State v. Royal

268 S.E.2d 517, 300 N.C. 515, 1980 N.C. LEXIS 1133

• Court: Supreme Court of North Carolina
• Decided: July 15, 1980
• Docket: 115
• Status: Published

Opinions

BRITT, Justice.

Defendant contends that the trial court erred in failing to suppress the photographic identification of him by Mr. and Mrs. Nelson Smith on the ground that the procedure was unduly suggestive. This contention is without merit.

Four or five days after the incident at the Smith home, Officer J. S. Flowers, a Special Investigator with the Wayne County Sheriff’s Department, went to the Smith’s place of business in Mount Olive. While there he produced five photographs, each one of which portrayed black men in casual dress and settings. Officer Flowers asked Mr. Smith if he could identify the robber from among the men portrayed in the photographs. Smith immediately picked out defendant’s picture. Though she was in the office at the time, Mrs. Smith was unable to see which photograph her husband had selected. She, in turn, was shown the same five photographs and she too picked out defendant’s picture.

A photographic lineup is a constitutionally acceptable component of a criminal investigation. Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967 (1968); State v. Bundridge, 294 N.C. 45, 239 S.E. 2d 811 (1978); State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972). Such a pretrial identification procedure is inadmissible if it is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. United States, supra; State v. Davis, 294 N.C. 397, 241 S.E. 2d 656 (1978); State v. Bundridge, supra; see generally Annot., 39 A.L.R. 3d 1000 (1971).

The evidence in the case at bar reveals no infirmity in the photographic identification procedure employed. The evidence elicited on voir dire establishes that at the time they viewed the photographs and selected defendant’s picture from among the group, Mr. and Mrs. Smith were positive about the identification. The evidence further tends to show that the couple was not told that the robber was one of the persons in the photographic lineup. Nor is there any evidence that the officer suggested the choice which the couple made. In addition, the evidence is uncon-troverted that the men portrayed in the photographs were similarly dressed and were photographed in casual surroundings. All of the evidence on voir dire points to the conclusion that the photographs themselves and the procedure surrounding their use did not in any way point to defendant as the perpetrator of the crimes of which he stood accused.

In a related assignment, defendant contends that the trial court erred in denying his motion to sequester witnesses who were to testify on voir dire as to the photographic identification described above. Defendant argues that the denial of his motion to sequester amounted to an abuse of discretion and a denial of his right to a fair and impartial trial. This argument is without merit.

Upon motion of a party, the trial judge may order all or some of the witnesses other than the defendant, to remain outside of the courtroom until they are called to testify. G.S. § 15A-1222 (1978). A motion to sequester witnesses is addressed to the sound discretion of the trial judge and will not be reviewed on appeal absent a showing of an abuse of discretion. E.g., State v. McQueen, 295 N.C. 96, 244 S.E. 2d 414 (1978); see generally J. Van Camp & D. Gill, Criminal Law Symposium: The Trial, 14 Wake Forest L. Rev. 949 (1978). The record in the present case reveals no abuse of discretion nor does it demonstrate how the denial of defendant’s motion to sequester deprived him of his right to a fair trial by an impartial tribunal.

Defendant makes the further contention that the trial court erred by not permitting him to inquire into the manner in which his photograph was obtained for use in the photographic lineup. Defendant made a pretrial motion to suppress the in-court identification of him by Nelson Smith, Edna Smith and Maybelle Smith. During the voir dire concerning the identification, defendant moved for a voir dire concerning the method by which investigating officers had obtained the photograph of him which had been used in the photographic lineup. The trial judge overruled defendant’s motion. We perceive no error.

