State v. Tuggle , 284 N.C. 515 ( 1974 )

201 S.E.2d 884 (1974) 284 N.C. 515

STATE of North Carolina
v.
Wayne R. TUGGLE.

No. 100.

Supreme Court of North Carolina.

January 25, 1974.

H. Glenn Davis, Winston-Salem, for defendant-appellant.

Atty. Gen. Robert Morgan and Associate Atty. Thomas M. Ringer, Jr., Raleigh, for the State.

BOBBITT, Chief Justice.

Defendant's first and second assignments of error relate to the admission over his objection of the identification testimony of Kiser and Smith. He contends their testimony was tainted by impermissible pretrial identification procedures and should have been excluded.

Before admitting the challenged testimony, the court conducted a voir dire hearing. Evidential facts and the court's findings will be set forth below.

Defendant contends the in-court identification testimony of Kiser and of Smith was tainted because defendant was not represented by counsel when Kiser and Smith identified certain photographs of defendant as pictures of the man who committed the alleged crimes. There is no merit in this contention. Defendant had no constitutional right to the presence of counsel when Kiser and Smith were viewing photographs for purposes of identification regardless of whether defendant was in custody or at liberty at that time. State v. Stepney, 280 N.C. 306, 313, 185 S.E.2d 844, 849 (1972), and cases there cited.

Defendant further contends the in-court identification testimony of Kiser and of Smith was tainted because the circumstances surrounding the photographic identifications were impermissibly suggestive and conducive to irreparable mistaken identity. The evidence before the court on voir dire negates this contention. A brief summary will suffice.

The only pre-trial identifications by Kiser and by Smith were those made at the police station in High Point on the same night the robberies and kidnapping occurred. Kiser and Smith had recently seen the uncovered face of defendant in the brightly lighted store. The distance between them and defendant was the length of the shotgun barrel. Kiser arrived at the police station about 9:15. He looked through the photographs shown him and identified one as the picture of the man who had committed the alleged crimes. Smith did not arrive until about 11:00 p. m. He looked through the photographs shown him and identified the same photograph as the picture of the man who had committed the alleged crimes. Thereafter, both Kiser and Smith identified two other photographs of defendant as pictures of the man who committed the alleged crimes. Kiser testified: "I won't never forget that face." Smith referred to defendant's "very distinctive face" and identified him "without the slightest shadow of a doubt."

Defendant was not brought before Kiser or Smith in a lineup or otherwise. Kiser did not see defendant at the police station. Following his identification of defendant's photograph, Smith saw defendant momentarily under the following circumstances: Going down the hall on his way out of the police station, Smith passed a room (office) in which "half a dozen" people were seated. Looking back over his shoulder he recognized defendant as one of the persons seated in that room. It had been suggested that he look in this room as he passed.

When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification(s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts. State v. McVay and State v. Simmons, 277 N.C. 410, 417, 177 S.E.2d 874, 878 (1970); State v. McVay and State v. Simmons, 279 N.C. 428, 432, 183 S.E.2d 652, 655 (1971); State v. Morris, 279 N.C. 477, 481, 183 S.E.2d 634, 637 (1971).

The court's findings, which are supported by plenary uncontradicted testimony, are to the effect that the "in-court identification of the defendant" by Kiser and Smith was based on their observations of defendant on 20 November 1972 and that the testimony of each "[had] its origin independent of any in-court, in-custody, or photographic viewing of the defendant by the witness." Defendant's objections to the in-court identification testimony of Kiser and of Smith were properly overruled.

Defendant's third (last) assignment of error relates to the admission over his objection of the testimony of Mrs. Georgia Hicks, the manager of Stragley's Flash Market, a store in High Point some three to three and a half miles from Moorefield's Grocery.

Mrs. Hicks testified in substance that on 20 November 1972 about 6:45 p. m. defendant entered the door of the Flash Market with a "[t]welve-gauge, single barrel shotgun" in front of him and demanded Mrs. Hicks's money. She removed all bills from the cash register and put them upon a counter. In response to defendant's further demands, Mrs. Hicks got a brown paper bag and she and defendant put the bills in it. Defendant ordered Mrs. Hicks to the back of the store, took the bag and left. Some two minutes later Mrs. Hicks closed the store and went to the High Point police station. There she looked through photographs shown her and identified a photograph of defendant as the picture of the man who had just robbed the Flash Market.

Before admitting the in-court identification testimony of Mrs. Georgia Hicks to the effect that defendant was the man who robbed the Flash Market, the court conducted a voir dire hearing at which the only evidence was the testimony of Mrs. Hicks. On voir dire, Mrs. Hicks testified, inter alia, that defendant got as close to her as "[t]he length of that shotgun barrel" and that the Flash Market was lighted with twelve "[n]inety-six inch fluorescents." Suffice to say, plenary uncontradicted evidence supports the court's finding that Mrs. Hicks's in-court identification was based solely on her observation of defendant in the Flash Market on 20 November 1972.

There remains for consideration defendant's contention that Mrs. Hicks's testimony concerning a robbery at the Flash Market should have been excluded on the ground it tended to show defendant had committed an unrelated criminal offense.

The evidence as to what happened when Kiser and Smith were robbed and Kiser was kidnapped was not contradicted. The primary issue was whether defendant committed these crimes. We note that the court gave explicit instructions that the jurors were to consider the testimony of Mrs. Hicks only as it might tend to bear upon the identity of the defendant as the person who committed the crimes for which he was on trial and for no other purpose.

Although in different counties, the distance from the Flash Market to Moorefield's Grocery was three and a half miles or less. The interval between the robbery at the Flash Market and the robberies at Moorefield's Grocery was brief. Both were committed hurriedly by an unmasked man. In each, the mode of procedure was the same, that is, abrupt entrance into a lighted store with a shotgun pointed toward the occupant(s) and an immediate demand for the money. Proximity in place and time and similarities in method were relevant for consideration by the jury as to whether the man identified by her as defendant and who had robbed the Flash Market was also the man who had committed the crimes for which defendant was on trial. We hold that the testimony of Mrs. Georgia Hicks was competent on the question of identity and properly admitted. State v. McClain, 282 N.C. 357, 362-363, 193 S.E.2d 108, 111-112 (1972), and cases there cited.

Defendant having failed to show prejudicial error, the verdicts and judgment will not be disturbed.

No error.