STATE of North Carolina
v.
Royce STAMEY and Leonard Austin.
No. 6825SC375.
Court of Appeals of North Carolina.
December 11, 1968.*549 Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.
Don Davis, Charlotte, for defendant appellant Royce Stamey.
Ted S. Douglas, Lenoir, for defendant appellant Leonard Austin.
FRANK M. PARKER, Judge.
Defendants first assign as error the court's admitting the testimony of the victim of the robbery that he had identified the two defendants from a group of pictures shown to him approximately two weeks after the robbery by the investigating S.B.I. Agent. This testimony was elicited during cross-examination of the witness by counsel for each of the defendants, and the record shows that as to much of this testimony there was neither objection nor motion to strike made on behalf of either defendant. In any event there was no error prejudicial to defendants in the admission of this evidence. On direct examination at the trial the witness had already positively identified the two defendants as the robbers. The testimony relative to his prior identification of defendants from the pictures, brought out by cross-examination of the attorneys for the defendants themselves, was admissible as corroborating his positive in-court identification. Stansbury, N.C. Evidence 2d, § 50.
Appellants contend, nevertheless, that admission of the testimony as to the witness's prior identification of defendants from the photographs violated their constitutional rights on the basis of the decision of the United States Supreme Court in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. We do not agree. In our view the rationale of the Court in Wade, and in its companion cases, Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, does not extend so far as to require that when a victim of a crime is working with the police in the investigative stage in an effort to describe or to identify the criminals involved from pictures in order that they may be apprehended, that defense counsel for all suspected or identified criminals must be present. Those cases related only to situations in which identification was made when the accused was present in person.
However, appellants also assign as error the admission of testimony of the prosecuting witness relative to his identification of the two defendants in a pretrial lineup. This assignment of error must be sustained. Evidence of out-of-court identification of a defendant in a criminal case in a pretrial lineup, when it is made to appear that defendant was not represented by counsel at the lineup and had not intelligently and voluntarily waived his right to counsel, is inadmissible. State v. Wright, 274 N.C. 84, 161 S.E.2d 581; State v. Williams, 274 N.C. 328, 163 S.E.2d 353. In addition, if it appears during the course of a criminal trial that there has been an out-of-court lineup identification violating the accused's constitutional right to be effectively represented by counsel, then a question arises as to whether the in-court identification has been tainted by the prior lineup identification. Under such circumstances the in-court identification is admissible only when the State establishes by clear and convincing evidence that the in-court identification was based upon observations of the suspect other than the lineup identification. If the in-court identification had an independent origin it is competent. If it resulted from the illegal out-of-court confrontation it is incompetent. In this case there was evidence that the prosecuting witness had known one of the defendants, Royce Stamey, as a young boy and had known Stamey's father for many years. It may well be that the witness's in-court identification of both defendants was based on factors completely independent of the lineup identification. That question should *550 be decided by the trial court on a voir dire examination at the next trial if the State again offers in-court identification testimony from the prosecuting witness. State v. Wright, supra.
For the error in admitting evidence of the pretrial lineup identification when defendants were not represented by counsel and in the absence of any evidence as to their voluntary waiver of right to counsel, and for error in admitting evidence of the in-court identification without determining on voir dire that such in-court identification had a sufficiently independent origin and was not the result of the illegal out-of-court confrontation, the defendants are entitled to a
New trial.
BROCK AND BRITT, JJ., concur.