State v. Clark

• Decision Date: 07 October 1980
• Docket Number: No. 77,77
• Citation: 301 N.C. 176,270 S.E.2d 425
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Roger Warren CLARK.

Page 425

270 S.E.2d 425

301 N.C. 176

STATE of North Carolina v. Roger Warren CLARK.

No. 77.

Supreme Court of North Carolina.

Oct. 7, 1980.

Rufus L. Edmisten, Atty. Gen. by George W. Boylan, Asst. Atty. Gen., for the State.

James C. Johnson, Jr., Concord, for defendant.

BRANCH, Chief Justice.

Defendant assigns as error the trial judge's ruling permitting the State to join the offenses for trial.

Defendant first argues that there was procedural error in that the motion for joinder did not set forth the grounds except by reference to a statute. The provisions of G.S. 15A-951 require that all motions made prior to trial must be in writing and must state the grounds upon which the motion is based. Here the State submitted a written motion to join the cases prior to trial stating that it was made pursuant to G.S. 15A-926. Defendant answered the State's motion with specific objections to joinder, and, after a hearing, the trial judge joined the cases. Assuming, without deciding, that the State improperly submitted its written motion without stating factual grounds therefor, defendant fails to show that this omission was prejudicial to him.

G.S. 15A-926 provides that when an accused is charged with two or more offenses, such offenses may be joined for trial when they are "based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan."

In ruling upon a motion for joinder, the trial judge should consider whether the accused can be fairly tried upon more than one charge at the same trial. If such consolidation hinders or deprives the accused of his ability to present his defense, the cases should not be consolidated. State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976). In determining whether defendant has been prejudiced, the question posed is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to an accused. State v. Greene, 294 N.C. 418, 241 S.E.2d 662 (1978). However, it is well established that the motion to join is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a showing of abuse of discretion. State v. Davis, supra; Dunaway v. United States, 205 F.2d 23 (D.C.Cir., 1953). In the instant case, all of the matters out of which the joined cases grew occurred on the same afternoon of the same day and each was perpetrated according to a common modus operandi. Thus, the facts of this case meet the statutory requirements for joinder, and the record shows that the respective charges are not so distinct in time and circumstances as to prejudicially hinder or deprive defendant of his ability to defend any one of the charges.

We hold that the trial judge, acting in the exercise of his discretion, properly joined the cases for trial.

Defendant next contends that the trial judge erred by overruling his motion to suppress the in-court identifications of defendant by the witnesses Gay Porter and Lisa Bingaman. It is his position that the pretrial lineup was so suggestive and conducive to irreparable mistaken identity that it tainted the in-court identification.

On each occasion, defendant objected to the respective in-court identification, and the trial judge properly excused the jury and conducted a voir dire hearing to determine the admissibility of that evidence. State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970).

The witnesses Porter and Bingaman viewed the same lineup at different times during the early morning hours of 13 September 1978. The pertinent evidence at each voir dire hearing tended to show that defendant voluntarily waived his right to counsel before the lineup procedure was held. The lineup consisted of six men recruited by sheriff's deputies from a nearby work place. Defendant who was five feet seven inches tall was the shortest man in the lineup, but the lineup included another man five feet eight inches tall and two men at five feet ten inches tall. Each man in the lineup had reasonably similar physical characteristics. Defendant had a mustache and beard, and each of the other men in the lineup also had facial hair. No one suggested to either of the witnesses whom they should identify, and no one furnished them the names of any of the persons who made up the lineup. Neither of the witnesses had previously been shown any photographs of any of the persons. The witness Bingaman was the first to view the lineup, and she picked out number five, defendant, as being the person who assaulted her on 11 September 1978. When the witness Porter viewed the lineup, she also identified number five, defendant, as the person driving the pickup truck on 11 September 1978.

At the conclusion of each of the voir dire hearings, the trial judge after finding facts concluded that the in-court identification of defendant by each of the witnesses was of independent origin based solely on what the witness saw at the time defendant was in her presence on 11 September 1978. He also found that the identification did not result from any pretrial identification procedures.

An improper out-of-court identification procedure requires suppression of an in-court identification unless the trial judge determines that the in-court identification is of independent origin. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). The test to determine the validity of pretrial identification procedures under the due process clause is whether the totality of the circumstances reveals pretrial procedures so suggestive andconducive to irreparable mistaken identity as to offend fundamental standards of decency, fairness, and justice. State v. Henderson, supra. Even if the pretrial procedure is invalid, the in-court identification will be allowed if the trial judge finds it is of independent origin. State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978). After hearing the voir dire evidence, the trial judge must make findings of fact to determine whether the in-court identification meets the tests of admissibility. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974). The standards to be used to determine reliability of the identification are those set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)-(1) opportunity to view, (2) degree of attention, (3) accuracy of description, (4) level of certainty, (5) time between crime and confrontation. See State v. Headen, supra. If the findings of the trial judge are supported by competent evidence, they are conclusive on the appellate courts. State v. Tuggle, supra.

Here both witnesses had ample opportunity to observe defendant in the daytime, at close range and during an encounter which involved only two people. Each witness gave police a substantially correct description of her assailant prior to the pretrial lineup. The identification by each witness was certain and was made at a lineup conducted within two days of the crime. Even so, defendant further argues that the lateness of the hour when the lineup was held and the...