he clarified this
statement in his testimony by stating that he meant to say that
he had ordered the preparation of the photographic lineup
instead.
 -16-
Vehicles were used in the photographic lineups because the

investigating officers did not have another photograph of

Defendant and because they wanted the backgrounds in each

photograph included in the lineups to be identical.

On 9 November 2010, Detective Jenkins, Special Agent Gisela

Jasmin Cruz of the State Bureau of Investigation, and Officer

Vivian Nieves Caldwell of the Monroe Police Department went to

the shopping center at which the crime had occurred for, among

other things, the purpose of showing the photographic lineups to

Mr. Jordan. The photographic lineups were presented to Mr.

Jordan in a back room in the license tag agency that he and his

wife operated.

At the time that the photographic lineups were shown to Mr.

Jordan, Detective Jenkins and Special Agent Cruz “stood in the

doorway” and “were not involved in the lineup.” The actual

identification procedure was conducted by Officer Nieves, who

did not know the identity of the individuals suspected of

committing the robberies and shootings. Although Detective

Jenkins could see the process that Officer Nieves utilized in

conducting the photographic lineup, he did not look inside the

folders prior to the lineups, was unable to see which folder

Officer Nieves presented to Mr. Jordan first, and could not see

the actual photos or the markings on the folders while the
 -17-
lineup was being conducted. Finally, Detective Jenkins denied

that he had ever provided a description of the suspect upon whom

their investigation had become focused to Mr. Jordan, suggested

that Mr. Jordan should pick a particular photo out of the lineup

that had been presented to him, or done anything else that would

have focused Mr. Jordan’s attention upon a particular

photograph. As a result, Detective Jenkins asserted that he

followed the procedures mandated by law during the process of

the challenged identification procedure.

At the time that she presented the folders containing the

photographic lineups to Mr. Jordan, Officer Nieves instructed

Mr. Jordan that he was under no pressure to make an

identification and that the exclusion of innocent individuals

was just as important as identifying the actual culprits. As

confirmation that he received and understood the information

that Officer Nieves communicated to him, Mr. Jordan signed a

statement indicating that he had received appropriate

instructions concerning the purpose of the lineup and the manner

in which it was to be conducted. In conducting the photographic

lineup, Officer Nieves handed Mr. Jordan one folder at a time,

let him look at each photo separately, and waited to see any

reaction he would have, including statements made. In the event

that Officer Nieves observed that Mr. Jordan reacted to a
 -18-
particular photo, she would instruct him to focus on the

photographs instead of some sort of an emotional reaction.

After viewing the photographic lineups, Mr. Jordan

indicated that he could not identify anyone depicted in the

folder that contained Mr. Luckey’s image. However, Officer

Nieves noticed that Mr. Jordan became nervous and unsteady at

the time that he viewed Photograph No. 4 in the photographic

lineup that contained Defendant’s picture. Similarly, Detective

Jenkins observed that, after picking up one of the photographs,

Mr. Jordan began to shake and appeared to have recognized the

individual depicted in the photograph that he was examining at

that time. After putting the photograph down and looking at a

number of additional photographs, Mr. Jordan looked at Detective

Jenkins in frustration. In response, Detective Jenkins said,

“all we need you to do is just pick the person out who you saw

crossing the parking lot.” However, neither Mr. Jordan nor

Officer Nieves heard Detective Jenkins’ comment. After making

that comment, Detective Jenkins and Special Agent Cruz left the

agency building while Mr. Jordan returned to one of the photos

and made a selection.

Although Mr. Jordan expressed the desire to make sure that

he identified the correct photograph and, for that reason, went

back and forth between two photographs included in the lineup
 -19-
that contained Defendant’s photograph, he ultimately identified

Defendant as a participant in the robberies and shootings.

After Mr. Jordan selected Defendant’s photograph from the

lineup, Officer Nieves left the agency building to tell

Detective Jenkins that Mr. Jordan had picked someone out of the

lineup and showed him the photo. At that point, Detective

Jenkins informed Officer Nieves that she needed to have Mr.

