State v. Smith

• Decision Date: 14 April 1971
• Docket Number: No. 36,36
• Parties: STATE of North Carolina v. Robert (Bobby) SMITH.
• Court: North Carolina Supreme Court

Page 7

180 S.E.2d 7

278 N.C. 476

STATE of North Carolina v. Robert (Bobby) SMITH.

No. 36.

Supreme Court of North Carolina.

April 14, 1971.

F. O'Neil Jones, Wadesboro, for defendant appellant.

Robert Morgan, Atty. Gen., and Ralph Moody, Deputy Atty. Gen., for the State.

HUSKINS, Justice:

The refusal of the court to suppress the evidence of Fred Cook, identifying defendant as the man who attempted to rob him, constitutes defendant's only assignment of error. Defendant argues that he was identified at the jail in the absence of his counsel and under suggestive circumstances amounting to a denial of due process in violation of the Fourteenth Amendment. We now examine the validity of this contention.

Rules established for in-custody confrontation for identification purposes require that: (1) the accused be warned of his constitutional right to the presence of counsel during the confrontation; (2) when counsel is not knowingly waived and is not present, the testimony of witnesses that they identified the accused at the confrontation be excluded; (3) the in-court identification of the accused by a witness who participated in the pretrial out-of-court confrontation be likewise excluded unless it is first determined on Voir dire that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. Failure to observe these rules is a denial of due process. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969); State v. Wright, 274 N.C. 84, 161 S.E.2d 581 (1968). See generally, Quinn, In the Wake of Wade: The Dimensions of the Eyewitness Identification Cases, 42 U.Colo.L.Rev. 135 (1970).

In addition, it has become settled law that lineup and confrontation procedures 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification' violate due process and are constitutionally unacceptable. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970); State v. Austin, 276 N.C. 391, 172 S.E.2d 507 (1970).

Applying the foregoing principles to the facts in this case, we hold that the pretrial identification procedure at the jail violated the established rules and that the testimony of Fred Cook to the effect that he identified the defendant at the jail was tainted by that illegality and thus inadmissible as a matter of constitutional law. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Mapp v. Onio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). 'Evidence unconstitutionally obtained is excluded in both state and federal courts as an essential to due process--not as a rule of evidence but as a matter of constitutional law.' State v. Colson, 274 N.C. 295, 163 S.E.2d 376 (1968). The jailer allowed the prosecuting witness to view the accused in the absence of counsel and under suggestive circumstances. This witness had been informed by the officers that the robber had been caught, that his name was Bobby Smith, and that he was in jail. Cook went to the jail to view the man who had been arrested. The jailer, apparently unaware that a lineup was planned for the next day and unaware that the accused was entitled to the presence of counsel during any confrontation for identification purposes, permitted Fred Cook to enter the cell block where he viewed the defendant. The accused was wearing a white T-shirt and gray pants--clothing similar to that worn by the would-be robber, while the other two prisoners in the cell were dressed differently. The accused is a young man, while one of the other prisoners was middle-aged and the other was much larger and heavier than defendant. Defendant had not been advised of his constitutional rights, had not been informed of his right to counsel, and no counsel was present. The totality of these circumstances reveal a pretrial identification procedure unnecessarily suggestive, in violation of the rule as to counsel, and offensive to fundamental standards of decency, fairness and justice. If defendant's conviction rested on his...