State v. Harris

• Decision Date: 05 April 1983
• Docket Number: No. 589A82,589A82
• Citation: 301 S.E.2d 91,308 N.C. 159
• Parties: STATE of North Carolina v. Cleveland Sylvester HARRIS.
• Court: North Carolina Supreme Court

Page 91

301 S.E.2d 91

308 N.C. 159

STATE of North Carolina v. Cleveland Sylvester HARRIS.

No. 589A82.

Supreme Court of North Carolina.

April 5, 1983.

Rufus L. Edmisten, Atty. Gen. by Guy A. Hamlin, Asst. Atty. Gen., Raleigh, for the State.

Joseph B. Cheshire, V, and Barbara A. Smith, Raleigh, for defendant.

MARTIN, Justice.

In this appeal defendant argues that he is entitled to a new trial because of errors committed by the trial court. After careful review of defendant's claims we have determined that defendant received a fair trial, free of prejudicial error. Accordingly, we affirm the judgments entered by the trial court.

Defendant first argues that the trial court erred in denying his motion to suppress testimony concerning the victim's view of a photographic lineup which defendant claims was impermissibly suggestive. He also claims the lineup was so suggestive that the victim's in-court identification of him as the assailant was tainted and also should have been suppressed.

Identification evidence must be excluded as violating a defendant's right to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Hammond, 307 N.C. 662, 300 S.E.2d 361 (1983); State v. White, 307 N.C. 42, 296 S.E.2d 267 (1982); State v. Leggett, 305 N.C. 213, 287 S.E.2d 832 (1982). In the present case a voir dire was held upon defendant's motion to suppress. The court's findings of fact included the following: On 31 May 1974, the day after she had been assaulted, Ms. Troyer went to the Raleigh Police Department where she prepared a composite sketch of her assailant. Later on the same day Deputy Sheriff May of the Wake County Sheriff's Office brought Ms. Troyer a three-inch thick "mug" book containing about one-hundred-fifty color photos of black males, some of whom were wearing hats. Each photograph depicted either a head and shoulders front view or an upper body front view of one individual. A color photograph of the defendant wearing a cap and scarf similar to those described by Ms. Troyer as having been worn by her assailant, and similar to a cap and scarf found at the scene of her assaults, was about halfway through the mug book. This photograph showed the defendant full face and had been taken shortly after his arrest in Raleigh for armed robbery on 19 May 1974. Ms. Troyer was handed the mug book and asked to look through it to see whether she could identify a photo of her assailant. No remarks were made to Ms. Troyer which in any way suggested that defendant's photo was in the book, or that Ms. Troyer should select it as best portraying her assailant. Ms. Troyer carefully examined dozens of photos in the book, and selected the defendant's without hesitation as being a photo of her assailant. The trial court concluded that this pretrial identification procedure was carried out in a fair and nonsuggestive manner and was not so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification.

Defendant argues that the trial court's conclusion was clearly erroneous and that the pretrial identification procedure was impermissibly suggestive for two reasons. First, defendant contends that the mug book must be deemed impermissibly suggestive as a matter of law because the mug book had been disassembled before trial and thus its contents were never available for examination by the trial court when ruling on the pretrial identification procedure. ¹ Second, defendant argues that the procedure was impermissibly suggestive as a matter of fact because the photograph of him picked out by the victim portrayed the defendant wearing a cap and scarf similar to those described by Ms. Troyer as having been worn by her assailant. In support of his first contention defendant argues that when a photographic array cannot be reassembled for trial the court must presume that police prevented the composition of the array from being preserved to hide the fact that something about the array was impermissibly suggestive. See United States v. Sonderup, 639 F.2d 294 (5th Cir.), cert. den., 452 U.S. 920, 101 S.Ct. 3059, 69 L.Ed.2d 426 (1981); Branch v. Estelle, 631 F.2d 1229 (5th Cir.1980). We decline to adopt this presumption.