The record does not support defendant’s contention. While it is true that the trial judge denied defendant’s motion for a separate voir dire on the issue of the procuring of the photograph in question, the record establishes that during the voir dire that was held defendant was able to present witnesses, including Officer Flowers, who gave testimony concerning the manner in which the photograph was obtained. At the conclusion of the hearing, the court made findings of fact and conclusions of law. The court specifically found that the photograph in question had been voluntarily given to the police by defendant’s mother-in-law. There is competent evidence in the record to support this finding, and it is conclusive on appeal. E.g., State v. Harris, 290 N.C. 681, 228 S.E. 2d 437 (1976); State v. Thompson, 287 N.C. 303, 214 S.E. 2d 742 (1975), death sentence vacated, 428 U.S. 908 (1976). A separate hearing would have been superfluous. The record indicates that defendant was permitted to fully inquire into the circumstances surrounding the obtaining of his photograph by law enforcement authorities. That this inquiry was permitted within the context of an ongoing voir dire concerning a related matter is irrelevant to the question of prejudice provided that a complete examination of the challenged facts and circumstances was permitted. By conducting the procedure in this manner, the trial court was in a position to examine the propriety of the photographic lineup in a contextual fashion rather than as a segmented portion of a larger criminal investigation.

Defendant makes the further contention that the trial court erred by failing to suppress the in-court identification of him by the state’s witnesses, Mr. Smith, his wife and his mother arguing that none of the witnesses had a sufficient opportunity to adequately observe the intruder in their home. This contention is without merit.

Before admitting the evidence challenged by this assignment, the trial judge conducted a voir dire. At that hearing, Mr. Smith, speaking with reference to his opportunity to observe defendant, testified that when he went into the kitchen because of the knocking at the back door and the ringing of the door bell, he turned on two fluorescent lights; that a yard light was burning at the time which shone upon the back door; that he saw a black man standing outside the back door; that the man burst through the door upon him; that he and the intruder fought; that the intruder was in the house about forty-five minutes; that he saw the assailant about half of that time; and that he described the attacker to law enforcement officers as being 25 to 30 years old, weighing 185 pounds, with a chocolate complexion.

With respect to her opportunity to observe defendant, Mrs. Maybelle Smith testified that she had awakened about four a.m. on the night in question to go to the bathroom; that she heard someone beating on the back door; that she went downstairs to the kitchen and found that her son, Nelson, had been shot; that a man was beating him about the head with a pistol; that the man was in the house between 35 and 45 minutes; and that she had been close enough to the intruder to touch him.

Mr. Smith’s wife testified that she had been awakened by someone beating on the back door and ringing the door bell; that after her husband had gotten up to see what was happening, she heard a loud commotion; that she then got out of bed and went to the kitchen; that she saw defendant; that she went back to the bedroom and got a rifle; that the rifle would not fire; that she turned the rifle around and began beating defendant about his head with it; that defendant took the rifle away from her; and that she was able to look at defendant in the face for “quite awhile.”

The trial judge made detailed findings of fact and concluded that the in-court identification of defendant by the state’s witnesses was of an independent origin and based solely upon what they had seen at the time of the incident in their home. The state was thereupon permitted to elicit in-court identifications of defendant by its principal witnesses.

In bringing forward this assignment of error, defendant relies upon the case of State v. Miller, 270 N.C. 726, 154 S.E. 2d 902 (1967). Miller stands for the proposition that while the question of whether the identification testimony of the prosecuting witness has any probative value is for the jury to decide, the rule has no application where the only evidence which tends to identify a defendant as the perpetrator of the offense is inherently incredible because of undisputed facts clearly established by the state’s evidence. 270 N.C. at 731, 154 S.E. 2d at 905.

In Miller, the evidence for the state tended to show that the Hall Oil Company in Charlotte was broken into and entered on the evening of 28 September 1966. The exterior of the building and its surrounding grounds were illuminated by nearby streetlights, floodlights at the front and back and spotlights which were attached to its eaves. A vacant lot separated the oil company from a service station by a distance of 286 feet. The only identification evidence was that provided by a sixteen-year-old boy who had picked defendant Miller out of a lineup. Before the night of the break-in, the witness had never seen the defendant, and he stated that he saw a man run once in each direction, stop in front of the oil company building, peep around it, and then look in the direction of the witness. The witness was unable to describe the color of the man’s eyes or hair. Nor was he able to describe the color of the man’s clothing except to say that his clothes were dark.

