State v. Leggett

Citation305 N.C. 213,287 S.E.2d 832
Decision Date03 March 1982
Docket NumberNo. 95A81,95A81
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Liston LEGGETT, Jr.

Rufus L. Edmisten, Atty. Gen. by Robert G. Webb and Thomas B. Wood, Asst. Attys. Gen., Raleigh, for the State.

David V. Liner and Zachary T. Bynum, III, Winston-Salem, for the defendant-appellant.

MITCHELL, Justice.

The defendant first contends that the trial court committed reversible error by reading the bills of indictment against him to prospective jurors. The defendant asserts that the trial court thereby violated the express terms of G.S. 15A-1213 and G.S. 15A-1221(b). We do not agree.

G.S. 15A-1221(b) prohibits the reading by any person of bills of indictment against the defendant to prospective jurors or to the jury during jury selection or trial. G.S. 15A-1213 provides:

Prior to selection of jurors, the judge must identify the parties and their counsel and briefly inform the prospective jurors, as to each defendant, of the charge, the date of the alleged offense, the name of any victim alleged in the pleading, the defendant's plea to the charge, and any affirmative defense of which the defendant has given pretrial notice as required by Article 52, Motions Practice. The judge may not read the pleadings to the jury.

The defendant specifically complains that the trial court by its opening statement to prospective jurors in the present case violated both statutes. The trial court's opening statement was as follows:

During the course of this trial when I use the word defendant, I will be referring at all times to Liston Leggett, Jr. He has come into court and has entered pleas of not guilty to a charge of first-degree sexual offense, specifically that on December 7th, 1980, he did with force and arms, commit a first-degree sexual offense upon Elizabeth Kay Martin, that he did this by force and against her will, and employed in the course thereof a dangerous or deadly weapon, and he is further charged and has entered a plea of not guilty to the felony of kidnapping in that he's charged with kidnapping Elizabeth Kay Martin on December the 7th, 1980, and he has come into court and also entered a plea of not guilty to a charge of attempting to rape Elizabeth Kay Martin by force and against her will, employing a deadly weapon, a knife, on December 7th, 1980.

The State has correctly pointed out that the three bills of indictment against the defendant, exclusive of captions and signature lines, constitute twenty-seven lines in the printed record. That portion of the statement by the trial court complained of by the defendant consists of thirteen lines in the printed record. Clearly the trial court did not read the indictments to the jury as prohibited by G.S. 15A-1213 and G.S. 15A-1221(b). By its previously quoted statement to prospective jurors, the trial court merely drew information from the bills of indictment to the extent necessary to identify the defendant and explain the charges against him and the circumstances under which he was being tried. In so doing, the trial court did not commit error. See State v. McNeil, 47 N.C.App. 30, 266 S.E.2d 824, appeal dismissed, 301 N.C. 102, 273 S.E.2d 306 (1980), cert. denied, 450 U.S. 915, 101 S.Ct. 1356, 67 L.Ed.2d 339 (1981). To the contrary, this statement by the trial court was necessary to inform the prospective jurors of the circumstances surrounding the cases against the defendant as required by the specific terms of G.S. 15A-1213.

Additionally, we think the statement of the trial court was consistent with the spirit of each statute in question. The legislature apparently intended that jurors not be given a distorted view of the case before them by an initial exposure to the case through the stilted language of indictments and other pleadings. The statement by the trial court in the present case entirely complied with this intent and was not error.

The defendant next contends that the trial court erred by allowing the State to introduce evidence that Miss Martin identified him as the perpetrator of the crimes charged by choosing him from a physical line-up in which he was required to participate. This contention is without merit.

