State v. Covington

• Decision Date: 14 July 1976
• Docket Number: No. 9,9
• Citation: 290 N.C. 313,226 S.E.2d 629
• Parties: STATE of North Carolina v. Coleman COVINGTON et al.
• Court: North Carolina Supreme Court

Page 629

226 S.E.2d 629

290 N.C. 313

STATE of North Carolina v. Coleman COVINGTON et al.

No. 9.

Supreme Court of North Carolina.

July 14, 1976.

[290 N.C. 321] Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Edwin M. Speas, Jr., and Associate Atty. Elizabeth R. Cochrane, Raleigh, for the State.

Carl A. Barrington, Jr., Fayetteville, for appellant Covington.

H. E. Stacy, Jr., Lumberton, for appellant McEachin.

Joseph C. Ward, Jr., Lumberton, and Arthur L. Lane, Fayetteville, for appellant Nicholson.

John C. B. Regan, III, Lumberton, for appellant Richardson.

BRANCH, Justice.

APPEAL OF DEFENDANT COVINGTON

Defendant Covington assigns as error the failure of the trial judge to find facts when he denied defendant's motion to suppress the in-court identification testimony of the State's witnesses, Coreene Jacobs, Wade Jacobs and Eula Hunt.

When defendants moved to suppress the in-court identification testimony of Coreene Jacobs, Wade Jacobs and Eula Hunt, the trial judge correctly conducted a Voir dire hearing in the absence of the jury to determine its admissibility.

On Voir dire, Mrs. Jacobs identified defendants McEachin, Covington and Richardson as the men who entered the Jacobs' store on 13 December 1974 and there killed Joseph Maxwell Cook. She testified that she was in the presence of these men for a period of fifteen to twenty minutes. Mrs. Jacobs admitted that she subsequently saw defendants at a pretrial hearing. Defense counsel inquired if she could better describe Richardson from her observations in court or from the twenty minutes that she saw him in the store on 13 December 1974. She replied, 'I'd know him anywhere.' Mrs. Jacobs stated that she saw defendant Covington Eula Hunt testified that she saw the three defendants enter the Jacobs' store on 13 December 1974. She identified McEachin as the one who tied her up, Richardson as the one who grabbed and stabbed Mrs. Jacobs, and Covington as the man she saw hold a gun on Mr. Cook. She described several articles of clothing worn by Covington, McEachin and Richardson respectively.

when he walked in the door and for a period of about two minutes when she was lying on the floor. She saw McEachin for only a brief moment when he came in the door. On cross-examination, Mrs. Jacobs was unable to describe the clothes or the particular features of the defendants as they appeared on 13 December 1974.

Mr. Jacobs identified all four defendants as the men he observed at his store on 13 December 1974 and he stated that his identification was based on his observations of these men on that day. He admitted having seen all of them in a courtroom subsequent to 13 December 1974. The State also offered the testimony of Hubert Faircloth who identified the defendants Richardson and McEachin as two men he saw at the Jacobs' store on 13 December 1974.

Each of the State's witnesses examined on Voir dire testified that he or she had not been shown any pictures for identification purposes and that he or she had not observed any of the defendants in a 'lineup.'

Defendants offered no evidence on Voir dire. At the conclusion of the Voir dire hearing Judge Smith, without making any findings of fact or entering any conclusions of law, ruled 'that identification as to each of the defendants is admissible.'

In support of their position as to this assignment of error, defendants rely on the rules stated in State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884. There we stated:

When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification(s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts. State v. McVay and State v. Simmons, 277 N.C. 410, 417, 177 S.E.2d 874, 878 (1970); State v. McVay and State v. Simmons, 279 N.C. 428, 432, 183 S.E.2d 652, 655 (1971); State v. Morris, 279 N.C. 477, 481, 183 S.E.2d 634, 637 (1971)).

See Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247.

