State v. Knight
192 S.E.2d 283
N.C.
1972
Check Treatment
HUSKINS, Justice.

Appellant’s first assignment of error is based on his contention that the photographic identification procedure was so impermissibly suggestive that admission of the in-court identification violated due process of law. This contention questions the admissibility of testimony concerning the photographic identification at the hospital as well as the admissibility of Mr. Garner’s in-court identification of defendant himself.

In Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967 (1968), the Court refused to prohibit absolutely the use of identification by photograph and instead held that “each case must be considered on its own facts, and that convictions 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.”

Factors to consider in applying the Simmons test are: “(1) The manner in which the pretrial identification was conducted; (2) the witness’s 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.” United States v. Zeiler, 447 F. 2d 993 (3d Cir. 1971). Cf. United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926 (1967); State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970). The first of these factors focuses upon the magnitude of the suggestiveness inherent in the photographic identification procedures employed. The facts relevant to the remaining six factors are then balanced against that suggestiveness in order to determine whether, in the par *226 ticular factual context under consideration, the suggestiveness gives rise “to a very substantial likelihood of irreparable mis-identification.” If these facts do not give rise to such likelihood, then Simmons does not require reversal despite the presence of “impermissible suggestiveness” in the photographic identification procedure.

With reference to the enumerated relevant factors, the evidence adduced on voir dire discloses that the pretrial photographic identification procedure used here was impermissibly suggestive since the photographic showing was of only one picture and was accompanied by the statement “we’ve got a man, is this the one?” If defendant’s in-court identification and resulting conviction rested on that identification, it could not stand. But such is not the case. Mr. Garner had ample prior opportunity in his home to observe defendant. During the confrontation in the bedroom, he was within three feet of defendant and facing him. Light from a 50-watt bulb in the bathroom, located behind the witness, was shining into defendant’s face. In addition, there was a full moon that night and there were bright yellow curtains over the bedroom windows. Also, Mr. Garner observed the defendant as he chased him through the house and out the rear door. Mr. Garner told the officers the intruder was wearing black boots above the ankles and a dark turtleneck sweater, and defendant was dressed in that fashion when first seen by Officer Poe at the Pay-Lo Service Station about 2:25 a.m. following defendant’s report by telephone that he “had been rolled.” Furthermore, Mr. Garner never at any time identified anyone else and promptly identified defendant by photograph and in person at the first opportunity. In light of all these circumstances, the trial judge found on voir dire “that the identification of the defendant in the courtroom was not based upon the photograph shown him at the hospital. . . .” This finding is sufficient to satisfy the Simmons test, even though it is not worded in the precise language used therein. See State v. Jacobs, 277 N.C. 151, 176 S.E. 2d 744 (1970); State v. Accor and Moore, 277 N.C. 65, 175 S.E. 2d 588 (1970). Compare United States ex rel Schartner v. Pizzo, 336 F. Supp. 1192 (M.D. Pa. 1972). The conclusion that the in-court identification was not based upon the photograph is tantamount to a conclusion that the in-court identification had an independent origin. It is this independent origin that, despite the impermissible suggestiveness of the photographic identification pro *227 cedure, establishes the lack of a “very substantial likelihood of irreparable misidentification” required by Simmons for reversal. Therefore, the finding, being supported by competent evidence, 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 competency of the testimony concerning Mr. Garner’s photographic identification of defendant is another matter. “Quite different considerations are involved as to the admission of the testimony of the . . . witnesses . . . that they identified Gilbert at the lineup. That testimony is a direct result of the illegal lineup, ‘come at by exploitation of [the primary] illegality,’ Wong Sun v. United States, 371 U.S. 471, 488. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused’s constitutional right to the presence of counsel at the critical lineup.” Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951 (1967).

By analogy, the introduction of testimony concerning an out-of-court photographic identification must be excluded where, as here, the procedure used is impermissibly suggestive, even though that suggestiveness does not require exclusion of the in-court identification itself under the Simmons test. See United States v. Fernandez, 456 F. 2d 638, 641-42 (2d Cir.1972). Compare Foster v. California, 394 U.S. 440, 22 L.Ed. 2d 402, 89 S.Ct. 1127 (1969).

