State v. Martin

• Decision Date: 04 August 1981
• Docket Number: No. 8121SC75,8121SC75
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Steve Allen MARTIN.

Page 775

280 S.E.2d 775

53 N.C.App. 297

STATE of North Carolina v. Steve Allen MARTIN.

No. 8121SC75.

Court of Appeals of North Carolina.

Aug. 4, 1981.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Barry S. McNeill, Raleigh, for the State.

Appellate Defender Project for N. C. by Asst. Appellate Defender Marc D. Towler, Raleigh, for defendant-appellant.

WELLS, Judge.

In his first argument, defendant contends that the trial court erred in failing to instruct the jury ex mero motu that:

(A) It must find that the identification testimony of prosecuting witnesses Holley and Watson was entirely the product of their recollection of the offender at the time of the offense and did not result from photos shown them by investigating officer Charles; and

(B) In considering the credibility of Holley, the jury should take into account a prior incorrect identification by Holley.

State's evidence at trial indicated that James Holley and Phyllis Watson rented a motel room in Winston-Salem at approximately 10:00 p. m. on 5 June 1980. As the couple unlocked the door to their room, they were pushed into the room from behind and knocked to the floor by two men. The men pulled a gun, tied up the couple and took cash and personal objects from Holley and Watson.

Holley was called to testify at trial and was asked if he saw either of the men in the courtroom. Defense counsel objected to the identification testimony, and a voir dire was conducted.

Holley testified on voir dire that inside the room a light above a big mirror provided sufficient light to see. Holley estimated that the two men were in the room for five to ten minutes and stated that during that time he looked at defendant's face five or six times. Holley further stated that defendant was not wearing anything over his face and then gave a description of defendant as he appeared the night of the robbery.

Holley testified that on 23 June 1980 a policeman, Officer Charles, brought a stack of twenty-five to fifty photographs to Holley's parents' home for Holley to view. Holley testified that when he came to defendant's photograph he stopped and told Charles that defendant was one of the robbers. Holley did not look through any more photographs. Holley further stated that Charles did not indicate to him who he should choose.

On cross-examination, Holley stated that he had previously viewed some photographs at the police station about a week after the robbery. At that time, Holley chose a photograph which "sort of described" one of the robbers, but did not make a positive identification. Subsequent investigation of Holley's choice eliminated the chosen man as a suspect.

Watson testified on voir dire that there was sufficient light in the room for her to see Martin's face in profile while he was gagging her. Watson further testified that she viewed photographs on three occasions and picked out Martin's photograph on both the second and third occasions. At no time did Officer Charles suggest which photograph she should choose.

The trial judge instructed the jury in pertinent part as follows:

I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged in each of the cases beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged in each of the two cases before you may return a verdict of guilty in that case, or those cases.

The main aspect of identification is the observation of the offender by the witness at the time of the offense. In examining the testimony of the witness as to the witness's observation of the perpetrator at the time of the crime, you should consider the capacity the witness had to make an observation through his or her senses, the opportunity the witness had to make an observation, and such details as the lighting at the scene of the crime at the time, the mental and physical condition of the witness, the length of time of the observation and any other condition or circumstance which might have aided or hindered the witness in making the observation.

The identification witness is a witness just like any other witness, that is, you should assess the credibility of the identification witness in the same way you would any other witness in determining the adequacy of the witness's observation and the witness's capacity to observe.

As I instructed you earlier, the State must prove beyond a reasonable doubt that the defendant was the perpetrator of the crime charged in each of the cases. If, after weighing all of the testimony, you are not satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged, it would be your duty to return a verdict of not guilty in that case, or those cases.

Defendant contends that the trial judge erred in omitting from his instructions certain portions of the North Carolina Pattern Instructions Criminal, § 104.90, on identification. ^{1 1} As authority for his position, defendant primarily relies on United States v. Holley, 502 F.2d 273 (4th Cir. 1974), and United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972). This Court considered the application of the rules established for the federal trial courts in Holley and Telfaire to a situation similar to the one at issue here in State v. Lang, 46 N.C.App. 138, 143-146, 264 S.E.2d 821, rev'd. on other grounds, 301 N.C. 508, 272 S.E.2d 123 (1980). As in Lang, supra, we find this case "exhibits none of the special difficulties often presented by identification testimony that would require additional information be given to the jury in order for us to repose confidence in their ability to evaluate the reliability of the identification." Lang, supra, 46 N.C.App. at 145, 264 S.E.2d 821.

First, we note that the trial court gave instructions which dealt with the question of identification, the State's burden of proving the identity of defendant, the factors to be considered in determining the reliability of the witness's identification testimony, and reasonable doubt. The attention of the jury, therefore, was sufficiently focused on the issue of identity without the omitted instructions. Second, the pattern instruction or its substantial equivalent was not requested by defendant. See State v. Lang, supra. Third, although Holley had made a prior tentative identification of a person other than defendant as one of the perpetrators of the robbery, Holley subsequently made a positive identification of defendant from another photographic array. Defendant's photograph was not among the photographs first shown to Holley when he made the tentative identification, and, more importantly, Holley indicated that the person picked in the tentative identification only looked somewhat similar to the robber. Fourth, there was more than just a one-on-one identification here to implicate defendant in the robbery. Watson also positively identified defendant as one of the robbers, thereby corroborating the identification of Holley. As with Holley, Watson had the opportunity to observe defendant under favorable circumstances; she picked defendant from a pretrial photographic lineup; and she made no misidentification. Even though the trial court omitted two portions of N.C.P.I. Crim. 104.90, we find that the charge, when viewed contextually, was sufficient on the issue of identification under the evidence in this case. The assignments of error brought forth in defendant's first argument are overruled.

In his second argument, defendant contends the trial court erred in failing to exclude testimony regarding the out-of-court identifications of defendant where the court failed to make a finding of fact that the testimony was admissible.

While the finding and conclusions of the trial court did not include a specific finding that the out-of-court identification procedures "were not impermissibly suggestive," Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968); State v. Miller, 281 N.C. 70, 77, 187 S.E.2d 729 (1972), the court's findings were in sufficient detail to clearly establish the circumstances out of which the victims were able to identify defendant and the judge concluded that the victim's identification testimony was admissible. The evidence on voir dire clearly supports these findings and conclusion and they are therefore binding on us. State v. McGuire, 49 N.C.App. 70, 73, 270 S.E.2d 526, appeal dismissed, 301 N.C. 529, 273 S.E.2d 457 (1980). This assignment is overruled.

In his third argument, defendant contends the trial court erred by admitting into evidence, over objection, the photograph of defendant chosen by the prosecuting witnesses from a photographic array. As the initial basis for his argument, defendant points to the trial court's failure to find as fact that evidence of the out-of-court identifications was admissible. For the reasons stated above in Argument II, defendant's initial argument is without merit. Defendant also argues that the trial court erred because there was no showing by the State that the photograph admitted into evidence was...