State v. Jackson, No. 83A81

• Docket Nº: No. 83A81
• Citation: 295 S.E.2d 383, 306 N.C. 642
• Case Date: October 05, 1982
• Court: United States State Supreme Court of North Carolina

Page 383

295 S.E.2d 383 306 N.C. 642 STATE of North Carolina
v.
Samuel Lee JACKSON. No. 83A81. Supreme Court of North Carolina. Oct. 5, 1982.

Rufus L. Edmisten, Atty. Gen. by Reginald L. Watkins, Asst. Atty. Gen., and Floyd M. Lewis, Associate Atty., Raleigh, for the State.

L. Samuel Dockery, III, High Point, for defendant-appellant.

BRANCH, Chief Justice.

We consider defendant's first and third assignments of error together since they raise related procedural and constitutional issues.

By this assignment of error, defendant initially contends that the trial judge erred in his motion to dismiss based on the State's failure to conduct the lineup as ordered by the district court on 15 August 1978. Defendant argues that the failure to hold the lineup at this time violated his statutory right to request that nontestimonial procedures be conducted. ¹

The State maintains that the voluntary dismissal of the case on 17 August 1978 obviated any necessity for the lineup. In

Page 387

fact, the district court order for a lineup was rescinded verbally by [306 N.C. 648] Judge Yeattes when he was informed of the State's intention to dismiss the action. The State argues that because the charges were no longer pending against defendant and because the order had been rescinded, defendant's contentions are without merit.

The State further contends that any possible prejudice was cured when defendant was granted a lineup after the true bill of indictment was returned against him.

Defendant, however, strenuously argues that the lineup held on 9 November 1978 did not cure the prejudice engendered by the failure to hold the earlier lineup. Defendant argues the second lineup was not curative because of an alleged unlawful showup which occurred immediately after the State's dismissal of the case on 17 August.

After defendant's case was dismissed in district court, he was led in handcuffs from the lockup beside the courtroom down the corridor and was observed by the State's witnesses, Terrie Cecil and Albert Rice. Immediately after this confrontation, Cecil was taken to the High Point Police Department where she was shown a photographic lineup including defendant's picture.

Defendant argues that this confrontation in the hallway was so suggestive that it led to an irreparable mistaken identification of defendant both at the photographic lineup held that same afternoon and at the physical lineup held later on 9 November.

No mention of these identification procedures was made to the jury. Defendant nevertheless challenges the admissibility of the witnesses' in-court identification testimony on the ground that it is tainted by the out-of-court identification procedures conducted under constitutionally impermissible circumstances. He challenges the trial court's findings of fact and conclusions of law that each witness's in-court identification was independent of any influence other than their observations on the day of the crime.

We overrule defendant's first and third assignments of error.

First, we find no impropriety in the State's failure to hold the lineup as ordered by the district court judge on 15 August. The State, for whatever reason, decided to take a voluntary dismissal in the case. When Judge Yeattes learned of the State's intention, he properly rescinded his earlier order, finding it was [306 N.C. 649] no longer necessary to proceed with the lineup. Certainly defendant has no statutory right to demand a lineup when charges are no longer pending against him.

Neither do we accept defendant's contention that the so-called "confrontation" between defendant and the State's witnesses was so damaging that the photographic and physical lineups that followed were unconstitutionally tainted.

Only one of the State's witnesses, Albert Rice, actually recognized defendant as he was ushered by. Miss Cecil testified that she saw a black man for an instant out of the corner of her eye but she had no idea it was defendant. Witness Hughes was not in the corridor at the time and did not view defendant. Furthermore, only Cecil and Hughes were taken to the Police Headquarters to identify defendant from the photographs. Thus, the only witness who could reasonably have been influenced by this "confrontation" was not present at the photographic display held that same afternoon.

All of the State's witnesses testified that no suggestions were made to them by the police at the photographic display which would indicate that any one of the photographs was of defendant. Defendant's counsel was present at the physical lineup and stipulated that he observed no impropriety in the manner and method in which the identification procedure was conducted.

The trial judge specifically found that there were no unconstitutional identification procedures involving defendant. When a trial court's findings of fact are supported by competent evidence, they are binding upon this Court. State v. Stepney, 280 N.C. 306, 317, 185 S.E.2d 844, 851 (1972); State v. McVay, 279 N.C. 428, 432,

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183 S.E.2d 652, 655 (1971); State v. Hines, 266 N.C. 1, 11, 145 S.E.2d 363, 369 (1965). There was plenary evidence in the record to support the trial judge's findings that the identification procedures were free of constitutional error.

Finally, we note that even if the pretrial identification procedures had been tainted by the confrontation in the corridor, defendant could not have been prejudiced. We have consistently held that an in-court identification is competent, even if improper pretrial identification procedures have taken place, so long as it is determined on voir dire that the in-court identification is of independent[306 N.C. 650] origin. State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968).

The trial judge held separate voir dire examinations before admitting each witness's testimony identifying defendant as one of the robbers. The court found facts, fully supported by the voir dire testimony, that each witness had an adequate opportunity to view defendant in good lighting and in close proximity at the time of the crime. The court's conclusions, properly supported by these findings of fact, were that the in-court identifications were independent in origin.

We recognize that there must be clear and convincing evidence to support the trial court's findings that a witness's in-court identification is independent of any unconstitutional identification procedure. State v. Yancey, supra. The evidence in instant case meets this standard, and we are bound by the trial court's determination. State v. Tuggle, 284 N.C. 515, 520, 201 S.E.2d 884, 887 (1974).

These assignments are overruled.

By his second assignment of error, defendant contends that the trial court's examination of the State's witness, Albert Rice, constituted an expression of opinion in violation of G.S. 15A-1222. Defendant argues that by questioning Rice as to who owned the Furniture Buyers Center and who was in charge, the court supplied elements essential to the State's case, to-wit, ownership and control of the alleged stolen property. This argument is without merit.

State v. Jenerett, 281 N.C. 81, 187 S.E.2d 735 (1972), is directly on point....