83 N.C. App. 397 | N.C. Ct. App. | 1986
Defendant first contends that the trial court erred in allowing the robbery victim, Kevin Kinlaw, and a police officer to testify concerning the identification by Kinlaw of defendant from a photographic line-up. Defendant argues that the photographic array was impermissibly suggestive, resulting in a “substantial likelihood of misidentification.” State v. Hannah, 312 N.C. 286, 290, 322 S.E. 2d 148, 151 (1984). Impermissibly suggestive line-up procedures violate the due process rights of a defendant, and the usual remedy is to suppress the evidence of the array, and possibly to prohibit the witness from making an in-court identifica
In analyzing claims of impermissibly suggestive pre-trial identification procedures, our courts apply a two-step process. See Hannah, supra. The first step is to determine whether the pretrial identification procedure was, in fact, “suggestive.” Only if the conclusion is that the procedure was tainted do we proceed to the second step. State v. Leggett, 305 N.C. 213, 287 S.E. 2d 832 (1982). The second question is whether, under all the circumstances, the tainted procedures “give rise to a very substantial likelihood of irreparable misidentification.” State v. Grimes, 309 N.C. 606, 609, 308 S.E. 2d 293, 294 (1983).
When considering the first question, that is, whether the pretrial identification procedures utilized were suggestive, the determinative inquiry is whether, under all the circumstances, the procedures were “so unnecessarily suggestive and conducive to irreparable mistaken identity as to offend fundamental standards of decency and justice.” Hannah at 290, 332 S.E. 2d at 151. The trial court concluded that the physical line-up was impermissibly suggestive and the State has not appealed this ruling. Therefore, we need only consider the circumstances of the photographic array.
The witness, Kinlaw, was asked to come to the police station on or about 11 January 1985, nearly a month after the robbery, to view a photographic line-up of eight pictures. Each of the pictures was of a black man taken of only the upper torso and face. The most distinguishing characteristic of defendant — his height —was not discernible from the photograph. However, Kinlaw had described the second robber as having a light complexion. Defendant was the only noticeably light-complexioned black in the array. This feature was emphasized by the overexposure of defendant’s photo.
Despite this, the trial court concluded that the photographic array did not violate defendant’s due process rights. The court found as fact that the photos “are not clear with respect to whether there is one or more individuals who is of a light complexion . . . .” If supported by competent evidence, the trial court’s findings of fact are binding on appeal. State v. Corbett, 309 N.C. 382, 307 S.E. 2d 139 (1983). However, a review of the transcript of the voir dire shows that the two witnesses who
Based upon the record, we believe that the photographic array of 11 January 1985 was suggestive. Having made this determination, we must next review whether, under all the circumstances, the suggestive procedure gave rise to a “very substantial likelihood of irreparable misidentification.” State v. Harris, 308 N.C. 159, 164, 301 S.E. 2d 91, 95 (1983). The factors used by our courts in making this determination were outlined in State v. Wilson, 313 N.C. 516, 330 S.E. 2d 450 (1985):
(1) the opportunity of the witness to view the individual at the time of the event; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the individual; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the event and the confrontation.
Id. at 529, 330 S.E. 2d at 460.
Applying the facts of this case to the factors listed above, we conclude that there was not a “very substantial likelihood of mis-identification.” Harris, supra. The witness, Kinlaw, testified that the second robber, allegedly the defendant, was in the motel lobby for about a minute. He had draped a yellow sweatshirt over his head, but hurriedly, so that it did not completely obscure his facial features. The lobby of the motel was well lighted by bright fluorescent lighting. Kinlaw testified that he looked intently at the second robber because he could not understand what the robber was saying and was trying to read his lips. Kinlaw’s description of the robber accurately described the defendant except for defendant’s height, which Kinlaw said was five-four to five-six, while defendant is closer to five feet tall. Kinlaw demonstrated “ninety per-cent” certainty of his identification of defendant at the photographic array. Although the identification procedures took place a month or more after the robbery, and Kinlaw incorrectly gauged defendant’s height, we conclude that the facts support the trial court’s findings of fact and conclusions of law that
Defendant next contends that the in-court identification of him by Kinlaw violated his due process rights as it had been tainted by the suggestive identification procedures utilized by the police. We disagree. The in-court identification of defendant was of origin independent of the pre-trial procedures. The factors outlined above used in determining the likelihood of misidentification from a suggestive identification procedure are the same factors used to determine whether an in-court identification was of “independent origin.” Wilson, supra. Applying those same factors, we conclude that the in-court identification was of “independent origin” and was properly allowed.
Finally, defendant contends that he was improperly denied status as a Committed Youthful Offender under G.S. 148-49.14, as the trial court improperly considered unresolved charges pending against defendant in sentencing defendant as an adult offender. Defendant was nineteen years old at the time of sentencing, but the trial court made a finding that defendant would not benefit as a Committed Youthful Offender, pursuant to the requirements of G.S. 148-49.14.
Normally, such a finding is made in the discretion of the trial judge and is reviewable on appeal only for an abuse of that discretion. State v. Harris, 67 N.C. App. 97, 312 S.E. 2d 541, appeal dismissed and cert. denied, 311 N.C. 307, 317 S.E. 2d 905 (1984). However, the trial court must base its exercise of discretion on evidence presented at trial and at the sentencing hearing. State v. Lewis, 38 N.C. App. 108, 247 S.E. 2d 282 (1978). Charges pending against a defendant are purely hearsay and not admissible as evidence. State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). Therefore, if the trial court based its “no benefit” finding on the pending charges, that was error and a new sentencing hearing would be required.
During the sentencing hearing, the State introduced an exhibit which was a certified list of defendant’s prior convictions and pending charges. The two prior convictions were both misdemeanors, but the pending charges were another armed robbery and assault with a deadly weapon inflicting serious injury. During
No error in the trial.
Remanded for resentencing.
