State v. Davis

212 S.E.2d 680 (1975)

25 N.C. App. 256

STATE of North Carolina v. Alfonzo DAVIS and George Blanks.

No. 745SC1018.

Court of Appeals of North Carolina.

April 2, 1975.

*681 Atty. Gen. Rufus L. Edmisten by Associate Atty. David S. Crump, Raleigh, for the State.

Charles E. Rice, III, Wilmington, for defendant appellant Alfonzo Davis.

Thomas I. Benton, Wilmington, for defendant appellant George Blanks.

MARTIN, Judge.

Defendant Blanks assigns as error the admission, over his objection, of the in-court identification of Blanks by the prosecuting witness, Robert Brunson, III. He argues that this testimony was tainted by an impermissibly suggestive out-of-court identification procedure using photographs; that the testimony was not of independent origin based upon what the witness saw at the scene; that the testimony was inherently incredible; and that the trial court's findings do not support its conclusions.

The trial court conducted a voir dire hearing which disclosed the following pertinent evidence relating to the photographic identification of defendant Blanks. The day following the robbery, Officer Gurganious went to the Zip Mart store and handed Brunson six photographs of Negro males. Brunson stated that he went through the pictures and picked out one of George Blanks without any indication from any officer as to which picture he should select. He testified that there was no question at all in his mind as to whether or not George Blanks was the man; that his in-court identification was based on what he saw the night he was robbed; and that his identification was not at all based on the photograph of Blanks. He further testified that throughout the entire investigation he had identified only two individuals and that defendants were these two individuals with *682 Blanks being the taller of the two robbers. On cross-examination Brunson said he thought that he recognized the taller robber when the taller one was down on his knees looking up at him.

Officer Gurganious testified that prior to the time Brunson was shown the photographs he did not say anything concerning who may or may not have been the one that robbed him and that Brunson pulled out a photograph of Blanks and identified Blanks as one of the robbers. It was possible, according to Officer Gurganious, that he informed Brunson the selected photograph belonged to a man named George Blanks. He stated that Brunson never identified anyone as being involved in the robbery other than Alfonzo Davis and George Blanks.

James Richburg, Jr. testified on voir dire that he was present at the time Officer Gurganious gave the pictures to Brunson. According to this witness, Officer Gurganious indicated that there was a possible suspect among the photographs, and upon Brunson's selection of a photograph, Officer Gurganious said, "Yes you are right. That is the one."

At the conclusion of the voir dire hearing the trial court found that the robbers were in the store for fifteen minutes; that the store was brightly lighted; and that the witness Brunson had an opportunity to observe the taller man who was on his knees and wearing a loose stocking. It then concluded that the in-court identification of George Blanks was of independent origin, based solely on what the witness saw at the time of the crime and not subject to any pre-trial identification procedure suggestive and conducive of mistaken identification. Its finding was supported by clear and convincing evidence adduced from voir dire. A conclusion that the in-court identification had an independent origin establishes the lack of a "very substantial likelihood of irreparable misidentification" required for reversal. See State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972). Brunson's testimony was not inherently incredible, and his in-court identification of defendant Blanks was properly admitted into evidence.

Relying on State v. Knight, supra, defendant also argues it was error to admit testimony of Officer Gurganious concerning the pre-trial photographic identification. In State v. Knight the Court stated, "[T]he introduction of testimony concerning an out-of-court photographic identification must be excluded where . . . the procedure used is impermissibly suggestive, even though that suggestiveness does not require exclusion of the in-court identification itself under the Simmons test." In refusing to prohibit absolutely the use of identification by photograph, the Court in Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968) 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."

In our opinion there was no impermissible suggestiveness in the photographic identification which would necessitate the exclusion of Officer Gurganious's testimony. See State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972). Brunson had a sufficient opportunity to view defendant Blanks during the robbery. The day after the robbery Brunson viewed six photographs of Negro males, went straight through them, and picked out the photograph of defendant Blanks. Throughout the entire investigation he identified only the two defendants as being the ones who robbed him. Under such circumstances, the possibility that Officer Gurganious may have indicated that he had a suspect or possible suspect among the photographs was inconsequential. Also, the fact that the other five photographs did *683 not look exactly like that of defendant Blanks did not contribute to a possibility of misidentification here. Impermissible suggestiveness amounting to a denial of due process has not been shown. In any event, there is no reasonable possibility that it could have affected the outcome of this case. The State's witness, Brunson, positively identified the two defendants as the robbers while defendant Davis offered no evidence and defendant Blanks merely offered evidence concerning the photographic identification.

At defendant Blank's preliminary hearing, Brunson saw defendant Davis seated as a spectator and at that time identified Davis to a police officer as the second robber. There was no evidence that the meeting was prearranged. At trial Brunson again identified Davis as the shorter man who had robbed him. Defendant Davis contends that this in-court identification was tainted by the pre-trial photographic identification of defendant Blanks and thereby became inadmissible as the "fruit of a poisonous tree." It suffices to say that first, the pre-trial identification of defendant Blanks was not a poisonous tree, and second, the in-court identification of Davis was not the fruit of the pre-trial identification of Blanks.

We find no error prejudicial to defendants.

No Error.

BROCK, C. J., and VAUGHN, J., concur.