State v. Thompson, 101

• Decision Date: 05 May 1981
• Docket Number: No. 101,101
• Citation: 277 S.E.2d 431,303 N.C. 169
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Roger THOMPSON, Jr.

Page 431

277 S.E.2d 431

303 N.C. 169

STATE of North Carolina v. Roger THOMPSON, Jr.

No. 101.

Supreme Court of North Carolina.

May 5, 1981.

Asst. Public Defender Grant Smithson, Charlotte, for defendant.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Alfred N. Salley, Raleigh, for the State.

COPELAND, Justice.

By his sole assignment of error, defendant contends that the trial court erred in denying his motion to suppress the in-court identification of defendant by State's witness James Ray Wilder. He argues that the in-court identification was tainted by impermissibly suggestive photographic and lineup procedures prior to trial, and was therefore admitted in violation of his constitutional due process rights. We have carefully reviewed defendant's assignment and find it without merit.

It is settled law that identification evidence must be excluded as violating the due process clause where the facts of the case reveal a pretrial identification procedure so impermissibly suggestive that there is a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Wilson, 296 N.C. 298, 250 S.E.2d 621 (1979); State v. Matthews, 295 N.C. 265, 245 S.E.2d 727 (1978), cert. denied, 439 U.S. 1128, 99 S.Ct. 1046, 59 L.Ed.2d 90 (1979). Defendant argues that the photographic identification procedure during which Mr. Wilder was shown six photographs on the morning of 29 April 1980 was impermissibly suggestive in that defendant was the only individual photographed wearing a red shirt, and Mr. Wilder had previously described the perpetrator of the crime as a man dressed in a red shirt. It is defendant's belief that by showing the witness a photograph of him in a red shirt, the police induced the witness to identify defendant. In support of his contentions, defendant cites State v. Smith, 278 N.C. 476, 180 S.E.2d 7 (1971), in which the Court held evidence of an out-of-court identification procedure inadmissible where the witness was taken to a jail to view the accused in the cell with two others of dissimilar appearance, before the defendant had been advised of his constitutional rights, and before the defendant was represented by counsel. The fact that the defendant alone was dressed in clothing similar to that worn by the man the witness described as the perpetrator of the crime was only one of several factors considered by the Court in ruling the identification evidence inadmissible. In addition, we note that although the Court held the evidence of the out-of-court identification inadmissible, it went on to find the in-court identification of independent origin and therefore admissible.

In the case before us, the able and experienced trial judge conducted an extensive voir dire hearing on defendant's motion to suppress and concluded that the photographic identification was not so impermissibly suggestive as to give rise to an irreparable mistaken identification. The testimony at the voir dire indicated that the photographs were presented to the witness in a bundle without any suggestion or comment by police officers. Although defendant was photographed in a red shirt, it was a football jersey type shirt with lettering upon it, which was not the type of shirt which the witness described as the shirt the perpetrator of the crime was wearing. Another person in one of the photographs was pictured wearing a light red or pink tank shirt, which more nearly matched the description of the robber's clothing. We find the trial court's conclusion supported by competent evidence and therefore conclusive on appeal. State v. Bright, 301 N.C. 243, 271 S.E.2d 368 (1980); State v. Carson, 296 N.C. 31, 249 S.E.2d 417 (1978).

We likewise find conclusive the trial court's conclusion that the...