State v. Daniels

• Decision Date: 06 May 1980
• Docket Number: No. 73,73
• Citation: 300 N.C. 105,265 S.E.2d 217
• Parties: STATE of North Carolina v. William Charles DANIELS.
• Court: North Carolina Supreme Court

Page 217

265 S.E.2d 217

300 N.C. 105

STATE of North Carolina v. William Charles DANIELS.

No. 73.

Supreme Court of North Carolina.

May 6, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Norma S. Harrell, Raleigh, for the State.

Public Defender Mary Ann Tally and Asst. Public Defender Gregory A. Weeks, Fayetteville, for defendant-appellant.

BRITT, Justice.

We find no merit in any of defendant's assignments of error in the armed robbery case. However, we conclude that the trial court erred in denying defendant's motion to dismiss the murder charge because of insufficiency of evidence.

Defendant contends first that the trial court erred in denying his motion to suppress any identification of him by Jones, the alleged victim of, and Driggers, an eyewitness to the alleged armed robbery. We reject this contention.

The alleged robbery took place on 26 February 1978. On 24 July 1978 defendant filed a motion asking the court to suppress identification evidence by Jones and Driggers. A hearing on the motion was held by Judge Herring at the 25 September 1978 Criminal Session of the Court. Following testimony by investigating Officer Pearson, Jones and Driggers, the court made findings of fact summarized in pertinent part as follows (numbering ours):

1. The Service Distributing Company located on West Hudson Street in Fayetteville was the victim of an armed robbery at about 1:30 a. m. on 26 February 1978. Shortly thereafter defendant was taken into custody and detained at the Cumberland County Law Enforcement Center in connection with the alleged robbery. Driggers and Jones were present at the time of the robbery. Both of them had ample opportunity to observe the white male who had in his hand a gun which was used to accomplish the robbery. There was adequate lighting both inside and outside of the building where the robbery occurred for both witnesses to clearly and plainly observe the perpetrator of the robbery.

2. Both of said witnesses were transported separately to the Law Enforcement Center and placed in separate rooms apart from the defendant. They were not afforded an opportunity to observe the defendant who was then in custody in another part of the building.

3. At approximately 2:30 a. m. defendant was photographed in the office of Detective Sam Pearson who had been provided with descriptions of the person who committed the robbery as given by Jones and Driggers. Detective Pearson took the photograph of defendant which was made by him and placed it in a mug book along with other photographs of approximately 400 persons which included males and females and persons of the white, black and Indian races. Approximately 175 to 200 white males were pictured in the book.

4. Separated from each other, Jones and Driggers were asked to view photographs in the book and indicate whether they saw anyone they had seen before. Jones viewed some 30 to 35 photographs before he came to and pointed out defendant's photograph as being that of the person who committed the robbery. Driggers viewed some 10 or 15 photographs before he came to defendant's picture and identified him as being the one who committed the robbery.

5. The general description given by both Jones and Driggers generally fit the description and appearance of defendant, although not "necessarily accurate in every respect, such as weight and height." The photographic lineup was not so suggestive as to taint an identification of defendant's photograph by Jones or Driggers.

The court concluded as a matter of law that Jones and Driggers had ample opportunity to observe the perpetrator of the robbery; that subsequent thereto nothing appears to have occurred that would indicate any suggestion by any person which would color identification of defendant's photograph which had been placed in a mug book with other photographs; that the photographic identification of defendant's picture by both of said witnesses was of an independent origin based solely upon what each of them observed at the time of the robbery and "is not the result of any confrontation otherwise which might have been suggestive or conducive to a mistaken identification;" and that the photographic lineup procedure was not so unnecessarily suggestive or inducive as to lead to irreparable mistaken identification to the extent that defendant would thereby be denied due process of law.

The court then ordered that defendant's motion to suppress be denied and held that evidence of the photographic lineup and the identification of defendant would be competent evidence in the trial of this case.

