State v. HatcherAnnotate this Case
177 S.E.2d 892 (1970)
277 N.C. 380
STATE of North Carolina v. George Everett HATCHER.
Supreme Court of North Carolina.
December 16, 1970.
*896 Wallace C. Harrelson, Public Defender, for defendant-appellant.
Robert Morgan, Atty. Gen., and Edward L. Eatman, Jr., Raleigh, Staff Attorney, for the State.
Defendant asserts he was held in jail forty-one days without bail before a preliminary hearing was conducted and contends he was thus denied a speedy trial in violation of his rights under the Sixth Amendment to the Federal Constitution. He moved to quash the bills of indictment on that ground and assigns as error the denial of his motion.
Constitutional requirements with respect to a speedy trial apply to a preliminary hearing if unreasonable delay in conducting the hearing works a similar delay in the trial. State v. Johnson, 275 N. C. 264, 167 S.E.2d 274 (1969). Here, however, neither the hearing nor the trial was unreasonably delayed to the prejudice of the defendant. The record discloses that the prosecuting witness, James Edward Brown, remained in Cone Memorial Hospital for twenty-eight days and then went to a relative's home in Rockingham County to recuperate. As soon as he was able to travel he came to Greensboro and the hearing was held. This alone negates the suggestion that prosecution of the cases against defendant was negligently or arbitrarily delayed by the State. In addition, however, the record further shows that while Brown was still in the hospital he was taken to the courthouse on one occasion to testify at a preliminary hearing, but defendant's privately employed counsel was unable to attend and the hearing was postponed.
Principles governing the right to a speedy trial in North Carolina are outlined with clarity and accuracy by Justice Sharp in State v. Johnson, supra. The following language from that opinion is appropriate here:"The burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. A defendant who has himself caused the delay, or acquiesced in it, will not be allowed to convert the guarantee, designed for his protection, into a vehicle in which to escape justice. State v. Hollars, 266 N.C. 45, 145 S.E.2d 309; State v. Lowry, 263 N.C. 536, 139 S.E.2d 870, appeal dismissed, 382 U.S. 22, 86 S. Ct. 227, 15 L. Ed. 2d 16 (1965); State v. Patton, 260 N.C. 359, 132 S.E.2d 891, cert. denied, 376 U.S. 956, 84 S. Ct. 977, 11 L. Ed. 2d 974 (1964); State v. Webb, 155 N.C. 426, 70 S.E. 1064. *897 * * * * * * "The possibility of unavoidable delay is inherent in every criminal action. The constitutional guarantee does not outlaw good-faith delays which are reasonably necessary for the State to prepare and present its case."
In light of the facts this assignment is totally without merit.
Defendant's second assignment of error is based on the contention that his pretrial identification by means of a photograph was so suggestive and conducive to misidentification as to deny him due process of law. On that premise he contends that his arrest was illegal and that the fruits of the search of his person incident to such arrest were tainted and erroneously admitted into evidence.
This assignment must fail because his arrest was legal. In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), identification by photograph was expressly approved and it was 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. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S. Ct. 1967, 1972-1973, [18 L. Ed. 2d 1199, 1206,] and with decisions of other courts on the question of identification by photograph." See People v. Evans, 39 Cal. 2d 242, 246 P.2d 636 (1952); State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970).
Applying the foregoing standard to this case, there was small chance indeed that the photograph led to misidentification of defendant. The victim Brown had talked to defendant for more than an hour on the night of the crime and had ample opportunity to observe him. Brown had heard the waitress refer to defendant as "Bobby Hatcher". This information was given to Officer Pettigrew and he had verified it by interviewing the waitress. The photograph was then lawfully obtained from the police files and shown to Brownnot so much for identification purposes but to verify an identification already made. Officer Pettigrew was strengthened in his belief that defendant was Brown's assailant when he found the victim's car parked on the street at defendant's place of residence. Certainly at that time he had within his knowledge sufficient facts and circumstances to warrant a man of reasonable caution in the belief that Brown had been shot and robbed and that this defendant was probably the man who did it. By any reasonable standard this constituted probable cause for issuance of the warrant and for defendant's arrest and prosecution. State v. Matthews, 270 N.C. 35, 153 S.E.2d 791 (1967); G.S. § 15-20. Viewed in that context and evaluated in light of the totality of circumstances, there is little room for doubt that defendant's identification was correct.
We therefore hold that the identification procedure used was not such as to deny defendant due process of law and that his subsequent arrest was in all respects lawful. The items seized from him were taken incident to a valid arrest and were therefore properly admitted into evidence. See State v. Austin, 276 N.C. 391, 172 S.E.2d 507 (1970); State v. McPherson, 276 N. C. 482, 172 S.E.2d 50 (1970); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970); Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967); Simmons v. United States, supra; Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 84 A.L.R.2d 933 (1961).
The State offered various photographs of the victim's car and the photograph of defendant which Officer Pettigrew *898 had obtained from the police files. The latter was offered after the words "Greensboro Police Department" and the date "11/67" had been covered by an evidence sticker in the absence of the jury. Defendant objected to all the photographs and particularly to the police department photograph. The court instructed the jury to "consider these photographs and all photographs only for the purpose of illustrating the testimony of the witness, and for no other purpose, if you find they do so illustrate his testimony." Defendant's third assignment of error is to the admission of the police department photograph.
