State v. Sadler
| Decision Date | 20 February 1979 |
| Docket Number | No. 7826SC987,7826SC987 |
| Citation | 40 N.C.App. 22,251 S.E.2d 902 |
| Parties | STATE of North Carolina v. Kenneth SADLER. |
| Court | North Carolina Court of Appeals |
Theo H. Nixon, Asst. Public Defender, Charlotte, for defendant-appellee.
First the State argues that defendant was not entitled to counsel at the show-up. The State errs in arguing that G.S. 7A-451(b)(2) controls. That statute sets out the entitlement of indigent persons to the services of counsel; the issue here is not whether defendant was entitled to have counsel Appointed at State expense, but whether he was entitled to have counsel Present at the show-up. The State is correct, however, that defendant was not entitled to counsel at this identification. Defendant was arrested and taken to the police station. There he was shown to the witness, who identified him. He was subsequently taken before a magistrate and formally charged. On an identical sequence of occurrences this Court has held that a defendant is not entitled to counsel at the show-up, since "(t)he constitutional right to counsel at an identification procedure does not attach until 'the initiation of adversary Judicial criminal proceedings . . . by way of formal charge, preliminary hearing, indictment or arraignment.' " State v. Sanders, 33 N.C.App. 284, 287, 235 S.E.2d 94, 96, Cert. denied 293 N.C. 257 (1977).
Nevertheless, the order suppressing the identification evidence must be affirmed. His Honor found that the victim could not identify her assailant, that the show-up procedure was impermissibly suggestive, and that Ms. Cureton's in-court identification was based entirely on the show-up. Inasmuch as the findings of fact were based on competent evidence this Court is bound by the trial court's findings. 4 Strong's N.C. Index 3d, Criminal Law, § 66.20 at 276.
The record reveals that the police officers who made the stop received a radio broadcast reporting an armed robbery in the area they were patrolling. A description was given of two suspects who were young black males with a knife, one of whom was wearing a light-colored hat, white pants, black shirt and sunglasses. A short distance from the scene the officers attempted to stop defendant and his companion, two black males who generally fit the description given over the police radio.
According to the officer's uncontroverted testimony at the hearing, defendant's companion had under his shirt what appeared to the officers to be a knife. (It turned out to be a stick.) Defendant's companion was stopped for questioning, and the officers attempted to stop defendant, who kept going, but later was stopped. Defendant had on light tan pants, a brown shirt and sunglasses.
The court's finding that "there is no evidence that the men fit (the) description" simply is not supported by the evidence in this record, and thus is not binding on this Court. Yarborough v. State, 6 N.C.App. 663, 171 S.E.2d 65 (1969). Moreover, this deficient finding by the trial court appears to be the basis for its conclusion that the stop was illegal. The...
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State v. Greenwood
...288 N.C. 417, 219 S.E.2d 201 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3210, 49 L.Ed.2d 1210 (1976); State v. Sadler, 40 N.C.App. 22, 251 S.E.2d 902, cert. denied and appeal dismissed, 297 N.C. 303, 254 S.E.2d 924 (1979); State v. Stanfield, 19 N.C.App. 622, 199 S.E.2d 741 (197......
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State v. McNeill, 8112SC357
...N.C.App. 293, 250 S.E.2d 318 (1979). There is ample evidence to support the trial judge's finding of probable cause. State v. Sadler, 40 N.C.App. 22, 251 S.E.2d 902 (1979). Defendant's motion to suppress was properly denied. See State v. Vestal, 278 N.C. 561, 180 S.E.2d 755 (1971). We overr......
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District of Columbia v. M.M., 14242.
...a certain direction and one wearing a leather jacket when two such persons were seen a half-block in that direction); State v. Sadler, 40 N.C.App. 22, 251 S.E.2d 902 (1979) (investigative stop valid where description in lookout was of hat, pants, shirt and sunglasses and person stopped had ......
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State v. Turner
...also true that when the findings are not supported by the evidence, they are not binding on the appellate court. See State v. Sadler, 40 N.C.App. 22, 251 S.E.2d 902 (1979). We agree with the state that the key finding of fact underlined above is not supported by the evidence. As we read the......