STATE of North Carolina
v.
Willie Jonathan CROSS.
No. 26.
Supreme Court of North Carolina.
November 14, 1973.*29 Atty. Gen. Robert Morgan and Deputy Atty. Gen. Andrew A. Vanore, Jr., Raleigh, for the State.
Legal Aid Society of Forsyth County by Charles O. Peed, Jr., Winston-Salem, for defendant appellant.
MOORE, Justice.
Defendant first contends the trial court erred in permitting the prosecutrix to testify over objection that she became pregnant as the result of the rape. Defendant says this testimony was offered only to excite sympathy for the prosecutrix and to play upon the passions and prejudices of the jury.
Rape is the carnal knowledge of a female forcibly and against her will. State v. Primes, 275 N.C. 61, 165 S.E.2d 225 (1969); State v. Overman, 269 N.C. 453, 153 S.E.2d 44 (1967). There must be penetration of the sexual organ of the female by the sexual organ of the male to constitute carnal knowledge in a legal sense, but the slightest penetration is sufficient. State v. Sneeden, 274 N.C. 498, 164 S.E.2d 190 (1968). The testimony of the prosecutrix concerning her pregnancy tended to show penetration, one of the elements of rape. Defendant's plea of not guilty placed upon the State the burden of proving beyond a reasonable doubt all the essential elements of the offense charged. Hence, evidence tending to prove penetration, an essential element of the offense, was properly admitted. State v. McNeil, 277 N.C. 162, 176 S.E.2d 732 (1970); State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969); Annot., 62 A.L.R. 2d 1083 (1958), and cases therein cited. Such testimony was also competent to corroborate the testimony of the prosecutrix that a male person had carnally known and abused her. See State v. Jones, 249 N.C. 134, 105 S.E.2d 513 (1958). Relevant testimony will not be excluded simply because it may tend to prejudice defendant or excite sympathy for the cause of the party who offers it. 1 Stansbury's N.C. Evidence, Brandis Rev. § 80, at 242 (1973). See State v. Cox, 280 N.C. 689, 187 S.E.2d 1 (1972); State v. *30 Westbrook, 279 N.C. 18, 181 S.E.2d 572 (1971). Defendant's first assignment is overruled.
Mrs. Rosalind Cross testified that she was living with defendant on the date of the alleged offenses, and that she married him thereafter. On cross-examination Mr. Thomas, an assistant solicitor, asked Mrs. Cross the following questions:
"Q. Were you living with him on the 28th day of October?
A. Yes.
MR. PEED (attorney for defendant): Objection.
COURT: Overruled.
Q. And that is the day he went into the girls' dormitory in the School of the Arts and assaulted a girl?
MR. PEED: Objection. Assumes facts not in evidence.
COURT: No.
MR. THOMAS: I have no further questions.
MR. PEED: That is all."
The question asked defendant's wife was not answered; defendant contends, however, that the question itself was of such prejudicial character as to constitute reversible error. Prior to his wife's testimony, defendant had testified and a similar but more explicit question concerning an assault on Denise Myers was asked him. Although he had previously admitted that he had been convicted of shoplifting, of two assaults, and of larceny of an automobile on four different occasions, he specifically denied that he had assaulted Denise Myers with intent to rape her. From the record it is not clear whether this is the same assault to which the assistant solicitor's question refers. If so, the question was improper since the State was bound by defendant's answer that he had not assaulted Denise Myers. Pearce v. Barham, 267 N.C. 707, 149 S.E.2d 22 (1966); State v. King, 224 N.C. 329, 30 S.E.2d 230 (1944); 1 Stansbury's N.C. Evidence, Brandis Rev. §§ 48, 111, at 139, 342 (1973). In any event we think the question asked defendant's wife was improper. We hold, however, it was not so prejudicial as to require a new trial. "This Court has repeatedly held that in order to obtain an award for a new trial on appeal for error committed in a trial of the lower Court, the appellant must show error positive and tangible, that has affected his rights substantially and not merely theoretically, and that a different result would have likely ensued." State v. Cogdale, 227 N.C. 59, 40 S.E.2d 467 (1946). See also State v. Beal, 199 N.C. 278, 154 S.E. 604 (1930); 1 Stansbury's N.C. Evidence, Brandis Rev. § 9 (1973). In this case no such showing appears.
Finally, defendant contends that the trial court erred in refusing to suppress the prosecutrix's in-court identification of defendant and in permitting testimony by the prosecutrix and a Winston-Salem police officer about the pretrial identification of defendant.