The rule which was enunciated in Miller is grounded in sound considerations of logic and policy, and we reaffirm its continued viability in the law of our state. It has no application, however, where there is a reasonable opportunity of observation which is sufficient to permit a subsequent identification. In that event, the credibility of the witness and the probative force of his identification testimony are questions for the jury to resolve. E.g., State v. Wilson, 293 N.C. 47, 235 S.E. 2d 219 (1977); State v. Herndon, 292 N.C. 424, 233 S.E. 2d 557 (1977); State v. Cox, 289 N.C. 414, 222 S.E. 2d 246 (1976).

Miller cannot be applied to control the facts of the case at bar. The rationale of Miller springs from the obligation of the courts to insure the right of a criminal defendant to a fair and impartial trial. To that end, the Miller rule seeks to minimize the possibility of that right being infringed by a misidentification caused by a patently inadequate opportunity for observation.

In the present case the opportunities for observation which were afforded to the state’s witnesses were not patently inadequate. Each of them was able to view the intruder at close range, in familiar surroundings which were well lighted, over a period of about 45 minutes. That the observations occurred while a break-in and a series of assaults were in progress does not render them incompetent as a matter of law. The observations occurred within the context of confusion and uproar which is inherent in the nature of violent criminal acts for which defendant stands accused of committing. To require that such observations be made in a casual manner, as defendant argues should be the case, would be unreasonable.

Defendant contends next that the trial judge expressed an opinion by overruling his objections to leading questions of the district attorney to such an extent and degree so as to deny him a fair and impartial trial. We disagree.

A leading question is a question which suggests its desired answer. E.g., State v. Davis, 294 N.C. 397, 241 S.E. 2d 656 (1978); 1 Stansbury’s North Carolina Evidence § 31 (Brandis Rev. 1973). It remains the general rule that leading questions may not be asked on direct examination. E.g., State v. Davis, supra; State v. Finch, 293 N.C. 132, 235 S.E. 2d 819 (1977). However, it is within the sound discretion of the trial judge to determine whether counsel shall be permitted to ask leading questions, and, in the absence of a showing of abuse, the exercise of such discretion will not be disturbed on appeal. State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974); State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972); 2 Wharton’s Criminal Evidence 412 (13th ed. 1972). In exercising his discretion, the trial judge is aided by guidelines which have evolved over the years in our reported cases. Writing for the court in State v. Greene, supra, Justice (now Chief Justice) Branch stated that

. . . counsel should be allowed to lead his witness on direct examination when the witness is: (1) hostile or unwilling to testify, (2) has difficulty in understanding the question because of immaturity, age, infirmity or ignorance or where (3) the inquiry is into a subject of delicate nature such as sexual matters, (4) the witness is called to contradict the testimony of prior witnesses, (5) the examiner seeks to aid the witness’ recollection or refresh his memory when the witness has exhausted his memory without stating the particular matters required, (6) the questions are asked for securing preliminary or introductory testimony, (7) the examiner directs attention to the subject matter at hand without suggesting answers and (8) the mode of questioning is best calculated to elicit the truth.

285 N.C. at 492-93, 206 S.E. 2d at 236.

It would serve no useful purpose for us to set out in detail the multitudinous questions about which defendant now complains. Upon examining each of them in light of the guidelines enunciated in State v. Greene, supra, we conclude that there was no abuse of discretion. The bulk of the questions which defendant characterizes as leading in nature cannot be so portrayed in that they do not suggest the answer desired by the interrogator. Insofar as the other questions are concerned, two of them were asked of Officer Flowers on cross-examination by the assistant district attorney. The investigator had been called as a witness by defendant even though he had been subpoenaed by the state. It is well established that a party does not make a witness his own by subpoenaing him and not calling him, see State v. Tilley, 239 N.C. 245, 79 S.E. 2d 473 (1954), and if he is later interrogated by another party, he becomes the latter’s witness. 1 Stansbury’s North Carolina Evidence § 41 (Brandis Rev. 1973). That being the case, it was not an abuse of discretion for the judge to allow the state to ask the investigator leading questions. In the remaining instance of a truly leading question, defendant did not object until after the witness had answered. Even then, there was no motion to strike. There was no error.

