State v. Legette

• Decision Date: 08 February 1977
• Docket Number: No. 99,99
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Harold LEGETTE, also known as Kenny Brown, and Forrest Lee Wilson, also knownas James Lee Wilson.

Page 896

231 S.E.2d 896

292 N.C. 44

STATE of North Carolina v. Harold LEGETTE, also known as Kenny Brown, and Forrest Lee Wilson, also knownas James Lee Wilson.

No. 99.

Supreme Court of North Carolina.

Feb. 8, 1977.

Rufus L. Edmisten, Atty. Gen., William B. Ray, Asst. Atty. Gen., William W. Melvin, Deputy Atty. Gen., Raleigh, for the State of North Carolina.

Henry L. Kitchin, of Leath, Bynum, Kitchin & Neal, Rockingham, for defendant-appellant Legette.

Charles B. Deane, Jr., of Jones & Deane, Rockingham, for defendant-appellant Wilson.

HUSKINS, Justice:

Defendants' first assignment of error is based on the dual contention that (1) their in-court identification by the witness Braswell was tainted by pretrial photographic identification and (2) the court erred in denying defendants the opportunity to view the photographs in question. Defendants argue that the findings and conclusions to the contrary are erroneous and that their motion to suppress the in-court identification should have been allowed.

The evidence developed on voir dire tends to show that four or five hours after the robbery Deputy Sheriff Grant took about a dozen photographs of black males to the Braswell store. These photographs were given to Mr. Braswell in random order, and he was requested to select the pictures of the two men who robbed him. He had already been told that suspects had been apprehended. Mr. Braswell recognized defendant Legette the first time he saw his picture and selected defendant Wilson's picture on the third viewing of the photographs. The hesitancy with respect to Wilson apparently resulted from the fact that Wilson was wearing glasses in the photograph which he had not been wearing at the time of the robbery. Mr. Braswell stated: 'There is no doubt in my mind that the two defendants present in the court are the same two that I observed in the store on that occasion. No one suggested that I should pick out these two defendants as being the ones that robbed me. I am basing my identification of the defendants, Legette and Wilson, today on how they appeared at the time they committed the robbery. My identification is not influenced or affected by having seen the photographs of them.' Mrs. Braswell separately identified the picture of Legette but asked the police to show her a picture of Wilson without the glasses. When this was done she identified Wilson as the second robber. Defendants offered no evidence on voir dire.

At this point in the voir dire defendants moved that the photographs be produced for their inspection. The district attorney replied, 'If I decide to try to introduce the photographs, I'd be happy to let them see them at that time.' The trial judge made no formal ruling on the motion but stated he would examine the photographs In camera and if he found anything improper, he would turn them over to defense counsel for examination. The photographs were never offered in evidence, either on voir dire or before the jury, and consequently were never shown to defense counsel.

The trial judge made findings of fact substantially in accord with Mr. Braswell's testimony, there being no evidence offered to the contrary. Based on these findings the court made two conclusions of law, to wit: (1) The photographic evidence was not improperly suggestive and (2) the in-court identification of defendants by the witness Braswell was independent in origin and based on observation of defendants at the time of the robbery. The motion to suppress the in-court identifications was thereupon denied and the evidence was admitted for consideration by the jury.

Defendants protest the court's refusal to permit them to view the photographs and contend such action infringed upon their right of confrontation and denied them due process of law in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, sections 19 and 23 of the Constitution of North Carolina.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), identification by photograph was expressly approved and the Court 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.' The Simmons test has been applied by this Court in many cases, including State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. McVay and Simmons, 277 N.C. 410, 177 S.E.2d 874 (1970); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970); 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).

Factors to be considered in evaluating the likelihood of mistaken identification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Hunt, 287 N.C. 360, 215 S.E.2d 40 (1975); State v. Henderson, supra.

Here, the trial judge found that the witness Braswell had ample opportunity to view defendants at the time of the crime. The robbery occurred during 'broad daylight' in a building well lighted with fluorescent lights. Mr. Braswell was only eight feet from Legette and engaged in a conversation with him. He observed defendant Wilson from a distance of two to three feet. Both defendants were in Braswell's presence for five to seven minutes. All these findings are supported by clear, competent and convincing evidence and therefore are conclusive and binding on appellate courts in this State. State v. Hunt, supra; State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Morris, supra. The findings in turn support the conclusion that Braswell had ample opportunity to view the defendants. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), where the United States Supreme Court held that a fleeting but 'real good look' at a defendant, illuminated by car headlights, was sufficient.

There is no contention that Braswell failed to give the defendants close scrutiny while they were in his presence, and defendants concede the accuracy of Braswell's initial description of them. Moreover, both Braswell and his wife showed a high level of certainty in making a final photographic identification of defendants. Even though both expressed some initial uncertainty as to defendant Wilson because he was wearing glasses in the picture but wearing none during the robbery, this indecision was followed by positive identification after viewing a picture of Wilson with the glasses removed. Finally, Mr. Braswell's identification at trial was clear and unequivocal. The time span involved in the identification was very short--four to five hours between the crime and the photographic identification and less than two months from the date of the crime to date of trial.

When the Simmons test and the factors enumerated in Neil v. Biggers, supra, are applied to the facts in this case, there is small chance indeed that the photographs viewed by the witness Braswell led to misidentification of defendants. We hold that defendants' motion to suppress the in-court identification was properly denied and the evidence properly admitted.

The only remaining question under defendants' first assignment is whether defendants were denied due process and confrontation rights with respect to the in-court identification by the refusal of the trial judge to permit them to examine the photographs. For the reasons which follow, we hold that they were not.

The right to confront and cross-examine one's accusers is central to an effective defense and a fair trial. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959). Under the Fourteenth Amendment those Sixth Amendment rights are applicable to the states. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968). It has been held to be 'an abuse of discretion and a violation of constitutional rights to deny to a defendant the right to cross-examine a witness at all on 'a subject matter relevant to the witness' credibility. " Snyder v. Coiner, 510 F.2d 224 (4th Cir. 1975). Even a partial restraint of such right may, in some circumstances, effectively deny the right altogether. United States v. Norman, 402 F.2d 73 (9th Cir. 1968). Moreover, where 'the in-court identification is deemed admissible, defense counsel must be afforded the opportunity to cross-examine the prosecutrix upon any and all pretrial confrontations.' United States ex rel. Regazzini v. Brierley, 321 F.Supp. 440 (W.D.Pa.1970). Even so on the facts in this case, we hold that defendants have not been denied the opportunity to cross-examine the witness Braswell. True, defense counsel were denied some assistance which the photographs used in the out-of-court identification might have provided. While the better practice dictates that those photographs should have been made available to the defense, failure to do so did not deny defendants the right to effective cross-examination. This conclusion is supported by the following language, dealing with a fact situation strikingly similar to the facts here, found in Simmons v. United States, supra:

'Although the pictures might have been of some assistance to the defense, and although it doubtless would have been preferable for the Government to have labeled the pictures shown to each witness and kept them available for trial, we hold that in the circumstances the refusal of the...