State v. Fowler

225 S.E.2d 110 (1976) 29 N.C. App. 529

STATE of North Carolina
v.
Beamon FOWLER.

No. 7618SC55.

Court of Appeals of North Carolina.

June 2, 1976.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. James L. Blackburn, Raleigh, for the State.

Thomas F. Kastner, Asst. Public Defender, Eighteenth Judicial District, High Point, for defendant.

ARNOLD, Judge.

After the first robbery on 12 December 1974 Susan Davis selected photographs of three suspects. One of the photographs was of defendant. Following the second robbery on 26 December defendant was arrested on an unrelated misdemeanor charge, and he was photographed at this time. The recent picture of defendant, along with seven others, but not including the other two suspects selected after the first robbery, were exhibited to Davis. She selected defendant's photograph.

Defendant argues that the photographic identification was inherently suggestive and tainted the in-court identification since only one of the three photographs previously selected was included, and because the recent photograph of defendant was taken illegally. We disagree.

There is no basis for defendant's contention that the photograph taken of him while he was under arrest for a misdemeanor was illegal. This Court, in State v. Strickland, 5 N.C.App. 338, 168 S.E.2d 697 (1969), reversed on other grounds, 276 N.C. 253, 173 S.E.2d 129 (1970), held that G.S. 114-19, relied upon by defendant in his argument, did not prohibit the use in evidence of photographs made of a defendant charged with a misdemeanor. [In 1973 the General Assembly deleted the first two paragraphs of G.S. 114-19, including the provision relied upon by defendant which relates to photographing misdemeanants, but the same was in effect at the time these crimes occurred.] Strickland, supra, 5 N.C. App. at 341, 168 S.E.2d 697 held that G.S. 114-19 has no application to the taking and use in evidence of photographs of a defendant charged with a misdemeanor.

Following the evidence presented on voir dire the trial court concluded that there were no illegal identification procedures. The court found that the witness had ample opportunity to observe defendant, and that the in-court identification was of independent origin, and based entirely on what the witness saw during the alleged crimes in the Flash Market. The court's findings and conclusions are fully supported by the record. See State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Shutt, 279 N.C. 689, 185 S.E.2d 206 (1971); State v. McDonald, 11 N.C.App. 497, 181 S.E.2d 744 (1971).

There is also no merit in defendant's contention that the court erred in allowing Iris Boyd to identify defendant without conducting a voir dire, and in allowing Officer Kelly to testify regarding identification of defendant's photograph by Miss Boyd. A voir dire was held concerning the propriety of the pretrial identification procedure during Susan Davis' testimony. The court properly held that the procedure used in the selection of the photographs was not unduly suggestive or conducive to mistaken identification. The evidence from the record clearly indicates that the same eight photographs shown to Davis were shown to Miss Boyd, and that the same procedure was used in exhibiting the photographs to both witnesses. It was not necessary to conduct a second voir dire to determine the propriety of the pretrial photographic procedure. See State v. Shutt, supra.

Officer Kelly's testimony that he showed the photographs to Miss Boyd, and that she selected defendant's photograph, was allowed solely to corroborate the testimony of Miss Boyd.

The district attorney cross-examined defendant with respect to defendant's prior convictions. Defendant asserts that the trial court erred in admitting evidence of defendant's prior convictions without first determining whether defendant was represented by counsel when he was convicted of the prior offenses. He cites Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), and argues the principle that the use of prior convictions, constitutionally invalid because of a denial of counsel, to impeach the accused's credibility as a witness deprives the accused of due process.

While the trial court did not determine whether defendant's prior convictions were valid and admissible before the testimony was received into evidence, he did, upon hearing the testimony regarding prior convictions, dismiss the jury and proceed to determine whether defendant had been represented by counsel. The court properly determined that at all of defendant's prior convictions he either had benefit of counsel or had waived his right to counsel. The determination by the court that the defendant's prior convictions were constitutionally valid with respect to having benefit of counsel might better have been made before the evidence was allowed. However, any defect was rendered harmless by the ultimate determinations made by the court.

Defendant offered the testimony of R. L. Tuttle that he, Tuttle, administered a polygraph test to defendant, and that no deception was indicated when defendant denied any connection with the robberies. The results of the test were not allowed into evidence. Defendant moved that the testimony be admitted to corroborate his testimony, and he contends that the court erred in refusing to allow the testimony for the limited purpose of corroboration.

It is established in North Carolina that results of polygraph tests are inadmissible when offered to prove the guilt or innocence of the defendant. State v. Brunson, 287 N.C. 436, 215 S.E.2d 94 (1975); State v. Foye, 254 N.C. 704, 120 S.E.2d 169 (1961); State v. Pope, 24 N.C.App. 217, 210 S.E.2d 267 (1974). We see no logic that compels us to admit the results of a polygraph, when offered to prove guilt or innocence of defendant, merely because it is offered for the limited purpose of corroboration.

Defendant's remaining assignments of error have been reviewed and found to be without merit. It is our view that defendant had a fair trial without prejudicial error.

No error.

BRITT and VAUGHN, JJ., concur.