State v. McNeilAnnotate this Case
176 S.E.2d 732 (1970)
277 N.C. 162
STATE of North Carolina v. Ernest McNEIL.
Supreme Court of North Carolina.
October 14, 1970.
*735 Robert Morgan, Atty. Gen., Sidney S. Eagles, Jr., Asst. Atty. Gen., for the State.
Downing, Downing & David, by Ray C. Vallery, Fayetteville, for defendant.
At first this Court had difficulty in ascertaining the precise verdict rendered by the jury in this case. The original record filed here recites: "The jury returns as its verdict that the defendant, Ernest McNeil, is guilty of the charge." The record further recites: "The jury returned a verdict of guilty with a recommendation of life imprisonment." Subsequent to the filing of the original record, but before the oral argument, an addendum to the record was filed. The addendum contained the following: "The jury, for its verdict, returned into open court and announced that they had found the defendant guilty of rape with a recommendation of mercy. Upon the coming in of the verdict of guilty of rape, counsel for the defendant moved that the jury be polled. Whereupon the jury was duly polled, each juror entered for his verdict that he found the defendant guilty of rape." Both the original record and the first addendum were certified by the clerk as correct. It appears the original record of the case on appeal was served on the solicitor by defense counsel. There being no exception or countercase, the clerk certified the record which defense counsel had prepared and filed.
In view of the gravity of the case, this Court requested the clerk of Cumberland Superior Court to certify a correct record, according to the minutes, approved by the presiding judge. That record, as certified in a second addendum, discloses the following verdict returned by the jury: "We find the defendant guilty as charged with a recommendation of life imprisonment." The jury was polled and the record shows each juror assented to the verdict. We discover no error in the verdict and judgment thereon as certified in the second addendum.
The defendant's exception to the selection of the trial jury in the manner required by the court's directive is not sustained. The defendant had full opportunity to confront, to examine and to challenge *736 or pass each individual juror. The record does not disclose any objections by the defendant to any member of the trial jury or that he had exhausted his peremptory challenges. This Court, in State v. Perry, 176 S.E.2d 729, filed this day, has passed on a similar objection to the method of jury selection. The authorities supporting the method of selection are cited in the Perry case.
The defendant's challenge to the sufficiency of the evidence to go to the jury and to support the verdict are utterly without merit. The victim's testimony at the trial made out a strong case. She was making outcry at the time the two boys arrived at the clay pit where the offense occurred. When Elijah Morrison heard the outcry and saw movement in the bushes, he threw a stick in the direction of the movement. The defendant immediately raised up from the ground and ran. Theresa Miles, the victim, came out crying, with mud and pine needles on her clothing and in her hair, and without her shoes. She told how her assailant had grabbed her and dragged her through the clay pit and into the bushes, where she struggled and lost her shoes. Her story and her identification were corroborated by many circumstances and contradicted by none. The officers found the place in the bushes where the weeds and pine needles were mashed down.
This case is unusual in that two boys, Lynwood Thomas and Elijah Morrison happened to appear upon the scene during the assault. They knew Ernest McNeil. Both identified him as the man who ran from the scene. They reported to the officers what they had observed. The identity of the defendant was well established by the information in the hands of the officers.
The defendant contends the court committed error in overruling his objection and permitting Drs. Equez and Steffe to testify that the tests made disclosed the presence of male sperm in the victim's vagina within a short time after the assault. Dr. Equez made the examination, obtained the specimen, made the smear, placed the identifying mark on the slide, and then placed the slide in the hospital records. Two days later, Dr. Steffe, a Pathologist, examined and evaluated the smear, and testified as to what the examination disclosed. The evidence tended to show penetration, one of the elements of rape. To like effect was the evidence of pregnancy which was admitted over defendant's objection. The defendant's plea of not guilty placed upon the State the burden of proving beyond a reasonable doubt all essential elements of the offense charged. Evidence tending to prove any essential element of that offense was properly admitted. State v. Perry, 275 N.C. 565, 169 S.E.2d 839; 62 A.L.R.2d 1080, and cases cited.
The defendant denies the admissibility of the victim's evidence identifying him as her assailant. Specifically, he contends his constitutional right to a lawyer was violated by the officers in that they took him to the school house where one officer stood by him on the steps near the school and another officer took Theresa to a window, where she observed him and said, "That is him." Admittedly he was not represented by counsel and had not waived his right to counsel at that time. He was a suspect, but not under arrest. He consented to accompany the officers. He contends further that his in-court identification by Theresa was tainted by the prior identification at the school house and the in-court identification should have been excluded.
In passing on the admissibility of the victim's evidence of identification, defense counsel and the solicitor seem to have agreed that the victim should be permitted to give her identifying evidence before the jury. Then after the State had closed its evidence, the court, in the absence of the jury, should conduct a further hearing on the admissibility of the identification and determine whether the evidence should *737 remain in or be excluded. (The court does not recommend this procedure because evidence later ruled incompetent had been heard by the jury.) However, the defendant does not contend he was prejudiced by the agreement and the procedure followed.
