State v. Brady

• Citation: 299 N.C. 547,264 S.E.2d 66
• Decision Date: 01 April 1980
• Docket Number: No. 31,31
• Parties: STATE of North Carolina v. Thomas BRADY.
• Court: United States State Supreme Court of North Carolina

Page 66

264 S.E.2d 66

299 N.C. 547

STATE of North Carolina v. Thomas BRADY.

No. 31.

Supreme Court of North Carolina.

April 1, 1980.

Rufus L. Edmisten, Atty. Gen., by Christopher P. Brewer, Associate Atty., Raleigh, for the State.

Seawell, Robbins, May, Webb & Rich, P.A. by P. Wayne Robbins, Carthage, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first contends that the trial court erred in not dismissing the indictments against defendant for failure to comply with the provisions of G.S. 15A-701(a1) and by reason of the denial of defendant's constitutional right to a speedy trial.

The applicable language of G.S. 15A-701 provides:

(a1) Notwithstanding the provisions of G.S. 15A-701(a) the trial of a defendant charged with a criminal offense who is arrested, served with criminal process, waives an indictment or is indicted, on or after October 1, 1978, and before October 1, 1980, shall begin within the time limits specified below:

(1) Within 120 days from the date the defendant is arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last . . .. (Emphasis added.)

In this case, the last occurrence from which the statutory time limit could be counted was 9 April 1979, the day on which defendant was indicted. His trial began on 14 May 1979, which was well within the statutory limit.

Defendant's contention that he was denied his constitutional right to a speedy trial is also without merit.

The constitutional right to a speedy trial protects an accused from extended pretrial imprisonment, from public suspicion generated by an untried accusation, from loss of witnesses and from the occurrence of other things, which might prejudice his trial as a result of the delay. State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972); State v. Harrell, 281 N.C. 111, 187 S.E.2d 789 (1972). The accused has the burden of showing that the delay complained of was caused by the State's willfulness or neglect. State v. Spencer, supra ; State v. Ball, 277 N.C. 714, 178 S.E.2d 377 (1971).

In the instant case, the only factor shown by defendant to support his motion was that the married prosecuting witness was about five months pregnant. In denying defendant's motion, the trial judge stated:

Let the record show that the Court by its own observation determines that the State's witness who has been exhibited to the Court does not show whether she is or is not pregnant and is not a visible thing with the State having agreed not to mention this during the trial and the State's witness having agreed not to mention this during the trial, the motion is denied on the basis that there is no prejudice shown. I just can't say that I think she looks like she is pregnant.

In view of these circumstances, we hold that the delay of which defendant complains did not violate his constitutional right to a speedy trial.

Defendant contends that the trial court erred in excusing a juror after the jury was originally impaneled. We disagree.

After the jury had been impaneled and the trial had begun, a juror, Mr. Hayes, indicated that he was employed by and worked closely with defendant's brother. After a voir dire was conducted, the State challenged juror Hayes and the court excused him from the panel. An alternate juror was seated to replace Mr. Hayes. At the time, defendant stated that he had no objection.

This Court considered the question presented here in State v. Kirkman, 293 N.C. 447, 238 S.E.2d 456 (1977). In that case, the Court held that the trial judge did not commit reversible error by permitting further examination and challenge of a juror by the State after the jury was impaneled, when it was discovered that the juror worked with the wife of one of the defendants. In so holding the Court, speaking through Lake, J., stated:

It is well established that, prior to the impaneling of the jury, it is within the discretion of the trial judge to reopen the examination of a juror, previously passed by both the State and the defendant, and to excuse such juror upon challenge, either peremptory or for cause. State v. Bowden, 290 N.C. 702, 228 S.E.2d 414 (1976); State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); State v. McKenna, 289 N.C. 668, 224 S.E.2d 537, death sentence vacated, 429 U.S. 912, 97 S.Ct. 301, 50 L.Ed.2d 278 (1976); State v. Harris, 283 N.C. 46, 194 S.E.2d 796, cert. den., 414 U.S. 850, 94 S.Ct. 143, 38 L.Ed.2d 99 (1973).

