holding it was not error for the trial court to conclude the in-court identification of the defendant was independent of the pretrial procedure where three of the five factors supported the conclusionSummary of this case from State v. McGhee
Filed 3 February 1988
1. Criminal Law 66.14 — impermissibly suggestive pretrial identification procedures — identification at trial of independent origin The trial court in a prosecution for first degree rape, first degree sex offense, and crime against nature did not err by admitting the victim's in-court identification of defendant even though the prosecuting witness first saw defendant at a one-man showup in a parking lot at 2:00 a.m.; a detective subsequently showed the prosecuting witness a photographic lineup which contained a year-old photograph of defendant; when the witness could not make a positive identification from that lineup, the detective put in a picture of defendant taken that day; and, when the victim still could not identify the defendant, the detective again arranged a one-man showup. The superior court found that the victim's in-court identification of defendant was of independent origin and untainted by illegal pretrial procedures based on evidence that the witness had ample opportunity to observe the person as he committed the crime, that she paid attention to him, and that she was able to describe him to officers.
2. Criminal Law 181.2 — motion for appropriate relief — newly-discovered evidence — lack of due diligence The trial court in a prosecution for rape, first degree sex offense, and crime against nature did not err by denying defendant's motion for appropriate relief based on newly-discovered evidence where the evidence showed that the defendant knew of the new evidence during the trial and the superior court concluded that defendant did not act with due diligence in seeking that witness. N.C.G.S. 15A-1415 (b)(6).
3. Constitutional Law 34 — mistrial — no double jeopardy The trial court in a prosecution for rape, first degree sex offense, and crime against nature, did not err by denying defendant's motion to dismiss on a plea of former jeopardy where the defendant had made the motion for a mistrial in his former trial.
APPEAL by defendant from a life sentence imposed by Tillery, J., at the 13 January 1986 Criminal Session of Superior Court, DARE County. Heard in the Supreme Court 11 December 1986.
Lacy H. Thornburg, Attorney General, by Francis W. Crawley, Assistant Attorney General, for the State.
G. Irvin Aldridge for defendant appellant.
Justice FRYE dissenting.
Chief Justice EXUM joins in the dissenting opinion.
The defendant was charged with first degree rape, first degree sex offense, and a crime against nature. He was tried on these charges in September 1985 in a trial which ended in a mistrial. He was tried a second time in January 1986. At the end of the State's evidence the court allowed a motion to dismiss the charge of crime against nature. The jury found the defendant guilty of first degree rape and not guilty of first degree sex offense. The defendant appealed from the imposition of a life sentence.
The defendant has brought forward three assignments of error pursuant to Rule 28 (b)(5), Rules of Appellate Procedure and supported them by reason and authority. We shall consider these three assignments of error.
The defendant's first assignment of error deals with the identification testimony of the prosecuting witness. The defendant objected to this testimony and a voir dire hearing out of the presence of the jury was held. The prosecuting witness testified that on 17 August 1982 she was staying at a cottage in Kitty Hawk, North Carolina. She arose early that morning and went to the beach at approximately 5:10 a.m. to watch the sun rise. She sat on the beach for five to ten minutes at which time she saw a man approaching. The man came to her and asked if she had a cigarette. She told him she did not. After some conversation he drew a knife and forced her to a dune, at which time he raped her and performed cunnilingus on her. She escaped from him some time later and returned to the cottage in which she was staying with her fiance and her fiance's parents. She testified she was with her assailant for approximately forty minutes, during which time there was sufficient light that she had no trouble identifying him.
The prosecuting witness reported the incident to the Dare County Sheriff's Department and she was interviewed that day by several deputy sheriffs and by W. A. Hoggard, III, a special agent with the State Bureau of Investigation. Mr. Hoggard exhibited to her a photographic lineup which did not contain the defendant's picture. She was not able to identify her assailant in the lineup although she said one photograph appeared to be similar to the defendant. Later that day Mr. Hoggard carried the prosecuting witness to a commercial artist who drew a picture of the assailant from the prosecuting witness' description. The prosecuting witness testified the picture was similar to her assailant but did not "really resemble him."
