State v. Grimes, 137A83
| Decision Date | 03 November 1983 |
| Docket Number | No. 137A83,137A83 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Raydell GRIMES. |
Rufus L. Edmisten, Atty. Gen. by Fred R. Gamin, Asst. Atty. Gen., Raleigh, for the State.
Moore & Moore by Regina A. Moore, Williamston, for defendant-appellant.
The defendant brings forward one question for this Court's review on appeal. He contends the trial court erred in denying his motion to suppress evidence of the victim's pretrial photographic identification of him. He claims that identification was tainted, suggestive and conducive to irreparable mistaken identification in violation of the defendant's right to due process under the Fourteenth Amendment to the Constitution of the United States. We find no error.
The facts surrounding the offenses for which the defendant was convicted need not be stated in great detail. The State's evidence tended to show that around 11:00 p.m. on May 14, 1982 in Aurora, North Carolina, the victim, Mrs. Penelope Mitchell, awoke to sounds of her dog barking. She heard a crashing sound coming from the kitchen of her house, and when she went to discover its source, she saw a man coming into her house through a window. The man threw something over the victim's head and forced her into her bedroom where he attempted to have sexual intercourse with her. Afterwards the victim asked the assailant to leave her house, but he told her he wanted to talk. Mitchell testified that she put on a bathrobe, turned on a night light and had a face-to-face conversation with him which lasted five to ten minutes. During that conversation the intruder told the victim his name. She testified that she thought he had said his name was "Ray Don" or "Raybon" or "Rayboy Grimes." Mitchell testified that she recognized the assailant's face as someone she had seen in town, but that she had not known his name. Mitchell testified that, after the conversation, the man asked if she wanted him to replace the window screen he had removed. She replied that she did and then let him out through the back door.
Five days after the incident the victim reported the crime to the police at which time she described her assailant as a young black male with a muscular build, a medium-sized afro hairstyle, and a light beard and mustache. She also described the clothing and jewelry he wore. Based on her description, Euel Atkinson, Chief of Police of Aurora, compiled a lineup of ten photographs of black males. Upon being shown the lineup, the victim without hesitation picked the photograph of the defendant, remarking, "That's the man." Chief Atkinson testified that he rearranged the order of the same set of photographs several times and showed the newly arranged lineups to the victim. Each time the victim selected the picture of the defendant. The defendant put on no evidence at trial.
The defendant claims through his sole assignment of error that the evidence of the photographic identifications was improperly admitted because, of the ten photographs in the lineups, none of the pictures except that of the defendant fit the exact description given by the victim. Specifically, the defendant says that none of the pictures except the one of him depicted a black male with a beard, mustache and afro. The defendant further claims that the victim observed the intruder without her glasses and only by the light of a night light. The conduct of the identification procedure was therefore impermissibly suggestive, according to the defendant. Furthermore, the defendant claims the use of the same set of pictures in three showings tended to "plant" the defendant's face in the mind of the victim.
Identification procedures which are so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violate a defendant's right to due process. State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983); State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982). This Court has said that to determine the suggestiveness of pretrial identification, the test is whether the totality of circumstances reveals a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice. State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982).
We have held that even if the pretrial procedure is suggestive, that suggestiveness rises to an impermissible level only if all the circumstances indicate that the procedure resulted in a very substantial likelihood of irreparable misidentification. The factors to be considered in evaluating the...
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