State v. Knight

• Decision Date: 15 November 1972
• Docket Number: No. 12,12
• Citation: 282 N.C. 220,192 S.E.2d 283
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Robert Lee KNIGHT.

Page 283

192 S.E.2d 283

282 N.C. 220

STATE of North Carolina v. Robert Lee KNIGHT.

No. 12.

Supreme Court of North Carolina.

Nov. 15, 1972.

J. W. Hoyle, Sanford, for defendant appellant.

Robert Morgan, Atty. Gen., and Sidney S. Eagles, Jr., Asst. Atty. Gen., for the State.

HUSKINS, Justice:

Appellant's first assignment of error is based on his contention that the photographic identification procedure was so impermissibly suggestive that admission of the in-court identification violated due process of law. This contention questions the admissibility of testimony concerning the photographic identification at the hospital as well as the admissibility of Mr. Garner's in-court identification of defendant himself.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Court refused to prohibit absolutely the use of identification by photograph and instead held that 'each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'

Factors to consider in applying the Simmons test are: '(1) the manner in which the pretrial identification was conducted; (2) the witness' prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.' United States v. Zeiler, 447 F.2d 993 (3d Cir. 1971). Cf. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970). The first of these factors focuses upon the magnitude of the suggestiveness inherent in the photographic identification procedures employed. The facts relevant to the remaining six factors are then balanced against that suggestiveness in order to determine whether, in the particular factual context under consideration, the suggestiveness gives rise 'to a very substantial likelihood of irreparable misidentification.' If these facts do not give rise to such likelihood, then Simmons does not require reversal despite the presence of 'impermissible suggestiveness' in the photographic identification procedure.

With reference to the enumerated relevant factors, the evidence adduced on voir dire discloses that the pretrial photographic identification procedure used here was impermissibly suggestive since the photographic showing was of only one picture and was accompanied by the statement 'we've got a man, is this the one.' If defendant's in-court identification and resulting conviction rested on that identification, it could not stand. But such is not the case. Mr. Garner had ample prior opportunity in his home to observe defendant. During the confrontation in the bedroom, he was within three feet of defendant and facing him. Light from a 50-watt bulb in the bathroom, located behind the witness, was shining into defendant's face. In addition, there was a full moon that night and there were bright yellow curtains over the bedroom windows. Also, Mr. Garner observed the defendant as he chased him through the house and out the rear door. Mr. Garner told the officers the intruder was wearing black boots above the ankles and a dark turtleneck sweater, and defendant was dressed in that fashion when first seen by Officer Poe at the Pay-Lo Service Station about 2:25 a.m. following defendant's report by telephone that he 'had been rolled.' Furthermore, Mr. Garner never at any time identified anyone else and promptly identified defendant by photograph and in person at the first opportunity. In light of all these circumstances, the trial judge found on voir dire 'that the identification of the defendant in the courtroom was not based upon the photograph shown him at the hospital. . . .' This finding is sufficient to satisfy the Simmons test, even though it is not worded in the precise language used therein. See State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970); State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970). Compare United States ex rel. Schartner v. Pizzo, 336 F.Supp. 1192 (M.D.Pa.1972). The conclusion that the in-court identification was not based upon the photograph is tantamount to a conclusion that the in-court identification had an independent origin. It is this independent origin that, despite the impermissible suggestiveness of the photographic identification procedure, establishes the lack of a 'very substantial likelihood of irreparable misidentification' required by Simmons for reversal. Therefore, the finding, being supported by competent evidence, is conclusive and must be upheld. State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966).

The competency of the testimony concerning Mr. Garner's photographic identification of defendant is another matter. 'Quite different considerations are involved as to the admission of the testimony of the . . . witnesses . . . that they identified Gilbert at the lineup. That testimony is a direct result of the illegal lineup 'come at by exploitation of (the primary) illegality.' Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a Per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup.' Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

By analogy, the introduction of testimony concerning an out-of-court photographic identification must be excluded where, as here, the procedure used is impermissibly suggestive, even though that suggestiveness does not require exclusion of the in-court identification itself under the Simmons test. See United States v. Fernandez, 456 F.2d 638, 641--642 (2d Cir. 1972). Compare Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).

In the factual context of this case, although the showing of only one photograph to the victim accompanied by the statement 'we've got a man, is this the one' was impermissibly suggestive and evidence thereof incompetent, we hold its admission was 'harmless beyond a reasonable doubt.' Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (1970). The unequivocal in-court identification of defendant by Mr. Garner, the presence of defendant's jacket in Mr. Garner's bedroom containing a letter addressed to the defendant, a certified birth certificate of defendant, and a Selective Service notice of classification bearing defendant's name, and the fact that the description of defendant's clothing given by Mr. Garner to the police was substantially...