State v. Jean, 112A83

• Decision Date: 02 February 1984
• Docket Number: No. 112A83,112A83
• Citation: 311 S.E.2d 266,310 N.C. 157
• Parties: STATE of North Carolina v. Lesly JEAN.
• Court: North Carolina Supreme Court

Page 266

311 S.E.2d 266

310 N.C. 157

STATE of North Carolina v. Lesly JEAN.

No. 112A83.

Supreme Court of North Carolina.

Feb. 2, 1984.

Rufus L. Edmisten, Atty. Gen. by Sp. Deputy Atty. Gen. M. Ann Reed, Raleigh, for the State.

Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

Defendant first contends that the trial court erred in denying his motion to suppress the identification testimony of Mrs. Wilson, arguing that the testimony was the product of a pretrial identification procedure which was so impermissibly suggestive that it created a substantial likelihood of irreparably mistaken identification.

Following a voir dire hearing on defendant's motion to suppress, the trial court made the following findings of fact:

2. That Alice Kathleen Wilson retired for bed at approximately one o'clock A.M. on the 21st of July and before retiring for bed she left the lights on in her hallway, living room and kitchen.

3. That the lights from the kitchen and living room shown in through her bedroom.

5. That at 3:00 A.M. on July 21st, 1982, Mrs. Wilson awoke from her sleep and observed a black male standing over her. That this person grabbed Mrs. Wilson and forced her to submit to various acts of sexual and oral intercourse within her bedroom. That this intruder was in Mrs. Wilson's bedroom for an hour and 15 minutes and that during this time Mrs. Wilson was within a foot of him for an hour of that time.

6. That these various acts of sexual intercourse and oral intercourse occurred in an area of Mrs. Wilson's bedroom where she could see very clearly who her intruder was because of the light emanating from the kitchen into her bedroom.

8. That Mrs. Wilson described her assailant as being approximately 5 feet 8 inches tall, 160-165 pounds, wearing dark navy blue jogging shorts, dark teeshirt, white high-top Nike tennis shoes with a black swirl on the side of the tennis shoes, almond eyes, high cheek bones, fairly thick lips, and a freckle on the left side of her assailant's face.

9. That her assailant left her house at approximately 4:15 A.M. and Mrs. Wilson thereafter reported the sexual assault to the police. That at this time the Jacksonville Police Department placed the description of Mrs. Wilson's assailant over the radio and this was disseminated to various police officers in Jacksonville.

10. That at approximately 4:40 A.M. Officer Jim Shingleton of the Jacksonville Police Department stopped a person along LeJeune Blvd. in Jacksonville meeting the description of Mrs. Wilson's assailant. That Officer Shingleton frisked this person and was in this person's presence for a period of about 2 minutes. That thereafter this person ran from Officer Shingleton into the woods along Lejeune Blvd. and was not to be found on that particular morning.

11. That on July 26th, 1982 Officer Shingleton saw the defendant at Dunkin' Donuts in Jacksonville located 2 houses away from 104 Sherwood Rd. and at that time seized the defendant and took him to the police station in Jacksonville. At that time the defendant granted permission to Detective Steve Smith of the Jacksonville Police Department to search his wall locker. That Officer Smith after executing said search returned Lesly Jean to the police department where Lesly Jean consented to the taking of his photograph. Lesly Jean was then released at 2:30 on the 27th of July, 1982.

12. That on July 27th, 1982, Detective Smith made up a photographic lineup containing 6 black males including the defendant. That these photographs depicted persons in their early 20's from the waist up including their head. That these pictures were all similar in physical description.

13. That these photographs were displayed to Alice Kathleen Wilson on July 27, 1982 at the Jacksonville Police Department. That these photographs were displayed in a folder. That these photographs were displayed in a non-suggestive manner. That Detective Smith never told Alice Kathleen Wilson which person or persons he suspected of this crime. That Alice Kathleen Wilson was unable at that time to select a photograph of her assailant.

14. That on July 28th, 1982, Alice Kathleen Wilson asked to see the photographic lineup again. That at 6:30 on July 28, 1982, she viewed the same photographs displayed to her on the 27th of July, 1982. That again these photographs were displayed in a non-suggestive manner by Detective Steve Smith and he did not tell her at any time which of those photographs, if any, were suspects in the rape case. That after viewing this photographic lineup, Mrs. Wilson told Detective Smith that photograph number 5 appeared as if he was looking at her and stated "That's the one who makes me feel sick." That photograph number 5 is the defendant Lesly Jean.