Jordan indicate the extent to which he was certain that he had

made a correct identification on a percentage basis. In

response to Officer Nieves’ inquiry, Mr. Jordan stated that he

was seventy percent certain that he had correctly identified the

perpetrator of the robberies and shootings. However, when asked

to indicate the degree to which he was certain that he had made

a correct identification on a scale of one to ten, he circled

the number eight.5

Mr. Jordan claimed to have gotten a chill when he saw

Defendant’s photo while examining the relevant photographic

lineup and stated that he had not needed to see any additional
5
Contrary to Officer Nieves’ statement to the effect that
she had returned to ask Mr. Jordan about the extent of his
confidence in the accuracy of his identification after speaking
with Detective Jenkins, Detective Jenkins testified that Officer
Nieves had already learned that Mr. Jordan rated his certainty
about the correctness of his identification as eight on a scale
of one to ten at the time that she came outside to tell him
about the identification and that he asked Officer Nieves to get
Mr. Jordan to give a percentage number after learning of his
rating on the one to ten scale.
 -20-
photographs before making an identification given his knowledge

that Defendant was the person who had attacked and robbed him

and his wife. In explaining his original statement to the

effect that he was seventy percent certain that his

identification of Defendant as the perpetrator of the robberies

and shootings was correct, Mr. Jordan explained that he

remembered from school that seventy percent was a passing score.

He later told Officer Nieves that his level of confidence in the

correctness of his identification was eight on a scale of ten on

the grounds that, if “seventy was passing, . . . an eight out of

ten . . . was pretty good odds.” In a further attempt to

clarify his position, Mr. Jordan testified that, in his view,

seventy percent “was a very good percentage.” After having

initially picked Defendant out of the lineup, Mr. Jordan asked

to see the lineup again; however, Mr. Jordan claimed that he had

not really needed to take another look at the photographs in the

lineup since he was certain of Defendant’s involvement in the

robberies and shootings.

In addition, Mr. Jordan testified that the weather was nice

and it was still light outside at the time that he and his wife

were attacked. Mr. Jordan remembered having seen Defendant’s

face twice, with the first view having occurred when Defendant

was over by the wall prior to the attack and the second view
 -21-
having occurred when Defendant turned to run away. Mr. Jordan

also testified that the descriptions of the suspect that had

appeared in news reports were inaccurate given that, even though

these news reports had stated that the suspect had dreadlocks,

that was not actually the case. In addition to his out-of-court

identification of Defendant as one of his assailants, Mr. Jordan

made an in-court identification of Defendant as one of the

perpetrators of the robberies and shootings at issue in this

case.

b. Standard of Review

In considering the denial of a defendant’s motion to

suppress, this Court determines “only whether the trial court’s

findings of fact are supported by competent evidence, and

whether these findings of fact support the court’s conclusions

of law.” State v. Pulliam, 139 N.C. App. 437, 439-40, 533

S.E.2d 280, 282 (2000). The trial court’s conclusions of law

are, however, reviewed by this Court on a de novo basis. State

v. Hernandez, 170 N.C. App. 299, 304, 12 S.E.2d 420, 423 (2005).

c. Validity of Defendant’s Challenges
to the Suppression Order

i. Sufficiency of the Record Support
for the Trial Court’s Findings

In his initial challenge to the denial of his suppression

motion, Defendant contends that a number of the trial court’s
 -22-
findings of fact lack adequate evidentiary support. Although we

agree that Defendant’s challenges to certain of the trial

court’s findings are valid, we do not believe that this

deficiency in the trial court’s order justifies a decision to

award Defendant a new trial.

First, Defendant challenges the sufficiency of the evidence

to support Finding of Fact No. 4, in which the trial court

determined that the investigating officers “were aware of the

procedures set out in the Eye Witness Reform Act.” In support

of this argument, Defendant directs our attention to Detective

Jenkins’ testimony that he was unaware that the “lineup law” had

changed and that he was utilizing the “old law” and to other

portions of the record. After carefully reviewing the record,

we agree with Defendant’s contention that the record evidence

does not support a determination that Detective Jenkins, Special

Agent Cruz, and Officer Nieves were aware of the requirements of

the North Carolina Eyewitness Identification Reform Act.