At the conclusion of the voir dire in the absence of the jury, the court expressed doubt as to the admissibility of Theresa's identification at the school house (which the jury had already heard) on the ground the defendant was not represented by counsel and had not waived his right to counsel. However, the court offered to withdraw from the jury the evidence that she identified him at the school house. The defendant permitted the evidence to be introduced but moved that all of Theresa's evidence of identification be withdrawn from the jury. Defense counsel objected to the withdrawal of the identification made at the school house unless the court would also withdraw the in-court identification. This the court declined to do. At the conclusion of the voir dire, the court found the facts and properly concluded the in-court identification was not tainted or rendered inadmissible by the procedure at the school house.
We hold the trial court did not commit error in admitting the in-court identification. The officers took the defendant to the school for Theresa to see him before he was arrested and before a warrant was issued. At the time, the officers had Theresa's description of her assailant, though she had never seen him before and did not know his name. They also had the statements of Lynwood Thomas and Elijah Morrison that they knew the defendant and that when they came to the clay pit in the park they heard a feminine voice crying out "stop" and saw movement in the bushes. Elijah threw a stick in the direction of the movement, whereupon the defendant came out running and Theresa came out crying. Pine needles were in her hair, mud was on her clothing, and she had lost her shoes.
On the day following the assault, the officers took the defendant to the school house for Theresa to see him. At that time, it would seem the officers had abundant evidence to make out a case of rape against the defendant. However, to guard against charging one whom the victim might exonerate, they requested Theresa to look at the defendant before the warrant was sworn out. The confrontation at the school was to guard against a case of mistaken identity by the two boys, Lynwood Thomas and Elijah Morrison. Theresa's identification was in corroboration of the evidence the officers already had from the two boys. Her identification was not necessary to warrant holding the defendant, but if she failed to identify him, the failure could be beneficial to him. Theresa's identification at the school house was only a part of the identifying evidence. She did not know the defendant. She had not seen him before. However, the two boys lived near him. They knew him well, and positively identified him. The identifying evidence, in its totality, more than met the test laid down in Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967. All the evidence of identification (none of which is contradicted) does not even suggest a case of mistaken identity.
General suspicion of identification by the victim if the suspect is in the custody of officers, or if he is in jail, or even if his picture is taken from a rogue's gallery is not altogether warranted. Officers are under oath to discharge their duties honestly and according to law. It is their duty to discover and to apprehend the guilty. It is equally their duty to shield the innocent. The seizure of the suspect without probable cause and merely for the sake of having someone in custody is out of bounds and will react to the discredit of the officers. There is both credit and satisfaction, however, in getting "the right man". The opposite is true if they bring in the wrong one. In the absence of evidence to the contrary, may the appellate *738 courts not assume the officers acted with reasonable caution and with good intentions? Likewise, may they not assume the victim of an atrocious crime is interested in the apprehension and punishment of the "right man"? If the victim once identifies the wrong man, the later identification of the right man will be tarnished. Why should the appellate courts indulge the presumption that the victim's in-court identification is not reliable and should be excluded in cases where the witness had made a prior identification, even if the suspect was in custody? What difference does it make if the identification was made while he was in custody, in a line up, or in a rogue's gallery picture?
In this case the confrontation at the school was for the purpose of confirming the identification made by the two boys. Stovall v. Denno, supra. The main issue is the guilt or innocence of the suspect. To exclude the evidence of the victim identifying him because she had previously seen him in the presence of officers is a case of the tail wagging the dog.
The trial court, out of an abundance of caution, offered to strike the evidence that Theresa saw and identified the defendant at the school house. Although the court offered to strike this evidence, however, in deference to defense counsel's request, the court left it in the case. The defendant requested the court not to strike the evidence of identification at the school house unless the in-court identification was also stricken. The court properly denied the motion to exclude the in-court identification. State v. Rogers, 275 N.C. 411, 168 S.E.2d 345; State v. Wright, 274 N.C. 84, 161 S.E.2d 581.
As a final objection to the trial, the defendant contends he should be permitted to have another go at the jury because the trial judge failed to submit the lesser included offenses: assault with intent to commit rape, and assault on a female by a male person. The uncontradicted evidence made out a case of rape. The court charged the jury to return a verdict: (1) guilty of rape; (2) guilty of rape with a recommendation that punishment be imprisonment for life in the State's prison; or (3) not guilty. Failure to find the defendant guilty of (1) or (2) required a verdict of not guilty. The defendant was not prejudiced by the charge which required the jury to acquit of all included lesser offenses. There was no evidence of the lesser included offenses, and the court was correct in refusing to permit the jury to consider them. 6 Strong's N.C. Index 2d, Rape, Sec. 6, p. 578; State v. Williams, 275 N.C. 77, 165 S.E.2d 481; State v. Jones, 249 N.C. 134, 105 S.E.2d 513; State v. Brown, 227 N.C. 383, 42 S.E.2d 402.
After careful review of the trial and all objections thereto presented by exceptions and assignments of error, we find