State v. McKissick

• Decision Date: 11 October 1967
• Docket Number: No. 260,260
• Citation: 157 S.E.2d 112,271 N.C. 500
• Parties: STATE of North Carolina v. Warren Walter McKISSICK, Jr.
• Court: North Carolina Supreme Court

Page 112

157 S.E.2d 112

271 N.C. 500

STATE of North Carolina v. Warren Walter McKISSICK, Jr.

No. 260.

Supreme Court of North Carolina.

Oct. 11, 1967.

J. Levonne Chambers, Charlotte, for defendant appellant.

T. W. Bruton, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., Robert G. Webb, Trial Atty., Wilson, Eugene A. Smith, Trial Atty., Raleigh, for the State.

PLESS, Justice.

The defendant assigned as error the admission of evidence regarding the identification of the defendant at a line-up at the police station and his courtroom identification based thereon. He urges that his constitutional rights secured by the Fourth, Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Sections 11 and 17, of the North Carolina Constitution were violated.

Mr. and Mrs. Neff went to the city hall four days after the robbery and there viewed a line-up with six persons. Both of them identified the defendant as being one of the robbers and also identified him at the trial. The defendant argues that in effect the exhibition of his person before the State's witnesses in the line-up required him to give evidence against himself.

He cites the recent case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, decided 12 June 1967, in support of his position. In effect, that case held that placing the defendant in a line-up of six men several weeks after his indictment for robbery was a violation of the defendant's constitutional rights because his counsel was not present at the time of the line-up. The case did not hold that the line-up itself constituted self-incrimination, since merely exhibiting his person for observation by witnesses and using his voice as an identifying physical characteristic involved no compulsion of the accused to give evidence of a testimonial nature against himself which is prohibited by the Fifth Amendment. The decision said:

'(I)n addition to counsel's presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate the accused's right to a fair trial.'

It also held:

'Since it appears that there is grave potential for prejudice, intentional or not, in the pretrial lineup, which may not be capable of reconstruction at trial, and since presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial, there can be little doubt that for Wade the post-indictment lineup was a critical stage of the prosecution at which he was 'as much entitled to such aid (of counsel) * * * as at the trial itself.' Powell v. State of Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 60, 77 L.Ed. 158. Thus both Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct of the lineup, absent an 'intelligent waiver.' See Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. No substantial countervailing policy considerations have been advanced against the requirement of the presence of counsel. Concern is expressed that the requirement will forestall prompt identifications and result in obstruction of the confrontations.'

While the Wade case was not retroactive and therefore would not be controlling in this case, since the occurrence was some five months prior to the Wade case, the defendant argues that the reasoning of the case should be accepted in this one.

In response, we call attention to the dissent of Justice Black who said:

'(T)here is no constitutional provision upon which I can rely that directly or by implication gives this Court power to establish what amounts to a constitutional rule of evidence to govern, not only the Federal Government, but the States in their trial of state crimes under state laws in state courts. See Gilbert v. State of California, supra (388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, decided June 12, 1967). The Constitution deliberately reposed in States very broad power to create and to try crimes according to their own rules and policies. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606. Before being deprived of this power, the least that they can ask is that we should be able to point to a federal constitutional provision that either by express language or by necessary implication grants us the power to fashion this novel rule of evidence to govern their criminal trials.

'* * * I have never been able to subscribe to the dogma that the Due Process Clause empowers this Court to declare any law, including a rule of evidence, unconstitutional which it believes is contrary to tradition, decency, fundamental justice, or any of the other wide-meaning words used by judges to claim power under the Due Process Clause. See, e.g., Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. I have an abiding idea that if the Framers had wanted to let judges write the Constitution on any such day-to-day beliefs of theirs, they would have said so instead of so carefully defining their grants and prohibitions in a written constitution. With no more authority than the Due Process Clause I am wholly unwilling to tell the state or federal courts that the United States Constitution forbids them to allow courtroom identification without the prosecution first proving that the identification does not rest in whole or in part on an illegal lineup. Should I do so, I would feel that we are deciding what the Constitution is, not from what it says, but from what we think it would have been wise for the Framers to put in it. That to me would be 'judicial activism' at its worst. I would leave the States and Federal Government free to decide their own rules of evidence. That, I believe, is their constitutional prerogative.'

Mr. Justice White also dissents, saying:

'The rule applies to any lineup, to any other techniques employed to produce an identification and A fortiori to a face-to-face encounter between the witness and the suspect alone, regardless of when the identification occurs, in time or place, and whether before or after indictment or information. It matters not how well the witness knows the suspect, whether the witness is the suspect's mother, brother, or long-time associate, and no matter how long or well the witness observed the perpetrator at the scene of the crime. The kidnap victim who had lived for days with his abductor is in the same category as the witness who had had only a fleeting glimpse of the criminal. Neither may identify the suspect without defendant's counsel being present. The same strictures apply regardless of the number of other witnesses who positively identify the defendant and regardless of the corroborative evidence showing that it was the defendant who has committed the crime.'

He later says:

'* * * (R)equiring counsel at pre-trial identifications as an invariable rule trenches on other valid state interests. One of them is its concern with the prompt and efficient enforcement of its criminal laws. Identifications frequently take place after arrest but before indictment or information is filed. The police may have arrested a suspect on probable cause but may still have the wrong man. Both the suspect and the State have every interest in a prompt identification at that stage, the suspect in order to secure his immediate release and the State because prompt and early identification enhances Accurate identification and because it must know whether it is on the right investigative track. Unavoidably, however, the absolute rule requiring the presence of counsel will cause significant delay and it may very well result in no pretrial identification at all. Counsel must be appointed and a time arranged convenient for him and the witnesses. Meanwhile, it may be necessary to file charges against the suspect who may then be released on bail, in the federal system very often on his own recognizance, with neither the State nor the defendant having the benefit of a properly conducted identification procedure.

'Nor do I think the witnesses themselves can be ignored. They will now be required to be present at the convenience of counsel rather than their own. Many may be much less willing to participate if the identification stage is transformed into an adversary proceeding not under the control of a judge. Others may fear for their own safety if their identity is known at an early date, especially when there is no way of knowing until the lineup occurs whether or not the police really have the right man.'

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