STATE of North Carolina
v.
Leroy THOMAS and Willie Wilkins.
No. 104.
Supreme Court of North Carolina.
May 10, 1977.*620 Rufus L. Edmisten, Atty. Gen., by William F. O'Connell, Sp. Deputy Atty. Gen., Raleigh, for the State.
W. Dortch Langston, Goldsboro, for defendant Thomas.
Louis Jordan, Goldsboro, for defendant Wilkins.
LAKE, Justice.
The evidence on the voir dire hearing fully supports the findings of the court that when Mr. Moore, seated in the office of a deputy sheriff, turned and saw Wilkins, as Wilkins drank from the water fountain in the lobby of the sheriff's office, Mr. Moore did not know that anyone, suspected of being a participant in the robbery, was in custody and that no suggestion was made to him that he should look at the person who was drinking at the water fountain to see if he could identify him as one of the robbers. The evidence at the voir dire hearing further supports the finding of the court that when Mr. Moore saw the defendant Thomas seated in the lobby of the sheriff's office Thomas was not under arrest. There was no evidence to the contrary. No one told Mr. Moore Thomas was a suspect or suggested that Mr. Moore look at Thomas. These findings of fact are conclusive upon appeal. State v. Legette, 292 N.C. 44, 231 S.E.2d 896 (1977); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Hunt, 287 N.C. 360, 372, 215 S.E.2d 40 (1975); State v. Tuggle, 284 N.C. 515, 520, 201 S.E.2d 884 (1974); State v. McVay and State v. Simmons, 277 N.C. 410, 177 S.E.2d 874 (1970).
The court's conclusions (actually, further findings of fact) that the in-court identifications by Mr. Moore of the two defendants were based upon his having seen them at the lumber yard and not upon his seeing them at the sheriff's office, or upon his inspection of photographs at the sheriff's office, are also supported by the evidence upon the voir dire examination and, therefore, are binding upon this Court. The court's further finding that the identifications of the two defendants by the witness Britt were based upon Mr. Britt's seeing the defendants at the lumber yard and not upon his examination of photographs in the sheriff's office or upon any confrontation at that office are likewise so supported by the evidence at the voir dire hearing and conclusive upon appeal.
The uncontradicted evidence upon the voir dire hearing leads inescapably to the determination that the viewing of the two defendants by Mr. Moore at the office of the sheriff was not a confrontation planned by the officers. All of the evidence is to the effect that Mr. Britt, seated in the same room with Mr. Moore, did not see either of the defendants as they sat in or passed through the lobby of the office or see them elsewhere at the sheriff's office. All of the evidence is to the effect that no effort was made by any police officer to direct the attention of either Mr. Moore or Mr. Britt to either of the defendants. Neither witness had been told that any suspect had been taken into custody. The lobby of the sheriff's office is a public place. Thomas was actually not in custody but was free to go when and where he chose. Wilkins was in custody and was accompanied by a deputy sheriff, but there is nothing to indicate *621 that he was handcuffed or otherwise under visible restraint. Mr. Moore and Mr. Britt had been requested by the sheriff to come to his office, not to identify anyone suspected of participation in the robbery but for the purpose of giving the officers further information concerning the offense and the participants therein. Not more than two hours elapsed between the robbery and the unexpected viewing of the defendants in the sheriff's office by Mr. Moore. There was nothing suggestive about the confrontation except the locality in which it occurred. We do not deem this sufficiently conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness and justicethe test of due process. Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402 (1969); Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); State v. Yancey, supra.
If, however, the circumstances under which Mr. Moore saw the two defendants in the lobby of the sheriff's office could be deemed so unnecessarily suggestive as to make that confrontation a violation of the constitutional right of either of the defendants, it does not follow that the identification of both of them by either or both of these witnesses was improperly admitted before the jury. The witness Britt did not see either defendant in the sheriff's office and no effort was made by the officers to have him do so.
The evidence on the voir dire hearing was to the effect that after Mr. Moore had identified both defendants at the sheriff's office as participants in the robbery, the defendants were photographed and these photographs, along with others of persons similar in appearance, were exhibited to Mr. Moore and to Mr. Britt. Neither identified the photograph of Wilkins. Mr. Moore identified the photograph of Thomas, whom he had already pointed out in person as one of the robbers, but Mr. Britt was not able to do so with certainty. Consequently, the photographs viewed by these witnesses did not contribute to their in-court identification of the defendants as participants in the robbery.
In State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), speaking through Justice Branch, we said:
"The practice of showing suspects singly to persons for purposes of identification has been widely condemned. Stovall v. Denno, supra; State v. Wright [274 N.C. 84, 161 S.E.2d 581 (1968)]. However, whether such a confrontation violates due process depends on the totality of the surrounding circumstances.
