State v. Branch, 1

• Citation: 288 N.C. 514,220 S.E.2d 495
• Decision Date: 17 December 1975
• Docket Number: No. 1,1
• Parties: STATE of North Carolina v. Connie Hardee BRANCH and Roy Lee Sullivan.
• Court: United States State Supreme Court of North Carolina

Page 495

220 S.E.2d 495

288 N.C. 514

STATE of North Carolina v. Connie Hardee BRANCH and Roy Lee Sullivan.

No. 1.

Supreme Court of North Carolina.

Dec. 17, 1975.

Atty. Gen. Rufus L. Edisten by Sp. Deputy Atty. Gen. Sidney S. Eagles, Jr., Raleigh, for the State.

Paul, Keenan, Rowan & Galloway by James V. Rowan, Durham, for Roy Lee Sullivan.

James, Hite, Cavendish & Blount by Dallas Clark, Jr., Greenville, for Connie Hardee Branch, for defendants-appellants.

COPELAND, Justice.

Defendant Branch raises 42 assignments of error covering 1144 exceptions. Defendant Sullivan raises 38 assignments of error covering 478 exceptions.

The questions raised by defendant Branch (hereinafter referred to as 'Mrs. Branch') will be considered first.

MRS. BRANCH'S APPEAL

Mrs. Branch contends that it was error for the court to consolidate the cases of defendants for trial. G.S. 15--152 (formerly C.S., 4622) has been consistently interpreted as follows: 'The court is expressly authorized by statute in this State to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of others. C.S. 4622. (Citations omitted.)' State v. Combs, 200 N.C. 671, 674, 158 S.E. 252, 254 (1931).

Our case clearly falls within the above guidelines. The defendants were charged with being accessories before the fact to the murder of Mr. Branch and with conspiracy to murder him. The defendants were so connected in time and place that the evidence at the trial of one would be competent and admissible at the trial of the other. The assignment of error is without merit and is overruled.

Mrs. Branch next contends that the in-court identification of her by Whealton was improper and tainted on account of the five pictures shown to him during the noon recess. Actually, there was a photographic identification about two weeks before the trial as well as the one (attempted) during the noon recess. On both occasions Deputy Sheriff Dalton Respass showed five isolated pictures of Mrs. Branch to Whealton. Mrs. Branch moved to strike, and requested and received a voir dire examination as to Whealton's in-court identification. However, when Respass subsequently testified and for the first time informed the court that he had shown the same pictures to Whealton two weeks before the trial, Mrs. Branch failed to object, move to strike, or request to reopen the voir dire examination as to Whealton's in-court identification. She neither contended that new evidence had been discovered, nor that she had been surprised. Nonetheless, on account of the serious nature of this case and the fact that a general objection to the in-court identification was made, the effect of this related identification two weeks before the trial will be considered by our Court Ex mero motu under this assignment of error.

'(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.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). 'Factors to consider in applying the Simmons test are: '(1) the manner in which the pretrial identification was conducted; (2) the witness' prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.' (Citations omitted.)' State v. Knight, 282 N.C. 220, 225, 192 S.E.2d 283, 287 (1972).

An analysis of this case in the light of these factors indicates that both identification procedures were impermissibly suggestive since in each instance Deputy Sheriff Respass showed pictures of only one woman, Mrs. Branch, to Whealton. However, an examination of the other factors involved shows that these photographic identification procedures did not give rise to a 'very substantial likelihood of irreparable misidentification.' Whealton had a substantial prior opportunity to observe and converse with Mrs. Branch in the front seat of his car during the early afternoon around 1 March 1974. He observed her get out of her car and walk over to his car. He had made no prior description of her. Therefore, the factor relating to prior descriptions is inapplicable. Before seeing and identifying the pictures of her about two weeks in advance of the trial, he apparently neither made nor attempted to make an identification of her or some other person as the woman he met around 1 March 1974. Moreover, by the time he saw the pictures during the noon recess, he had Already privately Identified Mrs. Branch from a profile view of her in the courtroom and reported this to Respass. Thus, the second showing of the pictures could not properly be deemed to have affected his subsequent in-court identification. Whealton did twice fail to identify her on the witness stand, but this was understandable considering the circumstances. Both Whealton and Respass stated that the color of her hair had been changed and she was wearing glasses now, whereas they had not previously seen her wearing glasses. Also, Respass indicated that the style of her hair had been changed since he saw her on 30 March 1974. The two pictures which were presented with the record on appeal and had been taken on 26 April 1974 and five or six days thereafter show a dramatic difference in the appearance of Mrs. Branch. An additional circumstance is that over seven months had passed since Whealton had seen her around 1 March 1974. Additionally, Whealton stated he was able to identify her When he saw her profile. Apparently, he had not seen or examined her profile when the first two requests for an in-court identification were made. Thus, on the basis of these facts the photographic identification some two weeks before the trial did not give rise to a 'very substantial likelihood of irreparable misidentification' and taint Whealton's in-court identification. Moreover, the trial court's finding that the in-court identification was not tainted or influenced by the pictures shown during the noon recess was fully supported by the evidence and must be upheld. State v. Knight, supra; State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). This assignment of error is overruled.

Mrs. Branch also challenges the in-court identification because the court allowed the State during redirect examination to examine Whealton on the identity of the woman he met around 1 March 1974 even though no questions concerning her identity had been asked on cross-examination. As indicated in 1 Stansbury, North Carolina Evidence, § 36 (Brandis Rev.1973), and cases cited thereunder, 'The trial judge may, however, in his discretion vary the regular order and permit counsel to elicit on redirect examination New evidence which was Inadvertently omitted on the examination in chief.' (Emphasis supplied.) Since Whealton had not seen the woman he met around 1 March 1974 for over seven months, since her appearance was changed considerably, and since there is nothing to indicate that Mrs. Branch presented a profile view when Whealton failed to identify her, the trial judge clearly did not abuse his discretion. This assignment of error is overruled.

Mrs. Branch also contends that the court erred in denying her motion at the end of her cross-examination of Whealton to reopen voir dire examination concerning the in-court identification of her by Whealton. This is discretionary with the court and it appears there was no abuse of discretion since, (1) there was a right to confront her with adverse witnesses during the voir dire; (2) ample evidence was produced during the voir dire; (3) no new evidence had been brought out on her cross-examination of Whealton; and (4) there was ample opportunity originally to cross-examine all of the State's witnesses and offer independent evidence. Where no voir dire was conducted, our Court has said: 'Failure to conduct the voir dire, however, does not necessarily render such evidence incompetent. Where as here, the pretrial viewing of photographs was free of impermissible suggestiveness, and the evidence is clear and convincing that defendant's in-court identification originated with observation of defendant at the time of the robbery and not with the photographs, the failure of the trial court to conduct a voir dire and make findings of fact, as he should have done, must be deemed harmless error. (Citation omitted.)' State v. Stepney, 280 N.C. 306, 314, 185 S.E.2d 844, 850 (1972). A similar rationale applies here with respect to reopening voir dire, and, if there was error, it was harmless beyond a reasonable doubt since the photographic identification did not give rise to a 'very substantial likelihood of misidentification' based upon the considerable evidence presented. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970). Thus, all assignments of error pertaining to identification are overruled.

Defendant next assigns as error denial of her motion to conduct a voir dire of witness Bennett (from South Carolina) who testified that Sullivan told him on the telephone that Branch was killed by Whealton for $5,000 and that he and ...