State v. Thompson

• Decision Date: 29 August 1978
• Docket Number: No. 7826SC166,7826SC166
• Citation: 37 N.C.App. 651,247 S.E.2d 235
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. James THOMPSON.

Page 235

247 S.E.2d 235

37 N.C.App. 651

STATE of North Carolina v. James THOMPSON.

No. 7826SC166.

Court of Appeals of North Carolina.

Aug. 29, 1978.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. Gen. Nonnie F. Midgette, Raleigh, for the State.

Tate K. Sterrett, Charlotte, for defendant appellant.

ERWIN, Judge.

Defendant presents 14 arguments on this appeal, and we find no error for the reasons stated. He first contends, in three assignments of error, that the trial court erred in denying his motion to suppress evidence of pretrial and in-court identifications of defendant by Jenkins, Hasty, and Sutton. He maintains that the pretrial procedures were improperly suggestive and that the in-court identifications were based on the improper procedures and were not of independent origin. We do not agree.

First, as to the in-court identifications of defendant, even if we were to assume that the pretrial identifications were improper, the trial court, in its comprehensive findings following voir dire, found that the in-court identifications were "of independent origin, based solely upon what the prosecution witnesses saw and observed at the time of the armed robbery." The witnesses had ample opportunity to see defendant at the time of the robberies from short distances in a well-lighted area. There was ample evidence to support the trial court's finding as to the independent origin of the in-court identifications, and it is binding upon us. State v. Bundridge, 294 N.C. 45, 239 S.E.2d 811 (1978), and State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974).

As to pretrial identification, our Supreme Court has stated the test as follows in State v. Henderson, 285 N.C. 1, 9, 203 S.E.2d 10, 16 (1974), Modified on other grounds, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976):

"(T)he test . . . 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." (Citations omitted.)

See also State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977). In essence, defendant argues that the photographic identifications were impermissibly suggestive, that the subsequent lineup identification was tainted thereby, as was the identification of defendant at the probable cause hearing.

As stated above, the record supports the trial court's finding that the witnesses had ample opportunity to observe defendant at the time of the robberies under conditions conducive to accurate identification. All of the witnesses testified that the officer did not tell them which photograph to select, nor did he tell them that a suspect's picture was in the group.

Defendant maintains that the small number, apparently six or seven, of photographs shown to the witnesses on 1 November 1976, testimony tending to show that more than one photograph of defendant were among them, alleged discrepancies between descriptions given the police and defendant's actual height and weight, and the lapse of time between the offenses and the photographic identifications show that the procedures were conducive to misidentification. We note that relatively small numbers of pictures were shown to witnesses in several cases in which sufficient suggestiveness as to violate a defendant's rights was not found. State v. Bundridge, supra; State v. McKeithan, 293 N.C. 722, 239 S.E.2d 254 (1977); State v. Long, supra ; and State v. Shore, 285 N.C. 328, 204 S.E.2d 682 (1974). Nor do we think that the apparent inclusion of more than one photograph of defendant renders the photographic identifications impermissibly suggestive. We further note that in State v. McKeithan, supra, there was a longer lapse of time between the crime and the photographic identification than the delay herein.

Viewing the "totality of the circumstances," we conclude that the pretrial photographic identifications were not "so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justice." The testimony reveals that the witnesses were unprompted and viewed the photographs separately. All the witnesses were quite sure of their identification of Thompson:

Jenkins: "As to why I have identified James Thompson as the person who robbed me on October 5, because he was the man that robbed me. There is no question in my mind. I am absolutely positive."

Hasty: "This is the man that stepped into the apartment, asked for an apartment, held a gun on us, marched me into a bathroom and removed items of my personal effects from my pockets."

Sutton: "Yes, today I can point out the defendant as being the person I saw coming out of Mrs. Jenkins' office, getting into her car, coming back, going into her office, and getting back into her car on October 5, 1976. There is no doubt in my mind about that."

