State v. Burns , 287 N.C. 102 ( 1975 )

214 S.E.2d 56 (1975) 287 N.C. 102

STATE of North Carolina
v.
Mark Douglas BURNS.

No. 29.

Supreme Court of North Carolina.

May 6, 1975.

James H. Carson, Jr., Atty. Gen. and Sidney S. Eagles, Jr., Asst. Atty. Gen., Raleigh, for the State.

Cameron & Collins by William M. Cameron, Jr., Jacksonville, for defendant.

LAKE, Justice.

The defendant contends that the trial court erred in admitting in evidence the in-court identification of the defendant by Mrs. Williams as her assailant. In this we find no error. Upon the defendant's objection to such testimony, the trial judge sent the jury from the courtroom and, in its absence, conducted a voir dire examination. Mrs. Williams was the only witness called on the voir dire. At the conclusion thereof, the court made findings of fact, as above set forth, and overruled the defendant's motion to suppress the evidence pertaining to the identification of the defendant by Mrs. Williams. This was the proper procedure. State v. Cross, 284 N.C. 174, 178, 200 S.E.2d 27; State v. Stepney, 280 N.C. 306, 314, 185 S.E.2d 844; State v. Gray, 268 N.C. 69, 78, 150 S.E.2d 1.

One of the court's findings, designated by it a conclusion, was that the in-court identification of the defendant was of independent origin and was based solely on what the witness saw at the time of the crime and was not the result of any out-of-court confrontation. The witness expressly so testified on the voir dire. The circumstances of the crime, committed in a small, well lighted room in which she was confronted by her assailant, a forcible intruder, who remained therein with her for at least fifteen minutes, were such as to afford ample opportunity for the formation of a mental picture of her assailant which would survive to the time of trial, irrespective of her pretrial confrontation with him thereafter at the police station. The trial court's findings of fact on the voir dire, supported as they are by ample evidence, are conclusive on appeal. State v. Cross, supra, 284 N.C. at p. 181, 200 S.E.2d 27; State v. Stepney, supra, 280 N.C. at p. 317, 185 S.E.2d 844; State v. Morris, 279 N.C. 477, 481, 183 S.E.2d 634; State v. Harris, 279 N.C. 307, 311, 182 S.E.2d 364; State v. Gray, supra.

In Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401, the defendant, as here, appealed from a conviction of rape. He, like the present defendant, contended that the state court's admission of the victim's in-court identification of him as her assailant and the admission in evidence of her testimony of her out-of-court identification of him constituted a violation of the Due Process Clause of the Fourteenth Amendment. In that case, the victim testified that she was seized from behind and thrown to the floor of a room of her residence lighted only by the light from an adjoining room. The rape was committed in a wooded area, two blocks from her home, to which area she was forced to walk, the offense being committed under the light of a full moon and the entire incident taking between fifteen minutes and half an hour. The victim gave the police a description of her assailant, including an estimate of his age, height and weight, and a description of his hair and complexion. Over a period of seven months between the offense and the trial, she viewed a number of suspects, some in lineups and others in showups, and was shown between 30 and 40 photographs, identifying none of these suspects as her assailant. Seven months after the offense, the police called her to the police station to view the respondent who was exhibited to her in a showup consisting of two detectives walking the defendant past the victim. The police, at her request, required the defendant to say, in her presence, words spoken by her assailant at the time of the crime. It did not appear whether these words were spoken before or after the victim first identified the defendant as her assailant.

It is apparent that the present case is almost on all fours with Neil v. Biggers, supra, such differences as there are between the two situations indicating even greater reliability of the identification in the present case. The United States District Court granted habeas corpus, holding the showup identification procedure violated the Due Process Clause. The Supreme Court of the United States, speaking through Mr. Justice Powell, reversed, saying:

"In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967), the Court held that the defendant could claim that ``the confrontation conducted * * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' Id., at 301-302, 87 S.Ct. at 1972 [18 L. Ed. 2d 1199]. This, we held, must be determined ``on the totality of the circumstances.' * * *

"Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:

"[W]e hold that each case must be considered on its own facts, and that convictions based on eye-witness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968).