However, nothing in the relevant statutory provisions requires

investigating officers to be aware of these relatively new

statutory provisions. See N.C. Gen. Stat. § 15A-284.50 et seq.

Instead, the relevant issue is whether the procedures utilized

by the investigating officers complied with applicable statutory

requirements. As a result, we cannot conclude that the
 -23-
inclusion of this unsupported finding justifies an award of

appellate relief. E.g., State v. Clark, 107 N.C. App. 184, 191,

419 S.E.2d 188, 192 (1992) (holding that a “finding of an

aggravating factor for [a] misdemeanor conviction . . . was

superfluous and non-prejudicial error”).

Secondly, Defendant argues that the trial court erred by

stating in Finding of Fact No. 9 that Special Agent Cruz was in

an “adjoining room” and that Detective Jenkins had stated

“[r]emember the parking lot” to Mr. Jordan during the

identification procedure. Once again, Defendant’s arguments

have merit. Special Agent Cruz testified that both she and

Detective Jenkins were standing in the doorway while the

photographic lineup was being conducted. In addition, Detective

Jenkins testified that he told Mr. Jordan that “all we need you

to do is just pick the person out who you saw crossing the

parking lot,” at which point Mr. Jordan selected a photograph of

Defendant. As a result of the fact that these portions of the

relevant finding of fact lack adequate evidentiary support, we

will now proceed to examine Defendant’s challenges to the trial

court’s conclusions of law in light of the undisputed record

evidence without taking the trial court’s unsupported findings

of fact into consideration. State v. Phillips, 300 N.C. 678,

685, 268 S.E.2d 452, 457 (1980) (stating that, “[i]f there is no
 -24-
material conflict in the evidence on voir dire, it is not error

to admit the challenged evidence without making specific

findings of fact” since the necessary findings of fact “are

implied from the admission of the challenged evidence”)

(citations omitted).

ii. Validity of Trial Court’s Conclusions of Law

In addition to disputing the sufficiency of the evidentiary

support for certain of the trial court’s findings of fact,

Defendant also challenges the validity of certain of the trial

court’s conclusions of law. More specifically, Defendant

contends that the trial court erred by concluding that the

investigating officers complied with the procedures set out in

N.C. Gen. Stat. § 15A-284.52(b) and that Mr. Jordan’s out-of-

court identification of Defendant as the perpetrator of the

robberies and shootings did not result from an impermissibly

suggestive identification procedure. We will address each of

Defendant’s challenges to the trial court’s conclusions of law

in turn.

According to Defendant, Detective “Jenkins and [Special]

Agent Cruz violated EIRA procedures by standing in the doorway

of the room where the lineup was being held” and by making

certain statements to Mr. Jordan while the photographic lineup

was being conducted. The purpose of the Eyewitness
 -25-
Identification Reform Act is to ensure that lineups are

conducted in a fair and reliable manner. N.C. Gen. Stat. § 15A-

284.51 (stating that the purpose of the Act is to “help solve

crime, convict the guilty, and exonerate the innocent in

criminal proceedings by improving procedures for eyewitness

identification of suspects”). In order to achieve that goal,

N.C. Gen. Stat. § 15A-284.52(b)(13) provides that “[t]here shall

not be anyone present during the . . . identification procedures

who knows the suspect’s identity, except the eyewitness and

counsel as required by law.” The uncontroverted evidence

demonstrates that Detective Jenkins was aware of Defendant’s

identity at the time that Mr. Jordan viewed the photographic

lineup. In addition, the fact that Detective Jenkins and

Special Agent Cruz stood in the doorway leading to the room in

which the photographic lineup was being shown to Mr. Jordan

amounted to their being “present” during the identification

procedure. Finally, the statement that Detective Jenkins made

during the identification procedure was certainly inconsistent

with the requirement that “[n]othing shall be said to the

eyewitness regarding the suspect’s position in the lineup or

regarding anything that might influence the eyewitness’

identification.” N.C. Gen. Stat. § 15A-284.52(b)(11). As a

result, the trial court erred by concluding as a matter of law
 -26-
that the investigating officers complied with N.C. Gen. Stat. §

15A-284.52(b) during the identification procedure in which Mr.

