State v. Tuggle

• Decision Date: 25 January 1974
• Docket Number: No. 100,100
• Citation: State v. Tuggle, 201 S.E.2d 884, 284 N.C. 515 (N.C. 1974)
• Parties: STATE of North Carolina v. Wayne R. TUGGLE.
• Court: North Carolina Supreme Court

Page 884

201 S.E.2d 884

284 N.C. 515

STATE of North Carolina v. Wayne R. TUGGLE.

No. 100.

Supreme Court of North Carolina.

Jan. 25, 1974.

H. Glenn Davis, Winston-Salem, for defendant-appellant.

Atty. Gen. Robert Morgan and Associate Atty. Thomas M. Ringer, Jr., Raleigh, for the State.

BOBBITT, Chief Justice.

Defendant's first and second assignments of error relate to the admission over his objection of the identification testimony of Kiser and Smith. He contends their testimony was tainted by impermissible pretrial identification procedures and should have been excluded.

Before admitting the challenged testimony, the court conducted a Voir dire hearing. Evidential facts and the court's findings will be set forth below.

Defendant contends the in-court identification testimony of Kiser and of Smith was tainted because defendant was not represented by counsel when Kiser and Smith identified certain photographs of defendant as pictures of the man who committed the alleged crimes. There is no merit in this contention. Defendant had no constitutional right to the presence of counsel when Kiser and Smith were viewing photographs for purposes of identification regardless of whether defendant was in custody or at liberty at that time. State v. Stepney, 280 N.C. 306, 313, 185 S.E.2d 844, 849 (1972), and cases there cited.

Defendant further contends the in-court identification testimony of Kiser and of Smith was tainted because the circumstances surrounding the photographic identifications were impermissibly suggestive and conducive to irreparable mistaken identity. The evidence before the court on Voir dire negates this contention. A brief summary will suffice.

The only pre-trial identifications by Kiser and by Smith were those made at the police station in High Point on the same night the robberies and kidnapping occurred. Kiser and Smith had recently seen the uncovered face of defendant in the brightly lighted store. The distance between them and defendant was the length of the shotgun barrel. Kiser arrived at the police station about 9:15. He looked through the photographs shown him and identified one as the picture of the man who had committed the alleged crimes. Smith did not arrive until about 11:00 p.m. He looked through the photographs shown him and identified the same photograph as the picture of the man who had committed the alleged crimes. Thereafter, both Kiser and Smith identified two other photographs of defendant as pictures of the man who committed the alleged crimes. Kiser testified: 'I won't never forget that face.' Smith referred to defendant's 'very distinctive face' and identified him 'without the slightest shadow of a doubt.'

Defendant was not brought before Kiser or Smith in a lineup or otherwise. Kiser did not see defendant at the police station. Following his identification of defendant's photograph, Smith saw defendant momentarily under the following circumstances: Going down the hall on his way out of the police station, Smith passed a room (office) in which 'half a dozen' people were seated. Looking back over his shoulder he recognized defendant as one of the persons seated in that room. It had been suggested that he look in this room as he passed.

When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification(s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts. State v. McVay and State v. Simmons, 277 N.C. 410, 417, 177 S.E.2d 874, 878 (1970); State v. McVay and State v. Simmons, 279 N.C. 428, 432, 183 S.E.2d 652, 655 (1971); State v. Morris, 279 N.C. 477, 481, 183 S.E.2d 634, 637 (1971).

The court's findings, which are supported by plenary uncontradicted testimony, are to the effect that the 'in-court identification of the defendant' by Kiser and Smith was based on their observations of defendant on 20 November 1972 and that the testimony of each '(had) its origin independent of any in- court, in-custody, or...