State v. Shore

• Decision Date: 15 May 1974
• Docket Number: No. 62,62
• Citation: 204 S.E.2d 682,285 N.C. 328
• Parties: STATE of North Carolina v. William Thomas SHORE.
• Court: North Carolina Supreme Court

Page 682

204 S.E.2d 682

285 N.C. 328

STATE of North Carolina v. William Thomas SHORE.

No. 62.

Supreme Court of North Carolina.

May 15, 1974.

Robert Morgan, Atty. Gen., Charles R. Hassell, Jr., Raleigh, Associate Atty., for the State of North Carolina.

John F. Morrow, Wilson & Morrow, Winston-Salem, for defendant-appellant.

HUSKINS, Justice:

Defendant contends that his photograph and fingerprints were taken by the Winston-Salem Police while he was illegally detained. He argues therefore that admission of identification evidence based on his photograph and fingerprints violated his constitutional rights and constitutes prejudicial error. His first assignment of error is based on this contention.

G.S. § 15--41 in pertinent part provides: 'A peace officer may without warrant arrest a person: . . . (2) When the officer has reasonable ground to believe that the person to be arrested has committed a felony and will evade arrest if not immediately taken into custody.' It is not required that a felony be shown actually to have been committed. It is only necessary that the officer have reasonable ground to believe that such an offense has been committed. State v. Mobley, 240 N.C. 476, 83 S.E.2d 100 (1954). The terms 'reasonable ground' as used in the foregoing statute and 'probable cause' as used in the Fourth Amendment to the Federal Constitution are substantial equivalents having virtually the same meaning. Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). A warrantless arrest is based upon probable cause if the facts and circumstances known to the arresting officer warrant a prudent man in believing that a felony has been committed and the person to be arrested is the felon. McCray v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). 'Probable cause for an arrest has been defined to be a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty. . . . To establish probable cause the evidence need not amount to proof of guilt, or even to prima facie evidence of guilt, but it must be such as would actuate a reasonable man acting in good faith.' 5 Am.Jur.2d, Arrest § 44 (1962); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971).

In State v. Roberts, 276 N.C. 98, 171 S.E.2d 440 (1970), we said that reasonable ground of belief 'may be based upon information given to the officer by another, the source of such information being reasonably reliable.' Here, the Winston-Salem Police had been informed by the Hickory Police that a man fitting defendant's description had committed an armed robbery in Hickory aided and abetted by a man fitting the description of William Gallaway; that the two robbers had been seen in a Chevrolet automobile bearing North Carolina license number AEL542, a car registered in the name of William Gallaway. The Winston-Salem officers had been furnished a description of the robbers, including their estimated height and weight, their clothing and color. When defendant was first seen by the Winston-Salem officers he was on a motorcycle with William Gallaway and stopped at Gallaway's address where the car described by the Hickory Police was parked. Both men fitted the description of the men sought in connection with the armed robbery in Hickory. Manifestly, the totality of these facts and circumstances would warrant a prudent man in believing that the felony of armed robbery had been committed in Hickory and that defendant had participated in the commission of that crime. Thus the officers acted on reasonable ground and with probable cause when they stopped Gallaway and this defendant and took them to the police station for photographing and fingerprinting. State v. Alexander, 279 N.C. 527, 184 S.E.2d 274 (1971); State v. Harris, supra; State v. Roberts, supra. Armed robbery is a crime of violence, the very nature of which suffices to support a reasonable belief that defendant would evade arrest if not immediately taken into custody. State v. Alexander, supra.

While there is no absolute test to ascertain exactly when an arrest occurs, the time and place of an arrest is determined in the context of the circumstances surrounding it. State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973). When the foregoing principles of law are applied to the facts in this case, the exact point in time when defendant was 'arrested' is immaterial. The Winston-Salem Police had reasonable grounds under the law to arrest defendant and Gallaway without a warrant at the moment of their initial on-the-street detention. Furthermore, their arrest was constitutionally valid because the officers had probable cause to make it. State v. Eubanks, 283 N.C. 556, 196 S.E.2d 706 (1973). Since defendant's detention at the time he was photographed and fingerprinted was in all respects lawful, his first assignment of error has no merit and is overruled.

Defendant contends his in-court identification by Steven Clark and Carol Austin was based on unnecessarily suggestive pretrial identification procedures which violated due process. He therefore argues that the identification testimony of these witnesses was erroneously admitted.

'The test under the due process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; Rochin v. California, 342 U.S 165, 72 S.Ct. 205, 96 L.Ed. 183; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610; State v. Austin, 276 N.C. 391, 172 S.E.2d 507; State v. Rogers, (275 N.C. 411, 168 S.E.2d 345).' State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974).

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 Simmons test has been applied by this Court in many cases including State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Lock, 284 N.C. 182, 200 S.E.2d 49 (1973); State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970); State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970).

At defendant's request the trial court conducted a voir dire to determine whether defendant's in-court identification was tainted by prior photographic identification procedures or by any confrontation procedure. The evidence on voir dire reveals that Steven Clark, Carol Austin, and Wayne Hildebran were shown eight photographs at the Winston-Salem Police Station on the afternoon of the robbery. The photographs were placed on a table in two rows of four. Although the record is not entirely clear on this point, each witness apparently viewed the photographs separately. Steven Clark picked the photograph of defendant as one of the men who robbed the Capitol Credit Plan office in Hickory earlier that day. Mr. Clark testified that 'there wasn't anything on the photographs to reveal the name of any of the subjects,' and that 'no one suggested to me that the defendant was in this group of eight photographs.' There is no evidence that defendant's photograph was marked in any way to make it conspicuous. There is some evidence that the Quality of defendant's photograph may have been better than the others, but this alone would not render the procedure impermissibly suggestive. There is nothing in the record to support defendant's contention in that respect. State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972).

After Steven Clark and Carol Austin had viewed the eight photographs at the Winston-Salem Police Station, and after Clark had picked defendant's photograph as one of the robbers while Mrs. Austin had failed to make any selection, the officers brought defendant and Gallaway singly into the hallway to be viewed by the witnesses. Defendant contends this hallway showup was impermissibly suggestive and a violation of due process. The record discloses, however, that the State offered no evidence of this hallway showup in the presence of the jury. Our inquiry therefore is not whether evidence of the showup would be admissible but whether the incourt identification by these witnesses was tainted by the confrontation in the hallway.

Although the practice of showing suspects singly for identification purposes has been recognized as suggestive and widely condemned, whether such a confrontation violates due process depends upon the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). In the Biggers case the United States Supreme Court considered the scope of due process protection against the admission of evidence deriving from suggestive identification procedures and held that even if a pretrial confrontation procedure was suggestive there is no violation of due process if examination of the total circumstances indicates the identification was reliable. The factors set out by the Court to be considered in evaluating the likelihood of misidentification are: (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness's degree of attention, (3) the accuracy of the witness's prior description of the criminal, (4) the level of certainty demonstrated...