Jordan selected Defendant’s photograph and named him as the

perpetrator of the robberies and shootings.

The mere fact that investigating officers violated one or

more of the provisions of N.C. Gen. Stat. § 15A-284.52(b) does

not necessitate a determination that the trial court erred by

denying Defendant’s suppression motion. Instead, N.C. Gen.

Stat. § 15A-284.52(d)(1) provides that a “[f]ailure to comply

with any of the requirements of this section shall be considered

by the court in adjudicating motions to suppress eyewitness

identification.” As a result of the fact that the investigating

officers’ alleged violations of N.C. Gen. Stat. § 15A-284.52(b)

represent the only basis upon which Defendant sought the

suppression of the challenged identification evidence in the

court below, we assume that the Defendant’s suppression motion

was predicated upon the assertion that the challenged evidence

had been obtained as the result of a substantial violation of

Chapter 15A of the North Carolina General Statutes and will

analyze the validity of the trial court’s decision to deny

Defendant’s suppression motion accordingly.

According to N.C. Gen. Stat. § 15A-974(a)(2), evidence

should be suppressed if “[i]t is obtained as a result of a
 -27-
substantial violation of the provisions of this Chapter,” with

the required substantiality determination to be based upon a

consideration of all of the relevant circumstances, including

“[t]he importance of the particular interest violated,” “[t]he

extent of the deviation from lawful conduct,” “[t]he extent to

which the violation was willful,” and “[t]he extent to which

exclusion will tend to deter future violations of this Chapter.”

A careful examination of the record in light of factors made

relevant by N.C. Gen. Stat. § 15A-974(a)(2) establishes that the

violations of N.C. Gen. Stat. § 15A-284.52(b) committed by the

investigating officers at the time of the challenged

identification procedure were not “substantial.” Although any

decision to exclude the challenged evidence would have a

tendency to deter future statutory violations, the fact that the

photographs were shown to Mr. Jordan by an individual who did

not know which photograph depicted the subject in which the

officers were interested, the fact that Detective Jenkins could

not tell when Mr. Jordan was viewing Defendant’s photograph, the

fact that Detective Jenkins’ unfortunate statement did not have

a tendency to suggest that Mr. Jordan should select a particular

photograph, and the fact that neither Officer Nieves nor Mr.

Jordan heard Detective Jenkins’ comment indicates that the

deviation from statutorily required conduct that occurred in
 -28-
this instance was not great, that the statutory violations that

occurred in this instance were not willful, and that Detective

Jenkins’ conduct did not materially increase the likelihood that

Mr. Jordan would select Defendant’s photograph from the lineup

shown to him by Officer Nieves as compared to that of someone

else. As a result, we hold that the trial court did not err by

denying Defendant’s suppression motion.

2. Suggestiveness of Identification Procedures

Secondly, Defendant contends that the admission of evidence

concerning Mr. Jordan’s in-court and out-of-court identification

of Defendant as the perpetrator of the robberies and shootings

violated his due process rights. More specifically, Defendant

contends that the trial court should have excluded Mr. Jordan’s

identification testimony given that the procedures utilized at

the time that he made his out-of-court identification of

Defendant as the perpetrator of the robberies and shootings were

impermissibly suggestive and that his limited opportunity to see

the suspect, the occurrence of other events that would have

distracted his attention, the generality of his description of

the suspect in the immediate aftermath of the shootings and

robberies, and his lack of certainty about the accuracy of his

identification established the existence of a substantial
 -29-
likelihood that he had not made a correct identification. Once

