State v. Allen, 49

• Decision Date: 02 December 1980
• Docket Number: No. 49,49
• Citation: 272 S.E.2d 116,301 N.C. 489
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Tyrone Eugene ALLEN.

Page 116

272 S.E.2d 116

301 N.C. 489

STATE of North Carolina v. Tyrone Eugene ALLEN.

No. 49.

Supreme Court of North Carolina.

Dec. 2, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Richard L. Griffin, Raleigh, for the State.

Asst. Public Defender A. Wayland Cooke, Greensboro, for defendant-appellant.

BRITT, Justice.

By his first assignment of error argued in his brief, defendant contends the trial court erred in admitting into evidence a photograph of him taken while he was in jail. He argues that the photograph was obtained in violation of his constitutional rights. This assignment has no merit.

While the record is unclear as to just what defendant is complaining about in this assignment, it appears to relate to state's exhibit 2, a photograph of defendant taken while he was in jail in Petersburg, Virginia, on 2 July 1979. Witness Lacy Goodwin, one of the victims of the robbery, was shown exhibit 2 and then testified:

I've picked out the picture that fairly and accurately represents the man that was in there on May the 20th. State's Exhibit No. 2 fairly and accurately represents this individual. There is no doubt in my mind that the individual that robbed me fairly and accurately is represented in this picture.

The state then introduced the photograph for purpose of illustrating the testimony of the witness and the court instructed the jury that they could consider the photograph for that purpose alone.

Witness Goodwin was followed on the witness stand by Sergeant Robert Carmichael of the Petersburg, Virginia, Police Department. He testified that on 28 June 1979, following a reported armed robbery, he stopped a 1973 Cadillac being driven in the City of Petersburg by defendant; that codefendant Carroll and a woman were also in the front seat; and that he found a sawed-off shotgun on the floor of the car under Carroll's legs some two or three feet from defendant. Sergeant Carmichael then identified exhibit 2 as a picture of defendant "as he looked when I saw him". The witness then stated that in his opinion defendant had lost approximately 70 to 80 pounds between the time he first saw defendant in Petersburg and the date of the trial.

Greensboro Police Officer W. E. McNair followed Sgt. Carmichael on the witness stand. After giving other testimony, he stated, over objection, that Mr. Goodwin selected the photograph identified as exhibit 2 from a group of pictures and said "that's the man"; also, "that's the man-the big man in the robbery".

Defendant argues that exhibit 2 was obtained in violation of his constitutional rights and that the trial court erred in allowing it to be admitted into evidence. In support of his argument, defendant cites us to our decision in State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970), in which we held that photographs which are taken of defendants in jail after they have been picked up without probable cause are inadmissible.

State v. Accor and Moore, supra, is distinguishable from the present case. In the case sub judice, the trial judge conducted a voir dire on defendant's motion to suppress identification testimony. At that hearing, Sgt. Carmichael gave testimony which tended to show that he had probable cause to stop the car in which defendant was riding and arrest defendant in connection with the robbery of a grocery store. At the time the officer had been dispatched to the scene of the armed robbery, he had been given a description of a suspect: a black male who was wearing a light colored suit with a blue shirt. Upon his arrival at the scene, Sgt. Carmichael was told that the suspect had jumped into a nearby automobile. Witnesses at the store pointed out a passing silver colored 1973 Cadillac on an adjacent street. The officer and a police lieutenant left the store and stopped the Cadillac a short distance away. At the time the car was stopped, defendant was driving the vehicle and was wearing a suit and a blue shirt.

These facts were sufficient to establish probable cause to justify the arrest of defendant pursuant to Section 19.2-81 of the Code of Virginia which authorizes a law enforcement officer to "arrest, without a warrant, ... any person whom he has reasonable grounds or probable cause to suspect of having committed a felony not in his presence; ...."

We hold the trial court did not commit error in admitting testimony relating to the photograph because the rule of State v. Accor and Moore simply does not apply to the situation of the present case where there was probable cause. Furthermore, any error was rendered harmless by the admission of the following testimony by Mr. McNair without objection:

In the set of photographs in reference to the larger man, Mr. Goodwin picked out the picture of Mr. Allen and he stated that he was the larger suspect in the robbery. He did not make any misidentification as to the larger suspect. He did not pick anybody else out.

"When evidence is admitted over objection but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost." 4 Strong's N.C. Index 3d, Criminal Law § 162, pp. 825-826.

Defendant assigns as error the failure of the trial court to grant his request that the following special instruction be given to the jury:

In this case the identifying witnesses are of a different race than the defendant. In the experience of many, it is more difficult to identify members of a different race than members of one's own. If this is also your experience, you may consider it in evaluating the witness' testimony. You must also consider, of course, whether there are other factors present in this case which overcome any such difficulty of identification. For example, you may conclude that the witness has had sufficient contacts with members of the defendant's race that he would not have greater difficulty in making a reliable identification.

The only authority defendant cites for this novel assignment is United States v. Telfaire, 469 F.2d 552 (D.C. Cir. 1972). We do not find that case authoritative or persuasive. In Telfaire, the defendant was convicted of robbery on the identification of a single witness. The United States Court of Appeals for the District of Columbia Circuit (Bazelon, C. J., and Leventhal and Adams, JJ.) affirmed the conviction. Following the opinion, the court, in an appendix, set forth "Model Special Instructions on Identification". Thereafter, in a concurring opinion, Bazelon, C. J., discussed the question of interracial identifications and concluded that when the issue is raised, an instruction similar to that quoted above should be given. Leventhal, J., in a concurring opinion, discussed the same subject but disagreed with Bazelon, C. J.; he closed his discussion with the following conclusion The more I ponder the problems, the better I understand the kernel of wisdom in the decisions that shy away from instructions on inter-racial identifications as divisive. (Citing People v. Burris, 19 A.D.2d 557-558, 241 N.Y.S.2d 75, 76 (Second Dept. 1963); People v. Hearns, 18 A.D.2d 922, 923, 238 N.Y.S.2d 173, 174-175 (Second Dept. 1963)). 469 F.2d at 562.

We do not choose to follow the Bazelon opinion. In the case at hand, there is no indication that race in any way affected the identification of defendant by the witnesses. The robbery took place in the daytime, in a well-lighted restaurant, and the witnesses were able to view the robbers at close range for several minutes. The only difficulty in identifying defendant was due to the fact that he had lost considerable weight-70 to 80 pounds-between the...