* * * * * *
"Our Court has held that there was no violation of due process when there were `unrigged' courtroom and station house confrontations which amounted to single exhibitions of the accused. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884; State v. Bass, 280 N.C. 435, 186 S.E.2d 384; State v. Haskins, 278 N.C. 52, 178 S.E.2d 610; State v. Gatling, 275 N.C. 625, 170 S.E.2d 593. Similarly, we have recognized that a confrontation which takes place when a suspect is apprehended immediately after the commission of the crime may be proper. State v. McNeil, 277 N.C. 162, 176 S.E.2d 732.
* * * * * *
"It is well established that the primary illegality of an out-of-court identification will render inadmissible the in-court identification unless it is first determined on voir dire that the in-court identification is of independent origin."
In Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972), the Supreme Court of the United States, speaking through Mr. Justice Powell, held there was no violation of the defendant's constitutional rights in permitting an in-court identification by the victim of the alleged criminal offense, notwithstanding a pretrial identification of him by the victim at an out-of-court confrontation, the defendant being the only person then viewed by the witness. The Court said:
"In Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, (1967), the Court held that the defendant could claim *622 that `the confrontation conducted * * was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.' Id., at 301-302, 87 S.Ct. at 1972, 18 L. Ed. 2d 1199. This, we held, must be determined `on the totality of the circumstances.'
* * * * * *
"Subsequently, in a case where the witnesses made in-court identifications arguably stemming from previous exposure to a suggestive photographic array, the Court restated the governing test:
`[W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247 (1968).
* * * * * *
"Some general guidelines emerge from these cases as to the relationship between suggestiveness and misidentification. It is, first of all, apparent that the primary evil to be avoided is `a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S., at 384, 88 S. Ct. 967, at 971, 19 L. Ed. 2d 1247. * * * Suggestive confrontations are disapproved because they increase the likelihood of misidentification and unnecessarily suggestive ones are condemned for the further reason that the increased chance of misidentification is gratuitous. But as Stovall makes clear, the admission of evidence of a showup without more does not violate due process.
* * * * * *
"We turn, then, to the central question, whether under the `totality of the circumstances' the identification was reliable even though the confrontation procedure
was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."
Considered in the light of the totality of the circumstances, in the present case, we think it clear that the in-court identification of each of the defendants by each of the witnesses, Mr. Moore and Mr. Britt, had its origin in their observations of the defendants at the scene of the robbery immediately before and during its perpetration and were not tainted by the unintentional, unplanned confrontation of the defendants by Mr. Moore in the office of the sheriff, or by the viewing by either Mr. Moore or Mr. Britt of photographs at the sheriff's office.
The trial court's findings of fact support the conclusion that the in-court identifications of the two defendants by Mr. Moore and Mr. Britt were competent evidence and were properly admitted over objection. Consequently, there was no error in allowing the in-court identification of the defendants by these witnesses as participants in the robbery, notwithstanding the unarranged confrontation at the sheriff's office. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Haskins, 278 N.C. 52, 178 S.E.2d 610 (1971); State v. Gatling, 275 N.C. 625, 170 S.E.2d 593 (1969).
The failure of both witnesses to recognize and identify the photograph of the defendant Wilkins at the sheriff's office and the then uncertainty of Mr. Britt as to the photograph of the defendant Thomas were brought to the attention of the jury through the cross-examination of these witnesses by the defendants. Otherwise, there was no reference to the photographs in the evidence presented before the jury. This went to the credibility of their in-court *623 identifications of the defendants, not to their competency. State v. Bass, supra.
Obviously, there is no merit in the contention of each defendant that, as to him, a judgment of nonsuit should have been entered. The evidence is abundant to show that a robbery was committed, as alleged in the indictment, and that each defendant was a participant therein. It is axiomatic that "[U]pon motion for nonsuit, the question for the court is whether, upon consideration of the evidence in the light most favorable to the State, there is reasonable basis upon which the jury might find that the offense charged in the indictment has been committed and the defendant was the perpetrator or one of the perpetrators of the crime." State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). Accord: State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). So considered, the uncontradicted evidence for the State is sufficient to show: The robbery was committed. Five minutes earlier Wilkins and Thomas were in a black Volkswagen immediately outside the office where it occurred. The robbers wore shirts similar in appearance to those then worn by Wilkins and Thomas. One of them wore conspicuous gloves, similar in appearance to gloves worn by Wilkins five minutes before the robbery. Thomas was one of the robbers. The robbers left the scene in the same Volkswagen, the keys of which Wilkins had in his pocket one hour later. The robbers left at the scene a pistol owned by Wilkins' brother with whom he lived.
