State v. Bertha

• Decision Date: 30 April 1969
• Docket Number: No. 6926SC106,6926SC106
• Citation: 167 S.E.2d 33,4 N.C.App. 422
• Parties: STATE of North Carolina v. Ronnie BERTHA and William Ray Acker.
• Court: North Carolina Court of Appeals

Page 33

167 S.E.2d 33

4 N.C.App. 422

STATE of North Carolina v. Ronnie BERTHA and William Ray Acker.

No. 6926SC106.

Court of Appeals of North Carolina.

April 30, 1969.

Atty. Gen. Robert Morgan and Staff Atty. Andrew A. Vanore, Jr., Raleigh, for the State.

Mercer J. Blankenship, Jr., Charlotte, for defendant appellant.

BRITT, Judge.

The first question presented by this appeal is whether the identification of the appellant in the absence of his counsel and without a formal lineup violated his constitutional rights.

The confrontation in this case occurred after 12 June 1967, the effective date of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

As the Wade and Gilbert cases dealt with formal lineup situations, there has been some question as to the extent of application to informal confrontations. Only a few cases have been found where an informal confrontation occurred after the effective date of Wade and Gilbert. These cases are not in agreement, but the difference may be in the facts. In Rivers v. United States, 400 F.2d 935 (5th Cir. 1968), the victim was a rural mail carrier. He was shot while making change for the assailant but managed to drive to a house and get help. He was taken to a hospital and treated. The identification occurred as the victim was being transferred to an ambulance for transportation to another hospital, while the appellant was accompanied in the police car by a brother and a cousin. Noting the absence of clear evidence of the necessity of an immediate confrontation, the court concluded that the identification must be established by means independent of the unlawful confrontation. The court relied heavily on the interpretation of Wade given by White, J., in his dissent: 'The rule applies to any lineup, to any other techniques employed to produce an identification and a fortiori to a face-to-face encounter between the witness and the suspect alone, Regardless of when the identification occurs, in time or place, and whether before or after indictment or information.' (Emphasis added.)

The Rivers case was followed in United States v. Kinnard, 294 F.Supp. 286, where the District Court for the District of Columbia asked for guidance from the Court of Appeals for that district. This call was answered by the Court of Appeals for the District of Columbia in Russell v. United States, 408 F.2d 1280, where the court held that the on-the-scene identification of a thief at 5:00 a.m. almost immediately after the theft was permissible.

We think the decision in Russell is applicable to the facts in the instant case and that defendant's constitutional rights were not violated by the out-of-court identification complained of. The assignment of error relating thereto is overruled.

Appellant's next assignment of error relates to the failure of the trial court to grant his motion for nonsuit interposed at the close of the State's evidence and renewed at the close of all the evidence.

Without restating the evidence, we hold that appellant's motions were properly overruled. If there is more than a scintilla of competent evidence to support the allegations of the warrant or bill of indictment, motions of nonsuit are properly denied. State v. Kelly, 243 N.C. 177, 90 S.E.2d 241. The circumstances of this case and the attendant facts make it a question for the jury. State v. Brown, 1 N.C.App. 145, 160 S.E.2d 508; State v. Mabry, 269 N.C. 293, 152 S.E.2d 112.

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