State v. Clark
270 S.E.2d 425
N.C.
1980
Check Treatment
BRANCH, Chief Justice.

Defendant assigns as error the trial judge’s ruling permitting the State to join the offenses for trial.

Defendant first argues that there was procedural error in that the motion for joinder did not set forth the grounds except by reference to a statute. The provisions of G.S. 15A-951 require that all motions made prior to trial must be in writing and must state the grounds upon which the motion is based. Here the State submitted a written motion to join the cases prior to trial stating that it was made pursuant to G.S. 15A-926. Defendant answered the State’s motion with specific objections to joinder, and, after a hearing, the trial judge joined the cases. Assuming, without deciding, that the State improperly submitted its written motion without stating factual grounds therefor, defendant fails to show that this omission was prejudicial to him.

*181 G.S. 15A-926 provides that when an accused is charged with two or more offenses, such offenses may be j oined for trial when they are “based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan.”

In ruling upon a motion for joinder, the trial judge should consider whether the accused can be fairly tried upon more than one charge at the same trial. If such consolidation hinders or deprives the accused of his ability to present his defense, the cases should not be consolidated. State v. Davis, 289 N.C. 500, 223 S.E. 2d 296 (1976). In determining whether defendant has been prejudiced, the question posed is whether the offenses are so separate in time and place and so distinct in circumstances as to render a consolidation unjust and prejudicial to an accused. State v. Greene, 294 N.C. 418, 241 S.E. 2d 662 (1978). However, it is well established that the motion to join is addressed to the sound discretion of the trial judge and his ruling will not be disturbed absent a showing of abuse of discretion. State v. Davis, supra; Dunaway v. United States, 205 F. 2d 23 (D.C. Cir., 1953). In the instant case, all of the matters out of which the joined cases grew occurred on the same afternoon of the same day and each was perpetrated according to a common modus operandi. Thus, the facts of this case meet the statutory requirements for joinder, and the record shows that the respective charges are not so distinct in time and circumstances as to prejudicially hinder or deprive defendant of his ability to defend any one of the charges.

We hold that the trial judge, acting in the exercise of his discretion, properly joined the cases for trial.

Defendant next contends that the trial j udge erred by overruling his motion to suppress the in-court identifications of defendant by the witnesses Gay Porter and Lisa Bingaman. It is his position that the pretrial lineup was so suggestive and conducive to irreparable mistaken identity that it tainted the in-court identification.

On each occasion, defendant objected to the respective in-court identification, and the trial judge properly excused the *182 jury and conducted a voir dire hearing to determine the admissibility of that evidence. State v. Accor, 277 N.C. 65, 175 S.E. 2d 583 (1970).

The witnesses Porter and Bingaman viewed the same lineup at different times during the early morning hours of 13 September 1978. The pertinent evidence at each voir dire hearing tended to show that defendant voluntarily waived his right to counsel before the lineup procedure was held. The lineup consisted of six men recruited by sheriffs deputies from a nearby work place. Defendant who was five feet seven inches tall was the shortest man in the lineup, but the lineup included another man five feet eight inches tall and two men at five feet ten inches tall. Each man in the lineup had reasonably similar physical characteristics. Defendant had a mustache and beard, and each of the other men in the lineup also had facial hair. No one suggested to either of the witnesses whom they should identify, and no one furnished them the names of any of the persons who made up the lineup. Neither of the witnesses had previously been shown any photographs of any of the persons. The witness Bingaman was the first to view the lineup, and she picked out number five, defendant, as being the person who assaulted her on 11 September 1978. When the witness Porter viewed the lineup, she also identified number five, defendant, as the person driving the pickup truck on 11 September 1978.

At the conclusion of each of the voir dire hearings, the trial judge after finding facts concluded that the in-court identification of defendant by each of the witnesses was of independent origin based solely on what the witness saw at the time defendant was in her presence on 11 September 1978. He also found that the identification did not result from any pretrial identification procedures.

An improper out-of-court identification procedure requires suppression of an in-court identification unless the trial judge determines that the in-court identification is of independent origin. State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974). The test to determine the validity of pretrial identification procedures under the due process clause is whether the totality of the circumstances reveals pretrial procedures so suggestive *183 and conducive to irreparable mistaken identity as to offend fundamental standards of decency, fairness, and justice. State v. Henderson, supra. Even if the pretrial procedure is invalid, the in-court identification will be allowed if the trial judge finds it is of independent origin. State v. Headen, 295 N.C. 437, 245 S.E. 2d 706 (1978). After hearing the voir dire evidence, the trial judge must make findings of fact to determine whether the in-court identification meets the tests of admissibility. State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974). The standards to be used to determine reliability of the identification are those set out in Neil v. Biggers, 409 U.S. 188, 34 L.Ed. 2d 401, 93 S.Ct. 375 (1972) — (1) opportunity to view, (2) degree of attention, (3) accuracy of description, (4) level of certainty, (5) time between crime and confrontation. See State v. Headen, supra. If the findings of the trial judge are supported by competent evidence, they are conclusive on the appellate courts. State v. Tuggle, supra.

