State v. Wilson, 38

• Decision Date: 04 January 1979
• Docket Number: No. 38,38
• Citation: 296 N.C. 298,250 S.E.2d 621
• Parties: , 99 A.L.R.3d 115 STATE of North Carolina v. Steven Craig WILSON.
• Court: North Carolina Supreme Court

Page 621

250 S.E.2d 621

296 N.C. 298, 99 A.L.R.3d 115

STATE of North Carolina v. Steven Craig WILSON.

No. 38.

Supreme Court of North Carolina.

Jan. 4, 1979.

Rufus L. Edmisten, Atty. Gen. by Rudolph A. Ashton, III, Associate Atty. Gen., Raleigh, for the State.

James D. Llewellyn, Kinston, for defendant-appellant.

BRANCH, Justice.

Defendant assigns as error the denial of his motions to suppress the in-court identification testimony of Tanya Joyce Suggs and Ethel Jones. We are not concerned with evidence of the actual pretrial photographic procedures since the State did not offer such evidence before the jury. Prior to trial, defendant moved to suppress the testimony of the victim Tanya Suggs, and Judge Brannon properly conducted a voir dire hearing to determine the admissibility of this testimony. During the trial, a similar motion was lodged, and a voir dire hearing was conducted by Judge Barbee concerning the admissibility of identification testimony of Ethel Jones.

In support of this assignment of error, defendant argues that the in-court identification testimony was admitted contrary to statute and in violation of his constitutional rights. We first consider defendant's contention that the photograph taken prior to his arrest for rape was illegally taken in contravention of the provisions of G.S. 15A-502 which provides:

§ 15A-502. Photographs and fingerprints. (a) A person charged with the commission of a felony or a misdemeanor may be photographed and his fingerprints may be taken for law-enforcement records only when he has been:

(1) Arrested or committed to a detention facility, or

(2) Committed to imprisonment upon conviction of a crime, or

(3) Convicted of a felony.

(b) This section does not authorize the taking of photographs or fingerprints when the offense charged is a misdemeanor under Chapter 20 of the General Statutes, "Motor Vehicles," for which the penalty authorized does not exceed a fine of five hundred dollars ($500.00), imprisonment for six months, or both.

(c) This section does not authorize the taking of photographs or fingerprints of a "child" as defined for the purposes of G.S. 7A-278(2), unless the case has been transferred to the superior court division pursuant to G.S. 7A-280.

(d) This section does not prevent the taking of photographs, moving pictures, video or sound recordings, fingerprints, or the like to show a condition of intoxication or for other evidentiary use.

(e) Fingerprints or photographs taken pursuant to subsection (a) may be forwarded to the State Bureau of Investigation, the Federal Bureau of Investigation, or other law-enforcement agencies.

The Official Commentary on this statute states:

This section carries forward the concept of the present provisions of the former first two paragraphs of § 114-19 in a more logical location than in the Chapter dealing with the Department of Justice. Those provisions have been simplified and broadened in some respects, but restricted as to motor vehicle and juvenile offenses.

We believe that the Official Commentary correctly states the Legislature's intent.

We have held that the provisions of G.S. 114-19 were concerned with the compilation and preservation of records and did not create a new exclusionary rule of evidence. State v. Accor and State v. Moore 277 N.C. 65, 175 S.E.2d 583 (1970); State v. Strickland, 276 N.C. 253, 173 S.E.2d 129 (1970). In our opinion, the simplified and broadened G.S. 15A-502 does not now create an exclusionary rule of evidence. To the contrary, the statute affirmatively states that "(t)his section does not prevent the taking of photographs . . . to show a condition of intoxication Or for other evidentiary use." (Emphasis ours.) Certainly the photograph under consideration was taken and used for an "evidentiary use." Thus, the first portion of defendant's argument must fail. We, therefore, turn to the question of whether the pretrial photographic procedures violated defendant's Constitutional rights so as to render the in-court identification testimony inadmissible.

