State v. Hannah, 56A84
| Decision Date | 06 November 1984 |
| Docket Number | No. 56A84,56A84 |
| Citation | 322 S.E.2d 148,312 N.C. 286 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. William Lee HANNAH. |
Rufus L. Edmisten, Atty. Gen. by Joan H. Byers, Asst. Atty. Gen., Raleigh, for the State.
Keith Bridges, Hickory, for defendant-appellant.
By his first assignment of error, defendant challenges the witness Donald Killian's in-court identification testimony. He contends that the circumstances under which the witness observed the person on Section House Road were conducive to misidentification. He further argues that a pretrial photographic identification procedure and a pretrial in-court confrontation were so impermissibly suggestive as to taint the witness's identification testimony at trial and to render inadmissible any evidence as to the photographic identification and the pretrial in-court confrontation.
This Court has consistently held that identification procedures which are so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification violate a defendant's right to due process. State v. Grimes, 309 N.C. 606, 308 S.E.2d 293 (1983); State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983). This Court employs a two-step process in evaluating such claims of denial of due process. First we must determine whether an impermissibly suggestive procedure was used in obtaining the out-of-court identification. If this question is answered in the negative, we need proceed no further. State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982). If it is answered affirmatively, the second inquiry is whether, under all the circumstances, the suggestive procedures employed gave rise to a substantial likelihood of irreparable misidentification. Id; State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978).
We first address defendant's contention that the pretrial identifications were impermissibly suggestive. The test is whether the totality of the 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. Grimes, 309 N.C. 606, 308 S.E.2d 293 (1983); State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982).
The defendant contends that the pretrial photographic identification procedure was conducted in an impermissibly suggestive way. Defendant points to Mr. Killian's testimony that he was able to eliminate more than half of the photographs in the photographic lineup because of hair color or a lack of facial hair.
On voir dire the trial court concluded, after finding facts, that the photographic identification procedure did not violate defendant's due process rights. The trial court's findings of fact when supported by competent evidence are binding on this Court on appeal. State v. Corbett, 309 N.C. 382, 307 S.E.2d 139 (1983). Those findings with regard to the photographic identification procedure were as follows:
[T]hereafter he [Killian] went back on the 22nd of April, 1983 and that at that time the witness talked with Officer Setzer and that he was not aware at that time that anyone was in custody for the offense the defendant is charged for or with today; that Officer Setzer talked with the witness but in no way indicated to Mr. Killian the identity of any suspect which the Newton Police Department may have had in the matter; nine, that Officer Setzer asked the witness, Killian, to sit at his desk and placed before the witness a pictorial lineup consisting of eight photographs in color of eight white males all of whom had some facial hair and that Officer Setzer directed the witness not to pick up the photographs or touch them in any way; that the pictures were in a folder in which they were placed; that Officer Setzer requested the witness to observe the pictorial lineup, that the person suspected of taking the vehicle may be in the lineup or that the person may not be in the lineup; that Officer Setzer then left the presence of the witness, Killian and was gone for about ten to fifteen minutes and that approximately five minutes after the witness first observed the pictorial lineup, that he selected a photograph, number six, as being the photograph of the person that he observed on the unnamed street on ... April 14, 1983.
Ten, that the picture in the pictorial lineup, number six, is a picture of the defendant in this case, William Lee Hannah;
Our examination of the record evidence and the photographs used in the pretrial photographic procedure fails to disclose any substantial evidence of impermissible suggestiveness. To the contrary there is plenary evidence to support the trial judge's findings and conclusions that the photographic procedure did not violate defendant's due process rights.
We next consider defendant's contention that the identification made by the witness in the preliminary hearing was impermissibly suggestive because defendant was seated at the defense table and was wearing prison clothes.
We have held that the viewing of a defendant in a courtroom during varying stages of a criminal proceeding by witnesses who are offered to testify as to the identity of the defendant is not in and 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. State v. Covington, 290 N.C. 313, 324, 226 S.E.2d 629, 638 (1976); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972).
The trial court's findings of fact with regard to the in-court confrontation were that:
thereafter the defendant appeared in the courtroom with trial proceedings now being held, at a probable cause hearing ... on May 2, 1983, as indicated by the Court records ... that a probable cause hearing was conducted and the defendant was present at the defense table and that the presence of the defendant at the defense table was for the purpose of the parties participating in a preliminary hearing and at that time the witness, Killian, observed the defendant at the hearing; that he had already made an identification of the defendant in the case from the pictorial lineup exhibited to him on April 22, 1983;
Defendant has shown no "other circumstances" which would convert the witness's view of defendant at the preliminary hearing into an unnecessarily suggestive confrontation. Further, there was ample evidence to support the trial judge's findings which in turn support his conclusion that the pretrial in-court identification was not unnecessarily suggestive or violative of defendant's due process rights. The trial court correctly ruled that the pretrial in-court confrontation was admissible.
Having determined that no impermissibly suggestive procedure was used in the courtroom confrontation, or in the photographic identification procedure, it follows that neither procedure could give rise to a "substantial likelihood of irreparable misidentification." State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982).
Even so, defendant argues that there was a substantial likelihood of misidentification because of the circumstances under which the witness observed a person on Section House Road on 14 April 1983. We find this contention to be without merit.
In this connection the trial court found that although Mr. Killian's opportunity to observe the man on Section House Road was somewhat impaired by darkness and rain, he viewed the man in the light of his headlights and was able to determine that the man appeared to be drunk. Mr. Killian observed the man for a period of time for the purpose of determining whether he needed help. He was able to see the right side of the man's face, and watched him long enough to see him walk from the front of the vehicle to the rear, open the trunk, get something out of the trunk, and close it. The court found that at one point Mr. Killian described the man he saw as weighing approximately 160 to 180 pounds; the witness later estimated...
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