In State v. Lynch, 279 N.C. 1, 181 S.E.2d 561, the prosecution, on Voir dire, offered evidence tending to show that a confession was voluntarily made. Defendant offered no evidence in contradiction. The trial judge, without finding any facts, admitted the challenged confession into evidence. Holding the admission of the confession to be without prejudicial error, Justice Sharp, now Chief Justice, speaking for the Court, stated:

. . . If, on Voir dire, there is conflicting testimony bearing on the admissibility of a confession, it is error for the judge to admit it upon a mere statement of his conclusion that the confession was freely and voluntarily made. In such a situation the judge must make specific findings so that the appellate court can determine whether the facts found will support his conclusions. State v. Moore, 275 N.C. 141, 166 S.E.2d 53; State v. Barber, 268 N.C. 509, 151 S.E.2d 51; State v. Conyers, 267 N.C. 618, 148 S.E.2d 569; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344. When, as in this case, no conflicting testimony is offered on Voir dire, it is not error for the judge to admit the confession without making specific findings. State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Keith, 266 N.C. 263, 145 S.E.2d 841. Clearly, however, it is always the better practice for the court to find the facts upon which it concludes any confession is admissible.

Accord: State v. Bishop, 272 N.C. 283, 158 S.E.2d 511; State v. Keith, 266 N.C. 263, 145 S.E.2d 841. Defendant challenged the in-court identification testimony on the grounds that it was tainted by an unfairly If there were any conflicts in the evidence or any suggestion whatever in the entire record that the lineup was unfairly conducted or that the defendant did not waive his right to counsel thereat, as the State's evidence clearly shows he did, we would reverse the conviction and grant a new trial because of the failure of the trial judge to find the crucial facts. Where, however, as here, there is no conflict in the evidence it is abundantly clear that the defendant did waive his right to counsel at the lineup, it is equally clear that the lineup was conducted fairly and without prejudice to him, and perfectly obvious that the in-court identification was not fruit of the lineup but had its independent origin in the witness' observation of the crime itself, this failure of the trial court to insert such findings into the record must be deemed harmless error. . . .

conducted lineup in State v. Williams, 274 N.C. 328, 163 S.E.2d 353. We rejected his contention that this was prejudicial error and Justice Lake, speaking for the Court, stated:

State v. Stepney, 280 N.C. 306, 185 S.E.2d 844, is a case in which identification testimony was challenged on the ground that the in-court identification was tainted by an out-of-court pretrial identification. The court, without conducting a Voir dire, admitted the identification testimony into evidence. Finding no prejudicial error in the admission of this testimony, we stated:

It is apparent from the foregoing decisions that the better procedure dictates that the trial judge, even upon a general objection only, should conduct a voir dire in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony. State v. Blackwell, supra, 276 N.C. 714, 174 S.E.2d 534. 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. State v. Williams, supra, 274 N.C. 328, 163 S.E.2d 353. A different result could not reasonably be expected upon a retrial if all evidence of pretrial photographic identification were excluded.

In instant case, there was no evidence of a pretrial lineup or a pretrial identification by use of photographs. Defendants did, however, elicit by cross-examination the fact that the State's witnesses observed the defendant in courtroom proceedings on one or more occasions subsequent to 13 December 1974.

We have held that the viewing of a defendant in the courtroom during the various stages of a criminal proceeding by witnesses who are offered to testify as to identification of the defendant is not, of itself, such a confrontation as will taint an in-court identification unless other circumstances are shown which are so 'unnecessarily suggestive and conducive to irreparable mistaken identification' as would deprive defendant of his due process rights. See State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610.

This record discloses that there was no conflicting evidence on the Voir dire hearing. There was nothing in the record to show any improper pretrial confrontation. The record does disclose clear and convincing evidence that the identification testimony by the State's witnesses was of independent origin based on the witness's observation of defendants on 13 December 1974. Under these circumstances, the trial judge's failure to find and insert factual findings into the record does not constitute prejudicial error. However, we again note that when there is objection to or a motion to suppress testimony of identification, the better practice is for the trial judge to find and insert facts into the record to support his ruling.

Defendant, without citation of authority, next contends that the trial judge erred in...