State v. Becton

CLARK, Judge.

First, the defendant challenges the admissibility of the eyewitness identification testimony of the prosecuting witness Toby Stein and State’s witness Ronald Mullvain. When defendant was returned to the scene shortly after the alleged crime was committed, Toby Stein saw him with Officer Reed and identified him as the perpetrator. Shortly thereafter both Toby Stein and Mullvain went to the police station and saw defendant “by use of a two-way mirror.”

When defendant was returned to the scene of the crime by Officer Reed shortly after the crime was committed he was in investigative custody, and judicial criminal proceedings had not been initiated. At this time Due Process protected the accused against the introduction of evidence of, or tainted by, unreliable pretrial identifications obtained through unnecessarily suggestive procedures. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 2d 1247 (1968).

We concede that the “show-up” confrontation at the scene was somewhat suggestive in that defendant alone was in the custody of Officer Reed when he was shown to and identified by Toby Stein. In Simmons v. United States, supra, it was held that Due Process was violated by the in-court identification if the pretrial procedure had been “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tification.” 390 U.S. at 384, 88 S.Ct. at 971, 19 L.Ed. 2d at 1253. See State v. McKeithan, 293 N.C. 772, 239 S.E. 2d 254 (1977).

*423We must also concede that the identification procedure later that night at the police station, when Toby Stein and Mullvain observed defendant through a two-way mirror, was suggestive. The record on appeal reveals little about the circumstances surrounding this confrontation. It does not appear whether formal charges had been made, but we assume that at the time defendant was under arrest and in custody and, therefore, adversary criminal proceedings had been initiated. It does not appear that defendant was advised of his right to counsel. Nor does it appear that defendant was placed in a lineup. Apparently he was observed singly in a detention room through a two-way mirror by both Toby Stein and Mullvain.

The in-custody identification conducted at or after the initiation of adversary judicial criminal proceedings when defendant was not warned of his right to have counsel present during the confrontation is in violation of the Sixth Amendment. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed. 2d 411 (1972); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed. 2d 1178 (1967).

But the admission of the identification testimony of Toby Stein and Mullvain is not per se error. The recent decision in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed. 2d 140 (1977), represents a modification of the ten-year-old doctrine of United States v. Wade, supra; Gilbert v. California, supra; and Stovall v. Denno, supra, cases. In Manson, the court ruled that even an unnecessarily suggestive identification procedure may produce admissible evidence if the court finds from the totality of the circumstances that the eyewitness identification possesses certain features of reliability. The totality of the circumstances test was adopted as set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972), which test has the following factors: (1) the witness’s opportunity to view the perpetrator of the crime, (2) the witness’s degree of attention, (3) the accuracy of his description of the criminal, (4) the level of certainty demonstrated by the witness, and (5) the time that elapses between the crime and the confrontation.

The evidence in voir dire reveals that Toby Stein viewed the perpetrator at close quarters for about ten minutes, that she ac*424curately described him and his dress, that her identification was certain, and that the time lapse between the crime and the confrontation at the motel was about fifteen minutes and between the crime and the confrontation at the police station was not more than one or two hours.

The evidence in voir dire reveals that Mullvain observed the perpetrator in Toby Stein’s motel room at close quarters and again in the parking lot of the motel when the perpetrator fell while running, that he accurately described the accused and his dress when he reported the crime by telephone to the police, that his identification was certain, that the time lapse between the crime and the confrontation at the police station was less than two hours.

After voir dire Judge Hobgood made extensive findings of fact and concluded “that the totality of the circumstances revealed no pre-trial procedures so unnecessarily suggestive or conducive to lead to irreparable mistaken identification . . . and the in-court identification of the defendant by Toby Stein and Ronald Mullvain has not been tainted in any illegal out-of-court identification procedures.”

The findings and the conclusions of the trial court are supported by competent evidence. We further find that, though the one-on-one confrontations at the motel by Toby Stein and by both Ms. Stein and Mullvain at the police station were suggestive identification procedures, under the totality of circumstances test in Manson v. Brathwaite, supra, the eyewitness identifications by both Toby Stein and Mullvain possessed certain features of reliability, and the admission of their identification testimony was not error.

We have carefully examined the remaining assignments of error, most of which are formal, and find them to be without merit. They involve routine legal principles, and a discussion of them would have no value as a precedent.

No error.

Chief Judge BROCK and Judge WEBB concur.