STATE of North Carolina
v.
James MILLER, alias James Smith and Daniel Pearce Roberts.
No. 8318SC993.
Court of Appeals of North Carolina.
July 3, 1984.*87 Atty. Gen. Rufus L. Edmisten by John R.B. Matthis, Sp. Deputy Atty. Gen., John F. Maddrey and Philip A. Telfer, Asst. Attys. Gen., Raleigh, for the State.
Adams, North, Cooke & Landreth by Thaddeus A. Adams, III, Greensboro, for defendant-appellant Miller.
Appellate Defender Adam Stein by Ann B. Petersen, Asst. Appellate Defender, Raleigh, for defendant-appellant Roberts.
VAUGHN, Chief Judge.
The defendants argue that the trial court erred in several rulings related to in-court identification testimony of the defendants by State's witnesses Marvin Massengill, Douglas Linkhous and Vernon Thurlby. Upon defendants' motion to suppress the identifications, Judge Rousseau held voir dire hearings and determined that (1) some of the prior photographic line-ups shown to Massengill and Thurlby were unduly suggestive and should be suppressed; (2) the photographic line-up shown to Linkhous was not unduly suggestive; and (3) the in-court identifications of all three witnesses were of independent origin and therefore admissible. We affirm Judge Rousseau's rulings and overrule these assignments of error.
The rules relating to the admissibility of in-court identification testimony are well-settled. Generally, a witness may make an in-court identification of a defendant *88 and any uncertainty in that identification goes to the weight and not the admissibility of the testimony. State v. Billups, 301 N.C. 607, 616, 272 S.E.2d 842, 849 (1981). Moreover, it has been established that a photographic line-up is an acceptable basis for an in-court identification. State v. Bundridge, 294 N.C. 45, 56, 239 S.E.2d 811, 819 (1978). The general rule allowing in-court identifications is, however, subject to the exception of a defendant's due process rights are violated if the in-court identification is tainted by a prior confrontation in circumstances shown to be "unnecessarily suggestive and conducive to irreparable mistaken identification." State v. Covington, 290 N.C. 313, 324, 226 S.E.2d 629, 638 (1976). Put more abstractly, the pretrial procedure must not offend fundamental standards of decency, fairness and justice. State v. Williams, 38 N.C.App. 183, 187, 247 S.E.2d 620, 622 (1978).
When a defendant claims that an in-court identification has been tainted by an improper confrontation, the trial judge should conduct a voir dire examination, make findings of fact and decide whether the in-court identification is of independent origin. See State v. Shore, 285 N.C. 328, 339, 204 S.E.2d 682, 689 (1974). An incourt identification is of independent origin and hence competent where the in-court identification is based on the witness' observations at the time and scene of the crime. State v. Fate, 38 N.C.App. 68, 72, 247 S.E.2d 310, 312 (1978). If the trial court rules that the identification is of independent origin and the findings are supported by competent evidence, they are conclusive on appeal and must be upheld. State v. Shore, supra.
Our review of the voir die testimony satisfies us that Judge Rousseau ruled correctly as to the in-court identifications. He conducted an extensive voir dire of all three witnesses to determine the basis for their identifications. Massengill testified that he viewed the defendants for ten to fifteen minutes in the motel room the night he was robbed. After the robbery, he described each defendant to the police. Massengill identified defendant Roberts from a group of photographs that were selected based on Massengill's description of the suspect, but was unable to identify Miller with certainty from photographs selected based on his description. On another occasion, Massengill did identify the defendant Miller from a photographic array. However, since Massengill testified that he identified Miller based on his female dress, the trial judge excluded this photographic identification of Miller. The trial court admitted Massengill's in-court identifications of both defendants on the grounds that they both had an independent origin.
The identifications of defendant Roberts by State's witness Linkhous based on the same photographic line-up showed to Massengill and on his in-court identification were properly admitted. Linkhous testified that on the night of the robbery, after hearing a noise followed by a second bang, he went outside and saw the defendant Roberts getting out of a car. Linkhous was between 20 to 30 feet away from Roberts and his view was aided by street lights, a porch light and the defendants' car lights. Whether or not the pretrial photographic array was tainted, the in-court identification clearly had an independent origin and was therefore proper.