In the factual context of this case, although the showing of only one photograph to the victim accompanied by the statement “we’ve got a man, is this the one” was impermissibly suggestive and evidence thereof incompetent, we hold its admission was “harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967); State v. Brinson, 277 N.C. 286, 177 S.E. 2d 398 (1970). The unequivocal in-court identification of defendant by Mr. Garner, the presence of defendant’s jacket in Mr. Garner’s bedroom containing a letter addressed to the defendant, a certified birth certificate of defendant, and a Selective Service notice of classification bearing defendant’s name, and the fact that the description of defendant’s clothing given by Mr. Garner to the *228 police was substantially similar to the actual clothing defendant was wearing when seen by Officer Poe about one hour after the burglary, constitutes evidence of guilt so overwhelming that, in our opinion, the impact of the photographic identification on the minds of the jurors was insignificant. Unless there is a reasonable possibility that the erroneously admitted evidence might have contributed to the conviction, its admission constitutes harmless error. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963); State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677 (1972); State v. Smith, 278 N.C. 476, 180 S.E. 2d 7 (1971). No such possibility arises on the evidence here. “In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of [the improperly admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [incompetent evidence] was harmless error.” Schneble v. Florida, 405 U.S. 427, 31 L.Ed. 2d 340, 92 S.Ct. 1056 (1972). See also, Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284, 89 S.Ct. 1726 (1969); State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399 (1971).

Defendant’s first assignment of error is overruled.

Following defendant’s testimony, the State was permitted, over defendant’s objection, to examine Officer Mason as a rebuttal witness. This officer testified that he and Detective Boyce examined the area surrounding the Garner residence and observed footprints leading from the house. “[T]hey were a narrow pigeon-toed shoe. They came from the back of the house around the west side and to the north in the direction of Austin down to Third, we found them again on Third Street, we lost them some few feet and picked them up again. We tracked those tracks on Third Street in two or three different areas in the direction of Sanford Tobacco Company Storage Warehouses, we picked up a similar track and it proceeded to a creek, across the creek on an iron pipe, picked it up on the other side of the creek and proceeded to the railroad tracks and lost them again. The railroad tracks lead to Jonesboro. . . . From the point where we last saw the pointed foot tracks from the Pay-Lo Station in Jonesboro is between a quarter and a half a mile.” Officer Mason said these footprints were “similar” to Defendant’s Exhibit 1, the boots defendant had on when Officer Poe saw him at the Pay-Lo Service Station about one *229 hour after the burglary was committed. They were muddy at that time. Defendant contends this evidence should have been offered by the State, if at all, while making out its case in chief and should not have been admitted as rebuttal evidence. This is the basis for defendant’s second assignment of error.

In our opinion Officer Mason’s testimony may properly be considered as rebuttal evidence. Defendant’s testimony makes it so. He said he was elsewhere when the crime was committed and had never been in Mr. Garner’s residence. Yet the footprints leading from the Gamer residence were “similar” to the boots defendant was wearing one hour after the burglary, and the boots were muddy. The tracks traversed muddy ground and were followed to a point at the railroad near the Pay-Lo Service Station where defendant made his telephone call. Obviously this tends to rebut defendant’s evidence.

But if it be conceded arguendo that Officer Mason’s testimony would have been properly admissible on the State’s case in chief, it was not error to admit it on rebuttal. The order of proof is a rule of practice resting in the sound discretion of the trial court. State v. Thomas, 244 N.C. 212, 93 S.E. 2d 63 (1956). “The court, to attain the ends of justice, may in its discretion allow the examination of witnesses at any stage of the trial.” State v. King, 84 N.C. 737 (1881). The following quotation from American Jurisprudence accurately states the majority rule: “While as a general proposition evidence offered by the prosecution in rebuttal in a criminal case must relate directly to the subject matter of the defense and ought not to consist of new matter unconnected with the defense and not tending to controvert or dispute it, this principle is intended to promote and not to defeat justice, and it is accordingly held by the great weight of authority that the admission in a criminal prosecution of evidence as a part of the rebuttal, when such evidence would have been properly admissible in chief, rests in the sound discretion of the trial judge and will not be interfered with in the absence of gross abuse of that discretion.” 53 Am. Jur., Trial, § 129. Accord, 88 C.J.S., Trial, § 102. Compare State v. Anderson, 281 N.C. 261, 188 S.E. 2d 336 (1972).

Defendant’s second assignment has no merit and is overruled.

*230 Defendant’s remaining assignments relate to inconsequential matters in the charge of the court, e.g., referring to the occupancy of the house “by the Garners” instead of by “Ervin Garner” as alleged in the bill of indictment, and one isolated instance when the court failed to repeat the expression “beyond a reasonable doubt,” although the jury had been fully instructed on the quantum of proof. A review of these assignments impels the conclusion that the matters complained of were not prejudicial. Discussion of them is not warranted.

Defendant having failed to show prejudicial error, the verdict and judgment must be upheld.

No error.