Here both witnesses had ample opportunity to observe defendant in the daytime, at close range and during an encounter which involved only two people. Each witness gave police a substantially correct description of her assailant prior to the pretrial lineup. The identification by each witness was certain and was made at a lineup conducted within two days of the crime. Even so, defendant further argues that the lateness of the hour when the lineup was held and the summoning of witnesses at that late hour created a defectively suggestive pretrial identification by indicating someone in the lineup was a prime suspect. We do not agree. Any such suggestiveness is implicit in simply holding a pretrial lineup. Expeditious determination of eyewitness identification benefits the potential defendant in that a failure of identification may speed his release, and it benefits the identification process by allowing the eyewitness to view the suspect while the details of the crime are still fresh in his or her mind.

In instant case, the findings of the trial judge are supported by ample competent evidence and are conclusive on this Court. We therefore hold that the trial judge correctly denied defendant’s motion to suppress the identification testimony of the witnesses Gay Porter and Lisa Bingaman.

*184 Defendant next contends that the trial judge erred in overruling his objections to the admission of certain statements made by defendant to his psychiatrist. Defendant argues that the self-incriminating statements testified to by the psychiatrist on cross-examination by the State violated defendant’s statutory right to privileged communication with his doctor. The State answers, first, that no bona fide doctor-patient relationship existed between defendant and his expert witness and, second, that, even assuming a valid relationship, defendant waived his right to the privilege by putting the doctor on the stand.

G.S. 8-53 provides:

No person, duly authorized to practice physic or surgery, shall be required to disclose any information which he may have acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon. Confidential information obtained in medical records shall be furnished only on the authorization of the patient, or if deceased, the executor, administrator, or, in the case of unadministered estates, the next of kin; provided, that the court either at the trial or prior thereto, or the Industrial Commission pursuant to law may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice.

This Court has dealt with the assertion of the protection afforded by the provisions of G.S. 8-53 in this precise situation in State v. Litteral, 227 N.C. 527, 43 S.E. 2d 84 (1947). The Court held that the statements made to the “alienist” in Lateral were not incompetent by reason of the statute, although the Court was not clear about whether the basis of the holding was the absence of a bona fide doctor-patient relationship or waiver of the privilege by placing the doctor on the stand. 1 See State v. Litteral, supra at 533-34, 43 S.E. 2d at 88-89. Under the facts of the *185 case before us, a choice between the two bases is still not required. Under either basis the cross-examination did not violate defendant’s right to privileged communication.

That defendant’s statements testified to by his psychiatrist amount to a confession creates no difficulty. The Court stated in Litteral, “The doctor gave his opinion as to the mental capacity of the defendant. The solicitor had a right to inquire into the basis of that opinion.” State v. Litteral, supra at 534, 43 S.E. 2d at 89. In instant case, the trial court judge specifically asked the psychiatrist whether his determination of defendant’s sanity was based on defendant’s statements to the psychiatrist about the incidents surrounding the crimes, and the psychiatrist answered that it was. After the psychiatrist testified to the statements by defendant, the trial judge correctly instructed the jury that the psychiatrist’s testimony about the statements be considered only for the light it shed on the psychiatrist’s opinion that defendant was insane at the time of the crimes.

The admission of the challenged statements is consistent with North Carolina case law and cases from other jurisdictions. In re Spencer, 46 Cal. Reptr. 753, 406 P. 2d 33 (1965); State v. Whitlow, 45 N.J. 3, 210 A. 2d 763 (1965); and State v. Newsome, 195 N.C. 552, 143 S.E. 187 (1928). In Newsome, this Court permitted a psychiatrist appointed by the trial court at defense counsel’s request to testify during the State’s case-in-chief about a confession made to the psychiatrist by the defendant during consultation.

Finally, defendant assigns as error the trial judge’s instruction placing upon defendant the burden of proving his defense of insanity to the satisfaction of the jury. Defendant recognizes that this assignment runs counter to a long line of decisions by this Court including the recent case of State v. Leonard, 300 N.C. 223, 266 S.E. 2d 631 (1980). We therefore find no error in this portion of the trial judge’s instructions.

No error.

Justice Brock did not participate in the consideration or decision of this case.

Notes

1

See Annot., 44 A.L.R. 3d 24, §§24(a), 31 (1972). This annotation on the psychotherapist-patient privilege cites Litteral for both propositions.