State v. AustinAnnotate this Case
172 S.E.2d 507 (1970)
276 N.C. 391
STATE of North Carolina v. Leonard AUSTIN and Royce Stamey.
Supreme Court of North Carolina.
March 11, 1970.
*510 Ted S. Douglas, Lenoir, for defendant-appellant.
Robert Morgan, Atty. Gen., Bernard A. Harrell, Asst. Atty. Gen., for plaintiff-appellee.
Appellant brings forward the following assignments, to wit: (1) The court erred in reading to the prosecuting witness prior to his examination on voir dire an excerpt from the decision of the Court of Appeals relative to the lineup; (2) the court erred in permitting the prosecuting witness to make an in-court identification of defendant Austin because it was based on an illegal lineup identification when defendant had not waived and was not represented by counsel; and (3) the court erred in failing to grant Austin's motion for judgment of nonsuit. These assignments will be considered in the order named.
Preceding the voir dire, the trial judge dictated the following statement into the record in the absence of the jury but in the presence of the prosecuting witness: "Let the record show at this time by and with the agreement of counsel for both defendants and the solicitor for the State, upon the swearing of the witness M. A. Brinkley, it is agreed that a Voir Dire hearing would be conducted by the Court in compliance with mandate of the Court of Appeals language. It may well be that the witnesses in court, the identity of both defendants was based on factors complete and independent of the line-up identity. So at this time the Court will be conducting this hearing for the purpose indicated in the opinion of the Court of Appeals in the absence of the jury." (The language referred to appears in 3 N.C.App. 200 at 203, 164 S.E.2d 547 as follows: "It may well be that the witness's in-court identification of both defendants was based on factors completely independent of the lineup identification."
Defendant Austin assigns this as error, suggests that it amounted to an expression of opinion on the part of the judge, and argues that it in effect told the witness Brinkley the significance of the pretrial lineup and influenced him to attach only minor importance to it. Defendant's argument is not persuasive. The opinion of the Court of Appeals is not a secret document the contents and significance of which are reserved only for the eyes of defendant and his counsel. No reason occurs to us, and none has been cited, why the victim should not be apprised of the purpose of the voir dire examination and the significance of the lineup. Defendant and his counsel were cognizant of these matters. Why should the same knowledge be kept from the witness? Is it suggested that only the ignorant swear truthfully and that those who know the purpose and significance of the questions propounded are more apt to commit perjury than those who do not? If this be a valid premise, then knowledge is a vice and ignorance a virtue. But be that as it may, the statement of the court was hardly sufficient to apprise the witness of anything. It was entirely harmless. This assignment is mere speculation, supported only by surmise and conjecture. It is without merit and is overruled.
With respect to the lineup, the following language from State v. Rogers, 275 N.C. 411, 168 S.E.2d 345, is appropriate:"The rules established for in-custody lineup identification by United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (both decided June 12, 1967), include the constitutional right to the presence of counsel at the lineup and, when counsel is not present, (1) render inadmissible the testimony of witnesses that they had identified the accused at the lineup, and (2) render inadmissible the in-court identification of the accused by a lineup witness unless it is first determined *511 on voir dire that the in-court identification is of independent origin and thus not tainted by the illegal lineup, State v. Wright, 274 N.C. 84, 161 S.E.2d 581. Wade and Gilbert do not apply retroactively, however, and effect only cases involving lineups for identification purposes conducted after June 12 1967. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199."
The lineup in this case was conducted in May 1967. Hence the rules fashioned by Wade and Gilbert do not apply, and the appellant here had no constitutional right to the presence of counsel at the lineup. Stovall v. Denno, supra. Furthermore, there is nothing in this record to indicate, and defendant does not contend, that the lineup was conducted in such fashion as to offend fundamental standards of decency, fairness and justice. His only complaint is the absence of counsel. Nor do the total circumstances surrounding the lineup reveal procedures unnecessarily suggestive and conducive to irreparable mistaken identification. Thus the principles of Due Process with respect to lineups, guaranteed by the Fourteenth Amendment, have not been offended. Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183, 25 A.L.R.2d 1396; Foster v. California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d 402; State v. Rogers, supra; State v. Gatling, 275 N.C. 625, 170 S.E.2d 593.
Even if Wade and Gilbert applied in this case, the evidence supports the findings of the trial judge on voir dire that identification of the defendants by the prosecuting witness was based entirely on his mental picture of them at the time of the robbery and was in no way related to the lineup. This evidence discloses that the prosecuting witness had observed both defendants from eight to ten minutes during the robbery; that defendant Austin was undisguised and the victim had full opportunity to form a mental picture of his facial features and identifying characteristics; that Austin's actual description fits the description Brinkley gave the officers following the robbery; that Brinkley identified both defendants the first time and every time he saw them; and that he identified Austin by a photograph "that favors him very closely." It is quite apparent from Brinkley's testimony on voir dire, and before the jury as well, that he had in his mind a fixed image of these defendants and had formed it from observations at the time of the robbery. "The expressions on their face has stuck with me all this time. * * * I did not pick Leonard Austin out by the pictures, but I picked out someone that looked like him * * * to give them a clue as to his description. * * * I picked him out on the basis of my mental picture." Furthermore, according to the record, the witness viewed the lineup for only a few seconds. Its imprint upon Brinkley's mind, therefore, must have been minimal and served only to verify the mental picture formed at the time of the robbery. In our view, the State's evidence is clear and convincing that Brinkley's in-court identification was based upon observation of defendants at the time of the robbery and not on observations at the time of the lineup. Compare State v. Williams, 274 N.C. 328, 163 S.E.2d 353, and State v. Primes, 275 N.C. 61, 165 S.E.2d 225.
In light of these principles, it follows that the victim's in-court identification of appellant was properly admitted. His assignment of error based on its admission has no merit and is therefore overruled.
There was ample evidence to withstand the motion for nonsuit and carry the case to the jury. Appellant's third assignment is overruled.
The decision of the Court of Appeals upholding the judgment is