State v. Whitney
216 S.E.2d 439
N.C. Ct. App.
1975
Check Treatment
ARNOLD, Judge.

Defendant first contends that the trial court erred in denying his motion to suppress the in-court identification testimony of Patricia Bailey on the ground that it was tainted by an improper show-up procedure. The rule, as set out in State v. Tuggle, 284 N.C. 515, 520, 201 S.E. 2d 884, 887 (1974), is as follows:

“When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification (s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts.” [citations omitted.] ”

Accord, State v. Shore, 285 N.C. 328, 204 S.E. 2d 682 (1974). In its order denying defendant’s motion, the court found that Miss Bailey’s identification “was not tainted in anywise by any suggestive remarks made by the police, but was based solely and exclusively upon her identification of the defendant in her bedroom shortly after 3:00 a.m. of June 10, 1974 . ... ” These findings are supported by competent evidence, and we are bound by them.

Defendant further contends that it was error to allow testimony concerning the statement, made in his presence, that he had been caught as a “Peeping Tom.” We agree. The trial court apparently treated this evidence as an implied admission or an admission by silence, an exception to the hearsay rule. See generally McCormick’s Handbook of the Law of Evidence § 270, at 651-53 (1972). In State v. Guffey, 261 N.C. 322, 325, 134 S.E. 2d 619, 621 (1964), the North Carolina Supreme Court said:

“To render evidence of an admission by silent acquiescence competent, the statement must have been made in *463 the presence and hearing of the defendant, he must have understood it, he must have understood that it contained an accusation against him, it must be of such content or made under such circumstances as to call for a reply, that is, it must be such as to render a reply natural and proper, the declarant or some person present must have the right to the information, and there must have been an opportunity for reply.”

See also 2 Stansbury, N. C. Evidence (Brandis rev.), § 179. The statement in question was made not to defendant but to a police officer as defendant was being placed in custody. It did not call for a reply. Officer McCoy’s testimony was proffered in lieu of testimony by the men who made the statement. It was hearsay and therefore incompetent.

Finally, defendant contends that the court erred in allowing Dorothea Faulkner to testify that defendant broke into her house and committed certain sex offenses ten days before the alleged burglary at the Bailey residence. Again we agree. Under the general rule, evidence of other offenses is inadmissible for the purpose of proving the offense charged. 1 Stansbury, supra, § 91. It is true that evidence relevant to the questions of identity or modus operandi is admissible notwithstanding the fact that it involves an independent crime. State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972) ; State v. Biggs, 224 N.C. 722, 32 S.E. 2d 352 (1944). “But the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny, [citations omitted.]” State v. Lyle, 125 S.C. 406, 417, 118 S.E. 803, 807 (1923), quoted in State v. McClain, 240 N.C. 171, 177, 81 S.E. 2d 364, 368 (1954). See also State v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901). In the case at bar, such evidence went beyond the scope necessary for the limited purpose for which it was offered and included details which could only relate to defendant’s character and inflame the mind of the jury. Defendant was indicted on a charge of burglary, not rape. We hold that the admission of irrelevant portions of Mrs. Faulkner’s testimony was prejudicial error requiring that defendant be given a new trial.

New trial.

Judges Martin and Clark concur.