State v. Morris

• Decision Date: 13 October 1971
• Docket Number: No. 10,10
• Citation: 183 S.E.2d 634,279 N.C. 477
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Clayton DeVonne MORRIS.

Page 634

183 S.E.2d 634

279 N.C. 477

STATE of North Carolina v. Clayton DeVonne MORRIS.

No. 10.

Supreme Court of North Carolina.

Oct. 13, 1971.

Henry E. Fisher, Charlotte, for defendant appellant.

Robert Morgan, Atty. Gen., Eugene Hafer, Asst. Atty. Gen., for the State of North Carolina.

HUSKINS, Justice:

Defendant's first assignment of error is based on the contention that his in-court identification by the witness Rohrer was tainted by a pretrial photographic identification. He argues that the findings and conclusions of the trial judge to the contrary are erroneous and that his motion to suppress the in-court identification should have been allowed.

In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), identification by photograph was expressly approved and the Court 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.'

The test laid down in Simmons has been applied by this Court in many cases, including State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970), and State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970). When applied to the facts in this case, three is small chance that the photographs viewed by the witness Rohrer led to misidentification of defendant. The record shows that the witness viewed eight, ten or twelve pictures from which he recognized the face of the defendant. Prior to the robbery the witness had seen the defendant a number of times on the lawn of a home across the street from the site of the robbery. Defendant had been in the Little General Store five to ten times making purchases and had been observed by the witness on those occasions. The witness told investigating officers that he knew defendant but did not know his name. Defendant himself testified at the trial: 'Yes, I knew Mr. Rohrer but not by name. I did not know his name until the hearing. Yes, Mr. Rohrer waited on me when I went in the store.' There is nothing in the record to support the contention that impermissibly suggestive procedures were employed by the officers when the photographs were exhibited to the witness. Therefore, had the in-court identification been based on the pretrial photographic identification, it would have been competent anyway.

The trial judge found as a fact on voir dire, however, that the State had established by clear and convincing proof that the in-court identification of defendant by the witness Rohrer was independent in origin, based on observations made by the witness at the scene of the robbery and on his previous observations of defendant. The evidence overwhelmingly supports this finding. 'Such findings of fact, so made by the trial judge, are conclusive if they are...