State v. Stepney

Decision Date28 January 1972
Docket NumberNo. 92,92
Citation280 N.C. 306,185 S.E.2d 844
PartiesSTATE of North Carolina v. Lawrence STEPNEY.
CourtNorth Carolina Supreme Court

E. Lamar Sledge, New Bern, appointed Counsel for defendant appellant.

Robert Morgan, Atty. Gen., James L. Blackburn, Walter E. Ricks, III, Staff Attys., Raleigh, for the State of North Carolina.

HUSKINS, Justice:

Prior to introduction of evidence defendant moved for a continuance due to absence of witnesses 'located in the area of Chicago,' allegedly necessary to prove his defense of alibi. Denial of the motion constitutes defendant's first assignment of error.

A motion for continuance is ordinarily addressed to the discretion of the trial judge and his ruling thereon is not subject to review absent abuse of discretion. State v. Stinson, 267 N.C. 661, 148 S.E.2d 593 (1966). Continuances should not be granted unless the reasons therefor are fully established. Hence, a motion for continuance should be supported by an affidavit showing sufficient grounds. State v. Gibson, 229 N.C. 497, 50 S.E.2d 520 (1948).

Here, the record recites that defendant attempted through counsel 'to obtain statements of the prospective testimony of such persons in regard to defendant's defense of alibi, but without success.' No names of absent witnesses are shown. What defendant expected to prove by these witnesses must be surmised. The oral motion is not supported by affidavit or other proof. This state of the record suggests only a natural reluctance to go to trial and affords no basis to conclude that absent witnesses, if such existed, would ever be present for the trial. No abuse of discretion is shown on these facts, and the assignment of error based thereon is overruled.

Defendant contends his in-court identification was tainted by an out-of-court pretrial photographic identification in that (1) he was not represented by counsel and (2) the circumstances surrounding the photographic identification were unnecessarily suggestive and conducive to irreparable mistaken identity. He interposed two objections to Mrs. Powell's references to him and two objections and one motion to strike to the witness Harrelson's references to him. Each witness was positive when identifying defendant as one of the robbers and stated that identification was based on personal observations made of the defendant at the time of the robbery. Without conducting a voir dire the court overruled the objections and denied the motion to strike. The act of the court in this respect constitutes defendant's second assignment of error.

This assignment presents for decision whether the trial court committed prejudicial error in failing to conduct a voir dire examination and make appropriate findings of fact with respect to (1) the procedures employed in the identification process and (2) the origin of the in-court identification.

A suspect has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether he is at liberty or in custody at the time. 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). Such pretrial identification procedure is not a critical stage of the proceeding as delineated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).

We held in State v. Vickers, 274 N.C. 311, 163 S.E.2d 481 (1968), that a general objection is sufficient to challenge the admissibility of a Confession, and failure of the trial judge to conduct a voir dire to determine its voluntariness was prejudicial error requiring a new trial. However, this rule has never been applied directly to pretrial photographic identification procedures.

In State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970), we said: 'In proper cases the voir dire procedure may be invoked concerning identification testimony; however, defendant cannot challenge an in-court identification so as to obtain a voir dire hearing, and a ruling on the offered testimony on the basis that it was 'tainted' by prior photographic identification procedures, a 'lineup', or other in-custody confrontation without at least, a general objection.'

In State v. Accor and Moore, supra, we said, Inter alia: 'When the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged in the indictment, and the defendant interposes timely objection And requests a voir dire or asks for an opportunity to 'qualify' the witness, such voir dire should be conducted in the absence of the jury and the competency of the evidence evaluated. Upon such hearing, if the in-court identification by a witness is challenged on the ground it is tainted by an unlawful out-of-court photographic or corporeal identification, all relevant facts should be elicited and all factual questions determined, including those involving the defendant's constitutional rights, pertinent to the admissibility of the proffered evidence.' (Emphasis ours.) A new trial was awarded on the ground that each defendant's photograph was taken while he was being unlawful detained by the Gastonia Police, then viewed by the State's witnesses and admitted into evidence with the in-court identification of the witnesses, all over the timely and consistent objections of defendants.

