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Criminal Practice – Identification – Photographic ‘Show-Up’ – EIRA – Police Investigation

State v. Macon (Lawyers Weekly No. 14-07-0856, 16 pp.) (Donna Stroud, J.) Appealed from Vance County Superior Court (Henry Hight Jr., J.) N.C. App.

Holding: The Eyewitness Identification Reform Act did not apply when two police officers saw a suspect while unsuccessfully chasing him and then described him to a fellow officer, the fellow officer said the description sounded like defendant, the officers looked up defendant in a database, and the two officers immediately identified two photos of defendant as depicting the suspect they had chased.

We find no error in defendant’s convictions of carrying a concealed weapon and possession of a firearm by a felon.

Interpreted broadly, the provisions of the Eyewitness Identification Reform Act (EIRA) could be read to prohibit all show-ups, an effect we have held the legislature did not intend. State v. Rawls, 207 N.C. App. 415, 700 S.E.2d 112 (2010). Similarly, these provisions could be read to prohibit any use of photographs to make an identification other than in a photo array.

We held in Rawls that there was no indication that the legislature intended the EIRA to ban show-ups, and the legislature has not since amended the statute to indicate otherwise. The procedure used here might be called a photographic show-up; it has similar benefits and suffers from similar weaknesses as a live show-up.

The photographic show-up here was done promptly after the officers saw the suspect flee, while their memory of the incident was still fresh. Even more than a live show-up, 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 a photograph in their database to follow up on leads they are given by other officers. The trial court correctly concluded that the EIRA does not apply here.

Even assuming the out-of-court identification procedure was impermissibly suggestive, since the trial court concluded that the in-court identifications had an “independent origin,” and “were not tainted by any pretrial identification procedure,” and since 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.

No error.

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