State v. Williams

• Decision Date: 15 December 1971
• Docket Number: No. 23,23
• Citation: 279 N.C. 663,185 S.E.2d 174
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Dwight H. WILLIAMS.

Page 174

185 S.E.2d 174

279 N.C. 663

STATE of North Carolina v. Dwight H. WILLIAMS.

No. 23.

Supreme Court of North Carolina.

Dec. 15, 1971.

Atty. Gen. Robert Morgan and Associate Atty. Ernest L. Evans, Raleigh, for the State.

George H. Sperry, Wilmington, for defendant appellant.

BOBBITT, Chief Justice.

On appeal, defendant sets forth ten assignments of error. Assignments Nos. 4, 9 and 10 are not discussed in defendant's brief and therefore are deemed abandoned. In Assignments Nos. 1, 2 and 3, defendant asserts the lineup was illegally conducted and therefore the court erred by admitting in evidence over defendant's objection Horne's in-court identification testimony. In Assignments Nos. 5, 6, 7 and 8, defendant asserts the court erred by permitting the solicitor to elicit on cross-examination of defendant testimony that defendant was also Under indictment in unrelated pending cases.

When Horne responded affirmatively when asked if he saw, sitting in the courtroom, the man who had 'put the gun on (him),' the solicitor then asked: 'Who is that?' Defendant's objection to that question was overruled. Horne identified defendant as the man. Defendant excepted to the court's ruling and bases Assignment No. 1 thereon.

The agreed case on appeal shows a Voir dire hearing was conducted After the court had admitted Horne's in-court identification testimony. Obviously, the hearing to determine admissibility should have been conducted Before the evidence was admitted. However, for present purposes, we treat the hearing as having been conducted at the proper time.

The evidence before the court on Voir dire consisted of the testimony of Horne, Detective George Davis of the Wilmington Police Department, and defendant. The testimony of each, summarized except where quoted, is narrated below.

Horne testified that, 'a couple of weeks, or a week or so, after the robbery,' he went to a lineup conducted upstairs in the jail; that he was told to 'just look and pick out the one (he) throught it was' from the seven or eight people in the lineup; that he 'picked out the one that robbed (him), Dwight Williams'; that he had never heard the name 'Dwight Williams' before he went to the lineup.

Detective Davis testified that, on November 23, 1968, he saw defendant at the Wilmington Police Department, at which time the following occurred: 'I advised him of his rights, and he told me that he fully understood them, and didn't question us so far as right were concerned. We advised him that we wanted the man to look at him, and that we were going to place him in a lineup so that this man could see him, and that same afternoon we left the police station with Dwight and brought him over to jail where we prepared a lineup. He said he understood about that.' Davis testified that Horne was called to the jail and there advised to look at the individuals in the lineup, 'to look at whoever he thought was the one who robbed him, and, if he could pick him out, tell us which position he was in in the lineup, and that's what he did.' Davis also testified to the age, clothing and characteristics of the persons in the lineup.

Defendant's testimony related solely to the age, clothing and characteristics of the persons in the lineup.

According to the record: 'The court found as a fact from the foregoing evidence that the defendant, Dwight Williams, was duly advised by police officers that he had a right to have an attorney present at any lineup for identification purposes, and had ignored it, and voluntarily waived the right to have an attorney present. The court further found as a fact from the evidence that the lineup was made up of seven or more persons of the age, clothing and characteristics of the defendant, Dwight H. Williams.' Defendant excepted to these findings and bases his Assignment No. 2 thereon.

Whether the evidence on Voir dire was sufficient to support the finding that 'the lineup was made up of seven or more persons of the age, clothing and characteristics of the defendant, Dwight H. Williams,' need not be determined. Decision on this appeal does not depend upon whether the lineup was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' See Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). In other material respects, the findings are unsupported and deficient.

'Rules established for in-custody confrontation for identification purposes require that: (1) the accused he warned of his constitutional right to the presence of counsel during the confrontation; (2) when counsel is not knowingly waived and is not present, the testimony of witnesses that they identified the accused at the confrontation be excluded; (3) the in-court identification of the accused by a witness who participated in the pretrial out-of-court confrontation be likewise excluded unless it is first determined on Voir dire that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. Failure to observe these rules is a denial of due process.' State v. Smith, 278 N.C. 476, 481, 180 S.E.2d 7, 11 (1971), and cases cited. Accord: State v. Harris, 279 N.C. 177, 179--80, 181 S.E.2d 420, 421 (1971).

