State v. McCraw

• Decision Date: 15 July 1980
• Docket Number: No. 47,47
• Citation: 268 S.E.2d 173,300 N.C. 610
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Harold Daniel McCRAW.

Page 173

268 S.E.2d 173

300 N.C. 610

STATE of North Carolina v. Harold Daniel McCRAW.

No. 47.

Supreme Court of North Carolina.

July 15, 1980.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Alan S. Hirsh and Sp. Deputy Atty. Gen. John R. B. Matthis, Raleigh, for State.

John G. Britt, Jr., and Fred J. Williams, Asst. Public Defenders, Fayetteville, for defendant appellant.

CARLTON, Justice.

Defendant groups several assignments of error into six arguments. We find no prejudicial error and affirm.

I.

Defendant first asserts that the trial court erred in failing to suppress the victim's in-court identification. Defendant argues this in-court identification was tainted by impermissibly suggestive out-of-court identification procedures. He argues this taint was not removed by any showing that the in-court identification was based on a recollection independent of those improper out-of-court procedures. Defendant cites State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976), in contending that such tainted in-court identification is inadmissible.

The record reveals that the victim in this case, Donald Steven Plummer, made a misidentification prior to his initial out-of-court identification of this defendant. Soon after the robbery, on 17 July 1978, Plummer was shown several mug books. At this time he identified the photo of one man he was "99% sure" was the robber. Investigation by the Fayetteville police department, however, revealed that the pictured individual had been incarcerated on the date of the robbery and could not have participated in it. Plummer was told his choice was wrong.

Thereafter, in early September, he saw a picture of Norris Taylor in a Fayetteville paper and called police to tell them that Taylor "looked very similar to the man . . . picked out in the mug book."

Subsequently, on 27 October 1978, Plummer was shown another photographic lineup and again picked out a picture, this time of the defendant. However, he stated then that he was only 80% sure of his identification and wanted to see the pictured individual in person before making conclusive identification.

On 28 November 1978, Plummer went to the Cumberland County Courthouse in answer to two subpoenas. Although defendant's name was on one of the subpoenas, Plummer testified on voir dire that he thought that both subpoenas concerned an unrelated break-in at the convenience store which did not involve this robbery. While waiting in the courtroom, he heard defendant's name called. He knew the name was on one of the subpoenas, so he looked around the courtroom and eventually saw a man he recognized as the robber in this case. When called by court officials to a conference room, he informed them that he had seen the individual who had robbed him at gun point in July. Defendant contests this sequence of events as being impermissibly suggestive.

As a general rule, evidence unconstitutionally obtained is excluded from testimony in both state and federal courts. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), cert. denied, 396 U.S. 1024, 90 S.Ct. 599, 24 L.Ed.2d 518 (1970).

What constitutes unconstitutionally suggestive identification evidence, however, has been subjected to changing standards of admissibility. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), the United States Supreme Court held that if, considering the totality of circumstances, a pre-trial identification procedure is found to be unnecessarily suggestive and conducive to irreparable mistaken identification submission of the identification at trial violates due process. The Court held that a two-step process had to be used in applying this standard:

(1) First, a reviewing court had to determine whether the out-of-court procedure was unnecessarily suggestive. If so, testimony regarding the out-of-court procedure was inadmissible.

(2) Second, in-court identification was still permissible, only if the out-of-court suggestiveness was not "conducive to irreparable mistaken identity." In this jurisdiction, this often meant that the in-court identification was admissible if the State could show that the in-court identification was of independent origin from the suggestive pre-trial procedures. See, e.g., State v. Headen, supra; State v. Henderson, supra.

Applying this analysis, the Supreme Court in Stovall held that in-court identification was permissible where a critically injured witness had been shown defendant alone and handcuffed at her hospital bedside. In Foster v. California, however, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), the Supreme Court held that an in-court identification procedure was inadmissible where it was preceded by repeated pre-trial confrontations which eventually elicited a positive identification of the defendant. Such pre-trial suggestiveness was "so arranged to make the resulting identification virtually inevitable," 394 U.S. at 443, 89 S.Ct. at 1129, 22 L.Ed.2d at 407, and the identification testimony was inadmissible.