At approximately 2:00 a.m. the next morning Mr. Hoggard called the prosecuting witness and asked her to come to a bar and look at a man. The prosecuting witness was driven to the bar by her fiance where the defendant was standing in the parking lot under a light. The prosecuting witness stayed in the automobile and observed the defendant from a distance of approximately twenty feet. She testified "I remember pulling up in the parking lot and I began to shake uncontrollably when I started observing him, and he was wearing those same green pants and he had on the same muscletype t-shirt, but I didn't get to look at his face." Mr. Hoggard testified that he went to the prosecuting witness who was seated in the automobile. He said "[She] stated the individual she had seen me talking to had the same basic build and size as her assailant on the beach, but, due to the distance and the lighting, she was not able to get a close-up view of his facial features and could not make a positive identification."
On 21 August 1982 Mr. Hoggard showed another photographic lineup to the prosecuting witness. It contained a year old picture of the defendant. The prosecuting witness selected the defendant's picture and said it "appeared to be him, but the hair — appeared to be her attacker, but the hair and moustache were quite a bit different from the person she observed on the beach on August 17, 1982." Mr. Hoggard had a photograph made of the defendant that day and placed it in the second photographic lineup he had shown the prosecuting witness. The prosecuting witness told Mr. Hoggard that this picture looked like her attacker, but she could not be positive and she would like to see the individual in person.
As a result of the prosecuting witness' request, Mr. Hoggard called the defendant who agreed to meet Mr. Hoggard and the prosecuting witness to determine whether he was the assailant. They met in the parking lot of a supermarket. It was daylight. The defendant was wearing a three piece suit and a necktie. The prosecuting witness told Mr. Hoggard the defendant looked very similar to her assailant but she still could not make a positive identification. This occurred on 22 August 1982 and the prosecuting witness left that day for her home in Virginia.
The prosecuting witness talked to Mr. Hoggard several times by telephone and wrote him letters in September 1982 and March 1983. In late May 1985 she called Mr. Hoggard and told him she could identify her assailant. She met Mr. Hoggard in the district attorney's office in Elizabeth City at which time she was shown the two photographic lineups she had been shown in the summer of 1982. She identified the photograph of the defendant as a picture of the man who assaulted her in 1982. The prosecuting witness testified that she could identify the defendant as the man who had assaulted her because she had several nightmares and the face of her assailant kept appearing in them. This was the face of the defendant.
The court made findings of fact consistent with this evidence and held:
From the foregoing findings of fact, the Court concludes as a matter of law: After having considered the opportunity of the witness to view the person at the scene, the degree of attention which the witness described in her viewing of him, as well as her description of him physically and of his clothing and jewelry, after having considered the accuracy of the witness' description as she gave it to Agent Hoggard, the level of certainty demonstrated by the witness that the in-court confrontation yesterday in which she stated that she was absolutely certain of the defendant as being her attacker and after having considered the length of time between the crime and the confrontation, the Court has come to the conclusion that all of the circumstances do not reveal pretrial procedure so unecessarily [sic] suggestive and conducive to irreparable mistake in identification as to offend fundamental standards of decency, fairness and justice. The Court has further concluded as a matter of law that the in-court identification of the defendant is of independent origin and untainted by illegal pretrial identification procedures.
The court denied the motion to suppress the prosecuting witness' in-court identification of the defendant.
Identification evidence must be suppressed on due process grounds where the facts show that the pretrial identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification. State v. Wilson, 313 N.C. 516, 330 S.E.2d 450 (1985). The first inquiry when a motion is made to suppress identification testimony is whether the pretrial identification procedure is impermissibly suggestive. If it is determined that the pretrial identification procedure is impermissibly suggestive the court must then determine whether the suggestive procedure gives rise to a substantial likelihood of irreparable misidentification. Factors to be considered in making this determination are (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation. State v. Hannah, 312 N.C. 286, 322 S.E.2d 148 (1984) and State v. Headen, 295 N.C. 437, 245 S.E.2d 706 (1978).
In this case the superior court concluded "that all of the circumstances do not reveal pretrial procedure so unecessarily [sic] suggestive and conducive to irreparable mistake in identification as to offend fundamental standards of decency, fairness and justice." This may be construed as a finding that the pretrial procedure was not impermissibly suggestive. The evidence showed that the prosecuting witness first saw the defendant at a one man showup in a parking lot at 2:00 a.m. After this, Mr. Hoggard showed the prosecuting witness a photographic lineup which contained a year old photograph of the defendant. When the prosecuting witness could not make a positive identification from this lineup, Mr. Hoggard put a picture of the defendant taken that day in the same photographic lineup and showed it to the prosecuting witness. When she could not identify the defendant on this occasion, he again arranged a one man showup. It may certainly be argued from this that the pretrial procedures were impermissibly suggestive.