In the foregoing cases, we held that G.S. 9-21(b) providing that the State's challenge, whether peremptory or for cause, must be made before the juror is tendered to the defendant "does not deprive the trial judge of his power to closely regulate and supervise the selection of the jury to the end that both the defendant and the State may receive a fair trial before an impartial jury." State v. McKenna, supra, 289 N.C. at 679, 224 S.E.2d at 545. In all the foregoing cases, the challenge in question was allowed before the jury was impaneled. We perceive no reason for the termination of this discretion in the trial judge at the impanelment of the jury. This assignment of error is overruled.

Id. at 453-54, 238 S.E.2d at 460.

Defendant assigns as error the trial court's denial of defendant's motion to suppress the in-court identification of defendant by Mrs. Trogdon. Defendant notes certain discrepancies between the prosecuting witness's identification testimony at trial and the description of her assailant previously given to investigating officers. He also contends that the pretrial photographic displays were so impermissibly suggestive that her in-court identification of defendant was rendered inadmissible.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the United States Supreme Court, in expressly approving photographic identifications, set forth the following standard for determining whether an in-court identification following an allegedly suggestive pretrial identification procedure satisfies the demands of due process:

(E)ach case must be considered on its own facts, and . . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Id. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253. See also State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977); State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972).

In the instant case, the trial judge conducted an extensive voir dire hearing on the admissibility of the in-court identification of defendant by the prosecuting witness. Mrs. Trogdon testified on voir dire that after she had seen defendant at the restaurant on 1 September, Detective Buheller showed her between twenty-five and forty photographs of different men, the majority of whom were white and between eighteen and thirty years of age. She did not recognize any of these photographs as being of her assailant. After she had again seen defendant at Kimbrell's on 11 September, Mrs. Trogdon called Detective Buheller. He showed her between twenty-five and fifty photographs, which were the same as those shown previously except that more photographs had been added. Once again, most of the photographs were of white men. Mrs. Trogdon testified on cross-examination that "(s)ome had scars, some had short hair, some had long hair, some had tee shirts on." She immediately recognized a photograph of defendant as that of her assailant. She stated that this photograph was the same type as the other photographs. Moreover, there is absolutely nothing in the record to indicate that the collection of photographs or the manner in which they were exhibited to the prosecuting witness was "impermissibly suggestive" or unduly influenced her selection of defendant's photograph.

The United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), delineated certain factors to be considered in evaluating the likelihood of misidentification. These include:

(T)he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Id. at 199-200, 93 S.Ct. at 382, 34 L.Ed.2d at 411. The court must determine in this manner whether under the "totality of the circumstances" the identification was reliable even in cases where the confrontation procedure may have been suggestive. Id.

A review of the testimony of Mrs. Trogdon in light of these factors indicates little likelihood of mistaken identification here. Mrs. Trogdon testified on voir dire that she first saw defendant on 23 August when he left his automobile and approached the driver's side of her car. She had never seen him before. The time was between 5:30 and 5:45 in the afternoon, and it was still daylight. Through her open car window, she observed him from a distance of about four or five feet for three or four minutes. After defendant had taken her out of her car and forced her into the back seat of the other automobile, she was able to observe his face again at close range for several minutes during the alleged rape. She later described her assailant to the officers as being between five and six feet tall, with long brown hair and wearing a full beard. She stated that he had something peculiar about his face or eyes, but that she could not recall exactly what it was.

Mrs. Trogdon again saw defendant on 1 September in a restaurant in Asheboro between 5:30 and 6:00 p. m. The lighting in the restaurant was very bright, and it was still daylight outside. She was able to observe his face for about five minutes from a distance of about fifteen or twenty feet away. She recognized...