There is No evidence that defendant 'was duly advised by police officers that he had a right to have an attorney present at any lineup for identification purposes, and had ignored it, and voluntarily waived the right to have an attorney present.' Davis testified he advised defendant 'of his rights' and defendant said he fully understood 'them.' The in-custody lineup being a critical stage, the accused person must be advised, not vaguely of 'rights,' but specifically of the right to counsel (including the appointment of counsel in the event of indigency) and of his right to the presence of his counsel when the lineup is conducted. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Moreover, there is No evidence defendant had knowledge of and waived these specific rights.

Following the Voir dire hearing and the court's findings, the solicitor, in the presence of the jury, asked Horne if he could identify the man whom he had identified at the lineup and who he said had robbed him. Defendant's objection was overruled and defendant excepted. Assignment of Error No. 3 is based thereon.

On account of the illegality of the lineup, and the insufficiency of the evidence and findings to dispel the prejudicial effect thereof, the admission of Horne's in-court testimony was error for which defendant is entitled to a new trial.

The question presented by Assignments Nos. 5, 6, 7 and 8 is whether, for purposes of impeachment, a witness, including the defendant in a criminal case, may be cross-examined as to whether he has been Indicted or is Under indictment for a criminal offense other than that for which he is then on trial. In State v. Maslin, 195 N.C. 537, 143 S.E. 3 (1928), this Court's unequivocal answer was, 'Yes.' The rule adopted in Maslin has been approved and applied in subsequent decisions to and including State v. Brown, 266 N.C. 55, 145 S.E.2d 297 (1965). Upquestionably, as defendant concedes, these decisions support the rulings of the trial court. However, both reason and the overwhelming weight of authority in other jurisdictions impel us to reconsider and overrule prior decisions on this point.

We reaffirm the rule that, for purposes of impeachment, a witness, including the defendant in a criminal case, is subject to cross-examination as to his Convictions for crime. Ingle v. Transfer Corp., 271 N.C. 276, 279--80, 156 S.E.2d 265, 268--69 (1967), and cases there cited. The precise question reconsidered is whether, For purposes of impeachment, the witness may be asked if he has been Indicted or is Under indictment for a criminal offense other than that for which he is then on trial.

G.S. § 8--54 permits a defendant in a criminal action to be a witness in his own behalf. If he testifies, he occupies the position of any other witness. He is entitled to the same privileges and is 'equally liable to be impeached or discredited.' State v. Efler, 85 N.C. 585, 587 (1881). Accord: State v. Sheffield, 251 N.C. 309, 311, 111 S.E.2d 195, 197 (1959), and cases there cited. Hence, rules relative to cross-examination for purposes of impeachment apply equally to the cross-examination of all witnesses, including but not limited to the cross-examination of a defendant in a criminal action.

In State v. Malsin, supra, the defendant, a bank officer, testified at his trial for the embezzlement of funds of a particular estate of which the bank was trustee. On cross-examination, the solicitor was permitted to ask over defendant's objections whether he was then under indictment (1) for embezzling funds belonging to the bank, (2) for embezzling funds belonging to another estate of which the bank was trustee, and (3) for receiving deposits when he knew the bank was insolvent. The defendant admitted that he had been indicted for these offenses. It was held that the questions were permissible for the purpose of impeaching the defendant as a witness.

Three of the decisions cited in Maslin, namely, State v. Garrett, 44 N.C. 357 (1853), State v. Lawhorn, 88 N.C. 634 (1883), and State v. Holder, 153 N.C. 606, 69 S.E. 66 (1910), held that, for impeachment purposes, a witness, including the defendant in a criminal action, may be asked on cross-examination whether he has been Convicted of unrelated criminal offenses. No case cited in Maslin decided or considered whether it was permissible to cross-examine the defendant as to prior or pending Indictments against him.

State v. Wiggins, 171 N.C. 813, 816, 89 S.E. 58, 59 (1916), was cited with approval in Maslin as authority for the proposition that '(e)vidence of a mere...