State v. Green

• Decision Date: 29 December 1978
• Docket Number: No. 32,32
• Citation: 296 N.C. 183,250 S.E.2d 197
• Parties: STATE of North Carolina v. Larry GREEN.
• Court: North Carolina Supreme Court

Page 197

250 S.E.2d 197

296 N.C. 183

STATE of North Carolina v. Larry GREEN.

No. 32.

Supreme Court of North Carolina.

Dec. 29, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Thomas F. Moffitt, Raleigh, for the State.

Roy C. Bain, Wilmington, for defendant-appellant.

MOORE, Justice.

At trial, the victim, Juanita Brown, was asked whether she was able to see her assailant when he first opened the door in his attempt to escape. A general objection was entered and a Voir dire held, in the absence of the jury, on her identification testimony. On Voir dire Ms. Brown testified that when the assailant first opened the door she saw his profile and then recognized him as the janitor at the courthouse, where she too worked. The second time the man opened the door she saw his entire face. Ms. Brown then identified defendant as the man who had attempted to rape her. On cross-examination she testified that she did not tell officers who the assailant was until she got to the hospital some forty-five minutes after officers first arrived at her apartment. Ms. Brown further testified on cross-examination that she had but a split second to view her assailant's face.

Officer F. G. Saxton testified that, on his arrival at Ms. Brown's apartment, she gave him a general description of her assailant. She did not tell him who the assailant was, but when he first saw her "she was emotionally upset and had some pain." At the hospital she told him that her assailant was the janitor who worked at the sheriff's department. Detective Cecil Gurganious and attorney Peter Grear testified that Ms. Brown told them at the hospital that she was almost certain that the man who broke into her apartment was a custodian around the courthouse. At the conclusion of this evidence the trial judge denied defendant's motion to suppress Ms. Brown's identification testimony, and, though expressing doubt that findings were required, said that findings of fact would be placed in the record prior to the end of trial. For purposes of the record, findings of fact and conclusions of law were made sometime after verdict and judgment were entered. The facts found by the trial judge are substantially similar to those set out above. The trial judge concluded that Ms. Brown had ample opportunity to view her assailant, that her identification testimony was a matter of fact for the jury to assess, and that none of the defendant's constitutional rights were violated by admission of her identification testimony.

The defendant argues that the trial court erred in failing to make findings of fact and conclusions of law prior to his denail of defendant's motion to suppress the identification testimony, and further argues that, as a matter of law, there was not ample evidence elicited on Voir dire to sustain Ms. Brown's identification of the defendant. Defendant contends that admission of the identification testimony constitutes a violation of standards set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The five factors set forth in Biggers, supra, and in State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), for the assessment of the reliability of identification testimony were intended to apply to those cases where there has been a showing that a pretrial identification procedure, conducted by State officials, is in some manner impermissibly suggestive. Biggers mandates that, if there is a showing of an impermissibly suggestive pretrial identification procedure, there must be a determination, in accordance with the factors listed therein, whether the witness's identification of the defendant at trial will be reliable and of an origin independent of the suggestive pretrial procedure. See also Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). If, however, there is a finding that the pretrial identification procedure was not impermissibly suggestive, then the court's inquiry is at an end, State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978), and the credibility of the identification evidence is for the jury to weigh. Cf. Manson v. Brathwaite, supra, 432 U.S. at 116, 97 S.Ct. 2243. From this it follows that where, as here, there has been no pretrial identification procedure at all, there can be no requirement of a judicial determination of the independence and reliability of the in-court identification, for there has been no pretrial procedure upon which the in-court identification could depend. It further follows that, in the absence of pretrial identification procedures, formal findings of fact and conclusions of law regarding the independence and reliability of the identification are not required, for there are no relevant facts upon which to base a finding of the identification's independent origins. Hence, the trial judge in present case was not required to make formal findings of fact and conclusions of law following Voir dire. Accord, State v. Cox, Ward and Gary, 281 N.C. 275, 188 S.E.2d 356 (1972).

