State v. Burns

• Decision Date: 06 May 1975
• Docket Number: No. 29,29
• Citation: 214 S.E.2d 56,287 N.C. 102
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Mark Douglas BURNS.

Page 56

214 S.E.2d 56

287 N.C. 102

STATE of North Carolina v. Mark Douglas BURNS.

No. 29.

Supreme Court of North Carolina.

May 6, 1975.

James H. Carson, Jr., Atty. Gen. and Sidney S. Eagles, Jr., Asst. Atty. Gen., Raleigh, for the State.

Cameron & Collins by William M. Cameron, Jr., Jacksonville, for defendant.

LAKE, Justice.

The defendant contends that the trial court erred in admitting in evidence the in-court identification of the defendant by Mrs. Williams as her assailant. In this we find no error. Upon the defendant's objection to such testimony, the trial judge sent the jury from the courtroom and, in its absence, conducted a voir dire examination. Mrs. Williams was the only witness called on the voir dire. At the conclusion thereof, the court made findings of fact, as above set forth, and overruled the defendant's motion to suppress the evidence pertaining to the identification of the defendant by Mrs. Williams. This was the proper procedure. State v. Cross, 284 N.C. 174, 178, 200 S.E.2d 27; State v. Stepney, 280 N.C. 306, 314, 185 S.E.2d 844; State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1.

One of the court's findings, designated by it a conclusion, was that the in-court identification of the defendant was of independent origin and was based solely on what the witness saw at the time of the crime and was not the result of any out-of- court confrontation. The witness expressly so testified on the voir dire. The circumstances of the crime, committed in a small, well lighted room in which she was confronted by her assailant, a forcible intruder, who remained therein with her for at least fifteen minutes, were such as to afford ample opportunity for the formation of a mental picture of her assailant which would survive to the time of trial, irrespective of her pretrial confrontation with him thereafter at the police station. The trial court's findings of fact on the voir dire, supported as they are by ample evidence, are conclusive on appeal. State v. Cross, supra, 284 N.C. at p. 181, 200 S.E.2d 27; State v. Stepney, supra, 280 N.C. at p. 317, 185 S.E.2d 844; State v. Morris, 279 N.C. 477, 481, 183 S.E.2d 634; State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364; State v. Gray, supra.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, the defendant, as here, appealed from a conviction of rape. He, like the present defendant, contended that the state court's admission of the victim's in-court identification of him as her assailant and the admission in evidence of her testimony of her out-of-court identification of him constituted a violation of the Due Process Clause of the Fourteenth Amendment. In that case, the victim testified that she was seized from behind and thrown to the floor of a room of her residence lighted only by the light from an adjoining room. The rape was committed in a wooded area, two blocks from her home, to which area she was forced to walk, the offense being committed under the light of a full moon and the entire incident taking between fifteen minutes and half an hour. The victim gave the police a description of her assailant, including an estimate of his age, height and weight, and a description of his hair and complexion. Over a period of seven months between the offense and the trial, she viewed a number of suspects, some in lineups and others in showups, and was shown between 30 and 40 photographs, identifying none of these suspects as her assailant. Seven months after the offense, the police called her to the police station to view the respondent who was exhibited to her in a showup consisting of two detectives walking the defendant past the victim. The police, at her request, required the defendant to say, in her presence, words spoken by her assailant at the time of the crime. It did not appear whether these words were spoken before or after the victim first identified the defendant as her assailant.

It is apparent that the present case is almost on all fours with Neil v. Biggers, supra, such differences as there are between the two situations indicating even greater reliability of the identification in the present case. The United States District Court granted habeas corpus, holding the showup identification procedure violated the Due Process Clause. The Supreme Court of the United States, speaking through Mr. Justice Powell, reversed, saying:

'In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the Court held that the defendant could claim that 'the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' Id., at 301--302, 87 S.Ct. at 1972 (18 L.Ed.2d 1199). This, we held, must be determined 'on the totality of the circumstances.' * * *

'Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:

'(W)e hold that each case must be considered on its own facts, and that convictions based on eye-witness 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 (1968).

'Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384, 88 S.Ct. (967), at 971, 19 L.Ed.2d 1247. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster (Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).) Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.

'We turn, then, to the central question, whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the 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.

'We find that the District Court's conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant's approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had 'no doubt' that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation. The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant.

'Weighing all the factors we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury.'

In State v. Henderson, 285 N.C. 1, 203 S.E.2d 10, the defendant, charged with rape, assigned as error the admission, over his objection, of an in-court identification of him by the victim as her assailant. The ground of objection, as here, was that the witness had made an out-of-court identification under circumstances which were impermissibly suggestive and conducive to mistaken identification. We were there concerned only with the admissibility of the in-court identification testimony. Speaking through Justice Branch, we said 'The practice of showing suspects singly to persons for purposes of identification has been widely condemned. Stovall v. Denno (388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199); State v. Wright (274 N.C. 84, 161 S.E.2d 581). However, whether such a confrontation violates due process depends upon the totality of the surrounding circumstances. Stovall v. Denno, supra. * * *

'It is well established that the primary illegality of an out-of-court identification will render inadmissible the in-court identification unless it is first determined on voir dire that the in-court identification is of independent origin.'

In the present case, the trial court having found that the in-court identification was of independent origin, which finding was supported by substantial evidence on voir dire and is, therefore, conclusive upon appeal, there was no error in admitting the in-court identification of the defendant by Mrs. Williams. Her testimony so identifying the...