State v. Simms

• Decision Date: 05 June 1979
• Docket Number: No. 7922SC56,7922SC56
• Citation: 41 N.C.App. 451,255 S.E.2d 282
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Franklin Albert SIMMS, alias Frank Hershaw.

Page 282

255 S.E.2d 282

41 N.C.App. 451

STATE of North Carolina v. Franklin Albert SIMMS, alias Frank Hershaw.

No. 7922SC56.

Court of Appeals of North Carolina.

June 5, 1979.

Pope, McMillan & Kutteh by Constantine H. Kutteh II, and McElwee, Hall, McElwee & Cannon by E. Bedford Cannon, Statesville, for defendant-appellant.

HARRY C. MARTIN, Judge.

Defendant argues the trial court should have allowed attorney Cannon to withdraw as counsel for defendant and continue the case. Defendant did not make the motion to remove attorney Cannon as his lawyer; the motion was made by Cannon on what he considered to be ethical grounds. Cannon was concerned about allowing defendant to testify to what he thought could be perjured testimony, in the light of defendant's previous statements to him about the case. The court did not allow Cannon to withdraw as counsel for defendant, but in order to relieve him of his ethical problems, the court appointed attorney Kutteh as "principal" counsel for defendant. This left defendant with two attorneys, one who had been with the case since 7 March 1978, prior to the preliminary hearing, and totally familiar with all aspects of the case; the second being appointed some ninety minutes before trial and unencumbered by the conflicting statements of defendant. Had the court allowed Cannon to withdraw as counsel, Kutteh's motion for continuance would have been allowed because he, alone, did not have sufficient time to prepare for trial. Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976); State v. Moore, 39 N.C.App. 643, 251 S.E.2d 647 (1979). The trial court overcame this problem by keeping Cannon in the case and adding Kutteh as additional counsel. Both counsel participated in the case throughout the trial. Defendant had the benefit of two lawyers. The uncontradicted evidence shows defendant did not at any time express any dissatisfaction with Cannon as his attorney or with the addition of Kutteh. The case had been continued twice at prior sessions of court, once because defendant was being tried in another county and once on motion by defendant. The facts here are similar to United States v. Abshire, 471 F.2d 116 (5th Cir. 1972), where defendant had appointed counsel for six months before trial who had thoroughly prepared the case for trial. Shortly before trial, additional counsel was appointed. He moved for continuance, which was denied. Both counsel actively participated in the trial. The Court held the defendant had received effective assistance of counsel and the denial of the continuance was proper. See also Sykes v. Virginia, 364 F.2d 314 (4th Cir. 1966); State v. Beeson, 292 N.C. 602, 234 S.E.2d 595 (1977).

Defendant further contends a continuance was necessary in order for him to secure witnesses as to alibi. He told attorney Cannon about the necessity of these witnesses for the first time on the day the case was called for trial. Defendant had a duty to tell his lawyer about these witnesses before this late date. The trial court did not abuse its discretion in denying a motion for continuance because of the absence of a witness, when counsel had several months to confer with defendant and possible witnesses, and counsel only learned of the desired witness a short time before trial. State v. Payne, 11 N.C.App. 101, 180 S.E.2d 379, Aff'd, 280 N.C. 170, 185 S.E.2d 101 (1971); State v. Scott, 8 N.C.App. 281, 174 S.E.2d 80, Cert. denied, 277 N.C. 116 (1970). Defendant's counsel produced evidence in support of his contention of alibi through the testimony of defendant and the witness Janice Johnson. Where the absent witness's testimony would only be corroborative or cumulative of evidence offered, it is not an abuse of discretion to deny a motion for continuance because of the absence of the witness. State v. Shirley, 12 N.C.App. 440, 183 S.E.2d 880, Cert. denied, 279 N.C. 729, 184 S.E.2d 885 (1971).

As stated in Moore, supra, the chief consideration is whether the grant or denial of a continuance will be in the furtherance of substantial justice. We hold the trial court did not err in denying attorney Cannon's motion to withdraw or in denying attorney Kutteh's motion for a continuance.

Defendant objected to the admission in evidence of the results of a line-up viewed by the State's witnesses Morrison and Powell, in which defendant was identified as one of the robbers. Defendant contends he was denied the right to counsel at the line-up and that it was impermissibly suggestive. Defendant, at that time, was confined in another county on other charges and was brought from that jail to the line-up. Nine persons were in the line-up which was for the purpose of seeking identification of suspects in several different cases, including the robbery of Powell. Defendant had not been arrested or charged with robbery of Powell at the time of the line-up. A person has a right to counsel at a pretrial line-up when it is a critical stage of the criminal prosecution against defendant. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). However, this right only attaches at or after the commencement of adversary judicial proceedings against defendant. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978); State v. Sanders, 33 N.C.App. 284, 235 S.E.2d 94, Dis. rev. denied, 293 N.C. 257, 237 S.E.2d 539 (1977). Defendant had not been arrested or charged in this case at the time of the line-up, therefore, he was not entitled to counsel during the line-up procedure. The fact that defendant was charged with another offense in another county did not trigger the requirements of counsel under Gilbert in this case.

After the voir dire hearing on the line-up question, the court found facts and made conclusions of law that the proceeding was not impermissibly suggestive. Powell was unable to make a definite identification of defendant at the line-up. The evidence sustained the court's finding that the line-up procedure was proper and not impermissibly suggestive. We are bound by those findings on appeal when they are supported by competent evidence, and may not set them aside or modify them. State v. Cox, 289 N.C. 414, 222 S.E.2d 246 (1976). The assignment of error is overruled.

Defendant also assigns as error the in-court identification of defendant by Powell and Morrison. This assignment also involves defendant's contention that the in-court proceeding was tainted by an improper photographic identification of defendant by Morrison. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), the Supreme Court expressly approved identification of suspects by photograph and stated:

(E)ach case must be considered on its own facts, and . . . 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.

Id. at 384, 88 S.Ct. at 971, 19 L.Ed.2d at 1253. This rule has been followed in North Carolina. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974).

In evaluating the likelihood of mistaken identification, the following factors are to be considered: (1) the opportunity of the witness to see and...