Defendant's claim that Ms. Brown's in-court identification is not supported by the evidence elicited on Voir dire is not therefore a Biggers type claim, but rather is a claim that her testimony is Inherently unreliable and incredible. The credibility of a witness's identification testimony is a matter for the jury's determination, State v. Orr, 260 N.C. 177, 132 S.E.2d 334 (1963); State v. Bowman, 232 N.C. 374, 61 S.E.2d 107 (1950), and only in rare instances will credibility be a matter for the court's determination. In State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), the Court held, in assessing defendant's motion for nonsuit, that the rule providing for jury assessment of the credibility and weight of evidence "does not apply . . . where the only evidence identifying the defendant as the perpetrator of the offense is inherently incredible . . . ." In that case the only evidence pointing to defendant's guilt was a State witness's identification of him at trial, based on his observation of a man he saw at the scene of the crime from a distance of 286 feet. Due to this great distance, the fact that the crime occurred at night and defendant was a total stranger to the "eyewitness," and the fact that the witness's description of the man differed from the defendant's actual appearance, the Court ruled that nonsuit should have been allowed.

The Miller case concerned the trial judge's assessment, in passing on a motion for nonsuit, of inherently incredible evidence already admitted at trial. In State v. Cox, 289 N.C. 414, 222 S.E.2d 246 (1976); State v. Herndon, 292 N.C. 424, 233 S.E.2d 557 (1977), and State v. Wilson, 293 N.C. 47, 235 S.E.2d 219 (1977), the Court extended the Miller test to apply to instances where the defendant challenges the admissibility of identification evidence on grounds that it is inherently incredible. In all these cases the Court held the identification testimony admissible on grounds that there was "a reasonable possibility of observation sufficient to permit subsequent identification." State v. Wilson, 293 N.C. at 52, quoting from State v. Miller, supra.

In each of the above cited cases, a Voir dire was held on defendant's motion to suppress such evidence. This Court has held, in State v. Cox, Ward and Gary, supra, that it is not error for the trial judge to deny a Voir dire on a witness's identification testimony when there has been no pretrial identification procedure. See also State v. Alston, 293 N.C. 553, 238 S.E.2d 505 (1977). In Cox only a general objection to the identification testimony was entered. Though a Voir dire is not required to determine the admissibility of identification testimony where no pretrial identification procedures have been conducted, we note that it would be the better practice to conduct a Voir dire, prior to the admission of the testimony, when there has been a Specific objection that the identification testimony is inherently unreliable or incredible. If a Voir dire is held then the sole determination for the trial judge is whether or not the witness had " '. . . a reasonable possibility of observation sufficient to permit subsequent identification.' State v. Miller, supra. In such event the credibility of the witness and the weight of his or her identification testimony is for the jury. State v. Cox, supra (289 N.C. 414, 222 S.E.2d 246 (1976)); State v. Humphrey, 261 N.C. 511, 135 S.E.2d 214 (1964)." State v. Wilson, supra, 293 N.C. at 52, 235 S.E.2d at 222. Only if there is a finding that the identification testimony "is inherently incredible because of undisputed facts . . . as to the physical conditions under which the alleged observation occurred," State v. Miller, supra, should defendant's motion to suppress be allowed.

In present case it is apparent from Ms. Brown's testimony on Voir dire that she had a reasonable opportunity to observe her assailant. When he first opened the door in his efforts to escape she saw his lighted profile, and on his second opening of the door she saw his full face. The light was on in the hall outside the apartment and lit up the doorway as the man opened the door. Finally, her assailant was but a few feet from her at the time she saw his face. The physical conditions of the situation were thus favorable for observation, and there is nothing inherently incredible about observation being made under these circumstances. This being the case, the trial judge correctly overruled defendant's motion to suppress and allowed this testimony to be assessed and weighed by the jury.

Defendant next assigns as error the trial court's refusal of his motion for nonsuit. His contention that nonsuit should have been allowed is based on his claim, considered and found to be without merit, that Ms. Brown's identification testimony was inherently incredible, and on the...