State v. Griffin , 4 N.C. App. 397 ( 1969 )

Campbell, J.

The defendant’s first contention is that his rights under the Fifth and Sixth Amendments to the Constitution of the United States, as made applicable to the states, by the Fourteenth Amendment, were violated when he was identified by Styers in a lineup as one of the two men who committed the crimes charged. He relies upon the recent cases of the United States Supreme Court which have held that:

. . [A] post-indictment pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution; that police conduct of such a lineup without notice to and in the absence of his counsel denies the accused his Sixth Amendment right to counsel and calls in question the admissibility at trial of the in-court identifications of the accused by witnesses who attended the lineup.” Gilbert v. California, 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.

While a lineup such as the one in the instant case does not. violate the privilege against self-incrimination, it is constitutional error to admit “in-court identifications without first determining that they were not tainted by the illegal lineup but were of independent origin.” Gilbert v. California, supra; U. S. v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.

In Wade the following appears:

“We think . . . the proper test to be applied in these situa-r tions is that quoted in Wong Sun v. United States, 371 US 471, 488, 9 L ed 2d 441, 455, 83 S Ct 407, ‘“[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal’ act, the existence of any discrepancy between any pre-lineup description and the defendant’s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification.”

Unlike Wade and Gilbert there was no illegal lineup in the instant case. On the voir dire examination the testimony revealed that at the time of the lineup the defendant was in custody, charged with a crime unrelated to cases on trial, and that he was not represented by counsel and had not waived any of his constitutional rights. However, he had not been accused of the crimes in question nor was he a suspect. The lineup was arranged in order for Styers to view four individuals who had been arrested for armed robbery of a service station on North Boulevard in Raleigh and who, the police believed, might have robbed Styers. It was not arranged in order for Styers to view the defendant, and the defendant participated in the lineup solely as a “filler” (i.e., one added to the lineup in order to make the identification of the suspect more accurate and reliable). Therefore, the failure to provide counsel under these circumstances was not a denial of any constitutional rights, and this is not altered by the fact that subsequent to the crimes, but prior to the lineup. Styers had selected a photograph of the defendant as a “look-alike.” This picture was not a recent one and Styers did not recognize the person in the photograph as being the one who had robbed him. He selected the picture, along with four or five others, because it possessed a physical characteristic, such as a nose or mouth, similar to the assailant.

It is noted that the lineup was conducted in a fair and impartial manner. All of the participants were Negro males dressed in casual clothing unlike that worn on the night in question, and there was nothing in their dress which would unduly attract' the attention of Styers to any specific person. The participants varied in height, but this slight variance was not such as to render the lineup unfair. They also varied in weight, but all of them were of slender to medium build. They were about the same age. It is also noted that the description which Styers gave the investigating officer immediately after the commission of the offenses was similar to the defendant’s actual physical appearance.

Unlike Wade and Gilbert, the in-court identification in the instant case was found by Judge McKinnon to be from an independent origin and not tainted by any illegal lineup. The findings of fact and conclusions of law on the voir dire examination by Judge McKinnon were fully supported by the evidence introduced on this voir dire examination.

Judge McKinnon fully complied with the requirements of what a trial judge should do in order to satisfy himself that the in-court identification is competent for the jury to consider and that it is not tainted by any procedure in the conduct of the lineup. Compare with Rivers v. United States, 3 Cr. L. 3263, 400 F. 2d 935 (5th Cir., 1968).

What was said in State v. Williams, 274 N.C. 328, 163 S.E. 2d 353, is equally appropriate in this case:

“The in-court identification of the defendant by [Styers] was, therefore, not ‘fruit of a poisonous tree.’ First, the lineup was not ‘a poisonous tree.’ Second, the in-court identification was not fruit of the lineup, but was an independent identification based upon what the witness observed -at the time of the robbery.”

Furthermore, in the instant case no evidence of the lineup identification was admitted in the trial before the jury.

The defendant’s first contention is without merit.

We have considered the defendant’s second and third contentions and have found them to be without merit. Since specific discussion of those contentions would not be beneficial to the Bench and Bar, we refrain from same.

The record on appeal in the instant case was not filed within ninety days after the date of the judgment appealed from. Therefore, the appeal may be dismissed under Rule 48 of the Rules of Practice in the Court of Appeals for failure to comply with Rule 5. We have nevertheless considered this appeal on its merits.

The record shows that the defendant has had a fair trial and no prejudicial error has been shown.

Affirmed.

MallaRD, C.J., and Morris, J., concur.