In 2007, prompted by a glut of national evidence exposing the limits of witness identification, the North Carolina legislature passed the Eyewitness Identification Reform Act to ensure that police lineups were administered in an unbiased manner. Now, when witnesses are presented with either live or photo lineups, the police administrator is not permitted to know the name of the suspect, nor the details of the case.
But what happens when a police officer himself is the eyewitness to a crime? The act didn’t specifically say. Nor did it address the investigation tactic called the “show-up,” which occurs when a suspect, or a suspect’s photo, is presented singly to a witness for identification, rather than alongside “filler” photos, or physical people, in a lineup.
These two gray areas of witness identification—eyewitness police officers, and the distinction between lineups and show-ups—are being debated by the North Carolina Court of Appeals this month, stemming from a case out of Vance County. Specifically, the judges will determine whether police officers who witness crimes in which the suspect flees should be required to make positive identifications through lineups, rather than show-ups.
On Aug. 31, 2012, Henderson Police Detective Darryl Ragland and Sergeant James Ragland—it’s unclear if they’re related—decided to investigate a suspicious vehicle parked behind a market. The passenger exited the car and looked at Detective Ragland for a few seconds from a distance of about 10 feet. Ragland would testify that the passenger was a light-skinned African-American male with long dreads and green eyes, about “five foot something.”
The man sprinted away, and Detective Ragland gave chase. The suspect hopped over two fences and tossed a gun to the ground. Detective Ragland stopped to retrieve the gun and gave up pursuit. Sergeant Ragland, meanwhile, followed the suspect by car. After jumping one of the fences, the suspect turned to look at the Sergeant Ragland from about five to seven yards away, the officer would testify.
Sergeant Ragland lost sight of the suspect and canvassed the neighborhood. At one point he saw someone who looked “looked exactly like” the suspect, and could have been his “twin,” he later testified. The patrol officer drew his gun. But as he approached the pedestrian, clad in a tank top, Sergeant Ragland realized the pedestrian was a woman.
Other officers converged on the scene. Detective and Sergeant Ragland gave descriptions of the suspect to a colleague, Officer Burrell, who replied that the suspect “sounds like a person named Donte Macon,” a convicted felon with whom he’d had previous run-ins.
Fifteen minutes later at the station, Detective and Sergeant Ragland searched the database and found two photos of Macon. Both officers claimed they were 100 percent certain Macon was their guy. Macon was arrested and charged with carrying a concealed gun, and possession of a firearm by a felon.
Before trial Macon filed a motion to suppress the handgun evidence, arguing that the officers failed to follow the Eyewitness ID Reform Act. The officers, in turn, maintained that they did not need to be shown a lineup due to training and experience. The judge denied Macon’s motion, ruling that the officers showed good police investigative work, and that the act did not apply to them. Macon was convicted of both charges, and given a prison sentence of 14 to 26 months.
The North Carolina Supreme Court has called show-ups “an efficient technique for identifying a perpetrator when the [crime] is still fresh,” and that they allow innocent people to be “released with little delay and with minimal involvement with the criminal justice system.”
According to the Innocence Project, however, misidentifications contributed to wrongful convictions of more than 75 percent of the 230 people exonerated through post-conviction DNA testing. Macon now argues that the officers prejudiced him, because they were essentially fed his identity from another officer who was not witness to the crime.
“The Eyewitness Identification Act should also apply to law enforcement officers,” said Macon’s lawyer, Winston-Salem attorney John Wait. “An officer shouldn’t be able to tell you ‘I think it’s so-and-so,’ and then you take a photo from a file and say, ‘that’s him.’ ”
But State attorneys arguing to uphold Macon’s conviction point to case law, which shows that law enforcement officers are not bound by the Eyewitness Identification Act, §15A-284, because it was legislated to regulate police lineups, not show-ups.
Indeed, the Court of Appeals ruling on the 2010 precedent case State v. Rawls
, concluded that the General Assembly intended the act only to apply to lineups. (In Rawls
, the victim of a breaking-and-entering was asked to identify three suspects in person the same night, after officers detained three individuals near her home who fit the descriptions she gave.)
The Rawls court ruled that show-ups are fair, provided that the witness viewed the crime attentively and with accuracy, that the show-up occurs within a reasonable amount of time after the crime; and that the witness is certain of the identification. Furthermore, the court ruled, even if a show-up is “unduly suggestive,” it is still permissible unless it creates a “substantial likelihood of irreparable misidentification.”
“While noting the inherently suggestive nature of the procedure, our Supreme Court has clarified that suggestive pretrial show-up identifications are not per se violative of a defendant’s due process rights,’ ”Jonathan Shaw, assistant attorney general, wrote in his brief in the Macon case.
Macon counters that the eyewitness in Rawls
was the victim of a crime, unlike the officers in his case; and that, unlike Detective and Sergeant Ragland, she was not informed of the defendant’s identifying information prior to the show-up.
“We’re trying to address the well-documented fact that eyewitnesses are not always reliable,” said Wait. In his brief, he noted: “Before seeing Mr. Macon’s picture, Officer Ragland claimed to see Mr. Macon’s ‘twin’ on the street. Had Mr. Macon’s ‘twin’ not had breasts, the officers may well have arrested someone entirely different on the day in question. If a proper photo lineup had been performed, then the officers’ accuracy could have been more properly gauged.”