STATE of North Carolina
v.
Linda Sutton WILLIAMS.
No. 784SC357.
Court of Appeals of North Carolina.
October 3, 1978.*621 Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. T. Michael Todd, Raleigh, for the State.
Russell J. Lanier, Jr., Kenansville, for defendant-appellant.
MORRIS, Judge.
The defendant's first assignment of error asserts that the trial court erred in failing to suppress evidence relating to the pretrial identification of the defendant. The defendant contends that the pretrial identification procedure was so impermissibly suggestive as to deny her due process. Furthermore, the defendant asserts that any in-court identification by the witness Boykin was tainted by improper pretrial procedures and should have been excluded.
The trial court reached the following conclusions after conducting a voir dire examination *622 on defendant's motion to suppress the identification of the defendant:
"1. That the identification of the defendant Linda Sutton Williams by the witness Cynthia Boykin was based on the observation of the defendant in the store premises on the night in question, the witness having sufficient opportunity and time to view the defendant.
2. That the photographic lineup was not so impermissibly suggestive as to suggest to the witness Boykin that she should identify one picture; that is to say, the picture of the defendant to the exclusion of the other pictures;
3. That the procedure used in this case does not violate the Rights of the defendant, Linda Sutton Williams, under the Constitution of the United States or the Constitution of the State of North Carolina."
The problem of possible misidentification of defendants resulting from improper photographic identification procedures has concerned the courts. The concern is that, regardless of how the initial misidentification comes about, the witness is thereafter apt to retain in his memory the image of the photograph rather than that of the person actually seen, reducing the value of any subsequent lineup or in-court identification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).
The admissibility of testimony concerning pretrial identifications is governed by the due process requirement that, based on the totality of the circumstances, the pretrial procedure must not be so unnecessarily suggestive and conducive to mistaken identification as to offend fundamental standards of decency, fairness and justice. Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969); Simmons v. United States, supra; State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974). The test for evaluating the likelihood of misidentification takes into account the following factors:
"(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." State v. Henderson, 285 N.C. at 12 and 13, 203 S.E.2d at 18 and 19; see Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
The existence of unnecessary suggestiveness alone does not require exclusion of the evidence. Neil v. Biggers, supra. The court must determine from the totality of the circumstances whether the suggestiveness might give rise to very substantial likelihood of misidentification. State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972).
The trial court made findings of fact which indicated the suggestiveness of the identification. The trial court found that the witness knew that the person who had been arrested would appear in the photographic lineup; that the picture of the defendant was in the center of the seven picture lineup; and that the photographs showed the defendant was the shortest person in the lineup.
The five factors pointed out in State v. Henderson, supra, allow for a finding that the identification procedure, even if suggestive, may be allowed into evidence because of the strength and reliability of the identification. The evidence bearing on these factors is thus balanced against the suggestiveness of the lineup to determine whether there is a very strong likelihood of misidentification. If not, then reversal is not required regardless of the suggestiveness. State v. Knight, supra. It should be noted that "[t]he purpose of a strict rule barring evidence of unnecessarily suggestive confrontations would be to deter the police from using a less reliable procedure where a more reliable one may be available, not because in every instance the admission of evidence of such a confrontation offends due process." Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401, 411 (1972).
The evidence pointing toward reliability and counterbalancing the suggestiveness of *623 the identification found by the trial court was as follows: that the witness observed the defendant at about ten o'clock when she purchased potato chips at the store; that she noticed a Band-Aid on the back of defendant's neck; that defendant was in the store two or three minutes; that defendant returned to the store and on this occasion was observed for five minutes; that defendant was within a few feet of the witness and at one time beside her behind the counter; that the witness immediately after the robbery described the defendant and her clothing clearly to the police; that the witness similarly described the defendant again before identifying the picture; that the witness stated she could identify the person who committed the robbery even if she was wearing different clothes; and that the witness identified the picture of the defendant because of her slender face and "popped" eyes.
Based on the foregoing factual findings which are supported by the evidence, we cannot say that the trial court erred in finding that the photographic identification was not so impermissibly suggestive so as to give rise to a very substantial likelihood of misidentification. Therefore, we hold that the testimony concerning the photographic identification was properly admitted.
From our finding that the pretrial photographic identification did not give rise to a very substantial likelihood of misidentification, it follows that any subsequent in-court identification was properly admitted. See Neil v. Biggers, supra; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 (1976).
The defendant's second assignment of error is based on the court's denial of the defendant's motion for a continuance to allow for a pretrial psychiatric examination to determine her fitness to stand trial.
The established rule in North Carolina, unchanged by recent statutory enactments, is that the decision whether to grant a motion for commitment for psychiatric examination to determine competency to stand trial lies within the sound discretion of the trial judge. State v. Woods, 293 N.C. 58, 235 S.E.2d 47 (1977). The defendant produced no evidence in support of her motion other than counsel's statements that the defendant had indicated to him that she was not able to assist in the defense of her case. It is apparent from the colloquy between defense counsel and the court that defendant had previously been examined by a medical doctor, not a psychiatrist, and found to be fit to stand trial.
It should be noted, however, that effective 1 July 1975, G.S. 15A-1002(b)(3) provides as follows for a hearing on the question of the defendant's capacity to stand trial:
"(b) When the capacity of the defendant to proceed is questioned, the court:
.....
(3) Must hold a hearing to determine the defendant's capacity to proceed . . . Reasonable notice must be given to the defendant and to the prosecutor and the State and the defendant may introduce evidence."
The "hearing" in this case was in the context of a motion for a continuance to allow for a psychiatric examination prior to trial. Defense counsel did not request a full hearing on the matter nor did he tender evidence to support his motion. A similar situation was before the Supreme Court in State v. Woods, supra. That Court's discussion is instructive:
"Clearly, the trial court considered all information relative to defendant's capacity which was presented to it and found, implicitly at least, that defendant was competent to proceed to trial." State v. Woods, 293 N.C. at 64, 235 S.E.2d at 50.
Similarly, in this case it appears that the defendant presented all the evidence she was prepared to present. It should be noted that she did not request to be heard further on the matter. Under these circumstances we hold that the defendant's hearing satisfied the requirements of G.S. 15A-1002(b)(3).
No error.
HEDRICK and WEBB, JJ., concur.