State v. Yancey

• Decision Date: 31 January 1977
• Docket Number: No. 149,149
• Citation: 291 N.C. 656,231 S.E.2d 637
• Parties: STATE of North Carolina v. Tommy Lee YANCEY.
• Court: North Carolina Supreme Court

Page 637

231 S.E.2d 637

291 N.C. 656

STATE of North Carolina v. Tommy Lee YANCEY.

No. 149.

Supreme Court of North Carolina.

Jan. 31, 1977.

Atty. Gen. Rufus L. Edmisten, by Associate Atty. David S. Crump, Raleigh, for the State.

James K. Roberson, Graham, for defendant.

BRANCH, Justice.

Defendant assigns as error the action of the trial judge in denying his motion to suppress the in-court identification of defendant by the prosecuting witness, Rebecca Karen Toney Pleasant. On 5 April 1976, defendant filed a pretrial motion to suppress statements made to police officers by defendant and to suppress identification testimony from the prosecuting witness or any other persons participating in identification procedures conducted by the Alamance County Sheriff's Department on 27 February 1976. The motion was supported by defendant's affidavit to the effect that he was exhibited to the prosecuting witness singly. He averred that there was no lineup and that he was the only black person in the room, the other occupants of the room being the prosecuting witness and a white detective. He further stated that he was without counsel and did not participate in this identification procedure with knowledge of its legal consequences.

At the pretrial hearing on defendant's motion to suppress, the sole witness was Rebecca Karen Toney Pleasant who testified that on the night of 26 February 1976 her name was then Rebecca Karen Toney. Since that time she had obtained a divorce and had married a Mr. Pleasant. She testified that on 26 February 1976, she was living in a two-bedroom trailer with her two-year-old daughter Leann. On that night she retired at about 11:15 and was later awakened by a 'nudge.' She observed two black men standing over her. She thereafter left the trailer with the two men and went to a well-lighted service station where defendant obtained some gas. They returned to her home where the two men remained for about thirty minutes. She was in the presence of the two men for about 45 minutes. Later that night she told Detective McPherson what had happened to her and specifically told him 'that she had seen this person (defendant) somewhere before.' She was taken to a hospital and upon returning home, she looked through her high school annuals and recognized defendant Tommy Lee Yancey in two of them.

On 28 February 1976, she went to the police station where Detective McPherson told her to go to a certain room 'to look at someone.' She stated that she knew the officers wanted her to look at a person that they thought was in her home in the early morning hours of 27 February 1976. When she went to the indicated room the only person there was defendant and a white detective. She recognized and identified defendant as one of her assailants within five or six seconds. At the hearing, she positively identified defendant as the man who raped her. On cross-examination the witness stated that she gave the police a description of defendant for the purpose of making a composite drawing. She stated that at that time she was not absolutely sure 'that defendant was the man who entered her home.' She said, 'I was sure but I was not really sure in my mind. I did not want to blame somebody else for something.' On redirect examination she said that the lights were not on in her trailer but that the utility lights on the outside furnished ample light to permit her to walk around without using the inside lights.

After finding facts consistent with the evidence above stated, the trial judge found and concluded:

That there is clear and convincing evidence that the witness's identification of the defendant in the courtroom this day is based on her observation of the alleged person in and of the trailer on the night of February 25 and the early morning of February 26, 1976; that she had adequate opportunity to observe the defendant for a period of at least forty-five minutes, and her in-court identification is not tainted by any suggestion when she saw him at the Sheriff's Office at a later hour on the same day.

Now therefore the motion to suppress the testimony and in-court identification of the defendant by this witness is denied.

At trial the State did not offer any evidence of a confession or as to the pretrial identification proceedings. We, therefore, are only concerned with the admissibility of the in-court identification testimony.

The overwhelming weight of authority is that the in-court identification of a witness who took part in an illegal pretrial confrontation must be excluded unless it is first determined by the trial judge on clear and convincing evidence that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. United States v. Wade, 388 U.S. 218, 37 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; State v. Henderson, 285 N.C. 1, 203 S.E.2d 10; State v. Shore, 285 N.C. 328, 204 S.E.2d 682; State v. Bass, 280 N.C. 435, 186 S.E.2d 384.

Unconstitutionally obtained evidence is excluded by our courts as an essential to due process and the recognized test as to the admissibility of evidence concerning pretrial identification procedures 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. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610.

We noted in State v. Henderson, supra, that these due process requirements have been enlarged by court decisions which require the presence of counsel at lineups or showups conducted after the initiation of adversary, judicial proceedings. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. In Henderson we held that the confrontation had not reached this critical stage, noting, Inter alia, that the only showing of adversary procedures was that a warrant was served on the defendant on the same day of the confrontation. We there concluded that it was reasonable to infer that the warrant was served After the confrontation between the witness and the defendant. Instant case differs in that here defendant was in custody upon a warrant which was issued on the day preceding the single exhibition of defendant to the witness.

Our courts have widely condemned the practice of showing suspects singly to persons for the purpose of identification. Stovall v. Denno, supra; State v. Shore, supra; State v. Henderson, supra. However, the total circumstances surrounding each case must be considered in determining whether such a confrontation denies an accused his due process rights. We observe parenthetically that in State v. Henderson, supra, 285 N.C. at page 11, 203 S.E. 10, we noted cases in which the courts have held that due process rights were not violated by the single exhibition of a suspect for purposes of identification.

In our opinion, the totality of the circumstances surrounding the pretrial single exhibition of defendant in this case were unnecessarily suggestive. We, therefore, consider whether the trial judge correctly found and concluded that the prosecuting witness' in-court identification was not tainted by the pretrial confrontation.

The United States Supreme Court case of Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, reconfirmed earlier holdings that even if a pretrial confrontation is suggestive, due process is not violated by the admission of identification evidence when the total circumstances show the identification to be reliable. In so holding the court enumerated some of the factors to be considered in determining the reliability of the identification, to wit:

. . . (T)he 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.

In instant case the prosecuting witness had opportunity to closely observe defendant in her partially lighted dwelling for a period of about thirty minutes. She sat beside him in an automobile for a period of from two to five minutes and observed him as he obtained gas at a brightly lighted self-service gasoline station. The evidence tends to show that she had previously seen defendant while in high school and had located two of his pictures in two of her high school annuals on the same night that she was attacked. The witness had also seen defendant on the Saturday before the 26th of February 1976 when he came to her trailer, asked for a ride and inquired if there were any dogs nearby. He also asked to use her phone and she directed him to her mother's house. On direct examination the prosecuting witness unequivocally identified defendant as the man who raped her. The witness' answers on cross-examination, which indicated some uncertainty, obviously grew out of her concern that she correctly identify the person who committed the crime.

The trial judge's finding that 'there is clear and convincing evidence that the witness' identification of defendant in the courtroom . . . is based on her observation of the alleged person in her trailer on . . . the early morning of 26 February 1976 . . . and her in-court identification is not tainted by any suggestion when she saw him in the Sheriff's Office' is supported by competent evidence. The findings of the trial court, when supported by competent evidence, are conclusive upon this Court. State v. Shore, supra; State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884; State v. Haskins, supra. The defendant's motion to suppress the in-court identification...