State v. Carroll ( 1983 )

WEBB, Judge.

Defendant contends the trial court should not have allowed the in-court identification of defendant as the offender by the prosecuting witness, Lisa Felmet. He argues first that the circumstances at the time of the assault were such that she could not have recognized defendant as the assailant. Defendant maintains that the evidence shows it was dark outside the apartment except for the porch light, and that all the lights inside the apartment had been extinguished; that the assailant was in the room for only 10 seconds; that the victim could see only a facial outline of him; that the assailant had his hand over his face part of the time; and that the victim could not even tell whether or not he had a mustache. Other evidence was presented, however, showing that Ms. Felmet saw the assailant for about two minutes; that the assailant’s face was very close to her face during the assault; that the porch light partially illuminated the room; and that Ms. Felmet had seen the person on earlier occasions. She testified in court that the man who had attacked her on 6 November 1981 was the defendant. The trial court, after a voir dire hearing in the jury’s absence, found that the prosecuting witness’s identification of defendant was based on her observation of him at the time of the incident. We believe this finding is supported by the evidence. The evidence brought to our attention by the defendant goes merely to the weight and credibility of the identification, not to its admissibility, and was for the jury’s consideration.

Defendant next contends it was error to admit the in-court identification testimony because it was so tainted by impermissibly suggestive pretrial photographic procedures that it violated due process of law.

After a careful review of the evidence concerning the two occasions during which Ms. Felmet positively identified the defendant by way of photographs, we do not believe that the pretrial photographic lineups were conducted in an unconstitutionally suggestive manner. On both occasions, the victim was shown six photographs of white males. The police did not suggest that Ms. Felmet choose any of the photographs but merely asked her to see if she recognized anyone who looked like the assailant. On the first occasion, she selected the photograph of the defendant, but asked to see a front view picture so that she could be absolutely sure of the identification. On the second occasion, the victim was shown front view pictures of six white males, one picture being that of the defendant and the other five pictures being different from the five that accompanied defendant’s picture in the first photographic lineup. Ms. Felmet again picked defendant’s photograph.

Defendant’s photograph was the only one common to both lineups. He argues that this made the procedure impermissibly suggestive. We are bound by earlier decisions of this Court and our Supreme Court to reject this argument. See State v. Leggett, 305 N.C. 213, 287 S.E. 2d 832 (1982) and State v. Battle, --- N.C. App. ---, 300 S.E. 2d 276 (1983).

Defendant next argues it was impermissibly suggestive that his photograph was presented in each lineup in a different manner than were the other photographs. In the first lineup, the five individuals other than defendant were depicted by both side and front views, while defendant was represented only by a side view picture. In the second lineup, defendant argues that his photograph was somewhat darker than the other photographs, that it showed more of his body than did the others, and that the hairstyles of the other men were different from his hairstyle. We do not believe that differences like these create a suggestiveness that is substantially conducive to misidentification. See, e.g., U.S. v. Lincoln, 494 F. 2d 833 (9th Cir. 1974) [lineup with color photograph of defendant and black-and-white photographs of others held constitutional]; State v. Cobb, 295 N.C. 1, 243 S.E. 2d 759 (1978) [fact that defendant’s photograph was newer than others in the lineup held not unnecessarily suggestive]; State v. Gray, 292 N.C. 270, 233 S.E. 2d 905 (1977) [different hairstyles]; State v. Conyers, 33 N.C. App. 654, 236 S.E. 2d 393, appeal dismissed, 293 N.C. 362, 238 S.E. 2d 150 (1977) [defendant’s photograph had yellow-tinged border as result of the development process which made it distinctive from the other photographs]. We, therefore, find no merit in this contention.

After Ms. Felmet identified defendant in the first lineup, a police officer apparently told her that the man she had selected lived in the same apartment complex that she did. Defendant contends that this fact drew the victim’s attention to him in the second lineup, and made the procedures impermissibly suggestive. This argument is without merit. When informed that defendant lived in the apartments, Ms. Felmet had already viewed the first lineup and positively identified the defendant as her assailant. It is true that she asked to see a front view picture of him and was subsequently shown a second lineup, but this was done so that she could be completely sure of the identification. Furthermore, she was not told that defendant was a suspect, only that he lived in the same complex. It is at least as likely that this suggested to the victim that because she may have seen the defendant before at the apartments, her first identification was a mistaken one. Yet she selected his photograph again from the second lineup. Defendant has failed to show that this fact made it substantially likely that either identification was mistaken.

We hold that the photographic lineups were not imper-missibly suggestive and that the witness’s in-court identification of defendant was properly allowed into evidence.

In his second assignment of error defendant contends the trial judge expressed, in his instructions to the jury, his opinion that defendant was the person who had assaulted Ms. Felmet. That portion of the charge to which defendant takes issue reads as follows:

“Now you will recall, ladies and gentlemen, that for the State of North Carolina the first witness to take the stand was Lisa Felmet. She testified . . . that she saw the defendant’s face in the apartment; that he did not have any glasses on and that she could not see the mustache because his hand was over his mouth and that she did not notice any mustache and did not see any mustache; that he was in the light on the porch and there was light on the inside of the room but that she did not see any mustache ... his hand was under his mouth — over his mouth under his nose . . . .” (Emphasis added.)

We note first that defendant failed to object to the court’s instruction before the jury retired and therefore waived any opportunity to assign error to portions of the instructions. However, considering the merits of his contentions, we find no error in the charge.

Defendant argues that whether or not the assailant had a mustache was his primary defense since he did, at the time in question, have a prominent mustache. He contends the judge’s instruction removed from the jury’s consideration the question of whether the assailant had a mustache and in this way intimated that the judge was of the opinion that the defendant was the assailant. We cannot agree. The trial judge has a duty to summarize the evidence presented to the extent necessary to explain the application of the law to the evidence. G.S. 15A-1232. Lisa Felmet testified that she “did not see a mustache when he was on the front porch because of his hand covering his mouth” and that she “did not notice a mustache because I was not looking for one.” We believe the instructions to which defendant objects were a proper summary of this evidence. We do not believe these instructions in any way intimated the opinion of the judge as to any question of fact to be decided by the jury. This assignment of error is overruled.

No error.

Chief Judge VAUGHN concurs. Judge Eagles dissents.