* * * * * *

"Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is ``a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384, 88 S.Ct. [967], at 971, 19 L. Ed. 2d 1247. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of ``irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself. It is the likelihood of misidentification which violates a defendant's right to due process, and it is this which was the basis of the exclusion of evidence in Foster [Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969).] Suggestive confrontations are disapproved because they increase the likelihood of misidentification, and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.

* * * * * *

"We turn, then, to the central question, whether under the ``totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the 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.

* * * * * *

"We find that the District Court's conclusions on the critical facts are unsupported by the record and clearly erroneous. The victim spent a considerable period of time with her assailant, up to half an hour. She was with him under adequate artificial light in her house and under a full moon outdoors, and at least twice, once in the house and later in the woods, faced him directly and intimately. She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. Her description to the police, which included the assailant's approximate age, height, weight, complexion, skin texture, build, and voice, might not have satisfied Proust but was more than ordinarily thorough. She had ``no doubt' that respondent was the person who raped her. In the nature of the crime, there are rarely witnesses to a rape other than the victim, who often has a limited opportunity of observation. The victim here, a practical nurse by profession, had an unusual opportunity to observe and identify her assailant.

* * * * * *

"Weighing all the factors we find no substantial likelihood of misidentification. The evidence was properly allowed to go to the jury."

In State v. Henderson, 285 N.C. 1, 203 S.E.2d 10, the defendant, charged with rape, assigned as error the admission, over his objection, of an in-court identification of him by the victim as her assailant. The ground of objection, as here, was that the witness had made an out-of-court identification under circumstances which were impermissibly suggestive and conducive to mistaken identification. We were there concerned only with the admissibility of the in-court identification testimony. Speaking through Justice Branch, we said:

"The practice of showing suspects singly to persons for purposes of identification has been widely condemned. Stovall v. Denno [388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199]; State v. Wright [274 N.C. 84, 161 S.E.2d 581]. However, whether such a confrontation violates due process depends upon the totality of the surrounding circumstances. Stovall v. Denno, supra. * * *

"It is well established that the primary illegality of an out-of-court identification will render inadmissible the in-court identification unless it is first determined on voir dire that the in-court identification is of independent origin."

In the present case, the trial court having found that the in-court identification was of independent origin, which finding was supported by substantial evidence on voir dire and is, therefore, conclusive upon appeal, there was no error in admitting the in-court identification of the defendant by Mrs. Williams. Her testimony so identifying the defendant was clear and unequivocal.

In addition to Mrs. Williams' husband, other witnesses identified the defendant as a man observed by them in the restaurant at about the time of the offense. He was arrested in the same restaurant one week later, on which occasion the lock to the door of the ladies' rest room was similarly jammed so that the door could not be locked. The defendant's evidence, designed to establish an alibi for the time of the offense, obviously fails to do so. Immediately after the offense was perpetrated, Mrs. Williams gave the police officers a description of her assailant which closely corresponded to the defendant's appearance. Her in-court identification of him occurred less than two months after the offense. Prior to her out-of-court identification of the defendant, one week after the offense, she viewed six other suspects, each of whom was exhibited to her at a showup as suggestive as was that involving the defendant, and she examined over 1,500 photographs. She did not identify any of these suspects or the subject of any of these photographs as her assailant. No photograph of the defendant was included among those examined by her. Prior to each of the other showups, just as at the showup of the defendant, the police officer having the man in custody told Mrs. Williams he was sure that suspect was her assailant. In each case, she pointed out some respect in which that suspect failed to conform to her mental picture of her assailant.