In reviewing the evidence in his charge to the jury, the judge said that Mr. Moore had testified that two of the robbers were wearing "the same two shirts" which he had observed on Wilkins and Thomas as they sat in the Volkswagen some five minutes prior to the robbery. Actually, Mr. Moore testified that two of the robbers were wearing shirts of the same type as those he had observed on Wilkins and Thomas as they sat in the Volkswagen. We do not think that this variance between the evidence and the judge's summary of it was of any substantial consequence, but, in any event, it is sufficient to note that neither defendant called this error to the attention of the court before the jury retired to consider its verdict. Their failure to do so renders this assignment of error of no avail. State v. McAllister, 287 N.C. 178, 185, 214 S.E.2d 75 (1975); State v. Tart, 280 N.C. 172, 184 S.E.2d 842 (1971); State v. Virgil, 276 N.C. 217, 230, 172 S.E.2d 28 (1970); State v. Goines, 273 N.C. 509, 160 S.E.2d 469 (1968).
There is no merit in the contention that the court, by its instructions, put undue pressure upon the jury to reach a verdict. After retiring and considering the case for some four hours, the jury returned to the courtroom and reported that it had not reached a verdict as to the defendant Thomas, thus implying that it had reached a verdict as to Wilkins. The court sent the jury back to consider the case further, saying:
"I'm sure all of you know without me saying what it will mean if you are ultimately unable to agree in your verdict. It would mean that the matter would have to be retried. It would mean that some other jury would have to be chosen. It would mean that another week would have to be calendared for the trial of the case. I don't want to force or coerce any of you into trying to reach a verdict that your consciences forbid you to reach, but it is your duty, ladies and gentlemen, to do everything as reasonable men and women to try to reconcile your differences. You've heard all the evidence in the case, and, of course, a mistrial would mean that some other jury would have to do it all over. I realize sometimes there are times when juries cannot agree and it ultimately turns out that's how it stands, so be it, but I am asking, I am going to ask you to go back to the jury room and in the light of what I have said to you and commune together again for a while if you will and see if you can come to some agreement and with that please try again."
*624 This instruction clearly informed the jurors that the court was not seeking to coerce any of them into a verdict contrary to his or her conscience. It left the jurors free to disagree and thus return no verdict. It left them as free to reach an agreement upon a verdict of "not guilty," as upon a verdict of "guilty." At the time the instruction was given, the court had no information as to how the jury stood with reference to the defendant Thomas, whether the majority believed him guilty or not guilty. The further deliberations requested by the court might well have resulted in a verdict of "not guilty" as to Thomas, which would have been far more beneficial to him than a mistrial. We find in this instruction no basis for a new trial as to Thomas. Obviously, it was not prejudicial to Wilkins, for the clear indication was that the jury had already agreed upon its verdict as to him.
It is said in 4 Strong, N. C. Index 3d, Criminal Law, § 122.2, "Generally, where the jury have retired but are unable to reach a verdict, the court may call the jury back and instruct them as to their duty to make a diligent effort to arrive at a verdict, so long as the court's language in no way tends to coerce or in any way intimate any opinion of the court as to what the verdict should be." Instructions similar to that of which the defendants here complain were found to be free from error in State v. McVay and State v. Simmons, 279 N.C. 428, 433, 183 S.E.2d 652 (1971); State v. Barnes, 243 N.C. 174, 90 S.E.2d 321 (1955); and State v. LeFevers, 216 N.C. 494, 5 S.E.2d 552 (1939).
After the jury had retired and begun its deliberations, it returned to the courtroom and requested the court to have the court reporter read a specified portion of the testimony on direct examination of Mr. Moore. This the court permitted to be done. The defendant Wilkins assigns as error the denial of his request that the testimony of the witness Moore on cross-examination be read to the jury. In this we see no error justifying the granting of a new trial. The defendants do not challenge the accuracy of the reporter's reading. The record does not disclose any testimony of Mr. Moore on cross-examination which was in conflict with or in contradiction of the testimony on direct examination so read back to the jury in response to its request. While we do not approve the practice of having read back to the jury the testimony of a witness as recorded by the court reporter, this assignment of error is not directed to that ruling but to the court's refusal to have read back the evidence given by this witness on cross-examination. In this instance, no prejudice to the defendant Wilkins by this refusal of his request is shown.
Other assignments of error by the defendants have been carefully considered by us and we find no merit therein. It would serve no useful purpose to discuss these in detail.
NO ERROR.