It is not necessary for us to determine whether the pretrial procedures were impermissibly suggestive. In State v. Bundridge, 294 N.C. 45, 239 S.E.2d 811 (1978), this Court held that although the trial court may have erred in finding a pretrial procedure was not impermissibly suggestive it was not error to allow an in-court identification when the trial court found, based on sufficient competent evidence, that the witness' identification was independent of the pretrial procedure. In this case, the superior court found that the in-court identification of the defendant was of independent origin and untainted by illegal pretrial procedures. The superior court relied on the evidence that the witness had ample opportunity to observe the person as he committed the crime and that she paid attention to him and was able to describe him to the officers. These are three of the five factors which we have said may be used to determine whether an identification is of independent origin. The court also relied on the positive in-court identification by the witness. There are two factors, the level of certainty demonstrated at the pretrial confrontations and the time between the crime and the confrontation which did not support this finding. In light of the three factors which the court considered, we cannot hold that the court erred in finding the identification was of independent origin. This assignment of error is overruled.
The defendant next assigns error to the denial of his motion for appropriate relief based on newly discovered evidence. While the trial was in progress the defendant's attorney inspected notes Mr. Hoggard had made during his investigation. These notes showed Mr. Hoggard had interviewed a Mr. and Mrs. William Deem of New Kensington, Pennsylvania. The Deems were staying in a cottage across the street from the place at which the rape occurred. Mrs. Deem told Mr. Hoggard that at approximately 6:15 a.m. she and her husband had observed through binoculars a black male and a white female in the dunes. The couple stayed in the dunes approximately twenty minutes and then walked hand in hand toward the beach.
After a hearing on the defendant's motion for appropriate relief the court made findings of fact to which no exceptions were made. The court found as facts that the defendant examined Mr. Hoggard's notes during the trial, at which time he learned of Mrs. Deem's statement and that he did not ask for a recess for the purpose of procuring Mrs. Deem as a witness. The court concluded that the defendant did not act with due diligence to procure this witness and her testimony would not be newly discovered evidence.
N.C.G.S. 15A-1415 provides in part:
(a) At any time after verdict, the defendant by motion may seek appropriate relief upon any of the grounds enumerated in this section.
(b) The following are the only grounds which the defendant may assert by a motion for appropriate relief made more than 10 days after entry of judgment:
. . . .
(6) Evidence is available which was unknown or unavailable to the defendant at the time of trial, which could not with due diligence have been discovered or made available at that time, and which has a direct and material bearing upon the guilt or innocence of the defendant.
This section of the statute codifies substantially the rule previously developed by case law for the granting of a new trial for newly discovered evidence. See State v. Beaver, 291 N.C. 137, 229 S.E.2d 179 (1976). The evidence showed that the defendant knew of the statement of Mrs. Deem during the trial. The superior court concluded the defendant did not act with due diligence in seeking this witness. We cannot hold the court abused its discretion in doing so. See State v. Person, 298 N.C. 765, 259 S.E.2d 867 (1979). If the defendant did not act with due diligence in seeking this witness he is not under N.C.G.S. 15A-1415 (b)(6) entitled to a new trial.
The defendant next assigns error to the denial of his motion to dismiss on a plea of former jeopardy. At the first trial there was testimony identifying the defendant as the perpetrator of the crime before the court knew the defendant's principal defense was lack of identity. The defendant made a motion for mistrial at this point. The court made findings of fact that this identification testimony had been allowed before a voir dire hearing was held to determine its admissibility. It found in part:
If the Court finds the victim's in-court identification is tainted by viewing the defendant and photographs of him between the time of the attack and the trial, then the Court would have to reverse its earlier ruling and such proceeding would result in substantial and irreparable prejudice to the defendant's case. If the Court rules the in-court identification is not tainted, then the ruling of the Court is suspect because of the natural tendency to sustain one's prior conduct.
The court allowed the motion for mistrial.
The defendant argues that he has been twice put in jeopardy for the same offense by being tried a second time. The defendant made a motion for mistrial. It was not error to overrule his plea of former jeopardy. State v. Britt, 291 N.C. 528, 231 S.E.2d 644 (1977).