State v. Long

• Decision Date: 11 October 1977
• Docket Number: No. 2,2
• Citation: 293 N.C. 286,237 S.E.2d 728
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Ronnie Wallace LONG.

Page 728

237 S.E.2d 728

293 N.C. 286

STATE of North Carolina v. Ronnie Wallace LONG.

No. 2.

Supreme Court of North Carolina.

Oct. 11, 1977.

Atty. Gen. Rufus L. Edmisten and Associate Atty. Ben G. Irons, II, Raleigh, for the State.

Karl Adkins, Charlotte, for defendant-appellant.

MOORE, Justice.

Appellant's first assignment of error is based on the contention that pretrial identification procedures were so impermissibly suggestive that admission of the in-court identification violated due process of law. This contention questions the admissibility of testimony concerning Mrs. Bost's identification of the defendant at an unrelated district court proceeding, as well as the admissibility of Mrs. Bost's in-court identification of defendant. The defendant contends that the circumstances surrounding the extrajudicial identification procedures used by police to procure his identification were so unduly prejudicial and suggestive as fatally to taint his conviction. "This is a claim which must be evaluated in light of the totality of surrounding circumstances." Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247, 1252-53, (1968).

In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and in Simmons v. United States, supra, the United States Supreme Court set forth the standard for determining whether an in-court identification following an allegedly suggestive pretrial identification procedure satisfies the demands of due process: "(W)e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification . . . will be set aside on that ground only if the . . . identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253.

In State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), this Court set forth the standard as follows:

" . . . 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. (Citations omitted.)"

In present case, Mrs. Bost testified that on 5 May 1976 officers came to her house and requested her to come and sit in district court to see if there might be a man she could recognize as her assailant. The officers told her that they did not know who would be in court, and that she may have to come to court on two or more occasions before she could identify anyone. Mrs. Bost went to the courthouse on 10 May and talked with officers before entering the courtroom. Again, they made no suggestion to her that the defendant or anyone else in particular would be in the courtroom. They simply told her to sit in the courtroom and look around and see if she could recognize the man who raped her. Mrs. Bost entered the courtroom with her friend, a Mrs. Pfennell, and sat apart from the officers. There were as many as sixty people in the courtroom, and as many as a dozen black males. Mrs. Bost testified that when the judge called the name Ronnie Wallace Long, a name she had never heard before, a man she recognized as her assailant walked down the aisle past her. She testified that she immediately recognized him, and that, without prompting, she motioned to police that the defendant was the man. Having reviewed the totality of the circumstances surrounding the pretrial courtroom identification, we conclude that there was no constitutional violation in the manner in which it was conducted.

Mrs. Bost further testified on voir dire that after the courtroom identification the police took her to the station and showed her six or eight photographs, and once again, without prompting, she identified the defendant. She also testified that officers did not point out any particular picture to her, and that she recognized the defendant from seeing him at the time of the assault. Considering this testimony, we hold that there was nothing "impermissibly suggestive" surrounding the circumstances of the photographic identification of the defendant.

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, (1972), the United States Supreme Court set forth certain factors to be considered in evaluating the likelihood of mistaken identification. These are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's 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. See also State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Henderson, supra.

A review of the uncontradicted testimony of Mrs. Bost on voir dire in light of the factors set forth in Neil v. Biggers, supra, indicates little likelihood of mistaken identification. On voir dire, Mrs. Bost positively identified the defendant as her assailant. She testified that lights were on in her den, bedroom and hall, and that she got a clear look at the defendant's face in all three rooms. This testimony indicates that she had ample opportunity to view the criminal at the time of the crime, and that she carefully noted his appearance and the features of his face. Her description of the defendant on the evening of the crime was similar to his actual appearance. At her initial confrontation with the defendant in district court, she recognized the defendant as soon as he walked by her to approach the bench. She did not identify another person as her assailant and did not fail to identify the defendant at her initial confrontation with him. The lapse of time between the crime and the confrontation was fifteen days. On voir dire she averred that she had "no doubt in her mind whatsoever" that Ronnie Long was the man who raped her, and she said that her "identification was based on seeing him in my home."

At the conclusion of the voir dire hearing, the trial judge found as a fact: "(T)hat her (Mrs. Bost's) identification here in this courtroom today is free and independent of her viewing of the defendant on May the 10th, in the courtroom on that occasion, and not tainted by her viewing the defendant on that occasion; that nor was it tainted by her viewing of the photographs on May the 10th, 1976."

When the facts so found are supported by competent evidence, they are conclusive on appellate courts. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974). Here, the court's findings were amply supported by competent evidence and are therefore conclusive on this Court.

The competency of the testimony concerning Mrs. Bost's pretrial courtroom identification and her photographic identification of defendant is a separate question. "(T)he introduction of testimony concerning an out-of-court . . . identification must be excluded where . . . the procedure used is impermissibly suggestive, even though that suggestiveness does not require exclusion of the in-court identification itself under the Simmons test. (Citations omitted.)" State v. Knight, 282 N.C. 220, 227, 192 S.E.2d 283, 288 (1972). Since we have found that there was nothing "unnecessarily" or "impermissibly" suggestive about the pretrial identification procedures used in the present case, the evidence of the out-of-court identifications was properly admitted.

We next turn to defendant's contention that the search of his automobile at the police station was illegal and that the evidence relating to the discovery of the leather gloves and toboggan cap, and the gloves and toboggan cap themselves, were therefore erroneously admitted into evidence. Upon defendant's objection to this evidence, the trial judge correctly excused the jury and conducted a voir dire hearing, found facts, entered conclusions of law and ruled on the admissibility of the evidence. State v. Harris, 290 N.C. 681, 228 S.E.2d 437 (1976); State v. Vestal, 278 N.C. 561, 180 S.E.2d 755, cert. denied, 414 U.S. 874, 94 S.Ct. 157, 38 L.Ed.2d 114.

On voir dire, police officers Taylor and Lee testified that they went to defendant's home on the evening of 10 May 1976 without an arrest warrant, and requested defendant to come to the police station to answer some questions. Defendant asked if he could drive his own car to the station, and the officers agreed. Defendant then drove to the station and parked his car in the parking lot. When defendant entered the station, officer Taylor read him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and informed him that he was a suspect in a rape case. Defendant signed a form waiving his Miranda rights and agreed to submit to questioning without the presence of a lawyer. After the questioning, officers Taylor and Vogler asked defendant for consent to search his automobile. Defendant agreed to the search and gave Vogler the car keys. Upon search, Vogler found a green toboggan cap under the front seat, and a pair of black leather gloves over the sun visor. At the time of his arrest, defendant was wearing a black leather jacket. Mrs. Bost described the jacket, the toboggan cap and the gloves as similar or identical to those worn by defendant at the time of the assault. Officers Taylor and Vogler further testified that defendant was not subjected to any pressure or threats by them and that Long expressed no hesitancy or uncertainty about allowing them to search the vehicle.

Defendant Long testified on voir dire that the officers came to his house on the evening of 10 May 1976 and told him to come down to the station to clear up a trespassing matter. He said that while at the police station officer Vogler asked him to empty his pockets. He did...