This court has held many times that an in-court identification will not be excluded because of pretrial photographic identification procedures unless those procedures were so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. E. g., State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972), accord, State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978); State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977). The trial court's findings and conclusions in the case at hand that the photographic lineup was not so suggestive as to taint an identification of defendant's photograph by Jones and Driggers, that the identification was of an independent origin based solely upon what each of them observed at the time of the robbery, and that the photographic lineup procedure was not so unnecessarily suggestive or inducive as to lead to irreparable mistaken identification are fully supported by competent evidence; therefore, they are binding on this court. State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976); State v. Davis, 290 N.C. 511, 227 S.E.2d 97 (1976).

The trial court did not err in denying defendant's motion to dismiss for lack of a speedy trial. Inasmuch as this case arose before the effective date of Chapter 787 of the 1977 Session Laws, sometimes referred to as the Speedy Trial Act, our discussion of this assignment relates solely to defendant's constitutional right to a speedy trial.

The main factors to be considered in determining whether a defendant has been denied his constitutional right to a speedy trial are: (1) the length of the delay; (2) the reason for the delay; (3) prejudice to the defendant; and (4) waiver by the defendant. 3 Strong's N.C. Index 3d, Constitutional Law § 50 and cases therein cited. A defendant's constitutional right to a speedy trial is not violated unless the delay is wilful or the result of negligence on the part of the prosecution; and the accused has the burden of showing that the delay was due to the state's wilfulness or neglect. Id. § 52; State v. Smith, 289 N.C. 143, 221 S.E.2d 247 (1976); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).

Although there was a period of approximately eighteen months between the date of defendant's arrest and his trial, the record reveals that a substantial part of the delay was caused by defendant or his counsel. Numerous pretrial motions were filed by defendant and they had to be scheduled and heard. For a considerable period of time defendant's counsel was engaged in the trial of other cases and would not agree for defendant to be represented by other counsel. Defendant failed to establish that he was prejudiced by the delay, and he did not complain about the delay until 17 August 1979 when he filed his motion to dismiss.

Defendant states his third contention thusly: "The trial court erred in allowing into evidence testimony concerning the stealing of gas which was totally unrelated to the case under consideration by the jury."

This contention relates to the testimony of state's witness Clyde Smithwick. Before he was allowed to testify before the jury, the court conducted a voir dire in the absence of the jury. At that time, the witness testified that on the night in question he was working at a Gulf Station; that a tan Ford Mustang occupied by two persons drove up to the outside pumps; that the passenger got out of the car and put gas into it; that the car left without anyone paying for the gas; that he wrote down a description of the automobile and the license number; and that he reported the theft of gasoline to the police and gave them the information regarding the car.

When he testified before the jury, Smithwick carefully avoided making any statement that the gas was stolen. He testified that a tan Mustang came to his station between 12:00 [300 N.C. 111] and 1:00 a. m.; that the passenger, whom he described, got out of the car and put $5.00 worth of gasoline into it; that he wrote down the license number of the car and that he later called the sheriff's department.

Clearly the testimony given to the jury was free from error. The contention as stated by defendant is inaccurate as the witness in his testimony before the jury made no reference to the gasoline having been stolen. The testimony was relevant to the murder charge as it tended to show that a person meeting the description of the murder victim was seen in an automobile similar to that driven by defendant a short while prior to the robbery and the time when Bullard was found shot in his head. ". . . (E)vidence is relevant if it has any logical tendency, however slight, to prove a fact in issue in the case." 1 Stansbury's North Carolina Evidence § 77 (Brandis Rev.1973).

Defendant's fourth contention is that the trial court erred in denying his motion to dismiss the charges because of insufficient evidence. The evidence presented by the state is summarized in pertinent part as follows:

At around 4:00 p. m. on 25 February 1978 defendant, Jimmy Carl Bullard and Walter Elder, Jr., were together at a bar in the eastern section of Fayetteville. Elder owned a 1968 gold colored Mustang. The three of them shot pool and drank beer. Later on they went to two other clubs where they shot pool and drank beer. Defendant drove the car from one club to the other because Elder did not have a driver's license. Thereafter...