Finally, although the photographic line-ups of both defendants shown to Vernon Thurlby, the victim of the South Carolina robbery, were found to be impermissibly suggestive in that the photographs suggested that each of the persons portrayed was being held in jail, the trial court properly found that each of the in-court identifications of the defendants had an independent origin. Thurlby's voir dire testimony indicated that he was robbed in a South Carolina motel room by two men, one of whom was dressed as a female. During the robbery, Thurlby observed the defendants for an hour and a half, often from short distances. Furthermore, as did witnesses Massengill and Linkhous, Thurlby expressly testified that he based his incourt identifications on the actual viewing of the defendants, not on the photographs *89 shown him. Cf. State v. Mettrick, 54 N.C. App. 1, 283 S.E.2d 139 (1981) (no evidence of independent origin where, among other things, witness never asked if his in-court identification was based upon what he saw at the scene).
Defendants further assert that the trial court erred in denying their motion to sequester witnesses Massengill, Linkhous and Thurlby. Such a motion is addressed to the discretion of the trial court and will not be overturned absent a showing of abuse of discretion. State v. Cross, 293 N.C. 296, 299-300, 237 S.E.2d 734, 737 (1977). We find no abuse of that discretion here. In particular, defendants argue that the witnesses' in-court identifications of the defendants were impermissibly tainted because these witnesses were present when the court asked defendant Miller to raise his hand to identify himself to the jury. Defendants assert that this procedure enabled the witnesses to determine which defendant was Miller and which was Roberts. We disagree. The record shows that the witnesses could only see the backs of the defendants when Miller raised his hand, and Massengill later testified that he did not even recall the incident. See State v. Fate, 38 N.C.App. 68, 73, 247 S.E.2d 310, 313 (1978) (rejecting defendant's contention that robbery victim identified the defendant merely because he was seated next to defense counsel; defendant's contention that a robbery victim comes to court "mentally preconditioned" to identify as robbers whomever might be on trial held without merit). No prejudice therefore inhered from the refusal to sequester.
Defendants next argue that the trial judge committed prejudicial error by granting the State's motions to join for trial both crimes and both defendants, and in denying defendants' motions to sever the same. We hold that the trial court ruled correctly.
The threshold requirement for joinder of offenses is a transactional connection: "Offenses may be joined for trial if they are based on the same act or transaction or arise out of a series of acts or transactions which are connected together or are part of a single scheme or plan." State v. Silva, 304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981). Accord, State v. Phifer, 290 N.C. 203, 225 S.E.2d 786 (1976) (consolidation proper where offenses of same class and are so connected in time and place that evidence at trial upon one indictment would be competent and admissible on the other).
In the facts before us, the transactional connection between the robbery and the assault is manifest; however,
[a] mere finding of the transactional connection... is not enough.... In ruling on a motion to consolidate, the trial judge must consider whether the accused can receive a fair hearing on more than one charge at the same trial; if consolidation hinders or deprives the accused of ... [the] ability to present ... [a] defense, the charges should not be consolidated.
State v. Silva, supra, 304 N.C. at 126, 282 S.E.2d at 452. The standard by which joinder of two criminal defendants is evaluated is similar to that of joinder of offenses, see, e.g., State v. Brower, 289 N.C. 644, 658-9, 224 S.E.2d 551, 562 (1976) (whether appellant has been deprived of a fair trial by consolidation).
Defendants contend that joinder here denied them a fair trial. As a consequence of the joinder of offenses, defendant Miller claims that he was precluded from testifying about his allegedly passive role in the assault by the likelihood of vigorous examination as to the robbery of Massengill. Both defendants assert that only by the joinder of defendants did testimony concerning their previous encounter with Thurlby in South Carolina become admissible to prove the identity of the persons involved in the shooting of Officer Farlow. They argue that such evidence would not have been admissible if that charge had been tried separately.
We reject defendants' contentions. Evidence concerning the armed robbery was relevant to the issue of the identity of who shot Officer Farlow. The defendants *90 were observed leaving the motel in the same car from which the shooting occurred. Defendant Miller's suggestion that he was somehow precluded from testifying about his passive role in the robbery is irrelevant. Whether a person had an active or passive role in a crime is not the standard in this State for liability of persons acting in concert.
The testimony of Vernon Thurlby was relevant to the issue of the identity of the defendants as the perpetrators of both the assault and the robbery. That witness' testimony established that the defendants took from him his Savage Arms .32 caliber pistol when he was robbed. Therefore, the circumstances by which the defendants came into possession of the gun helped establish the identity of the defendants as the persons who shot Officer Farlow. See State v. Ferree, 54 N.C.App. 183, 184-5, 282 S.E.2d 587, 588 (1981) ("[a] defendant who enters into a common design for a criminal purpose is equally deemed in law a party to every act done by others in furtherance of such design").
Evidence concerning both robberies was admissible regardless of joinder. Exceptions exist to the general rule that evidence concerning the commission of other offenses is not ordinarily admissible. One of these exceptions is applicable to the instant case:
Where the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify... [the accused] as the perpetrator of the crime charged.