Upon defendant's objection, the trial court conducted a lengthy voir dire to determine the competency of the identification testimony. This was the proper procedure for the court to follow. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970). During the voir dire the prosecutrix described in detail the identification procedures that the State had followed. She expressed certainty about her identification of defendant from three photographs and a five-man lineup. Her testimony concerning the identification procedures was corroborated by R. A. Westmoreland of the Winston-Salem Police Department. Defendant offered no evidence on the voir dire. At the conclusion of the voir dire, the trial court found that the prosecutrix's identification of defendant as her assailant was based on her observation of defendant at the time of the attack and on her own *31 independent recollection of defendant, and concluded that the constitutional requirements with respect to identification procedures prescribed by the United States Supreme Court and this Court had been followed.
Defendant challenges the pretrial identification as being impermissibly suggestive so that "a substantial likelihood of misidentification exists." His contention is set out in his brief as follows:
". . . [A]ll the evidence tends to show a pattern of use of three photographs of defendant, culminating in a line-up on November 13th. The only reasonable inferences, are that the police have been unsatisfied with each successive identification of defendant, and the prosecutrix must have concluded that the police believed defendant was the culprit, as his photo kept reappearing and as he was ultimately the only person fitting her assailant's description at the line-up."
Because of the circumstances underlying prosecutrix's pretrial identification, defendant further contends the trial court should have suppressed the prosecutrix's later in-court identification of defendant.
In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), the United States Supreme Court was asked to reverse a conviction in which the victims of a robbery identified the defendant from photographs shown to them by the police. In upholding the conviction, that Court stated:
". . . [C]onvictions 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."
In construing Simmons our Court in State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972), held:
"Factors to consider in applying the Simmons test are: `(1) the manner in which the pretrial identification was conducted; (2) the witness' prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant's actual description and any description given by the witness before the photographic identification; (4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.'"
See also United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970). "If a consideration of the total circumstances reveals pretrial identification procedures unnecessarily suggestive and conducive to irreparable mistaken identification, such procedures would manifestly offend fundamental standards of decency, fairness and justice and amount to a denial of due process of law." State v. Rogers, 275 N.C. 411, 426, 168 S.E.2d 345, 354 (1969).
There is absolutely no evidence in the record to support a conclusion that the identification procedures followed in this case were "impermissibly suggestive," or were such "as to give rise to a very substantial likelihood of irreparable misidentification." The prosecutrix viewed several hundred police photographs on several occasions in the days following the attack made upon her. Apparently the police had no idea who her assailant was. The only possible instance of any police intimation about who the culprit might be was the "one-man lineup" that was conducted on the third day following the alleged crimes. There the prosecutrix viewed a man not the defendant whom the police suspected. She immediately said that this man was not her assailant.
*32 It is not disputed that the prosecutrix had ample opportunity to fully observe her assailant. She was with him for about one and one-half hours, much of the time on brightly lighted streets. The record does not reflect any discrepancies between defendant's actual description and the description given by the prosecutrix to the police on which the composite drawing was based. Her description of the clothes he was wearing was corroborated by another witness who saw him on the day in question and by the defendant himself. Her initial identification came only three days after the alleged crimes when she viewed defendant's photograph. This first photograph of defendant had a shadow across defendant's face, and she asked for a better photograph before making a positive identification. She confirmed her tentative identification eleven days later when she viewed two better photographs of defendant. Later she identified her assailant again when she attended a lineup consisting of defendant and four other black males. The totality of these circumstances surrounding the identification procedures followed by the police in this case requires us to conclude that there was no "substantial likelihood of irreparable misidentification." Therefore, the pretrial identification testimony was competent evidence. State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (1972).
In ruling that the prosecutrix's incourt identification testimony was admissible, the trial court found as a fact "that the identity of the defendant as her assailant was based on the observation of the defendant at the time of her attack and independent recollection of the defendant." This finding is fully supported by clear and convincing evidence and therefore is conclusive and must be upheld. State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966). The trial court's determination that the prosecutrix's in-court identification of defendant had an independent origin, together with our holding that the pretrial identification did not result from impermissibly suggestive identification procedures, renders the in-court identification testimony clearly admissible. See State v. Knight, supra; State v. Accor and State v. Moore, supra; State v. Blackwell, supra; State v. Rogers, supra. Defendant's motion to suppress the in-court identification was properly denied.
Defendant has had a fair trial, free from prejudicial error. The verdicts of the jury are fully supported by the evidence, and the judgments must therefore be upheld.
No error.