In State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968), we held that failure of the trial judge to conduct a voir dire and make specific findings of fact concerning the procedures used in a pretrial identification Lineup will be deemed harmless error where the uncontradicted evidence clearly shows that (1) defendant waived counsel at the lineup, (2) the lineup was conducted fairly and without prejudice, and (3) the in-court identification was independent in origin, based upon what the witness observed at the time of the robbery, and was not fruit of the lineup.

It is apparent from the foregoing decisions that the better procedure dictates that the trial judge, even upon a general objection only, should conduct a voir dire in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony. State v. Blackwell, supra, 276 N.C. 714, 174 S.E.2d 534. Failure to conduct the voir dire, however, does not necessarily render such evidence incompetent. Where, as here, the pretrial viewing of photographs was free of impermissible suggestiveness, and the evidence is clear and convincing that defendant's in-court identification originated with observation of defendant at the time of the robbery and not with the photographs, the failure of the trial court to conduct a voir dire and make findings of fact, as he should have done, must be deemed harmless error. State v. Williams, supra, 274 N.C. 328, 163 S.E.2d 353. A different result could not reasonably be expected upon a retrial if all evidence of pretrial photographic identification were excluded.

Identification by photograph was expressly approved in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), where it was 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. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301--302, 87 S.Ct. 1967, 1972--1973, 18 L.Ed.2d 1199, 1206, and with decisions of other courts on the question of identification by photograph.'

Applying the standard enunciated in Simmons, we find no impermissible suggestiveness in the photographic identification procedure used in this case. Both victims observed defendant during the course of the robbery--Mrs. Powell observed him intently for five minutes while he held a gun in her face. It may be inferred that she obtained an indelible impression of his facial characteristics. She conversed with him during the robbery and had full opportunity to observe his mannerisms and mode of speech. Both victims described his hair style and his clothing immediately following the robbery. Neither victim has ever identified anyone else save defendant and his accomplice Hampton. Numerous photographs were rejected by these eyewitnesses because they did not fit the mental picture of the robbers obtained at the time of the robbery. Three days after the robbery the photographs of this defendant, Charles Hampton, Jr., and Hoyle Starks, Jr., were lawfully received by mail (presumably from the Washington, D.C. Police Department) and shown to the victims. Defendant and Charles Hampton, Jr. were immediately Recognized as the two robbers. These three photographs were offered and received in evidence Without objection. Whether the victims viewed an estimated fifteen to twenty-five photographs one at a time or all at one time is immaterial. Viewed in context and in light of the total circumstances, there is little chance that defendant was incorrectly identified. In our view it is quite obvious from the whole of the evidence that defendant's in-court identification was independent in origin, based upon what the witnesses observed at the time of the robbery, and not upon the photographs. Impermissible suggestiveness amounting to a denial of due process has not been shown, and failure of the trial judge to conduct a voir dire must be deemed harmless. State v. Williams, supra, 274 N.C. 328, 163 S.E.2d 353; State v Bell, 270 N.C. 25, 153 S.E.2d 741 (1967). We think it was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, (1967); State v. Brinson, 277 N.C. 286, 177 S.E.2d 398 (197...

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  • State v. Branch, 1
    • United States
    • United States State Supreme Court of North Carolina
    • 17 Diciembre 1975
    ...voir dire and make findings of fact, as he should have done, must be deemed harmless error. (Citation omitted.)' State v. Stepney, 280 N.C. 306, 314, 185 S.E.2d 844, 850 (1972). A similar rationale applies here with respect to reopening voir dire, and, if there was error, it was harmless be......
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    ...error when the record shows that the in-court identification was not tainted by an improper pre-trial identification. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968). See also State v. Phillips, 300 N.C. 678, 268 S.E.2d 452 (1980......
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    ...a trial judge concerning the voluntariness of a custodial statement, such findings are binding upon an appellate court. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844; State v. Smith, 278 N.C. 36, 178 S.E.2d 597, cert. denied, 403 U.S. 934, 91 S.Ct. 2266, 29 L.Ed.2d 715; State v. Wright, 27......
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