State v. Sadler

251 S.E.2d 902 (1979)

STATE of North Carolina v. Kenneth SADLER.

No. 7826SC987.

Court of Appeals of North Carolina.

February 20, 1979.

*903 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Joan H. Byers, Raleigh, for the State.

Theo H. Nixon, Asst. Public Defender, Charlotte, for defendant-appellee.

*904 ARNOLD, Judge.

First the State argues that defendant was not entitled to counsel at the show-up. The State errs in arguing that G.S. 7A-451(b)(2) controls. That statute sets out the entitlement of indigent persons to the services of counsel; the issue here is not whether defendant was entitled to have counsel appointed at State expense, but whether he was entitled to have counsel present at the show-up. The State is correct, however, that defendant was not entitled to counsel at this identification. Defendant was arrested and taken to the police station. There he was shown to the witness, who identified him. He was subsequently taken before a magistrate and formally charged. On an identical sequence of occurrences this Court has held that a defendant is not entitled to counsel at the show-up, since "[t]he constitutional right to counsel at an identification procedure does not attach until `the initiation of adversary judicial criminal proceedings . . . by way of formal charge, preliminary hearing, indictment or arraignment.'" State v. Sanders, 33 N.C.App. 284, 287, 235 S.E.2d 94, 96, cert. denied 293 N.C. 257 (1977).

Nevertheless, the order suppressing the identification evidence must be affirmed. His Honor found that the victim could not identify her assailant, that the show-up procedure was impermissibly suggestive, and that Ms. Cureton's in-court identification was based entirely on the show-up. Inasmuch as the findings of fact were based on competent evidence this Court is bound by the trial court's findings. 4 Strong's N.C. Index 3d, Criminal Law, § 66.20 at 276.

The record reveals that the police officers who made the stop received a radio broadcast reporting an armed robbery in the area they were patrolling. A description was given of two suspects who were young black males with a knife, one of whom was wearing a light-colored hat, white pants, black shirt and sunglasses. A short distance from the scene the officers attempted to stop defendant and his companion, two black males who generally fit the description given over the police radio.

According to the officer's uncontroverted testimony at the hearing, defendant's companion had under his shirt what appeared to the officers to be a knife. (It turned out to be a stick.) Defendant's companion was stopped for questioning, and the officers attempted to stop defendant, who kept going, but later was stopped. Defendant had on light tan pants, a brown shirt and sunglasses.

The court's finding that "there is no evidence that the men fit [the] description" simply is not supported by the evidence in this record, and thus is not binding on this Court. Yarborough v. State, 6 N.C.App. 663, 171 S.E.2d 65 (1969). Moreover, this deficient finding by the trial court appears to be the basis for its conclusion that the stop was illegal. The remaining findings likewise do not support the conclusion that the stop was illegal. Indeed, from this record we find no evidence from which such a finding could be made.

In view of the description relayed over the police radio and the proximity of distance and time to the crime, there existed reasonable grounds for the officers to lawfully confront defendant and his companion for questioning. Based on the holding of our Supreme Court in State v. Streeter, 283 N.C. 203, 195 S.E.2d 502 (1973), we have no difficulty in finding the stop in this case to be legal. The trial court's conclusion that the stop was illegal is therefore reversed.

Finally, that portion of the order which suppresses evidence of the credit card, bus pass and bus tickets found on defendant's person is vacated. We also vacate the court's conclusion that there was no probable cause to arrest defendant.

Uncontroverted testimony by the officer who arrested defendant indicated that defendant at first stated that he had no identification on him, but then pulled out a credit card and upon request showed the card to the officers. It was the Belk's charge card issued to Mrs. Yandle. The trial court's finding that the "Court does not believe this testimony" leaves the record *905 bare of evidence which explains how the officers came into possession of the Belk's card and other articles, and there is no evidence to support the ruling that there was no probable cause for defendant's arrest.

That part of the Superior Court's order concluding that the stopping of defendant by the police was illegal is reversed; that part of the order suppressing the identification evidence is affirmed; and that part of the order suppressing evidence of the Belk's card and other articles found on defendant, and finding no probable cause for arrest, is vacated. The case is remanded for trial.

Remanded.

PARKER and WEBB, JJ., concur.