State v. Harris

• Decision Date: 10 June 1971
• Docket Number: No. 96,96
• Citation: 181 S.E.2d 420,279 N.C. 177
• Parties: STATE of North Carolina v. Isaac James HARRIS.
• Court: North Carolina Supreme Court

Page 420

181 S.E.2d 420

279 N.C. 177

STATE of North Carolina v. Isaac James HARRIS.

No. 96.

Supreme Court of North Carolina.

June 10, 1971.

Atty. Gen. Robert Morgan and Deputy Atty. Gen. Ralph Moody for the State.

Michael S. Shulimson, Charlotte, for defendant.

BRANCH, Justice.

Defendant, in lieu of assignment of error in regular form, states that he 'is unable to find reversible error in the trial proceedings' and requests this Court, in the exercise of its supervisory power, to examine the record and determine if error does exist.

Ordinarily, when there is no assignment of error, the judgment of the trial court must be sustained unless error appears upon the face of the record. State v. Higgs, 270 N.C. 111, 153 S.E.2d 781; State v. Williams, 268 N.C. 295, 150 S.E.2d 447.

Defendant excepted to the trial judge's findings of fact and conclusions of law on the question of defendant's identification by the State's witnesses, and pointed to this exception as the only exception worthy of comment by this Court. We choose, in the exercise of our supervisory discretion, to consider whether the in-court identifications were properly admitted into evidence.

An accused person is constitutionally guaranteed counsel at an in-custody lineup identification, and when counsel is not present at the lineup, testimony of the witnesses that they identified the accused at the lineup is rendered inadmissible, and any in-court identification is also rendered inadmissible unless the trial judge first determines on a voir dire hearing that the in-court identification is of independent origin and is untainted by the illegal lineup. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. However, it is well settled that an accused may waive the right to counsel at lineup proceedings. United States v. Wade, supra; State v. McRae, 276 N.C. 308, 172 S.E.2d 37. The burden is on the State to show by clear and convincing evidence that the constitutional right to counsel was waived freely, voluntarily, and with full understanding. State v. Williams, 274 N.C. 328, 163 S.E.2d 353; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. The appellate courts are bound by the trial judge's findings of fact as to whether waiver of counsel was intelligently, knowingly and voluntarily made when the findings are based on competent evidence. State v. Wright, 274 N.C. 84, 161 S.E.2d 581.

In instant case upon defendant's objection and motion to strike, the trial judge excused the jury and conducted an extensive voir dire hearing. On the voir dire Mrs. McMillan stated that she observed defendant for a period of ten minutes on the occasion of the robbery and that he was standing beside her during a portion of that time. She later identified him without hesitation in a lineup, and she testified that her in-court identification was not based on her prior lineup identification.

Gail Porter also testified, on voir dire, that she observed defendant for about ten minutes at the time of the robbery, and she identified defendant as one of the robbers. She stated that her identification was based on her observation of defendant at the time of the robbery, and that her in-court identification was not influenced by viewing defendant in the lineup.

On voir dire Police Officer J. C. Wilkins testified that on 17 July 1970 he supervised the lineups at which defendant was identified by the witnesses McMillan and Porter. He stated that on 16 July he advised defendant of his constitutional rights as prescribed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and on 17 July defendant signed a waiver, for the purpose of being placed in a lineup, which waiver read as follows:

'Waiver of right to presence of lawyer as my lawyer for pre-trial identification including presence of lawyer as my lawyer free of cost to me if I am indigent. Date: 17 July; Place: County Jail; Time: 08:48. I, Isaac James Harris, am 18 years of age and my address is 2618 Booker Ave., Apt. 2. I have been advised by J. C. Wilkins, who has identified himself as City Police Officer, who has advised me:

'That I will be shortly displayed in a lineup or by a similar identification process to one or more persons who are witnesses to the crime of armed robbery for which I am a suspect. I have been advised that I have the right to have a lawyer representing me present during the identification process and that if I cannot afford a lawyer, one will be furnished for me free before the identification process commences, if I...