State v. McClain, 240 N.C. 171, 175, 81 S.E.2d 364, 367 (1954). A motion for consolidation is addressed to the discretion of the trial judge and will not be disturbed upon appeal absent an abuse of that discretion, State v. Bracey, 303 N.C. 112, 277 S.E.2d 390 (1981), and we find no such abuse here.
Although the defendants assert that Judge Rousseau erroneously instructed the jury under what amounted to an "attempted felony murder" theory, and that they were prejudiced thereby, we find that the trial court properly instructed the jury concerning the offense of assault with a deadly weapon with intent to kill inflicting serious injury. The gist of defendants' argument is that Judge Rousseau improperly made the armed robbery an additional essential element of the assault with a deadly weapon charge. See State v. Hill, 23 N.C.App. 614, 209 S.E.2d 528 (1974), aff'd, 287 N.C. 207, 214 S.E.2d 67 (1975) (tracing G.S. 14-32(a) elements of offense). The judge further charged the jury that flight from the scene of the robbery would be a part of the robbery and if either one of the defendants participated in the robbery and was fleeing without a break in the flight and either one shot Officer Farlow, then the jury might conclude that Farlow was shot in the perpetration of the robbery.
The contested element in the judge's instructions on the assault charge was the instruction that to convict, the State must prove beyond a reasonable doubt that the shooting was done in the perpetration of an armed robbery. Under the facts of this case, these instructions were entirely proper in that they correctly instructed the jury on the legal consequences of persons acting in concert to commit a crime.
Where two or more persons "join in a purpose to commit a crime, each of them, if actually or constructively present, is not only guilty as a principal if the other commits that particular crime, but ... [that person] is also guilty of any other crime committed by the other in pursuance of the common purpose ... or as a natural or probable consequence thereof."
State v. Oliver, 302 N.C. 28, 55, 274 S.E.2d 183, 200 (1981) (emphasis in original). See also State v. Small, 301 N.C. 407, 412-13, 272 S.E.2d 128, 132 (1980) (principals in the second degree, defined as those who are actually or constructively present at the place and time of the crime and who aid, abet, assist or advise in its commission, are *91 punishable to the same extent as principals in the first degree).
The State's theory at trial was that the defendants, acting in concert, robbed Marvin Massengill and then fled in an automobile they had stolen from Vernon Thurlby three days earlier. This vehicle was stopped by Officer Farlow at the request of Officer Parks. When Farlow approached the driver's side, he was shot in the face. The jury was instructed that if the shooting of Officer Farlow happened during the commission of the armed robbery or during the flight therefrom, and the defendants had acted together in the commission of the robbery, they were both legally accountable for criminal acts occurring during their joint venture. The judge's instructions on the applicable law, then, are fully supported by the facts, and we find no error in them.
Defendants assign error to the refusal of the trial court to give a requested instruction on interracial identification, i.e., that it is more difficult to identify members of a different race than members of one's own. They cite Chief Judge Bazelon's concurring opinion in United States v. Telfaire, 469 F.2d 552 (D.C.Cir.1972) as authority for their position. The North Carolina case of State v. Allen, 301 N.C. 489, 272 S.E.2d 116 (1980) governs this issue. In the case before us, as in the Allen case, "there is no indication that race in any way affected the identification of defendant by the witnesses," Id. at 495, 272 S.E.2d at 120, and this assignment of error is therefore overruled.
Although the defendants cite State v. Bradley, 65 N.C.App. 359, 309 S.E.2d 510 (1983), in support of their position that the trial court erred in denying the defendants' request for a jury instruction concerning the probative force of the fingerprint evidence, we find that case does not control the facts before us. In Bradley, the State relied primarily on fingerprint evidence to prove defendants' guilt, and in significant contrast to this case, there was evidence before the jury from which a reasonable inference could have been made that the prints were left by the defendant in circumstances unrelated to the crime. In the case before us, however, the record is devoid of evidence from which the jury could even infer that the prints were left by the defendants at a time or under circumstances not directly related to the crimes charged. In any event, even if defendants were entitled to an instruction on the probative force of the fingerprint evidence, such error would be harmless in that the defendants have not met their burden of showing prejudice, i.e., that a different result would have been reached at trial. See G.S. 15A1443(a). There was substantial evidence connecting defendants to the crimes with which they were charged, and no evidence from which the jury could have concluded the fingerprints were placed under circumstances unrelated to the crimes. This assignment of error is therefore overruled.
No error.
BRASWELL and EAGLES, JJ., concur.