In the present case, the totality of the circumstances is such that, far from showing the out-of-court identification, one week after the offense, was "conducive to irreparable mistaken identification," it shows just the contrary. It shows a witness with a clear mental picture of her assailant, which was not blurred or confused by successive confrontations with suspects, each of whom she knew the police officers believed to be her assailant. Quite obviously, Mrs. Williams, in her identification of the defendant at the police station, was not influenced by the opinion of the officers nor was she interested in identifying someone just to be done with the matter. On the contrary, she laboriously searched through hundreds of photographs unsuccessfully and made trip after trip to the police station to view suspects. Clearly her sole objective was to identify the right man and she would not yield to any other suggestion.

The prosecuting attorney, having introduced the clear, positive, in-court identification of the defendant by Mrs. Williams, did not offer before the jury any evidence concerning the out-of-court identification by her until after the defendant had developed this by his cross-examination of Mrs. Williams in the presence of the jury. Having, himself, brought to the attention of the jury the fact of, and some of the circumstances surrounding, the out-of-court identification for the purpose of discrediting the in-court identification of him by Mrs. Williams, the defendant is not in a position to object to the introduction of testimony by the State for the purpose of giving the jury the complete picture of the proceeding at the police station, even if it be assumed that such evidence by the State would have been incompetent otherwise. State v. Minton, 234 N.C. 716, 724, 68 S.E.2d 844; State v. Hicks, 233 N.C. 511, 518, 64 S.E.2d 871; State v. Warren, 227 N.C. 380, 42 S.E.2d 350; Strong, N.C. Index 2d, Criminal Law, § 39. See also, State v. McVay and State v. Simmons, 277 N.C. 410, 417, 177 S.E.2d 874. Furthermore, the State's evidence as to the out-of-court identification merely added to the evidence elicited by the defendant the circumstances surrounding that identification which the defendant says impair the reliability of the identification. Having, himself, shown the fact of the out-of-court identification, we do not perceive any prejudice to him by the subsequent showing of the circumstances under which it occurred.

Finally, as to this point, assuming, which we do not concede to be correct, that there was error in permitting Mrs. Williams to testify on redirect examination, and Detective Lieutenant Reed to testify on direct examination, concerning the out-of-court identification of the defendant by Mrs. Williams, we think it clear that such error was harmless beyond a reasonable doubt in view of the positive, unequivocal, in-court identification by Mrs. Williams, the identification of him by other witnesses as a man observed by them in the restaurant about the time of the offense and the evidence of the similarly jammed door lock one week later when the defendant was again in the restaurant. It is inconceivable that, had there been no evidence at all before the jury concerning the out-of-court identification, the verdict would have been different. New trials are not granted because of errors which cannot reasonably be believed to have contributed to the result reached in the trial court. State v. Turner, 268 N.C. 225, 232, 150 S.E.2d 406; State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Mundy, 182 N.C. 907, 110 S.E. 93; Stansbury, North Carolina Evidence, Brandis Revision, § 9.

The defendant's contention that there was error in the denial of his motion for a directed verdict of not guilty is obviously without merit. Such motion is equivalent to a motion for a judgment of nonsuit. State v. Clanton, 278 N.C. 502, 180 S.E.2d 5; State v. Davis, 246 N.C. 73, 97 S.E.2d 444. It is elementary that upon such motion the evidence for the State is deemed to be true, the State is entitled to the benefit of every inference in its favor which may reasonably be drawn therefrom and the defendant's evidence in conflict therewith is disregarded. Strong, N.C. Index 2d, Criminal Law, § 104, and the many cases there cited. "Where, taken in the light most favorable to the State, there is sufficient evidence from which a jury could find that the offense charged had been committed and that defendant committed it, nonsuit should be denied." State v. Cooke, 278 N.C. 288, 179 S.E.2d 365.

Rape is sexual intercourse with a female person by force and without her consent. State v. Henderson, supra; State v. Primes, 275 N.C. 61, 165 S.E.2d 225; State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190; State v. Overman, 269 N.C. 453, 469, 153 S.E.2d 44; State v. Carter, 265 N.C. 626, 144 S.E.2d 826. A threat of serious bodily harm which reasonably induces fear thereof constitutes the requisite force and negates consent. State v. Henderson, supra; State v. Bryant, 280 N.C. 551, 557, 187 S.E.2d 111; State v. Primes, supra; State v. Overman, supra; State v. Carter, supra. The evidence in this record is ample to support the jury's findings that the offense charged in the indictment was committed and that the defendant was the perpetrator of it.