We find no North Carolina case which has decided this question. There is a conflict of authority among other jurisdictions on the admissibility of "mug shots" or "rogue's gallery" photographs of a defendant. See Annotation: Admissibility and Prejudicial Effect of Admission, of "Mug Shot," "Rogue's Gallery" Photograph, or Photograph Taken In Prison, of Defendant in Criminal Trial, 30 A.L.R.3d 908 (1970). In the following cases such photographs were held properly admitted when offered for identification purposes even though they contained visible markings: United States v. Amorosa, 167 F.2d 596 (3 Cir. 1948); Dirring v. United States, 328 F.2d 512 (1 Cir. 1964), cert. den. 377 U.S. 1003, 84 S. Ct. 1939, 12 L. Ed. 2d 1052, reh. den. 379 U.S. 874, 85 S. Ct. 27, 13 L. Ed. 2d 83; People v. Bracamonte, 253 Cal. App. 2d 980, 61 Cal. Rptr. 830 (1967); People v. Maffioli, 406 Ill. 315, 94 N.E.2d 191 (1950); People v. Purnell, 105 Ill.App.2d 419, 245 N.E.2d 635 (1969); State v. Hopper, 251 La. 77, 203 So. 2d 222 (1967); State v. Childers, 313 S.W.2d 728 (Mo.1958).
Photographs offered for identification purposes and bearing visible markings were held erroneously admitted in the following cases: People v. Cook, 252 Cal. App. 2d 25, 60 Cal. Rptr. 133 (1967); People v. Murdock, 39 Ill. 2d 553, 237 N.E.2d 442 (1968); Blue v. State, 250 Ind. 249, 235 N.E.2d 471, 30 A.L.R.3d 902 (1968); Matters v. Commonwealth, 245 S.W.2d 913 (Ky.1952).
In this State photographs are admissible to illustrate the testimony of a witness. "[W]here there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy." State v. Gardner, 228 N.C. 567, 46 S.E.2d 824 (1948). Accord, State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241 (1969); State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970). If a photograph is relevant and material it will not be excluded because it was not made contemporaneously with the occurrence of the events at issue. State v. Lentz, 270 N.C. 122, 153 S.E.2d 864 (1967). See generally Stansbury, North Carolina Evidence (2d Ed., 1963) § 34.
Defendant contends, however, that introduction of the "mug shot" photograph of him tended to apprise the jury of the fact that he had been in trouble before, reflected unfavorably upon his character and suggested that he had been convicted of other crimes. Upon the facts before us defendant's contention is unsound and cannot be sustained. Before the jury was allowed to see the photograph in question, the portions which might have been prejudicial to him, i. e., the name of the police department and the date, were covered by an evidence tag. This left only an ordinary photograph, which was offered and admitted for illustrative purposes bearing upon identification of defendant. The photograph was relevant and material on the question of identity and could not have been prejudicial in the sense suggested by defendant. There was nothing on it to connect defendant with previous criminal offenses. In the following cases photographs offered for identification purposes and containing labels and markings which were covered or removed were held properly admitted: Cooper v. State, 182 Ga. 42, 184 S.E. 716, 104 A.L.R. 1309 (1936); State v. O'Leary, 25 N.J. 104, 135 A.2d 321 (1957); State v. Tate, 74 Wash. 2d 261, 444 P.2d 150 (1968); People v. Fairchild, 254 *899 Cal. App. 2d 831, 62 Cal. Rptr. 535 (1967), cert. den. 391 U.S. 955, 88 S. Ct. 1861, 20 L. Ed. 2d 870; Johnson v. State, 247 A.2d 211 (Del.Sup.1968); Huerta v. State, 390 S.W.2d 770 (Tex.Cr.App. 1965).
We therefore hold that the photograph, with inscription and date deleted, was properly admitted for illustrative purposes on the question of identity. This assignment is overruled.
Defendant's final assignment of error is addressed to the failure of the court to allow his motion in arrest of judgment in the armed robbery conviction. He contends that his conviction of assault with a deadly weapon bars prosecution for the greater offense of armed robbery arising out of the same acts.
"In a criminal prosecution, * * * judgment may be arrested whenand only whensome fatal error or defect appears on the face of the record proper." State v. Kirby, 276 N.C. 123, 171 S.E.2d 416 (1970). Accord, State v. Higgins, 266 N. C. 589, 146 S.E.2d 681 (1966); State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955). Here, the record proper shows upon its face that defendant was charged in two bills of indictment which were consolidated for trial, one bill charging felonious assault and the other charging armed robbery. The jury convicted defendant of assault with a deadly weapon in one case and armed robbery in the other. Since both offenses of which he was convicted arose out of the same occurrence, the former is a lesser included offense of the latter. "An indictment for robbery with firearms will support a conviction of a lesser offense such as common law robbery, assault with a deadly weapon, larceny from the person, simple larceny or simple assault, if a verdict for the included or lesser offense is supported by the evidence on the trial." State v. Davis, 242 N.C. 476, 87 S.E.2d 906 (1955). Accord, State v. Parker, 262 N.C. 679, 138 S.E.2d 496 (1964).
Defendant having been simultaneously convicted of armed robbery and of the lesser included offense of assault with a deadly weapon, and both offenses arising out of the same conduct, the Court of Appeals correctly set aside the verdict of guilty of assault with a deadly weapon and arrested the judgment in that case. Defendant's ingenious argument that the rule should work in reverse so as to nullify the armed robbery conviction is not sustained. State v. Midyette, 270 N.C. 229, 154 S.E.2d 66 (1967), cited by defendant, supports our conclusion.
The decision of the Court of Appeals upholding judgment of the trial court in the armed robbery case and arresting judgment in the assault case is
MOORE, J., did not participate in the consideration or decision of this case.