Nor was it error for the trial court to permit Nelson Smith to testify concerning his wife’s actions during the robbery. Our examination of the record leads us to conclude that Smith was testifying from first-hand knowledge as to what his wife did during the course of the incident in their home. That he cast his testimony in terms of shorthand statements of fact concerning her movements does not mean that it was incompetent. See generally 1 Stansbury’s North Carolina Evidence § 125 (Brandis Rev. 1973). By so doing, Smith was attempting to convey to the jury in a comprehensible fashion his recollections of the events of 19 June. It would be unreasonable to require a witness to recount in minute detail all of the events which he had observed during the commission of a violent crime. To do so would be to fly in the face of the inherent confusion and disorientation of such incidents. That Smith testified that he was intermittently unconscious during the robbery is a relevant consideration only insofar as it relates to the questions of credibility and probative weight, both of which are considerations to be made by the jury subject to proper instructions.

Defendant contends that it was error to receive into evidence the radio log for 19 June 1979 of the Wayne County Sheriff’s Department. We disagree. When the log itself was received into evidence after being properly authenticated, see generally 1 Stansbury’s North Carolina Evidence § 153 (Brandis Rev. 1973), defendant made no objection. The exceptions which are preserved for our review deal only with the log sheet being handed to Deputy Sheriff Fane S. Greenfield while he was on the witness stand. Deputy Greenfield was dispatched to the Nelson residence when the incident was reported to law enforcement authorities. At the time the report came in, he was at the sheriff’s department. On redirect examination, the officer was handed a document which he recognized as the radio log sheet for 19 June 1979. Upon identifying the document, Deputy Greenfield stated that it served to refresh his recollection as to the time that the call for help came into the sheriff’s office; that the call came in at 3:41; and that the dispatcher gave him the call at the time it was logged. By this procedure, the memory of the deputy was refreshed in a permissible manner. E.g., State v. Smith, 291 N.C. 505, 231 S.E. 2d 663 (1977); see generally 1 Stansbury’s North Carolina Evidence § 32 (Brandis Rev. 1973). That the document which served to refresh the recollection of the witness had not been made by him does not render the method incompetent. State v. Smith, supra. The right of cross-examination and the right to examine the document used in the practice are sufficient safeguards against improper practices or suspicious circumstances which may be associated with refreshing the memory of a witness. McCormick’s Handbook of the Law of Evidence § 9 (2d ed. 1972).

Defendant also contends that the trial court erred by denying his fundamental right to confront his accusers by cross-examination when it sustained objections by the district attorney to questions propounded by defense counsel on cross-examination of the state’s witnesses. We disagree.

While defendant brings forward twenty-one exceptions within this assignment of error, the governing principle remains the same as to each:. The scope of cross-examination rests in the discretion of the trial judge, and his rulings thereon will not be disturbed absent a showing of abuse of discretion. State v. Britt, 291 N.C. 528, 231 S.E. 2d 644 (1977). While it is axiomatic that the cross-examiner ought to be allowed wide latitude, the trial judge has the responsibility to exercise his discretion in such a way that unduly repetitive and argumentative questioning, as well as inquiry into matters which are only peripherally relevant, are banned. E.g., State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972); 1 Stansbury’s North Carolina Evidence § 35 (Brandis Rev. 1973). The record in the case at bar reveals that defendant cross-examined each of the state’s witnesses at great length. In numerous instances where the trial judge sustained objections of the district attorney to questions by defense counsel, the questions called for answers which would have been incompetent hearsay or expert opinions for which there had been no foundation laid. At other times, the questioning was unduly repetitive or argumentative. There was no abuse of discretion.

