State v. Gatling

170 S.E.2d 593 (1969) 275 N.C. 625

STATE of North Carolina
v.
Arthur S. GATLING and Clarence B. Banks.

No. 30.

Supreme Court of North Carolina.

November 19, 1969.

John H. Harmon, New Bern, for defendant appellants.

Robert Morgan, Atty. Gen., and Christine Y. Denson, Raleigh, Staff Atty., for the State.

HUSKINS, Justice.

Within four hours after the victim was beaten and robbed, defendants were apprehended and brought to the county jail. The victim, already there, promptly recognized defendants and identified them as his assailants. He so testified at the trial and over objection made in in-court identification of the robbers. Defendants contend this violated their constitutional right under the Sixth and Fourteenth Amendments to the presence of counsel at such a "pretrial confrontation." Admission of this evidence is assigned as error, defendants relying on United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, and the decision of this Court in State v. Wright, 274 N.C. 84, 161 S.E.2d 581. This requires an examination of the cases cited.

In Wade the facts were that more than seven months after the robbery of a bank and sixteen days after Wade had been charged with the crime and counsel had been appointed to represent him, a lineup was arranged by the police and conducted without notice to Wade or his counsel. Two bank employees observed the lineup composed of the accused and five or six other persons in which all were required, like the robber, to wear strips of tape on their faces and to say the words allegedly uttered by the robber. The two employees identified Wade as the robber and later at the trial identified him in court. It was held that the out-of-court identification at the police lineup was a "critical" stage of pretrial proceedings and that the Sixth Amendment required the presence of counsel unless knowingly and intelligently waived. The case was remanded for a voir dire hearing to determine whether the in-court identifications were based on other observations of Wade rather than on the lineup identification and to determine whether, in any event, the introduction of the lineup identification constituted harmless error.

In Gilbert, an Alhambra savings and loan association office was robbed on 3 January 1964. On 26 March 1964 after Gilbert had been indicted and after counsel had been appointed to represent him, a lineup was conducted by the police in an auditorium used for that purpose. "Some ten to thirteen prisoners were placed on a lighted stage. The witnesses were assembled in a darkened portion of the room, facing the stage and separated from it by a screen. They could see the prisoners but could not be seen by them. State and federal officers were also present and one of them acted as ``moderator' of the proceedings. * * * Either while the men were on the stage, or after they were taken from it, it is not clear which, the assembled witnesses were asked if there were any that they would like to see again, and told that if they had doubts, now was the time to resolve them. Several gave the numbers of men they wanted to see, including Gilbert's. While the other prisoners were no longer present, Gilbert and 2 or 3 others were again put through a similar procedure. Some of the witnesses asked that a particular prisoner say a particular phrase, or walk a particular way. After the lineup, the witnesses talked to each other; it is not clear that they did so during the lineup. They did, however, in each other's presence, call out the numbers of men they could identify." Gilbert v. California, supra, 388 U.S. 263, 270, 87 S. Ct. 1951, 1955, footnote 2.

Gilbert's counsel was neither notified nor present at a lineup attended by approximately one hundred persons, purportedly eyewitnesses to one of many robberies with which Gilbert was charged. In addition to identifying Gilbert in court at the trial, three witneses testified that they had observed and identified him as the Alhambra robber at the auditorium lineup. The Supreme Court of the United States held that such lineup procedures for identification purposes, conducted without notice to and in the absence of counsel, was a violation of Gilbert's constitutional right to counsel under the Sixth and Fourteenth Amendments and called into question the admissibility of the in-court identifications of Gilbert by the three lineup witnesses. The case was remanded for a determination of whether the in-court identification by the three lineup witnesses had an independent origin or was tainted by the illegal lineup and therefore incompetent.

