State v. Watkins

CLARK, Judge.

Defendant assigns as error the admission of the identification testimony of Sue Boyd, contending that his constitutional rights were violated by (1) the pre-arrest viewing of defendant by Ms. *19Boyd with policeman Kelley in the waiting room on the seventh floor of the courthouse, and by (2) the post-arrest one-on-one confrontation by Ms. Boyd in an office at police headquarters.

Both before and after adversary judicial criminal proceedings have begun an accused has a Fifth Amendment protection against an identification procedure “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to amount to denial of due process of law. Stovall v. Denno, 388 U.S. 293 at 302, 18 L.Ed. 2d 1199 at 1206, 87 S.Ct. 1967 (1967).

The pre-arrest identification of the defendant by Sue Boyd took place on 30 November 1977 in a waiting room on the seventh floor of the courthouse. The elevator opened in this area. During voir dire evidence was presented which tended to show that Ms. Boyd was advised by Officer Kelley that a person had been arrested for exposing his privates in a public place, that this person could be the one who had robbed her, that the man was scheduled for trial on that day, and that he would take her to a waiting room on the seventh floor of the courthouse. There were 25 to 30 people in the waiting room. People were moving about near the elevator. Ms. Boyd saw a man whose back was turned to her; when he turned so she could see his face she immediately pointed out defendant as the robber.

The post-arrest identification was a one-on-one confrontation after defendant was arrested under a warrant and taken by Officer Kelley to an office in the police station. Such confrontation is necessarily suggestive. United States ex rel. Kirby v. Sturges, 510 F. 2d 397 (7th Cir. 1975), cert. denied 421 U.S. 1016, 44 L.Ed. 2d 685, 95 S.Ct. 2424 (1975). The defendant does not contend that the procedure violated defendant’s Sixth Amendment right to counsel. United States v. Wade, 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S.Ct. 1926 (1967).

A suggestive and unnecessary identification procedure does not violate due process if the identification possesses sufficient aspects of reliability under the “totality of the circumstances” test of Stovall, supra. An unnecessarily suggestive procedure is not per se conducive to mistaken identification. Manson v. Brathwaite, 432 U.S. 98, 53 L.Ed. 2d 140, 97 S.Ct. 2243 (1977). The Manson case approved the factors bearing on reliability which *20were set out in Neil v. Biggers, 409 U.S. 188, 34 L.Ed. 2d 401, 93 S.Ct. 375 (1972), as follows:

(1) the opportunity of the witness to view the criminal at the time of the crime,
(2) the witness’ degree of attention,
(3) the accuracy of the witness’ prior description of the criminal,
(4) the level of certainty demonstrated by the witness at the confrontation, and
(5) the length of time between the crime and the confrontation.

After voir dire the court made findings of fact which included the following: Ms. Boyd saw defendant in the store which was well-lighted when he came in first for a cup of coffee; that when he returned and committed the robbery she saw him at a distance of a few feet for ten minutes; soon after he left she described him accurately to the police; she identified him immediately and positively when she saw him in the waiting room at the courthouse six days after the robbery.

The trial court concluded that Ms. Boyd’s in-court identification was based on her observation of defendant at the store when the robbery was committed. The conclusion of the court that her in-court identification was not tinged by any improper identification is fully supported by the evidence, even though the one-on-one confrontation at the police station, a short time after the identification at the waiting room of the courthouse, was necessarily suggestive. It did not violate due process because her identification possessed sufficient aspects of reliability under the totality of the circumstances. We find no error in admitting in evidence the in-court identification of the defendant by Ms. Boyd.

Defendant next contends that the court erred in admitting the testimony of State’s witness Carol Freeman relative to indecent exposure by defendant on 4 November 1977 at Dunkin Donuts, and the testimony of Deputy Sheriff Davis relative to indecent exposure by defendant on 12 November 1977. The person who committed the charged robbery entered the store with his *21privates exposed, and he forced Ms. Boyd at gunpoint to fondle his privates. Obviously the perpetrator was a sexual deviate who was sexually gratified by exposing his private parts in public. The identity of the defendant was questioned. It was relevant on this question to offer evidence that defendant had exposed his private parts on two prior occasions, the first time 20 days and the second time 12 days before the day in question. The trial court properly instructed the jury that this evidence was admitted only for the purpose of identity.

Evidence of other offenses is inadmissible on the issue of guilt if its only relevancy is to show the character of the accused or his disposition to commit an offense of the nature of the one charged; but if it tends to prove any other relevant fact it will not be excluded merely because it also shows him to have been guilty of an independent crime. 1 Stansbury’s N. C. Evidence, § 91 (Brandis rev. 1973). Although the North Carolina Court has not expressly recognized a separate category for sex offenses, the decisions are markedly liberal in holding evidence of similar sex offenses admissible, especially when the sex impulse manifested is of an unusual or unnatural character. “It may be that a special rule for cases of this sort will ultimately develop.” 1 Stansbury’s N. C. Evidence, supra, § 92 at 299. We find no merit in this assignment of error.

We have carefully examined and considered defendant’s other assignments of error and arguments, and we find that discussion is not warranted. The defendant had a fair trial free from prejudicial error.

No error.

Judges Vaughn and Hedrick concur.