State v. Thomas

• Decision Date: 10 May 1977
• Docket Number: No. 104,104
• Citation: 234 S.E.2d 615,292 N.C. 527
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Leroy THOMAS and Willie Wilkins.

Page 615

234 S.E.2d 615

292 N.C. 527

STATE of North Carolina v. Leroy THOMAS and Willie Wilkins.

No. 104.

Supreme Court of North Carolina.

May 10, 1977.

Rufus L. Edmisten, Atty. Gen., by William F. O'Connell, Sp. Deputy Atty. Gen., Raleigh, for the State.

W. Dortch Langston, Goldsboro, for defendant Thomas.

Louis Jordan, Goldsboro, for defendant Wilkins.

LAKE, Justice.

The evidence on the voir dire hearing fully supports the findings of the court that when Mr. Moore, seated in the office of a deputy sheriff, turned and saw Wilkins, as Wilkins drank from the water fountain in the lobby of the sheriff's office, Mr. Moore did not know that anyone, suspected of being a participant in the robbery, was in custody and that no suggestion was made to him that he should look at the person who was drinking at the water fountain to see if he could identify him as one of the robbers. The evidence at the voir dire hearing further supports the finding of the court that when Mr. Moore saw the defendant Thomas seated in the lobby of the sheriff's office Thomas was not under arrest. There was no evidence to the contrary. No one told Mr. Moore Thomas was a suspect or suggested that Mr. Moore look at Thomas. These findings of fact are conclusive upon appeal. State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Hunt, 287 N.C. 360, 372, 215 S.E.2d 40 (1975); State v. Tuggle, 284 N.C. 515, 520, 201 S.E.2d 884 (1974); State v. McVay and State v. Simmons, 277 N.C. 410, 177 S.E.2d 874 (1970).

The court's conclusions (actually, further findings of fact) that the in-court identifications by Mr. Moore of the two defendants were based upon his having seen them at the lumber yard and not upon his seeing them at the sheriff's office, or upon his inspection of photographs at the sheriff's office, are also supported by the evidence upon the voir dire examination and, therefore, are binding upon this Court. The court's further finding that the identifications of the two defendants by the witness Britt were based upon Mr. Britt's seeing the defendants at the lumber yard and not upon his examination of photographs in the sheriff's office or upon any confrontation at that office are likewise so supported by the evidence at the voir dire hearing and conclusive upon appeal.

The uncontradicted evidence upon the voir dire hearing leads inescapably to the determination that the viewing of the two defendants by Mr. Moore at the office of the sheriff was not a confrontation planned by the officers. All of the evidence is to the effect that Mr. Britt, seated in the same room with Mr. Moore, did not see either of the defendants as they sat in or passed through the lobby of the office or see them elsewhere at the sheriff's office. All of the evidence is to the effect that no effort was made by any police officer to direct the attention of either Mr. Moore or Mr. Britt to either of the defendants. Neither witness had been told that any suspect had been taken into custody. The lobby of the sheriff's office is a public place. Thomas was actually not in custody but was free to go when and where he chose. Wilkins was in custody and was accompanied by a deputy sheriff, but there is nothing to indicate that he was handcuffed or otherwise under visible restraint. Mr. Moore and Mr. Britt had been requested by the sheriff to come to his office, not to identify anyone suspected of participation in the robbery but for the purpose of giving the officers further information concerning the offense and the participants therein. Not more than two hours elapsed between the robbery and the unexpected viewing of the defendants in the sheriff's office by Mr. Moore. There was nothing suggestive about the confrontation except the locality in which it occurred. We do not deem this sufficiently conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice the test of due process. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); State v. Yancey, supra.

If, however, the circumstances under which Mr. Moore saw the two defendants in the lobby of the sheriff's office could be deemed so unnecessarily suggestive as to make that confrontation a violation of the constitutional right of either of the defendants, it does not follow that the identification of both of them by either or both of these witnesses was improperly admitted before the jury. The witness Britt did not see either defendant in the sheriff's office and no effort was made by the officers to have him do so.

The evidence on the voir dire hearing was to the effect that after Mr. Moore had identified both defendants at the sheriff's office as participants in the robbery, the defendants were photographed and these photographs, along with others of persons similar in appearance, were exhibited to Mr. Moore and to Mr. Britt. Neither identified the photograph of Wilkins. Mr. Moore identified the photograph of Thomas, whom he had already pointed out in person as one of the robbers, but Mr. Britt was not able to do so with certainty. Consequently, the photographs viewed by these witnesses did not contribute to their in-court identification of the defendants as participants in the robbery.

In State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), speaking through Justice Branch, we said:

"The practice of showing suspects singly to persons for purposes of identification has been widely condemned. Stovall v. Denno, supra; State v. Wright (274 N.C. 84, 161 S.E.2d 581 (1968)). However, whether such a confrontation violates due process depends on the totality of the surrounding circumstances.

* * *

* * *

"Our Court has held that there was no violation of due process when there were 'unrigged' courtroom and station house confrontations which amounted to single exhibitions of the accused. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884; State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610; State v. Gatling, 275 N.C. 625, 170 S.E.2d 593. Similarly, we have recognized that a confrontation which takes place when a suspect is apprehended immediately after the commission of the crime may be proper. State v. McNeil, 277 N.C. 162, 176 S.E.2d 732.

* * *

* * *

"It is well established that the primary illegality of an out-of-court identification will render inadmissible the in-court identification unless it is first determined on voir dire that the in-court identification is of independent origin."

In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), the Supreme Court of the United States, speaking through Mr. Justice Powell, held there was no violation of the defendant's constitutional rights in permitting an in-court identification by the victim of the alleged criminal offense, notwithstanding a pretrial identification of him by the victim at an out-of-court confrontation, the defendant being the only person then viewed by the witness. The Court said:

"In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, (1967), the Court held that the defendant could claim that 'the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' Id., at 301-302, 87 S.Ct. at 1972, 18 L.Ed.2d 1199. This, we held, must be determined 'on the totality of the circumstances.'

* * *

* * *

"Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:

'(W)e hold 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.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).

* * *

* * *

"Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384, 88 S.Ct. 967, at 971, 19 L.Ed.2d 1247. * * * Suggestive confrontations are disapproved because they increase the likelihood of misidentification and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.

* * *

* * *

"We turn, then, to the central question, whether under the 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."

Considered in the light of the totality of the circumstances, in the present case, we think it clear that the in-court identification of each of the defendants by each of the witnesses, Mr. Moore and Mr. Britt, had its origin in their observations of the defendants at the scene of the robbery immediately before and during its perpetration and were not tainted by the unintentional, unplanned confrontation of the defendants by Mr. Moore in the office of the...