In Stovall, about midnight on 23 August 1961 a doctor was murdered and his wife stabbed eleven times requiring major surgery to save her life. Two days later a Negro suspect was taken to her hospital room by five policemen and two members of the district attorney's staff. The suspect was afforded no time to consult or retain counsel. He was the only Negro in the room and was handcuffed to one of the officers. At their direction he spoke a few words for voice identification. An officer asked her whether he "was the man" and she identified him from her hospital bed. At the trial she made an in-court identification and testified to her hospital room identification. Stovall was convicted and sentenced to death. After exhausting state remedies he petitioned the United States District Court for the Southern District of New York for habeas corpus. His petition was dismissed and the Circuit Court of Appeals for the Second Circuit affirmed (United States ex rel. Stovall v. Denno, 355 F.2d 731). On certiorari the Supreme Court of the United States affirmed on the ground that the exclusionary rule enunciated in Wade and Gilbert was not retroactive and affected only confrontations conducted after 12 June 1967. Commenting upon pretrial confrontations the court said: "Wade and Gilbert fashion exclusionary rules to deter law enforcement authorities from exhibiting an accused to witnesses before trial for identification purposes without notice to and in the absence of counsel." Commenting further, the court said: "The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned.. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it. * * *"

In State v. Wright, supra, the victim was assaulted on the night of 22 July 1967 and a lineup was conducted on 20 August 1967. After being fully warned of his rights and with his oral consent and waiver of counsel, Wright was placed in a lineup of ten persons. The victim said she could not identify her assailant but would be able to do so if she could hear him talk and see him walk. Wright was thereupon taken to a small room, shown singly to the victim, and required to walk and talk in her presence. On the basis of this private confrontation, the victim identified Wright as her assailant. We held that the proceeding lost its character as a pretrial investigative procedure and became a critical stage requiring the presence of counsel. Such illegal out-of-court identification rendered her in-court identification incompetent unless it could be shown that it had an independent origin and did not result from the illegal out-of-court confrontation.

By comparison, in the case before us there was no lineup; nor were defendants "shown singly" for identification purposes. They were taken to the jail for incarceration—not for identification. Russell's presence there was not prearranged by the officers. He had remained there of his own volition after reporting the robbery. He promptly, and without hesitation, identified defendants when they entered the room less than four hours after he had ridden and talked with them. His memory was still fresh. Defendants were wearing the same clothes they wore when they robbed him. They fit the description he had previously given the officers, as did Gatling's car. Russell's wallet was found in the car exactly where he said he had hidden it. He had been intimidated with a straight razor—Banks had a straight razor in his pocket. This is a far cry from the facts in Wade and Gilbert and certainly is not the type of confrontation for identification purposes which those cases were designed to deter. In our view Wade and Gilbert do not encompass and have no application to the facts in this case. Furthermore, considering the totality of circumstances, we hold that the victim's identification of defendants at the jail did not take place under circumstances "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to be a denial of due process of law under the Fourteenth Amendment. The principles expounded in Stovall are therefore unavailable to these defendants. See State v. Rogers, 275 N.C. 411, 168 S.E.2d 345, where cases illustrating the suggestive, unfair type of lineup offensive to due process are cited and discussed.

It is difficult to imagine a set of facts and circumstances which would render the identification of an accused more definite and certain than those in this case. It is perfectly apparent that Russell's in-court identification was based on his observation of defendants while their captive rather than on the entirely harmless "confrontation" at the jail. This assignment of error is overruled.

Defendants' remaining assignment of error relates to the charge with respect to Daylight Saving and Eastern Standard Time. When that portion of the charge is considered in context, however, we do not regard it as prejudicial. A charge will be construed contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct. State v. Cook, 263 N.C. 730, 140 S.E.2d 305; State v. Goldberg, 261 N.C. 181, 134 S.E.2d 334; State v. Taft, 256 N.C. 441, 124 S.E.2d 169. "The charge of the court must be read as a whole * * *." State v. Wilson, 176 N.C. 751, 97 S.E. 496; and if it presents the law fairly and clearly to the jury, the fact that some expressions, standing alone, might be considered erroneous will afford no ground for reversal. State v. Hall, 267 N.C. 90, 147 S.E.2d 548. Technical errors which are not substantial and which could not have affected the result will not be held prejudicial. State v. Norris, 242 N.C. 47, 86 S.E.2d 916. It is not sufficient to show that a critical examination of the judge's words, detached from the context and the incidents of the trial, are capable of an interpretation from which an expression of opinion may be inferred. State v. Jones, 67 N.C. 285.

Defendants were not prejudiced by the segregated portion of the charge to which they object. It had no prejudicial effect on the result of the trial and was therefore harmless. State v. Perry, 231 N.C. 467, 57 S.E.2d 774. This assignment of error is overruled.

The decision of the Court of Appeals upholding judgment of the trial court is

Affirmed.