State v. Miller

• Decision Date: 17 December 1975
• Docket Number: No. 79,79
• Citation: 288 N.C. 582,220 S.E.2d 326
• Parties: STATE of North Carolina v. Carl MILLER et al.
• Court: North Carolina Supreme Court

Page 326

220 S.E.2d 326

288 N.C. 582

STATE of North Carolina v. Carl MILLER et al.

No. 79.

Supreme Court of North Carolina.

Dec. 17, 1975.

Rufus L. Edmisten, Atty. Gen., William B. Ray and William W. Melvin, Asst. Attys. Gen., Raleigh, for the State of North Carolina.

Harold J. Bender, Statesville, and Wesley F. Talman, Jr., Asheville, for defendant appellants.

HUSKINS, Justice:

Prior to introduction of evidence defendant Clark moved for a continuance to enable his newly employed counsel to properly prepare his defense. Denial of the motion constitutes Clark's first assignment of error.

A motion for continuance is ordinarily addressed to the sound discretion of the trial court and its ruling thereon is not subject to review absent abuse of discretion. State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970); State v. Stinson, 267 N.C. 661, 148 S.E.2d 593 (1966). However, if the motion is based on a right guaranteed by the federal or state constitution, the question presented is one of law and not of discretion and the decision of the court below is reviewable. State v. Phillip, 261 N.C. 263, 134 S.E.2d 386, Cert. denied 377 U.S. 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964). The constitutional right to the assistance of counsel includes the right of counsel to confer with witnesses, to consult with the accused and to prepare his defense. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

The record discloses that Mr. Bender had represented all three defendants for over two months, and both he and Mr. Talman represented them throughout the trial. Attorney Talman was notified by defendant Clark on 21 October 1974 that he desired to retain him. Mr. Talman conferred with Clark for two hours on 25 October 1974 and stated that he intended to go to Statesville on 26 October 1974 to locate and interview witnesses but was unable to do so by reason of the disappearance of his daughter, a fact not made known to the court until the morning of the trial. Mr. Bender was fully apprised of the fact that the case would be called for trial at the 28 October 1974 Session. He had previously filed a motion requesting permission to withdraw as counsel for defendant Clark by reason of ill feelings between Clark and McClain over the alleged theft of certain articles from Clark's home by McClain while McClain was free on bond. Permission to withdraw as counsel for Clark was denied, first by Judge Ervin and later by Judge Thornburg, the presiding judge. Mr. Bender made no contention that he was not ready for trial in Clark's case but merely stated that he felt he was placed in a position of conflict when Clark and McClain seemed to be turning against each other.

We think defense counsel Bender had ample opportunity from 12 August 1974, the second day after the commission of the alleged offense, until the day of the trial to confer with defendant Clark and all possible witnesses. During that time he had ample opportunity to prepare Clark's defense. No names of witnesses are shown. What defendant Clark expected to prove by possible witnesses in the Statesville area must be surmised. The oral motion for continuance is not supported by affidavit or other proof. This state of the record suggests only a natural reluctance to go to trial and affords no basis to conclude that Clark was denied the right to effective representation for lack of time within which to prepare and present his defense. The facts show no abuse of discretion and no violation of Clark's constitutional rights by the court's refusal to continue the case. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). The first assignment of error is therefore overruled.

Before pleading to the bill of indictment, defendants entered a plea in abatement, contending that the alleged offense occurred in Iredell County. Denial of that motion constitutes defendants' second assignment of error.

Former G.S. 15--134 (repealed effective 1 July 1975) provided that all offenses are deemed to have been committed in the county alleged in the indictment unless defendant denies same by plea in abatement. The statute did not state which party had the burden of proof if such plea is filed. 'At common law, the burden of proof was upon the State to prove that the offense occurred in the county named in the bill of indictment. State v. Oliver, 186 N.C. 329, 119 S.E. 370 (1923).' State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967). Thus defendants' plea in abatement placed the burden on the State to show that Catawba County was the proper venue. The State carried its burden by offering the testimony of James Franklin, the man who was searching for his coon dogs when he chanced upon defendants and their captives at the Sipes fish pond. Mr. Franklin testified under oath that the spot where he saw a car 'with three black men in it and a white woman and a white man' was on the west side of the Catawba River and in Catawba County. He testified that the Catawba River is the dividing line between Catawba County and Iredell County. No evidence to the contrary was produced by defendants. Hence there was no evidence to support the plea in abatement, while the evidence offered by the State supports the conclusion reached by the trial judge that the offense occurred in Catawba County as charged in the bills of indictment. There was no error in overruling the plea in abatement. This assignment is overruled.

Defendants challenged their in-court identification by Deborah Case, Michael Stumphey and James Franklin. The jury was excused and a Voir dire conducted.

Deborah and Michael testified on voir dire that at 9:25 p.m. on 10 August 1974, the same day of the crime, they were shown three sets of six photographs--a set for each defendant. The first set contained one photo of defendant Miller; the second set contained one photo of defendant McClain; and the third set contained one photo of defendant Clark. Each set was composed of photographs of persons having the same general appearance with respect to race, age, hair type, hair color, and complexion of the defendant for whom that set was arranged. The witnesses were then instructed to look at the series of photographs and told they were not obligated to identify anyone. They were told they should not conclude or guess that the series of photographs contained the picture of the person or persons who committed the crime. They were told that it was just as important to free innocent persons from suspicion as to identify guilty parties. After viewing the photographs both Deborah and Michael identified each of the defendants. This took place after defendants had been arrested and were in custody. Each witness stated that identification of defendants was based upon the memory of them at the time of the crime and not on the photographs displayed by the officer.

The witness James Franklin viewed nine photographs on Sunday morning, 11 August 1974. The nine photographs included one photo of each defendant. Mr. Franklin identified defendants Miller and Clark but failed to recognize defendant McClain's picture. This witness stated that his in-court identification was based on his observation of defendants at the time of the crime and not on the photographs. He said: 'I identify them by what I saw at the river.'

Defendants offered no evidence on Voir dire. The court found facts in substantial accord with the testimony of the State's witnesses and concluded that their in-court identification of defendants was of independent origin and in no way tainted by the photographic display. Thereupon, over objection, the witnesses were permitted to identify the three defendants in open court before the jury. This is the basis for defendants' third, eighth and fourteenth assignments of error.

Defendants contend their in-court identification was tainted by the pretrial photographic identification in that (1) they were not represented by counsel and (2) the circumstances surrounding the photographic identification were unnecessarily suggestive and conducive to irreparable mistaken identity.

We find no merit in either prong of this contention. The law is firmly established that an accused has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether the suspect is at liberty or in custody at the time. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974).

Identification by photograph was expressly approved in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). It was there held that 'each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972--1973, 18 L.Ed.2d 1199, 1206, and with decisions of other courts on the question of identification by photograph.'

Applying the Simmons standard we find no impermissible suggestiveness in the photographic identification procedure used in this case. each witness viewing photographs was advised by the investigative officer that 'the fact that the photographs are shown to you should not influence your judgment, you should not conclude nor guess the photographs contain the picture of the person or persons who committed the crime. You are not obligated to identify anyone. It is just as important to free innocent persons from suspicion as to identify guilty parties.' Furthermore, Deborah Case and Michael Stumphey were in the presence of the defendants for the better part of an hour, and it may be inferred that th...