State v. Lankford

• Decision Date: 18 February 1976
• Docket Number: No. 755SC757,755SC757
• Citation: 221 S.E.2d 913,28 N.C.App. 521
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Terry Steven LANKFORD and Joseph Benjamin Boudreau.

Page 913

221 S.E.2d 913

28 N.C.App. 521

STATE of North Carolina v. Terry Steven LANKFORD and Joseph Benjamin Boudreau.

No. 755SC757.

Court of Appeals of North Carolina.

Feb. 18, 1976.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Charles J. Murray, Raleigh, for the State.

Prickett & Scott by Carlton S. Prickett, Jr., Wilmington, for defendant Lankford.

James A. MacDonald, Wilmington, for defendant Boudreau.

MARTIN, Judge.

Defendants contend their in-court identification by Carolyn D. Caton was based on unnecessarily suggestive pretrial identification procedures which violated due process.

Our Court has generally held that 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. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Smith, 278 N.C. 476, 180 S.E.2d 7 (1971).

Although the practice of showing suspects singly for identification purposes has been recognized as suggestive and widely condemned, whether such a confrontation violates due process depends on the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; State v. Shore, 285 N.C. 328, 204 S.E.2d 682 (1974). State v. Henderson, supra.

In Neil v. Biggers, supra, the United States Supreme Court considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures and held that even if a pretrial confrontation procedure was suggestive, there is no violation of due process if examination of the 'totality of the circumstances' indicates the identification was reliable. The factors set out by the Court '. . . to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time . . . of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'

In the present case, the record discloses that the robbery took place in a well lighted store. The defendants were unmasked. Mrs. Caton had seen the defendants ten minutes prior to the robbery and had a casual conversation with one of the defendants concerning purchases. The defendants ordered Mrs. Caton not to tell the police, and if she did, they would come back. She had ample opportunity to observe the defendants prior to and during the robbery. The witness' curiosity had been aroused by the defendant Lankford's return to the store after a short interval and by the defendant Boudreau's honking of the horn. After seeing the pistol and being told it was not a joke, the victim realized that she was being robbed and from that point on would obviously be paying close attention to the events that were taking place. Mrs. Caton's description of the defendants were not placed in the record on appeal, and its accuracy cannot be determined. There was no equivocation by the witness when she identified the defendants. She testified as follows: 'I just walked to the door and identified them,' and '(w)hen I walked out I nodded my head and I told Walt Moser it was the two boys.' There was approximately a one hour period between the crime and the identification.

Further, the trial court found and concluded that '. . . the witness can and does identify each of them independently of having seen them at the sheriff's office or at any place thereafter and can identify them based solely on observations of each defendant while in the store operated by her on the evening of March 13th and as to such identification of them while in her store the objection is overruled.' Since this finding is supported by competent evidence, it alone renders the in-court identification competent even if it be conceded Arguendo that the lineup or showup procedure was improper. State v. Shore, supra. The finding, supported by competent evidence, is conclusive on appeal and must be upheld. State v. Shore, supra; State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974).

Weighing all the factors, we find no substantial likelihood of misidentification. The totality of the circumstances indicates that the identification was reliable and hence no violation of due process was committed.

The defendants next assign as error the court's denial of their motion for a directed verdict of not guilty at the conclusion of the State's evidence. Both defendants contend there was no evidence to support the elements of the offense of armed robbery and that only the lessor offense of common law robbery should have been submitted to the jury.

The State's evidence tended to show that both defendants were standing at the counter. When the door opened to the cash register, Boudreau told Mrs. Caton to give him the money. He pulled a pistol and pointed it toward the cash register. She put the money from both cash registers on the counter and both defendants picked it up. Lankford handed the money to Boudreau who was putting it in his pockets. Both...