State v. Carson

• Decision Date: 28 November 1978
• Docket Number: No. 42,42
• Citation: 296 N.C. 31,249 S.E.2d 417
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Arthur Barrymore CARSON.

Page 417

249 S.E.2d 417

296 N.C. 31

STATE of North Carolina v. Arthur Barrymore CARSON.

No. 42.

Supreme Court of North Carolina.

Nov. 28, 1978.

Rufus L. Edmisten, Atty. Gen. by David S. Crump, Sp. Deputy Atty. Gen., and Tiare Smiley Farris, Associate Atty., Raleigh, for the State.

William G. Ijames, Jr., and Wade H. Leonard, Jr., Mocksville, for defendant-appellant.

BRANCH, Justice.

Defendant assigns as error the trial judge's denial of his motion to suppress the prosecuting witness's identification testimony and the court's admission of evidence, over objection, concerning pretrial identification procedures.

Pursuant to defendant's motion to suppress testimony of the prosecuting witness's identification of defendant as her assailant, Judge Mills conducted a voir dire hearing in the jury's absence.

On voir dire, Betty Elizabeth Piner testified that on 17 September 1975 at about 6:00 p. m., she was unlocking her automobile which was parked in Hanes Mall in Winston-Salem, North Carolina, when she was forced into the car by a black man. She was only a foot away from this person when she was forced into the car, and there was enough light for her to see him. He held her down on the seat and drove to a place unknown to her where he stopped the car and forced her to lie in the front seat with her head on the driver's side. By this time it was dark, but as her head pressed against the door, the interior lights came on. She stated: "The lights were on for about a minute when he first raped me . . . I did at this time get a good look at the individual involved." The witness then identified her assailant as defendant, Arthur Barrymore Carson. She testified that she was in defendant's presence for two and one-half to three hours.

Within a week, she was shown six pictures of different black men by Sergeant Hartsoe and another police officer. The photographs were handed to her in a stack, and she put them on the table. After ten or fifteen minutes, she picked out a photograph of defendant and told the officers she believed this was the man who raped her. She did not look at the back of the photograph of defendant, but she testified that it differed from the other photographs in that "it had a plate or whatever in front of him." She stated that all the photographs were of black men of about the same age and that the police officers made no suggestions concerning the identification other than to request that she look at the photographs.

In March, 1977, she observed another series of photographs at the Davie County jail in Mocksville, North Carolina. At that time, Sergeant Hartsoe and another police officer placed on a table five or six recently developed photographs. The officers without any other comment asked her to see if she recognized anybody in this series of photographs. This group of photographs consisted of head shots of black males, all of about the same age and size. At that time, she identified the photograph of defendant as being a likeness of the man who raped her. She stated:

. . . I believe I could recognize the defendant today if I had not seen the photographs nor if I had seen him in District Court in the preliminary hearing.

The State also offered the testimony of the police officers which tended to corroborate the testimony of the witness Piner concerning the pretrial photographic procedures except one officer's testimony failed to corroborate her as to the Place where the first group of photographs were shown. The State's evidence also tended to show that defendant had been served with a nontestimonial identification order and was in custody upon a charge of illegal possession of a contraband substance when the photograph which appeared in the second group was taken. Before his photographs were taken, defendant was advised of his right to have a lawyer present and that one would be furnished if he could not afford to hire one. There was evidence tending to show that defendant gave his consent for the taking of his photograph.

During the voir dire, counsel agreed upon and placed into evidence the following stipulation:

MR. FULLER: We have stipulations we would like to get into the record. It is stipulated by and between the State of North Carolina and counsel for Mr. Carson that the in-court identification which occurred at the preliminary hearing in this case on the 18th of April, 1977, was conducted at the request of defendant's counsel, Mr. Ijames, that defendant's counsel, Mr. Ijames selected each of the individuals that appeared in that lineup with the exception of the defendant who was there because he was in court for his preliminary hearing, that Mrs. Piner selected defendant from this group of black males in this lineup, that at the time the selection was made, defendant was not seated beside of counsel at the defense table, but in the group of several black males, is that right?

MR. IJAMES: Yes, sir.

At the conclusion of voir dire evidence, the trial judge found facts consistent with the facts above summarized and concluded:

NOW, THEREFORE, THE COURT FINDS AND DETERMINES that from clear and convincing evidence and beyond a reasonable doubt that the in-Court identification of the defendant, Arthur Barrymore Carson, by the prosecuting witness, Betty Elizabeth Piner, is of independent origin based solely on what she saw at the time of her abduction and rape, and does not result from out of Court viewing of any photographs or any pretrial identification procedures and conducive to mistaken identification . . . .

Based on his findings and conclusions, the trial judge thereupon denied defendant's motion to suppress the identification testimony of the witness Piner.

In the landmark case of Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the United States Supreme Court held that convictions based on eyewitness identification will not be set aside because of an improper pretrial identification by photograph unless "the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification."

We set forth in State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972), certain factors to be applied in employing the Simmons test:

(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.

Accord: State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970), Cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed.2d 252.

Defendant argues that the first photographic identification procedure was impermissibly suggestive because the picture of defendant contained a placard on the front indicating his height, weight and other personal information. At this point, it must be borne in mind that defendant did not move to suppress the evidence of the pretrial identification techniques, and we are not presented with a question as to the effect of such a photograph upon a jury verdict as was the case in State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970). This single difference between defendant's photograph and the other photographs included in the procedure did not necessarily suggest that defendant was the witness's assailant. Further, defendant's argument is diluted by the fact that the witness had ample opportunity to see her assailant at close range on two occasions. The record discloses no major discrepancies between the witness's initial description of defendant and his actual appearance. The witness never identified anyone except defendant as the man who raped her. There was no previous failure to identify defendant although the first identification was somewhat equivocal. However, the witness explained the reason that her identification was not positive and showed a commendable desire to be certain by requesting that she be shown a clearer photograph or be permitted to view a lineup.

A second set of photographs was shown to the witness Piner in 1977 at the Davie County jail in Mocksville, North Carolina. At that time, she positively identified a photograph of defendant as a likeness of the man who raped her. Defendant first argues that this procedure was illegal because he was being illegally detained. Defendant was taken into custody by officers who sought to serve him with a nontestimonial identification order. Defendant fled and was apprehended in a wooded area under conditions which made the officers reasonably believe that he was in possession of a weapon. Therefore, before serving the order, they made a search of his person and found that he was carrying a quantity of marijuana. The officers immediately warned him of his rights and placed him under arrest for illegal possession of a controlled substance. Under the circumstances of the case, the arrest and ensuing search were legal. G.S. 15A-502 provides:

§ 15A-502. Photographs and fingerprints. (a) A person charged with the commission of a felony or a misdemeanor may be photographed and his fingerprints may be taken for law-enforcement records only when he has been:

(1) Arrested or committed to a detention facility, or

(e) Fingerprints or photographs taken pursuant to subsection (a) may be forwarded to the State Bureau of Investigation, the Federal Bureau of Investigation, or other law-enforcement agencies. (Emphasis added.)

Defendant was under arrest for a misdemeanor at the time he was photographed. Clearly, it was the intent of the Legislature that such photographs could be used for any law enforcement purpose.

Defendant...