We note at the outset that the record on appeal does not reflect any motions for voir dire hearings or any objections taken to the victim's in-court identification of the defendant or objections to the victim's testimony relating to her pretrial line-up or photographic identifications of the defendant. Therefore, the defendant failed to preserve his right to except to such evidence and effectively waived his right to raise any contentions concerning it on appeal. State v. Hedrick, 289 N.C. 232, 234, 221 S.E.2d 350, 352 (1976); Gasque v. State, 271 N.C. 323, 339, 156 S.E.2d 740, 751 (1967), cert. denied, 390 U.S. 1030, 88 S.Ct. 1423, 20 L.Ed.2d 288 (1968); Rules 9 and 10, North Carolina Rules of Appellate Procedure. Nevertheless, due to the gravity of the offenses and the lengths of the sentences involved here, we elect to review the defendant's assignments of error on the various identification questions set forth in his brief as though they had not been waived.

In support of his contention that the trial court erroneously admitted the victim's identification of him at an in-custody physical line-up, the defendant first argues that he was denied the right to counsel during the line-up. At the time of the physical line-up in question, the defendant was in custody in connection with an unrelated charge. No prosecution had been commenced against the defendant with regard to the cases before us on this appeal. Therefore, the defendant's right to counsel had not attached. State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1046, 59 L.Ed.2d 90 (1979); State v. Sweezy, 291 N.C. 366, 230 S.E.2d 524 (1976). The mere fact that a defendant is under arrest and in custody on charges unrelated to the crimes being investigated when he is required to participate in a physical line-up does not constitute the initiation of "adversary judicial proceedings" and does not create an adversarial relationship between the State and the defendant sufficient to require the assistance of counsel. State v. Matthews, 295 N.C. at 285, 245 S.E.2d at 739, and cases cited therein.

Additionally, the defendant in fact was represented by counsel who had been appointed for him in another case during the physical line-up in which he participated in the present case. The defendant argues that this counsel, not having been appointed for the specific cases here on appeal, would not have been familiar with the facts or circumstances surrounding the alleged attack by the defendant in these cases and was incapable of effectively representing him at the line-up. As no adversary judicial proceedings had been initiated against the defendant in these cases, we find it hard to imagine how counsel who in fact represented the defendant at the line-up could have been more handicapped than one appointed especially to represent him at that line-up. In either event counsel would have been entering the case for the first time and would not have the opportunity to be fully informed about the case prior to the line-up. The purpose of counsel at a line-up is to insure that the line-up is not unnecessarily suggestive and does not create a substantial likelihood of misidentification. Such purpose was served by counsel here, and it was not required that he be as prepared as if going to trial. We find this argument to be without merit.

Due process forbids an out-of-court confrontation which is so unnecessarily "suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968). Therefore, in cases in which such issues are properly raised, we must examine the reliability of any identification of the defendant during out-of-court confrontations without regard to the presence of counsel or whether formal prosecution against the defendant had been initiated.

As we have previously stated, "The test under the due process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice." State v. Henderson, 285 N.C. 1, 9, 203 S.E.2d 10, 16 (1974), death penalty vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976). In evaluating such claims of denial of due process, this Court employs a two-step process. First, we must determine whether an impermissibly suggestive procedure was used in obtaining the out-of-court identification. If this question is answered in the negative, we need inquire no further. If it is answered affirmatively, the second inquiry we must make is whether, under all the circumstances, the suggestive procedures employed gave rise to a substantial likelihood of irreparable misidentification. State v. Headen, 295 N.C. 437, 439, 245 S.E.2d 706, 708 (1978).

The defendant has presented no specific assertions as to why he contends the procedures employed during the pretrial line-up in which he participated were unduly suggestive. Our independent review of the evidence clearly indicates that no suggestive procedures were employed. All of the participants in the line-up were black males of approximately the same size, shape and age as the defendant. An attorney who had previously been appointed to represent the defendant in another case was with the defendant throughout the line-up procedures and rejected several males the officers proposed to use in the line-up. Those used in the line-up were acceptable to the attorney. The six black males chosen to constitute the line-up were placed in a foyer area in city hall in a line in front of an elevator door. The...

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