again, we conclude that Defendant’s argument lacks merit.6

According to prior pronouncements of the Supreme Court,

“[i]dentification evidence must be excluded as violating a

defendant’s right to due process where the facts reveal a

pretrial identification procedure so impermissibly suggestive

that there is a very substantial likelihood of irreparable

misidentification.” State v. Harris, 308 N.C. 159, 162, 301

S.E.2d 91, 94 (1983). In making this determination, we must

first determine whether the pretrial identification procedure

was impermissibly suggestive and then examine whether the use of

such an impermissibly suggestive procedure created a substantial

likelihood of irreparable misidentification. State v. Fowler,

353 N.C. 599, 617, 548 S.E.2d 684, 697 (2001), cert. denied, 535

U.S. 939, 122 S. Ct. 1322, 152 L. Ed. 2d 230 (2002). A pretrial

identification procedure is impermissibly suggestive if it,
6
As a result of the fact that Defendant failed to advance a
due process argument in the court below and failed to object to
Mr. Jordan’s in-court identification of Defendant as the
perpetrator of the robberies and shootings at trial, we are
required to address Defendant’s due process argument using a
“plain error” standard of review, under which an award of
appellate relief requires a showing that, “absent the
[challenged] error, the jury probably would have reached a
different result.” State v. Jordan, 333 N.C. 431, 440, 426
S.E.2d 692, 697 (1993). By definition, a convicted criminal
defendant is not entitled to relief on “plain error” grounds in
the event that no error of law was involved in the admission of
the challenged evidence or the delivery of the challenged
instruction.
 -30-
under the “‘totality of the circumstances,’” was “‘so

unnecessarily suggestive and conducive to irreparable mistaken

identity as to offend fundamental standards of decency and

justice.’” Id., 353 N.C. at 618, 548 S.E.2d at 698 (quoting

State v. Hannah, 312 N.C. 286, 290, 322 S.E.2d 148, 151 (1984)).

A determination that a particular identification procedure

created a substantial likelihood of irreparable

misidentification depends upon an analysis of the totality of

the circumstances, including the witness’ opportunity to view

the suspect at the time of the crime, the witness’ level of

attention during the commission of the crime, the accuracy of

the witness’ prior description of the suspect, the witness’

level of certainty at the time of the challenged identification

procedure, and the length of time that had elapsed between the

commission of the crime and the time at which the challenged

identification was made. State v. Pigott, 320 N.C. 96, 99-100,

357 S.E.2d 631, 633-34 (1987).

Although Defendant appears to assume that a violation of

N.C. Gen. Stat. § 15A-284.52(b) compels the conclusion that the

identification procedure utilized in this instance was

unnecessarily suggestive, we are not persuaded that this

assumption is correct. As we have already noted, a reviewing

court is simply required to “consider” whether an identification
 -31-
procedure failed to comply with the provisions of N.C. Gen.

Stat. § 15A-284.52(b) in determining whether a suppression

motion should be allowed. Nothing in N.C. Gen. Stat. § 15A-

284.52(d) indicates that the mere existence of a statutory

violation, standing alone, necessitates a determination that the

resulting identification procedure was impermissibly suggestive.

As a result, we must make an independent determination of the

extent to which the challenged identification procedure was

impermissibly suggestive while giving due weight to the fact

that the record reveals the existence of several violations of

the procedures mandated by N.C. Gen. Stat. § 15A-284.52(b).

As we understand the undisputed evidence contained in the

present record, the identification procedure utilized in this

case, while not ideal, was not impermissibly suggestive.

Although Detective Jenkins was present during the presentation

of the photographic lineups to Mr. Jordan, the actual

presentation was made by Officer Nieves, who did not know that

her fellow officers had focused their attention upon Defendant.

In addition to the fact that Officer Nieves, rather than

Detective Jenkins, actually presented the folders containing the

photographic lineups to Mr. Jordan, the undisputed record

evidence establishes that Detective Jenkins did not know the

order in which the photographs would be presented to Mr. Jordan
 -32-
and could not see which photograph Mr. Jordan was examining at

any point during the lineup process. Finally, although the

undisputed evidence reflects that Detective Jenkins stated that

Mr. Jordan should select the person that he saw in the parking

lot during the identification procedure, we do not understand

this statement to amount to a suggestion that Mr. Jordan was

required to make an identification from the photographs that had

been presented to him or that he should select a particular

photograph. Finally, we note that both Mr. Jordan and Officer

Nieves testified that they did not hear Detective Jenkins make

the comment in question. As a result, we are unable to conclude

that “the facts reveal[ed the use of] a pretrial identification

procedure [that was] so impermissibly suggestive that there

[was] a very substantial likelihood of irreparable

misidentification,” Harris, 308 N.C. at 162, 301 S.E.2d at 94, a

determination that requires us to reject Defendant’s due process

challenge to the admission of evidence concerning Mr. Jordan’s

in-court and out-of-court identifications of Defendant as the

perpetrator of the robberies and shootings.

