State v. Bass

• Decision Date: 09 February 1972
• Docket Number: No. 78,78
• Citation: State v. Bass, 186 S.E.2d 384, 280 N.C. 435 (N.C. 1972)
• Parties: STATE of North Carolina v. Michael BASS and Gregory Alexander Barrett.
• Court: North Carolina Supreme Court

Page 384

186 S.E.2d 384

280 N.C. 435

STATE of North Carolina v.Michael BASS and Gregory Alexander Barrett.

No. 78.

Supreme Court of North Carolina.

Feb. 9, 1972.

Wallace C. Harrelson, Public Defender, and J. Dale Shepard, Asst. Public Defender, for defendantappellant Bass.

Alston, Pell, Pell & Weston by E. L. Alston, Jr., Greensboro, for defendantappellant Barrett.

Robert Morgan, Atty. Gen., and Millard R. Rich, Jr., Asst. Atty. Gen., for the State of N.C.

HUSKINS, Justice:

The first assignment of defendant Bass is based on the contention that since he did not sign a written waiver of his right to counsel at the lineup when he was exhibited to the prosecuting witness for identification, the lineup was illegal and his subsequent in-court identification by Sandra Garner was tainted and inadmissible.He therefore argues that his motion to suppress her in-court identification should have been allowed.

At all times pertinent to this case, an indigent defendant in a capital case could not waive the right to counsel either orally or in writing.See 1969 Session Laws, Chapter 1013, Section 1, codified asG.S. 7A--457;State v. Lynch, 279 N.C. 1, 181 S.E.2d 561(1971).

A pretrial in-custody lineup for identification purposes is a critical stage in the proceedings, and by statute in this State an accused so exposed is entitled to the presence of counsel.G.S. § 7A--451(b)(2).Defendant Bass, an indigent charged with a capital offense, thus had the constitutional right to the presence of counsel at the lineup, and the in-court identification of the accused by a lineup witness was incompetent unless the trial court first determined on voir dire that the in-court identification had an independent origin and was not tainted by the illegal lineup.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);State v. Wright, 274 N.C. 84, 161 S.E.2d 581(1968);State v. Rogers, 275 N.C. 411, 168 S.E.2d 345(1969);State v. Austin, 276 N.C. 391, 172 S.E.2d 507(1970).

Here, the court conducted a voir dire examination in the absence of the jury following which it found as a fact, upon supporting evidence, that Sandra Garner's in-court identification of Bass and Barrett was based on her observation of them during the assault upon her and originated independently of the lineup.These findings of fact by the trial judge are conclusive when, as here, they are supported by competent evidence.State v. Gray, 268 N.C. 69, 150 S.E.2d 1(1966);State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534(1970);State v. Harris, 279 N.C. 307, 182 S.E.2d 364(1971).In light of these principles, it follows that the victim's in-court identification of Bass was not tainted by the lineup and was properly admitted.

Even so, due to absence of counsel at the lineup, the court erred in admitting evidence of the Lineup identification; and if there is a reasonable possibility that this erroneously admitted evidence might have contributed to the conviction of Bass, a new trial is required.If not, it was harmless error.Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171(1963).'One who, because of the statute, is precluded in a capital case from waiving the right to counsel during an in-custody, pre-trial lineup stands in the same position as an accused who did not knowingly, understandingly and voluntarily waive the right to counsel before the enactment of Chapter 7A, Article 36 of the General Statutes.'State v. Chance, 279 N.C. 643, 185 S.E.2d 227(1971).Therefore the determinative question, simply stated, is whether the erroneously admitted evidence of the lineup identification of Bass contributed to his conviction or was harmless beyond a reasonable doubt.This requires a brief review of the evidence.

Here, Sandra Garner was with defendants for at least forty-five minutes.She observed them in a well-lighted area before and at the time they entered her car.She observed them while riding along a well-lighted street.She observed them when the car door was opened and the dome light came on.She talked with them from time to time during her abduction.Two Negro males were seen running from the point where she was found toward the point where Bass was arrested, a distance of only two and one-half blocks.When arrested, Bass was hiding in a Dempster Dumpster with his belt undone and his fly partially unzipped.When apprehended, Bass exclaimed to the officer that he'had nothing on him and no one could identify him.'Bass was wearing a green army-type jacket, a blue sweat shirt over a red T-shirt, and army-type boots--clothing similar to the victim's description of one of her assailants.Hairs found on the blue sweat shirt Bass was wearing and hairs taken from the prosecutrix were 'micro-scopically alike in all identifiable characteristics.'On this record there is little chance that another trial with the lineup evidence excluded would produce a different result more favorable to defendant Bass.'To warrant a new trial it should be made to appear by defendant that the admission of the evidence complained of was material and prejudicial to defendant's rights and that a different result would have likely ensued if the evidence had been excluded.'State v. Temple, 269 N.C. 57, 152 S.E.2d 206(1967);State v. Williams, 275 N.C. 77, 165 S.E.2d 481(1969).