All of the evidence in the present case indicates that the mug book was disassembled in good faith for legitimate administrative reasons, not to cover up an impermissibly suggestive procedure. Defendant has failed to introduce any evidence to show the contrary. Ms. Troyer was shown the mug book in 1974, and defendant was not arrested for the crimes for which he was indicted in this case until 1981. During this period the contents of the mug book may have changed daily as photos were added or deleted with the ebb and flow of suspects having similar features. In addition, a new filing system for photographs of suspects has been implemented in the Raleigh Police Department, and it is likely that some of the photos from the 1974 mug book have been misplaced or destroyed in the changeover. In the absence of any evidence tending to show that the original book of photos was not available because of a "cover-up," we decline to endorse a presumption that the reason the book was unavailable was due to police misconduct. See People v. Kaiser, 113 Cal.App.3d 754, 170 Cal.Rptr. 62 (1980). Cf. United States v. Rivera, 465 F.Supp. 402 (SDNY), aff'd, 614 F.2d 1292 (2d Cir.1979).

Defendant next argues that the photographic show-up procedure in the present case was impermissibly suggestive as a matter of fact because the mug book shown to Ms. Troyer contained a photograph of defendant wearing a cap and scarf similar to the ones the victim had previously described her assailant as wearing at the time of the crime. A cap and scarf similar to those described by the victim were found at the crime scene the day after the assaults occurred.

Whether a pretrial identification procedure is so suggestive as to give rise to a very substantial likelihood of irreparable misidentification must be determined by a consideration of all the circumstances in each case. Simmons v. United States, supra, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Even though a pretrial identification procedure may be suggestive, it will be impermissibly suggestive 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 likelihood of irreparable misidentification include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1976); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). See, e.g., State v. Thompson, 303 N.C. 169, 277 S.E.2d 431 (1981).

In the present case we find no error in the trial court's conclusion that the pretrial identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Ms. Troyer had been with her assailant for about three hours on the day of the crimes. It was a sunny afternoon, Ms. Troyer was wearing her glasses, and she was within approximately three feet of her assailant during the assaults. At the time of the crimes Ms. Troyer had a strong motive for and intention to remember the appearance of her assailant. A few hours after the incident she described him as a Negro male, approximately 21 years of age, six feet one inch tall, weighing about one-hundred-sixty pounds, having short black hair, two small patches of chin whiskers, a bumpy face, crooked front teeth, and a pierced left ear with a stick through the hole. She stated that he was wearing a dark V-neck shirt with two ties at the waist, light blue high waisted pants, a small blue cap and a pink and blue neck scarf. On voir dire she testified that "after the incident, I remembered the scarf as distinctive ... [but] the most vivid thing was the way his eyes looked. His eyes looked real sinister, very angry." The mug book shown to Ms. Troyer the day after she was assaulted contained some photographs of men wearing hats. When Ms. Troyer looked through it that day she picked out defendant's photo without hesitation as being that of her assailant.

The photograph Ms. Troyer picked out had been taken 19 May 1974, eleven days before her assaults, when defendant was arrested for armed robbery by Sergeant McLamb of the Raleigh Police Department. Sergeant McLamb had taken the photograph. During voir dire in the present case McLamb testified that when he arrested defendant on 19 May 1974 defendant "had a pierced left ear. I noticed it because he had an earring. As I recall when I arrested him he had a little patch of hair on his chin. He was unshaven, but these were more outstanding[:] [h]e was dressed in light blue pants, a black shirt, a blue cap, and [had] a rather unusual scarf around his neck." On 30 May 1974 when McLamb was shown the cap and scarf which were found at the scene of Ms. Troyer's assaults, McLamb recognized them as the cap and scarf defendant had worn on 19 May 1974, the day on which McLamb had arrested and photographed the defendant.

Under all of these circumstances we cannot agree that the fact that the photograph of defendant in the mug book showing him wearing clothes fitting Ms. Troyer's description of her assailant resulted in a very substantial likelihood of irreparable misidentification. It is clear that Ms. Troyer's identification of the photograph was based on her...