There is no merit in the defendant's contention that he was denied due process of law by reason of the trial judge's failure to instruct the jury properly concerning criticism in the news media of another jury which, during the same week, had found another defendant not guilty of rape. See, State v. McVay and State v. Simmons, 279 N.C. 428, 432, 183 S.E.2d 652. The record does not indicate the nature of any such comment by the news media. We may not properly grant a new trial upon the defendant's mere assertion in his brief that, during the progress of his trial, some statement, vaguely described as critical, was made by some undesignated radio commentator concerning the acquittal of another defendant in another case by another jury. All that appears in the present record relative to this contention is that, following the argument of counsel to the jury and immediately preceding the charge of the court to the jury, the court addressed the jury as follows:

"THE COURT: Members of the jury, counsel has brought to my attention the fact that something has been said on the radio today with regard to another case that was tried here this week. I was not aware of that, but of course, I instructed you not to listen to anything or discuss this case with anyone. Did any of you hear a radio report this morning about this case?

"JURY IN UNISON: No.

"THE COURT: Thank you."

The record does not disclose any request by the defendant for further instruction to the jury upon this point or any motion by the defendant with reference thereto. Nothing in the record indicates that any juror heard the statement of which the defendant complains.

The defendant contends that he was "denied due process of law in that the State knowingly used false testimony of Officer, Lt. Jerry Reed, in questioning him on a lineup when the Court had already found as a fact that there there was no lineup." He also contends that the trial court erred in its charge to the jury "in referring to the testimony of Lt. Jerry Reed concerning a lineup after the Court had already found as a fact that there was no lineup." Suffice it to say, with reference to these two assignments of error, that the word "lineup" does not appear in the narration of the testimony of Detective Lieutenant Reed in the record, except in the cross-examination of this witness by the defendant and does not appear in the summary of the testimony of this witness contained in the charge of the court. The record further sets forth no question addressed by the prosecuting attorney to this witness and no objection to or motion to strike any portion of his testimony. It shows no effort by the defendant to call to the attention of the trial judge any alleged error in the judge's summary of the evidence in his charge to the jury. Minor discrepancies in such summary are deemed waived if not called to the judge's attention in time to afford him an opportunity to correct them. State v. Fowler, 285 N.C. 90, 97, 203 S.E.2d 803. These assignments of error have no merit.

The defendant's contentions that the imposition of the sentence of death upon him is a violation of his rights under the Eighth and Fourteenth Amendments to the Constitution of the United States have been considered and answered by this Court in detail in numerous recent decisions. No purpose would be served by further discussion of them. See: State v. Jarrette, 284 N.C. 625, 202 S.E.2d 721, and State v. Waddell, 282 N.C. 431, 194 S.E.2d 19.

The remaining assignments of error made by the defendant are purely formal and require no discussion. There is no merit therein.

No error.

SHARP, C. J., dissents as to the death sentence and votes to remand for the imposition of a sentence of life imprisonment for the reasons stated in the dissenting opinion of Chief Justice Bobbitt (in which she and Justice Higgins concurred) in State v. Jarrette, 284 N.C. 625, 666, 202 S.E.2d 721, 747 (1974).

COPELAND, J., dissents as to death sentence and votes to remand for imposition of a sentence of life imprisonment for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422 at 437, 212 S.E.2d 113, 122 (1975).

EXUM, J., dissents from that portion of the majority opinion which affirms the death sentence and votes to remand this case in order that a sentence of life imprisonment can be imposed for the reasons stated in his dissenting opinion in State v. Williams, 286 N.C. 422, 439, 212 S.E.2d 113, 121 (1975).