It is well established that evidence unconstitutionally obtained must be excluded. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), Death sentence vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205. The test of exclusion under the due process clause is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification so as to offend fundamental standards of decency, fairness and justice. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); State v. Henderson, supra ; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610 (1971). It is equally well settled that an in-court identification is properly admitted into evidence even when there is an improper or illegal out-of-court identification procedure when the court finds upon competent voir dire evidence that the in-court identification is of independent origin and based on the witness's observations at the time and place of the crime. State v. Montgomery, 291 N.C. 235, 229 S.E.2d 904 (1976); State v. Henderson, supra ; State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972).

On voir dire before Judge Brannon, Tanya Suggs testified, in substance, that on 11 September 1977 at about 11:00 a. m. she was walking home when defendant, who was sitting in a dark green 225 Buick Electra, called her and said that he had something for her father and asked her to accompany him. She entered the automobile but instead of going to her residence he drove approximately six blocks to the grounds of Kinston High School where he produced a knife and despite her protest and resistance forcibly had sexual intercourse with her. Tanya had opportunity to observe her assailant as she entered the automobile, as they drove to the school grounds, and during the actual rape. After the act was completed, defendant drove from the school grounds and let her out. As the automobile departed, she observed that the license number was KR_-330. She was unsure of the third letter. Tanya proceeded to her grandmother's home and told her relatives that she had been threatened by a young black male driving a green Buick bearing license number KR_-330. Later that night, she told the family of the rape, and she was carried to the hospital and examined by Dr. Mintz. She gave police officers a description of defendant as being about 20 years old, black, about six feet tall, dark complexion, close cut haircut, a little hair under his nose and a little bit of hair under his chin. She described the automobile occupied by her assailant as a green Electra 225. She noticed a little white toy animal hanging on the rear view mirror. She described the clothing that her assailant was wearing.

On 14 September 1977 about 11:00 p. m., Lt. L. B. Green of the Kinston Police Department who had been furnished with an account of the crimes allegedly committed against Tanya including a description of the assailant and his automobile observed a 1972 green Electra Buick bearing license number KRE-330 being operated without headlights. He stopped the car and observed that the operator was a young black about five feet, eight or nine inches tall, of medium build with a small amount of hair on his lip and chin. The man he observed fit the description of Tanya's assailant. He noticed some sort of toy animal hanging from the rear view mirror. At that time Lt. Green told defendant, who was the operator of the automobile, that he was being cited for a slick tire and further that he and his automobile matched the description given by the victim of a sexual assault case which was under investigation. Pursuant to his request, defendant agreed to follow him to the police station. Upon arrival at the station, the officer gave defendant the Miranda warnings, and defendant agreed to answer questions but said he wanted to see his girlfriend; however, he was unable to furnish the officers with his girlfriend's address or telephone number. Defendant was given a citation for improper equipment, and he was fingerprinted and photographed prior to being formally arrested for rape. Other evidence from the victim and police officers was to the effect that on 12 September 1977, Tanya was shown several pictures of black males who were about the same age as defendant. The pictures were of the same type and were exhibited to her by police officers without any suggestion or instruction except a request that she state whether any of the photographs were of the man who raped her. She at that time stated that photograph number six Looked like the man, but she would not be positive. Photograph number six was, in fact, a picture of defendant. Again on 15 September 1977, Tanya was shown eight photographs of young black males without any suggestion or comment of any kind. She was again asked if she could recognize her assailant among the photographs shown to her. She picked out a photograph of defendant within a few seconds.

Defendant offered no evidence on this voir dire hearing.

At the conclusion of this voir dire hearing, Judge Brannon found facts consistent with the above-stated evidence and, Inter alia, concluded:

5. There were no illegal identification procedures or photographic lineups involving the defendant or his car.

8. The photographic identification procedure here denoted as a confrontation was not so unnecessarily suggestive or conducive so as to lead to any chance of mistaken identification to the extent that the defendant would be denied due process of law.

6. That the in-court identification of the defendant by the victim is of independent origin, based solely on what the victim saw at the time and times of the crime of rape, and does not and did not result from any out-of-court confrontation, or from any photograph or from any pretrial identification procedures suggestive or conducive...