State v. Henderson

Decision Date13 March 1974
Docket NumberNo. 8,8
Citation203 S.E.2d 10,285 N.C. 1
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Alton James HENDERSON.

Atty. Gen. Robert Morgan and Associate Attorney Richard F. Kane, Raleigh, for the State.

W. R. Dalton, Jr., and Fred Darlington, III, Burlington, for defendant-appellant.

David E. Kendall, New York City, for the NAACP Legal Defense Fund.

BRANCH, Justice.

Defendant assigns as error the admission, over his objection, of the in-court identification testimony by the prosecuting witness, Judith Strader. He argues that this testimony was tainted by an out-of-court identification procedure which violated Constitutional rights guaranteed to him by the Sixth and Fourteenth Amendments to the United States Constitution in that the identification procedure was conducted in the absence of counsel and was impermissibly suggestive and conducive to mistaken identification.

Since the State did not offer evidence in presence of the jury concerning identification of the accused at a lineup or a showup, we are only concerned with the admissibility of the in-court identification testimony.

Since Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, the general rule has been that evidence unconstitutionally obtained is excluded in both State and Federal Courts as essential to due process--not as a rule of evidence but as a matter of Constitutional law. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Colson, 274 N.C. 295, 163 S.E.2d 376. The test under the due process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610; State v. Austin, 276 N.C. 391, 172 S.E.2d 507; State v. Rogers, Supra.

These due process requirements have been enlarged by case holdings requiring presence of counsel at lineups or showups. 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; Stovall v. Denno, Supra. The broad principles set forth in Wade, Gilbert and Stovall resulted in many diverse interpretations by other appellate courts. One of the questions causing conflict in the appellate courts was at what stage of the proceedings the rule requiring presence of counsel became operative.

Our Court has generally held that an accused has a Constitutional right to presence of counsel at an in-custody identification proceeding, and when counsel is not present and there is no voluntary waiver of counsel by the accused, testimony of witnesses that they identified the accused at such confrontation must be excluded. Furthermore, an in-court identification of the accused by a witness who took part in such pretrial confrontation must be excluded unless it is first determined by the trial judge on voir dire that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. United States v. Wade, Supra; Gilbert v. California, Supra; State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Smith, 278 N.C. 476, 180 S.E.2d 7; State v. Austin, Supra; State v. Rogers, Supra.

The recent case of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, which defendant cites and relies upon, considerably limits the stage at which the right to counsel attaches in pretrial identification procedures. In that case, the United States Supreme Court held that a person's Sixth and Fourteenth Amendment right to counsel in pretrial identification procedures attaches only 'at or after the time that adversary judicial proceedings have been intiated against him.' See State v. Mems, 281 N.C. 658, 190 S.E.2d 164. Although our Court's rather broad language might appear to be at odds with the holding in Kirby, examination of the actual holdings of this Court shows that our interpretation of the right to counsel at pretrial identification procedures has often comported with the rationale of the holding in Kirby, e.g., we have held that identifications made during the investigatory stage of proceedings were not in the critical stage, requiring presence of counsel. State v. Mems, Supra; State v. McNeil, 277 N.C. 162, 176 S.E.2d 732. In State v. Wright, 274 N.C. 84, 161 S.E.2d 581, this Court held that defendant's right to counsel in a pretrial identification procedure was not violated until the proceeding '. . . lost its character as a pretrial investigative procedure and became a 'critical' stage . . .' requiring the presence of counsel. Even so, the holding in Kirby considerably narrows our interpretation as to when the right to counsel attaches in pretrial identification proceedings.

It is not argued that defendant was an indigent and subject to the provisions of Article 36 of Chapter 7A of the General Statutes. However, we note that the General Assembly amended G.S. § 7A--451(b)(2), effective 10 April 1973, to require counsel for indigents at pretrial identification proceedings Only after formal charges have been preferred and at which the presence of the indigent was required. This amendment apparently stems from the holding in Kirby.

Here, the alleged rape occurred after midnight on 19 June 1973. Judith Strader remained at a nearby neighbor's home until police officers arrived. She was questioned by them, and thereafter she was taken to the hospital for examination and treatment. The record does not disclose at what time she returned from the hospital. Defendant was taken to the Sheriff's Department at about 1:30 a.m. on the morning of 19 June 1973. The confrontation between Judith Strader and defendant occurred at the Sheriff's Department at about 10:30 a.m. on the same day. The record does not indicate that any adversary judicial criminal proceedings had been initiated against defendant prior to the confrontation. The record Does show that a warrant was served on defendant on the same day. There had been no previous identification of defendant. It is therefore reasonable to infer that the warrant was served after the confrontation at the Sheriff's Department, and that at the time of the confrontation the proceeding was investigatory rather than accusatory. Thus the proceeding had not reached the critical stage which required the presence of counsel for defendant.

Defendant further contends that the confrontation offended fundamental standards of decency, fairness and justice so as to deny him his Constitutional right of due process.

The practice of showing suspects singly to persons for purposes of identification has been widely condemned. Stovall v. Denno, Supra; State v. Wright, Supra. However, whether such a confrontation violates due process depends on the totality of the surrounding circumstances. Stovall v. Denno, Supra.

We recognize that there are circumstances under which the single exhibition of a suspect may be proper. The landmark case of Stovall v. Denno, Supra, held that the showing of a single suspect in a hospital room while he was handcuffed to police officers did not violate due process because the possibility of the impending death of the witness required an immediate confrontation. Our Court has held that there was no violation of due process when there were 'unrigged' courtroom and station house confrontations which amounted to single exhibitions of the accused. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884; State v. Bass, Supra; State v. Haskins, Supra; State v. Gatling, 275 N.C. 625, 170 S.E.2d 593. Similarly we have recognized that a confrontation which takes place when a suspect is apprehended immediately after the commission of the crime may be proper. State v. McNeil, Supra.

Whether an accused has been denied due process by a showup or a single exhibition of the accused requires an application of the recognized principles of law to the total circumstances. This often presents a difficult task.

Here the fact that the single exhibition of defendant was held within a short time and as soon as feasible after the assault when the prosecuting witness had the opportunity to closely observe her assailant is counterbalanced by the fact that defendant was in custody under circumstances which would have easily permitted the formation of a lineup. However, the facts of this case do not require decision of this question. Even if we were to concede the confrontation to have been impermissibly suggestive and conducive to misidentification, and we do not, we are of the opinion that the in-court identification was properly admitted into evidence.

It is well established that the primary illegality of an out-of-court identification will render inadmissible the in-court identification unless it is first determined on voir dire that the in-court identification is of independent origin. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; State v. Bass, Supra; State v. Austin, Supra; State v. Rogers, Supra; State v. Wright, Supra.

The recent case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, is strikingly similar to instant case. In McNeil, the defendant was accused of rape. The evidence against him included testimony by the prosecutrix of a pretrial police showup which consisted of two detectives walking the defendant past her.

In that case, the Court noted:

'. . . The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artifical (sic) light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. . . . Her description to...

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