15. That on August 3rd, 1982, Detective Steve Smith asked Lesly Jean if he would consent to reading various sentences into a tape recorder for the purpose of recording his voice. That Lesly Jean consented to doing this and did so. That Detective Smith also asked 4 other persons to do the same thing. That the voices were recorded onto a tape recording. That the voices are all fairly similar in sound.

16. That on August 4th, 1982, this tape recording was played for Mrs. Wilson and she selected voice number 3, that of Lesly Jean, as her assailant by stating the words 'Number 3 sounds like the one that was in my bedroom the other night.' That this voice identification procedure was conducted in a non-suggestive manner. That Detective Smith never told Mrs. Wilson which of the voices if any were suspected of being her assailant.

17. That the investigation of this case continued until the 17th of September, 1982, whereupon Lesly Jean came to the police department of his own volition. That at this time Lesly Jean was not under arrest and was appearing at the police station voluntarily, of his own will and accord. That Lesly Jean agreed to participate in a live lineup which occurred at the police station. That this lineup consisted of, in addition to Lesly Jean, two other black males who were similar in physical size and description to Lesly Jean. That Lesly Jean was given a chance to select which position of the lineup he would stand and he selected to stand in between the two other black males. That Mrs. Wilson viewed these persons from behind a glass window wherein she only saw the person from the waist up including their head. That these persons had their shirts off at this time and Mrs. Wilson could see the bare chest of each person and his face. That these lineup procedures were conducted in a totally non-suggestive manner and Mrs. Wilson was never told by anyone who, if any, of the persons were suspected of being her assailant. That after viewing these persons for a few moments Mrs. Wilson selected person number 2, that of Lesly Jean, as being her assailant. That the defendant, before participating in the lineup, was told that he had a right to counsel and he voluntarily waived a right to counsel before participating in the lineup. That at this time Mrs. Wilson indicated that she was positive that Lesly Jean was in fact her assailant. That at the time of this viewing Mrs. Wilson noted a freckle on the left cheek of the defendant, the same freckle she recalled seeing the morning of her assault. At the time of this lineup procedure, no adversary judicial criminal proceedings had been initiated against the defendant.

18. That after Mrs. Wilson was attacked her description to the Jacksonville Police Department included her assailant's height, weight, complexion, distinguishing facial features, build, and voice. That this description was extremely detailed and more than ordinarily thorough. That she expressed no doubt what-so-ever that the defendant was the person who raped her.

19. That Mrs. Wilson's identification of the defendant in the courtroom is based on her observation of him in her house on the morning of July 21, 1982 and is not tainted by any pretrial identification procedures.

20. That the Court has had an opportunity [to] observe Mrs. Wilson's testimony in court during the Voir Dire and notes that the witness had over one hour and 15 minutes in the presence of the defendant. That during this time she was within extremely close proximity of the defendant for an hour out of this hour and 15 minutes. That during this time her degree of attention was directed towards the defendant at all times. That the accuracy of Mrs. Wilson's prior description of her assailant conforms with the way the defendant appears in court today and Mrs. Wilson is absolutely positive that the defendant is her assailant.

Based on the above findings of fact, the trial court concluded:

1. That the photographic lineup procedure was not impermissibly suggestive and was proper in all respects.

2. That the totality of the circumstances does not reveal a pretrial procedure so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice.

3. That the photographic lineup procedure does not give rise to any likelihood of irreparable misidentification.

4. That the voice identification procedures were not impermissibly or unduly suggestive and were proper in all respects.

5. That the totality of the circumstances does not reveal a pretrial procedure so unnecessarily suggestive and conducive to irreparable misidentification as to offend fundamental standards of decency, fairness and justice.

6. That the voice identification procedure does not give rise to any likelihood of irreparable misidentification.

7. That the live lineup which occurred on September 17, 1982 was not impermissibly or unduly suggestive and was perfectly proper in all respects.

8. That the defendant did not have a constitutional right to the presence [of] counsel at the live lineup because no adversary judicial criminal proceeding had been initiated against the...