STATE of North Carolina
v.
Ronnie RICKS.
No. 556A82.
Supreme Court of North Carolina.
May 31, 1983.*772 Rufus L. Edmisten, Atty. Gen. by Blackwell M. Brogden, Jr., and Michael R. Morgan, Asst. Attys. Gen., Raleigh, for the State.
Antonia Lawrence, Rocky Mount, for defendant-appellant.
BRANCH, Chief Justice.
By his first assignment of error, defendant challenges the admissibility of the victim's in-court identification testimony on the ground that it was tainted by an impermissibly suggestive out-of-court identification procedure.
We have consistently held that an in-court identification is competent, even if improper pretrial identification procedures have taken place, so long as it is determined on voir dire that the in-court identification is of independent origin. State v. Jackson, 306 N.C. 642, 295 S.E.2d 383 (1982); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). Defendant recognizes this rule, but asserts that the trial court erred in concluding that the victim's in-court identification was independent of any influence other than her observations on the night of the crime.
First we consider the question of whether a constitutionally impermissible pretrial identification procedure took place in instant case. On 1 December 1981, Officer Newell exhibited a photographic array to Ms. Rogers containing the photographs of seven black males, many of them wearing black caps or toboggans. Although defendant does not refer to any specific evidence which tends to indicate that the array or the circumstances surrounding the procedure were impermissibly suggestive, we presume that defendant bases his argument on the fact that defendant's picture was the only photograph depicting an individual wearing both a black toboggan and a dark coat, thereby fitting the details of the earlier description given by Ms. Rogers.
The trial judge specifically found that the photographic identification procedure employed by Officer Newell at the Nash General Hospital was free of constitutional error. When a trial court's findings of fact are supported by competent evidence, they are binding upon this Court. State v. Yancey, 291 N.C. 656, 662, 231 S.E.2d 637, 641 (1977); State v. Tuggle, 284 N.C. 515, 520, 201 S.E.2d 884, 887 (1974).
We are of the opinion that the voir dire evidence clearly supports Judge Allsbrook's findings. The mere fact that defendant was the only individual in the photographs wearing a dark coat is insufficient to overturn the trial judge's specific finding that the identification procedure was not suggestive or conducive to irreparable mistaken identification. The very fact that the victim was unable to make a positive identification of defendant from the photographs belies defendant's assertion that the procedure was impermissibly suggestive.
Even were we to accept defendant's position that the pretrial identification procedure was constitutionally infirm, the trial court properly admitted the in-court identification of defendant if the in-court identification was of an independent origin. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The trial judge held separate voir dire examinations of both Ms. Rogers and Officer Newell before admitting Rogers' testimony identifying defendant as her assailant. Ms. Rogers testified that she observed *773 defendant for a period of at least three to four minutes while he stood on her lighted front porch. Although defendant's face was partially covered by the toboggan, Ms. Rogers was able to see his face, eyes and mouth. Furthermore, she gave a description of her assailant to Officer Newell on 30 November 1981 when he interviewed her in the hospital.
The trial court specifically found as a fact that "the identification of the defendant by Mrs. Rogers was based solely upon her observation of the perpetrator of this offense at her home on the night of November 24, 1981; and that this in-court identification was in no way influenced by the photographic identification procedure conducted by Officer Newell at Nash General Hospital on December 1, 1981." This finding is supported by competent evidence elicited from the witnesses on voir dire and is therefore conclusive upon this Court. State v. Yancey, supra. We hold that even if the photographic array had been impermissively suggestive, the trial judge's ruling that the in-court identification was independent in origin and therefore admissible was correct.
Defendant advances an additional argument in support of his position that the in-court identification testimony was improperly admitted. Relying on State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967), defendant contends that Ms. Rogers' testimony identifying defendant as her assailant should have been excluded because it was inherently incredible and unworthy of belief. For the reasons hereafter stated, we find Miller totally inapposite to instant case and reject defendant's argument that the victim's testimony was inherently incredible.
In Miller, the only evidence connecting the defendant with the crime for which he was charged was the testimony of a witness who identified the defendant in a lineup as one of the perpetrators of the crime. The witness testified that he viewed the defendant at the scene of the crime at night from a distance of approximately 286 feet. Other than this distant glance, the witness had never seen the man before and could not describe the clothes he wore or the color of his hair. On the basis of this testimony, this Court held that the distance was too great for an observer to note and store in memory features which would enable him, six hours later, to identify a complete stranger with the degree of certainty which would justify the submission of the defendant's guilt to the jury. The Court went on to note, however, that "[w]here there is a reasonable possibility of observation sufficient to permit subsequent identification, the credibility of the witness' identification of the defendant is for the jury, ...." Id. at 732, 154 S.E.2d at 906 (emphasis added).
We are of the opinion that in this case, Ms. Rogers was afforded sufficient opportunity to observe her assailant that she might subsequently make an accurate identification of him. The victim's limited opportunity for observation goes to the weight the jury might place upon her identification rather than its admissibility. The trial court correctly admitted the in-court identification testimony of the prosecuting witness and this assignment of error is overruled.
Defendant also assigns as error the admission into evidence of a statement he made to Officer Newell on 2 December 1981.
At trial, defendant unequivocally testified on voir dire and on direct examination before the jury that he signed only a blank piece of paper and that he did not make any statement to the police admitting his involvement in the crime. Officers Newell and Pernell testified that after executing a waiver of rights form, defendant did in fact make a statement to them on 2 December confessing to the rape of Ms. Rogers. The trial court resolved this conflict in the evidence and found as a fact that defendant made this statement to the officers on 2 December in the manner described by them. The court's conclusion, properly supported by the findings of fact, was that defendant made the statement freely and voluntarily after a knowing and understanding waiver of his constitutional rights.
*774 Defendant now argues for the first time on appeal that the confession was erroneously admitted because he did not have sufficient opportunity to execute a knowing and intelligent waiver. Defendant hypothesizes that "[o]nly an individual of the highest intelligence, possessing extreme emotional control, could have been able to contemplate the consequences of his actions or consider the seriousness of the situation at hand, within the time span and under the circumstances described by Officer Newell."
We decline to consider this theory for the reasons stated in State v. Hunter, 305 N.C. 106, 286 S.E.2d 535 (1982). In that case, we held that "when there is an objection to the admission of a confession or a motion to suppress a confession, counsel must specifically state to the court before voir dire evidence is received the basis for his motion to suppress or for his objection to the admission of the evidence." Id. at 112, 286 S.E.2d 539. See also State v. Oxendine, 305 N.C. 126, 286 S.E.2d 546 (1982).
At trial, defendant objected to the admission of the confession on the sole ground that he had in fact made no statement to the police. The trial court chose to accept the officers' contrary testimony and, after entering appropriate findings of fact and conclusions of law, correctly overruled defendant's objection on the theory advanced. Defendant cannot attack the admissibility of his confession in the appellate division upon a theory entirely different from that relied upon at trial. State v. Hunter, at 112-13, 286 S.E.2d at 539; State v. Oxendine at 136, 286 S.E.2d at 551. This assignment of error is dismissed.
In defendant's trial and convictions, we find no error.
NO ERROR.