Turning to the lineup identifications, defendant states in his brief that he "does not question per se the composition of the lineup or the manner in which the identification procedure was conducted." Defendant does contend, however, that no lineup should have been conducted, that it took place only two days after the photographic identifications, and that "(t)he police obviously were trying to fortify and solidify the witnesses' image of Defendant so that they could make in-court identifications of him." Jenkins had indicated to the police her desire to see "at long range" the man whose photograph she had selected. Again, the testimony indicates that there was no prompting and that the witnesses viewed the lineup separately. On the one hand, defendant argues that too much time elapsed between the crime and the photographic identifications, and on the other hand, he maintains that too little time elapsed between the photographic and lineup identifications. Defendant's contention that the police were merely seeking to securely implant defendant's image in the witnesses' minds is speculative and unsupported by the record. In substance, defendant seeks a rule of law requiring that photographic identifications may not be quickly followed by lineup identifications. We decline to adopt such a rule. The test remains that stated in State v. Henderson, supra, and we conclude that the lineup identifications herein do not violate due process.

Defendant next contends that the lineup was conducted without the issuance of a non-testimonial identification order required by G.S. 15A-271 Et seq. and, therefore, it was error to allow testimony of both the out-of-court and in-court identifications.

Defendant, however, concedes that he was in custody on another charge at the time of the lineup. Our Supreme Court in State v. Irick, 291 N.C. 480, 490, 231 S.E.2d 833, 840 (1977), held as follows:

"(A)rticle 14 of Chapter 15A applies only to suspects and accused persons before arrest, and persons formally charged and arrested, who have been released from custody pending trial. The statute does not apply to an in custody accused. . . ." (Emphasis added.)

Thus, this assignment of error is overruled.

Defendant argues that it was improper to permit the witnesses on various occasions to identify one of the robbers as "defendant," contending that this created "a false sense of familiarity." Defendant cites no authority for this proposition, and we have found none. This assignment of error is without merit.

Citing numerous exceptions, defendant contends that the trial court abused its discretion in permitting the district attorney to ask leading questions and should have declared a mistrial on its own motion. Clearly it is within the trial court's discretion in permitting leading questions on direct examination, and its discretion will not be reviewed on appeal absent an abuse thereof. State v. Greene, 285 N.C. 482, 206 S.E.2d 229 (1974). We see no such abuse on this record. In fact, many of defendant's objections to leading questions were sustained.

We likewise see no abuse of discretion in the trial court's permitting the State to recall Jenkins as a witness. Permitting a witness to be recalled rests in the sound discretion of the trial court. State v. Stewart, 16 N.C.App. 419, 192 S.E.2d 60 (1972); 1 Stansbury's N.C. Evidence § 24 (Brandis rev. 1973). Further, defendant contends that the trial court should have excluded Jenkins' testimony on recall, as it was "so vague, uncertain, and remote that it was irrelevant." Suffice it to say that this testimony was clearly relevant as an effort by the State to establish what property was taken and when it was taken.

In three assignments of error, defendant attacks the admission of certain testimony pertaining to the polygraph test. In State v. Steele, 27 N.C.App. 496, 219 S.E.2d 540 (1975), this Court carefully and thoroughly detailed the conditions under which polygraph results would be admitted on stipulation. The record reveals that: (1) defendant, his attorney, and the assistant district attorney all signed a stipulation to the effect that defendant voluntarily requested a polygraph examination, that the results would be admissible irrespective of their nature, unless such results were inconclusive, and that W. O. Holmberg (the same examiner involved in State v. Steele, supra,) is a qualified examiner, and he would conduct the test and interpret the results; (2) defendant signed a voluntary request and authorization for the test; (3) the trial court conducted an extensive voir dire as to voluntariness of defendant's request and stipulation and his understanding thereof; (4) there was considerable foundation laid as to the skill and experience of Officer Holmberg, the questioning procedures, and the instrumentation; (5) Officer Holmberg was accepted by the trial court as an expert in the field of polygraph examinations; (6) the witness testified that in his opinion, defendant displayed deception; (7) defendant cross-examined the officer; and (8) the trial...