Defendant contends that the trial court erred by permitting the district attorney to question him concerning prior acts of misconduct. This contention is without merit. On recross-examination the district attorney asked defendant if he had kidnapped and robbed Mr. Robert Knowles of $1,125.00 on 24 May 1979. Defendant denied having committed the specified acts. On redirect examination, defendant testified that he had been arrested and charged with the crimes of kidnapping and robbing Knowles but that there had been a finding of no probable cause and the charges had been dismissed.

It is an established principle of the law of evidence that when a criminal defendant elects to testify in his own behalf, he is subject to cross-examination, for the purpose of impeachment, with respect to prior specific criminal acts or degrading conduct for which there has been no conviction. State v. Herbin, 298 N.C. 441, 259 S.E. 2d 263 (1979); State v. Mayhand, 298 N.C. 418, 259 S.E. 2d 231 (1979); State v. Purcell, 296 N.C. 728, 252 S.E. 2d 772 (1979). Such questions are permissible provided that they are asked in good faith. State v. Herbin, supra; State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971).

In the present case there was no error. The question was directed at a matter within the defendant’s own personal knowledge and was asked for the purpose of impeachment. Defendant denied having committed the acts in question and the prosecutor was bound by the answer. State v. Finch, 293 N.C. 132, 235 S.E. 2d 819 (1977).

Defendant contends that the trial court erred by admitting over his objection the testimony of Officer Edwards as to a conversation he had with Officer Edwin 0. Bundy of the Goldsboro Police Department. There was no error. After defendant had been taken to Wayne Memorial Hospital for treatment of his gunshot wounds, Officer Bundy talked with him. At that time the policeman was not involved in the investigation of the incident at the Smith residence. Defendant told the officer that he had been robbed and shot at a self-service gasoline station. Defendant gave the location of the station to the officer. Thereupon, Officer Bun-dy determined that the station was located outside the Goldsboro city limits and was within the jurisdiction of the Wayne County Sheriff’s Department. Having made that determination, he informed defendant that the investigation would thereafter have to be handled by the sheriff’s department and that he would report it to them. Shortly thereafter, the policeman had occasion to talk with Officer Edwards. At that time, Bundy told Edwards what defendant had said about the location of the service station. Bun-dy went on to tell Edwards that he had turned the investigation over to the sheriff’s department because the purported crime had occurred outside of the Goldsboro city limits. On rebuttal, both officers testified: Bundy as to the conversation he had with defendant in the hospital; Edwards as to the conversation he had with Bundy.

Corroborative testimony is testimony which tends to strengthen, confirm, or make more certain the testimony of another witness. State v. Rogers, 299 N.C. 597, 264 S.E. 2d 89 (1980). The introduction of prior consistent statements is an accepted manner of corroborating the testimony of a witness. E.g., State v. Medley, 295 N.C. 75, 243 S.E. 2d 374 (1978); see generally 1 Stansbury’s North Carolina Evidence § 51 (Brandis Rev. 1973). Prior consistent statements are admissible if they are generally consistent with the witness’ own testimony. State v. Britt, supra; State v. Patterson, 288 N.C. 553, 220 S.E. 2d 600 (1975), death sentence vacated, 428 U.S. 904 (1976).

In the case at bar, the threshold test of consistency was met. Furthermore, the trial judge properly instructed the jury that Officer Edwards’ testimony was offered for corroborative purposes only, and they were to use it for that purpose only if they found that it did so.

Defendant lastly contends that the trial court erred by denying his motions to dismiss, for judgment notwithstanding the verdict, for a new trial, and for arrest of judgment. These motions are formal in nature and dependent upon the substantive assignments of error brought forward in the brief. There was sufficient evidence at trial to withstand these motions and they were properly denied.

No error.

Justice BROCK did not participate in the consideration and decision of this case.