And in State v. Headen, supra, this Court held an in-court identification inadmissible where twenty months after a crime, a Cumberland County deputy sheriff identified the defendant to an eyewitness, indicated the defendant was implicated in the crime and apparently repeatedly assured the eyewitness of the defendant's complicity. Considering this unnecessary suggestiveness along with the fact that the witness had viewed the crime on a dark night, was not at the time particularly concerned with getting a clear visual sighting of the criminal, could not identify a photograph without prompting and could provide only a general description, this Court concluded that the impermissible pre-trial procedure gave rise to a substantial likelihood of irreparable misidentification at trial.

The per se approach to identification evidence, however, is no longer the law of the land. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the United States Supreme Court first cast doubt on the analysis by holding that testimony about even suggestive pre-trial identification procedures was admissible if, considering the totality of the circumstances, the identification procedure was reliable. It thus moved the focus of the inquiry away from the pre-trial procedures used and toward the totality of the circumstances surrounding the actual crime. If identification was reliable, it was admissible despite the suggestiveness of out-of-court procedures.

The Court set out five indicia of reliability: (1) the opportunity of the witness to view the criminal, (2) the witness' degree of attentiveness, (3) the accuracy of the witness' principle description, (4) the level of certainty at confrontation, and (5) the length of time between the crime and the confrontation. In Neil v. Biggers, however, the Supreme Court observed that the challenged procedure had occurred before the facts involved in Denno v. Stovall, supra. The implication was that the Denno v. Stovall per se rule still controlled cases arising after the Supreme Court handed down that earlier decision.

Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) negated the implication and removed any doubt whether to apply the per se standard or the totality of circumstances standard. In Manson v. Brathwaite, the Supreme Court conclusively held that due process did not compel exclusion of pre-trial identification evidence obtained by suggestive and unnecessary police identification procedures so long as, under the totality of circumstances, the identification was reliable.

There, the defendant in a drug case claimed that a one-photograph "lineup" was impermissibly suggestive. Explicitly applying the totality of circumstances analysis the Supreme Court held that the five reliability factors had all been met adequately and the suggestive pre-trial identification procedure was admissible.

Thus, after Manson v. Brathwaite, supra, "(i)t is the strong probability of misidentification which violates a defendant's right to due process. Unnecessarily suggestive circumstances alone do not require the exclusion of identification evidence." State v. Nelson and Jolly, 298 N.C. 573, 601, 260 S.E.2d 629, 649 (1979). See also, State v. Green, 296 N.C. 183, 250 S.E.2d 197 (1978).

Like the defendant in Manson v. Brathwaite, defendant here cannot successfully protest the in-court identification of him in this case. There is sufficient evidence of the reliability of the victim's in-court identification here to withstand any attempt by defendant to show that any alleged impermissible pre-trial procedure raised the strong likelihood of misidentification.

Viewing the totality of the circumstances here, it is unmistakable that:

(1) The witness Plummer had ample opportunity to view the robber in a well-lighted store at 8:30 a. m. on a sunny summer morning.

(2) The witness had attentively viewed the robber both before and during the robbery and had in fact had the foresight to visually measure the robber's height against items in the store.

(3) The witness' description, while not ideal nor particularly detailed, did include the essential identifying characteristics of height, slender build and some degree of facial hair. Furthermore, the photographs this witness initially picked out resembled the defendant in facial shape, hair style and bone structure. While this is admittedly the least sure of the several factors, considered along with others it is an indication of the reliability of this witness' identification.

(4) The witness unhesitatingly and with certainty identified the defendant once he confronted the defendant in person. There was nothing impermissibly suggestive in the unarranged pre-trial courtroom procedure. See State v. Long, ...