In light of all the evidence, fortified by the fact that Sandra Garner's identification of Bass was not based upon the lineup identification but was independent in origin, we conclude that there was no reasonable possibility that evidence of the lineup identification of Bass contributed to his conviction.Its admission was harmless beyond a reasonable doubt.Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705(1967);Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284(1969);State v. Brinson, 277 N.C. 286, 177 S.E.2d 398(1970);State v. Swaney, 277 N.C. 602, 178 S.E.2d 399(1971).The first assignment of defendant Bass is overruled.

Both defendants contend it was also error for the trial judge to file his findings of fact upon the voir dire examination after the evidence had already been admitted before the jury.Defendants argue that the voir dire was conducted on May 24 and 25 and the judge's findings of fact were filed on June 3 at 2:30 p.m. after all testimony before the jury had been taken.We fail to see how defendants have been prejudiced.The findings of fact are dated May 25 and were filed on June 3.The judgments pronounced bear date of June 5, 1971.Obviously the findings were made and filed during the trial.The record does not show with any degree of clarity the sequence of events following the voir dire.If it be conceded Arguendo that the court's findings and conclusions were reduced to writing after the evidence was admitted before the jury, defendants were not prejudiced.The findings were supported by competent evidence offered on the voir dire, and the evidence was competent before the jury.As stated in State v. Doss, 279 N.C. 413, 183 S.E.2d 671(1971), 'it is better practice for the court to make such findings at some stage during the trial, preferably at the time the (evidence) is tendered and before it is admitted.'This assignment is not sustained.

Defendants' next assignment is grounded on the failure of the district judge who conducted the preliminary hearing to reduce to writing the testimony of the witnesses examined before him.Both defendants contend they were prejudiced on the trial in the superior court by reason of such failure.

G.S. § 7A--272(b) confers jurisdiction on the district court'to conduct preliminary examinations and to bind the accused over for trial . . . upon a finding of probable cause, making appropriate orders as to bail or commitment.'When performing such duties the district judge sits only as an examining magistrate in all felony cases, State v. Wall, 271 N.C. 675, 157 S.E.2d 363(1967), because the trial of felonies is beyond the jurisdiction of the district court.In his capacity as examining (or committing) magistrate, the district judge is concerned only with determining (1) whether a felonious offense has been committed and (2) whether there is probable cause to charge the prisoner therewith.G.S. § 15--94;G.S. § 15--95.Although G.S. § 15--88 requires an examining magistrate to reduce to writing '(t)he evidence given by the several witnesses examined,' this requirement is directory only and not mandatory.It was so held on State v. Irwin, 2 N.C. 112(1794) and reaffirmed in State v. Parish, 44 N.C. 239(1852).Further discussion of the point raised would serve no useful purpose.This assignment is overruled.

The solicitor was permitted over objection to cross-examine defendant Bass on the voir dire respecting the Admitted fact that he was then on parole from a sentence previously imposed for assault with intent to commit rape.He argues the judge was prejudiced by such evidence and assigns as error its admission on voir dire.The assignment has no merit and requires little discussion.Bass took the witness stand during the voir dire, and his credibility was subject to impeachment before the judge in the same manner as it would have been had he taken the stand and testified before the jury.

During the voir dire examination of Sandra Garner, the solicitor was permitted to ask, and the witness to answer, over objection, as follows:

'Q.Is your identification here of Bass in any way based on that lineup?

'A.I recognized him from the times I saw him before the lineup.

'Q.In the absence of attendance at the lineup, would you still be able to recognize him here today?

'A.Yes, sir.I would still be able to recognize him.'

Defendant Bass assigns the court's ruling as error.

The trial court has discretionary authority to permit leading questions in proper instances, State v. Painter, 265...