State v. Hunt
| Decision Date | 06 June 1975 |
| Docket Number | No. 43,43 |
| Citation | 287 N.C. 360,215 S.E.2d 40 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Fernando HUNT. |
Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.
James W. Smith, Henderson, for appellant.
Defendant assigns as error the trial judge's denial of his motion to suppress the in-court identification testimony of the prosecuting witness, Betty Sue Ratts Wright. Upon defendant's motion to suppress, the trial judge excused the jury and conducted a Voir dire examination which disclosed the following relevant facts:
The prosecutrix testified that she knew the defendant to be the man who assaulted her 'from the identification of what I saw that morning.' She further testified that she originally looked at some pictures of suspects, including defendant, but was unable to identify anyone positively. She told them that she thought defendant was the man but could not be sure until she saw him in person.
On 9 January defendant was in a room with a probation officer, and the prosecutrix observed him through a one-way mirror. At that time he was sitting down, had his hair braided, was wearing a cap, and did not speak. Apparently, at this time defendant was unaware that he was being observed. The prosecutrix told the officer that she thought that defendant was the man but could not be sure unless she heard him speak and saw him under substantially the same lighting conditions as existed on the morning of the assault.
About a month later she saw defendant in a lineup with eight other people, and she described the differing conditions at this second observation:
'I don't remember whether I asked the Sheriff or detective to have him stand up or have all of them stand up at the first lineup, but I told them at that time that I could not make an identification unless I heard him talk and stand. . . .'
She testified that she had a chance to observe his face at intervals of a minute several times during the twenty minutes or so he was in her trailer on the morning of the incident. She further stated that there was sufficient light from street lights shining into the trailer to make an identification, particularly since, when she observed his face, he was within one foot of her.
Testimony of law enforcement officers indicated that defendant was fully informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that he understandingly and voluntarily waived the presence of counsel at the lineup.
Bobby Hamm of the Vance County Sheriff's Department testified that at the second encounter each of the men was required to say three phrases: 'This is your neighbor.'; 'Do you have any grease?'; and 'Would you take me to Raleigh?'. He then described Mrs. Wright's reaction during the second confrontation:
Defendant testified on Voir dire that he had no recollection of being warned of his rights and that, after his initial refusal to stand in a lineup, the police told him that he had to do so. Recalled, prosecutrix stated that she was 'not sure if I could identify him today if he was dressed differently.'
At the conclusion of the Voir dire hearing, Judge Martin made the following findings of fact and conclusions of law:
'THE COURT: The Court finds that Mrs. Wright, formerly Miss Ratts, spent a considerable period of time with her assailant up to at least twenty minutes; that she was with him under adequate artificial interior and exterior light in her trailer and, on several occasions was facing her assailant their heads being approximately a foot apart, facing him directly and intimately; that in Court Mrs. Wright pointed to the defendant Hunt as the one who raped her in her home on the twenty-ninth day of December, 1973; that Mrs. Wright was positive as to her input identification of the defendant based on what she saw at the time that she was raped and on nothing more; that sometime thereafter, Mrs. Wright was showed photographs of a number of persons and was unable to recognize any photograph as being of the man who raped her; that thereafter, a lineup was conducted in the early part of January, at which time the defendant along with several others, was in the lineup and although she felt almost positive that the defendant was the person who raped her, she was unable to make a positive identification for the reason that she was some distance away looking through a glass and the defendant had on a hat and his hair was braided, and that on the day that she was raped, her assailant did not have on a hat, nor was his hair braided, but that it was an Afro hairdo on the twenty-ninth day of December, 1973. The Court further finds as a fact that on the twenty-eighth day of January, 1974, a lineup was conducted at the Sheriff's office, at which time some persons, all black, including the defendant, was placed in the lineup; that before the defendant was placed in the lineup, he was warned of his constitutional rights under the 'Miranda' decision and was specifically warned that he had the right to have counsel present at the lineup and, if he was unable to do so, the Court would appoint counsel for him; that the defendant knowingly, intelligently, voluntarily and understandingly waived his right to counsel in the lineup and freely consented to participate in the lineup. And the Court finds as a fact that the defendant freely, voluntarily, understandingly, and intelligently waived his right to counsel at the out-of-court confrontation for identification by the prosecutrix. The Court further finds as a fact that the defendant was represented by counsel at the preliminary hearing, and that, at the preliminary hearing, Mrs. Wright identified the defendant as the person who assaulted her at her residence on the twenty-ninth day of December, 1973. The Court finds and determines that, from clear and convincing evidence, the in-court identification of the defendant Hunt is of independent origin based solely on what she saw at the time of the assault and rape and does not result from any out-of-court confrontation or from any photograph or from any lineup or any pretrial identification procedures suggestive and conducive to mistaken identification, and the defendant's motion to suppress the testimony as to identification is overruled.
Defendant argues that he was denied due process because of suggestive pretrial identification procedures. He points specifically to the fact that he was the only person who appeared in all the pretrial procedures and to the fact that he was exhibited to the prosecuting witness singly. In support of this contention, he relies strongly on Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).
In Foster defendant was charged with armed robbery, and the only eyewitness to the alleged crime failed to identify defendant at a lineup in which defendant was wearing a leather jacket similar to the one worn by the robber and in which defendant, who was six feet tall, was shown with two people who were about five feet six inches tall. Only a tentative identification resulted from a one-to-one confrontation which took place after the witness requested that he be allowed to speak to defendant. Positive identification occurred at a second lineup with five men in which defendant was the only person who had appeared at the first lineup. At trial the witness testified as to his identification of defendant at the lineup and also made an in-court identification.
In a majority opinion by Justice Fortas, Justices Black, Harlan, White, and Stewart dissenting, the Court held the admission of the identification evidence to be error. The Court, in part, stated:
The United States Supreme Court considered a similar question in the case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). There the defendant was charged with a rape which allegedly occurred on 22 January 1965. The State's evidence, in part, consisted of testimony by the prosecuting witness concerning a pretrial showup during which two detectives walked the defendant by the prosecuting witness, at which time defendant was directed to say 'Shut up or I will kill you.' This confrontation occurred on 17 August 1965. At trial, the prosecuting witness testified that she had 'no doubt' about her identification. Finding that the testimony was properly allowed to go to the jury, the Court, Inter alia, stated:
'We turn, then, to the central question, whether under the...
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State v. Oliver
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