State v. McGuire

270 S.E.2d 526, 49 N.C. App. 70, 1980 N.C. App. LEXIS 3355
CourtCourt of Appeals of North Carolina
DecidedOctober 7, 1980
DocketNo. 8023SC330
StatusPublished
Cited by2 cases

This text of 270 S.E.2d 526 (State v. McGuire) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McGuire, 270 S.E.2d 526, 49 N.C. App. 70, 1980 N.C. App. LEXIS 3355 (N.C. Ct. App. 1980).

Opinion

HEDRICK, Judge.

By his first and second assignments of error, defendant argues that the trial judge erred in failing to make “proper and required” findings of fact after a voir dire hearing on defendant’s motion to suppress the witness’ in-court identification of defendant as the perpetrator of the crimes charged because certain out-of-court identification procedures were impermis-sibly suggestive.

In determining whether out-of-court identification procedures are impermissibly suggestive, the trial judge must evaluate several factors, such as the opportunity of the witness to view the criminal at the time of the crime, the degree of attention of the witness, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the challenged confrontation, and the length of time between the crime and the confrontation. State v. Nelson, 298 N.C. 573, 260 S.E. 2d 629 (1979); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974), modified, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205 (1976). Based on these factors, he must find whether under the totality of the circumstances the out-of-court procedures were so impermissibly suggestive and conducive to irreparable mistaken identification as to be a denial of due process. State v. Watson, 294 N.C. 159, 240 S.E. 2d 440 (1978); State v. Yancey, 291 N.C. 656, 231 S.E. 2d 637 (1977).

While it is preferable that the trial judge make detailed findings of fact after a hearing to determine whether out-of-court identification procedures were impermissibly suggestive, failure to do so is not error when there is no conflict in the evidence presented at such a hearing. State v. Dunlap, 298 N.C. 725, 259 S.E. 2d 893 (1979); State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Russell, 22 N.C. App. 156, 205 S.E. 2d 752, cert. denied and appeal dismissed, 285 N.C. 667, 207 S.E. 2d 764 (1974). Where, as here, the trial judge finds and concludes that the out-of-court identification procedures were not “impermissibly suggestive,” such a finding and conclusion is binding on the appellate court when the record contains evidence supporting such a finding and conclusion. State v. Dunlap, supra; State v. Gibbs, 297 N.C. 410, 255 S.E. 2d 168 (1979). Moreover, it [74]*74is not error to admit the in-court identification of defendant as the perpetrator of the crime by the witness, when the record discloses that the out-of-court identifications are not imper-missibly suggestive, and the in-court identification is of independent origin and based solely on what the witness observed during the commission of the crime. State v. Hamilton, 298 N.C. 238, 258 S.E. 2d 350 (1979); State v. Simms, 41 N.C. App. 451, 255 S.E. 2d 282 (1979).

In the present case, the trial judge did find and conclude that the out-of-court identification procedures were not impermissibly suggestive. We have carefully reviewed the evidence adduced on voir dire and find it not.to be in conflict with respect to any material fact and the evidence supports the conclusion made by the trial judge. The evidence on voir dire tending to show that the photographs first exhibited to the witness were not all the same size, and that some of the photographs were in color while others were in black and white, is of no legal significance and clearly does not require a finding on the part of the trial judge that the photographic identification procedure was not improper. The evidence regarding the photographic identification clearly supports the finding and conclusion of the trial judge in that respect.

Evidence tending to show that defendant at the “lineup” held his head down and was told by the officer in charge to “hold your head up” is not sufficient to dictate a finding by the trial judge that the lineup was impermissibly suggestive. This is especially true when the evidence tends to show that all of the people in the lineup were black males of similar age and physical characteristics. The evidence, in our opinion, supports the trial judge’s finding and conclusion regarding the lineup procedure.

Finally, implicit in the finding of the trial judge, and in his denial of the motion to suppress, is the conclusion that the in-court identification by the prosecuting witness was of independent origin and based solely on what he observed and experienced during the commission of the crime, and such an in-court identification was not tainted by any out-of-court identification procedure. Throughout, the witness insisted that his assailant had a “large long scar approximately an inch and a half long located one inch above his right eyebrow,” and the [75]*75record discloses that defendant did have such a scar. From the outset, the witness was able to give a description of defendant which ultimately led to his apprehension. A significant portion of the time that the witness was in defendant’s presence occurred during daylight hours. Also, the testimony indicates that the witness was in the presence of defendant for more than one hour. The proximity of the witness to defendant, and the witness’ opportunity to observe, demonstrate clearly that his in-court identification of defendant was of independent origin and not tainted by any out-of-court procedure. The totality of the circumstances in this case requires a holding on our part that the denial of defendant’s motion to suppress and the admission of the testimony of the prosecuting witness with respect to the identification of defendant was not error. These assignments of error have no merit.

On cross-examination, counsel for defendant asked the prosecuting witness several questions regarding whether he remembered telling counsel that “of those five pictures, four of them were color pictures and one picture was black and white” and that “the one black and white picture in the group was larger than the four colored pictures.” The prosecuting witness insisted that he did not recall precisely what he had told counsel “this morning” (referring to the voir dire). Counsel for defendant then asked the court to “play back the voir dire to refresh his recollection.” The court denied the motion and the exception to this ruling is the basis for defendant’s third assignment of error. In his brief, defendant contends that the witness’ response that he could not recall what he said earlier “is a prior inconsistent statement ...” and that “the Voir Dire should have been played back as a method of impeaching the witness.” Obviously, at trial counsel sought to “refresh his recollection” and on appeal he wishes to argue that his purpose was to impeach the witness. If the witness did not remember his earlier testimony, a reading of that testimony would not reveal a prior statement inconsistent with his current testimony. A reading of the witness’ testimony on voir dire, in addition, would defeat the very purpose of conducting a voir dire outside the hearing of the jury. Finally, the scope of cross-examination is largely within the discretion of the trial judge and his rulings thereon will not be disturbed on appeal except when prejudicial error is disclosed. State v. Mayhand, 298 N.C. 418, 259 S.E. 2d 231 (1979). We hold this assignment of error to be meritless.

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Related

State v. Carter
311 S.E.2d 5 (Court of Appeals of North Carolina, 1984)
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280 S.E.2d 775 (Court of Appeals of North Carolina, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
270 S.E.2d 526, 49 N.C. App. 70, 1980 N.C. App. LEXIS 3355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcguire-ncctapp-1980.