3. Jury Instructions

Finally, Defendant contends that the trial court erred by

failing to instruct the jury concerning the manner in which it

should evaluate the eyewitness identification testimony
 -33-
contained in the record as required by the relevant statutory

provisions. We do not believe that Defendant is entitled to

relief from the trial court’s judgments on the basis of this

contention.

According to N.C. Gen. Stat. § 15A-284.52(d)(3), a “jury

shall be instructed that it may consider credible evidence of

compliance or noncompliance to determine the reliability of

eyewitness identifications” “[w]hen evidence of compliance or

noncompliance with the requirements of this section has been

presented at trial.” Although the trial court did not instruct

the jury in accordance with N.C. Gen. Stat. § 15A-284.52(d)(3),

Defendant failed to either request the delivery of such an

instruction or object to the trial court’s instructions as

delivered. Although Defendant argues that we are entitled to

consider his appellate challenge to the trial court’s failure to

deliver an identification instruction in accordance with N.C.

Gen. Stat. § 15A-284.52(d)(3) under either a traditional

harmless error standard or on the basis of a plain error

standard of review, we need not resolve the issue of whether

Defendant adequately preserved this issue for appellate review

given our conclusion that Defendant is not entitled to an award

of appellate relief under either approach.
 -34-
As we have already noted, the purpose of the Eyewitness

Identification Reform Act is to ensure that pretrial

identification procedures are conducted in a fair and reliable

manner. N.C. Gen. Stat. § 15A-284.51. According to N.C. Gen.

Stat. § 15A-284.52(d)(3), the purpose of requiring a jury

instruction of the type at issue here is to assist the jury in

“determin[ing] the reliability of eyewitness identifications.”

After carefully reviewing the record, we are unable to conclude

that there is any reasonable possibility that the outcome at

Defendant’s trial would have been different in the event that an

instruction of the nature mandated by N.C. Gen. Stat. § 15A-

284.52(d)(3) had been delivered. N.C. Gen. Stat. § 15A-1443(a)

(stating that “[a] defendant is prejudiced by errors relating to

rights arising other than under the Constitution of the United

States when there is a reasonable possibility that, had the

error in question not been committed, a different result would

have been reached at the trial court of which the appeal

arises”). Aside from the fact that the record fails to

demonstrate any substantial deficiency in the identification

procedures at issue in this case, the record contains

substantial additional evidence tending to identify Defendant as

the perpetrator of the robberies and shootings, including his

access to a Dodge Charger, the spending spree in which he
 -35-
engaged shortly after 1 November 2010, his admission that he had

been involved in a robbery and a shooting, the discovery of

items taken in the robbery in his possession and that of Mr.

Luckey, and the presence of Ms. Jordan’s blood on Defendant’s

clothing. As a result, we conclude that Defendant is not

entitled to any relief from the trial court’s judgments based

upon the trial court’s failure to instruct the jury in

accordance with N.C. Gen. Stat. § 15A-284.52(d)(3).

III. Conclusion

Thus, for the reasons set forth above, we conclude that,

while the trial court erred by failing to grant Defendant’s

motion to dismiss the conspiracy charge for insufficiency of the

evidence, Defendant’s request for relief from his remaining

convictions on the basis of the admission of evidence concerning

Mr. Jordan’s in-court and out-of-court identifications of

Defendant as the perpetrator of the robberies and shootings and

the trial court’s failure to instruct the jury in accordance

with N.C. Gen. Stat. § 15A-284.52(d)(3) lack merit. As a

result, the trial court’s judgment in the case in which

Defendant was convicted of conspiracy to commit robbery with a

dangerous weapon should be, and hereby is, vacated, and the

trial court’s remaining judgments should, and hereby do, remain

undisturbed.
 -36-
NO ERROR IN PART; VACATED IN PART.

Judges GEER and STEPHENS concur.

Report per Rule 30(e).