State v. Faire

207 S.E.2d 284 (1974)

22 N.C. App. 573

STATE of North Carolina v. Elijah Tyrone FAIRE and Clarence Carr.

No. 748SC535.

Court of Appeals of North Carolina.

August 7, 1974.

Certiorari Denied and Appeal Dismissed November 8, 1974.

*286 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Rafford E. Jones, Raleigh, for the State.

W. Dortch Langston, Jr., Goldsboro, for defendant appellant Elijah Tyrone Faire.

David M. Rouse, Goldsboro, for defendant appellant Clarence Carr.

Certiorari Denied and Appeal Dismissed by Supreme Court November 8, 1974.

PARKER, Judge.

Defendant Faire moved to quash the indictments against him on the grounds that each bill incorrectly designated his middle name as "Tyrone" rather than as "Junior," which he contends is his correct middle name as it appears on his birth certificate. The motions were properly overruled. The omission or mistake in designation of an accused's middle initial or name, he being otherwise adequately identified, will not invalidate an indictment, information, or other formal criminal accusation against him. Annot., 15 A.L.R.3d 968; cf. State v. Hester, 122 N.C. 1047, 29 S.E. 380; State v. Buck, 6 N.C.App. 726, 171 S.E.2d 10. Here, defendant Faire was adequately identified in the indictments as the person charged, and the mistaken designation of his middle name in no way prejudiced him at trial, where the identification issue concerned his physical appearance rather than his name.

Defendants' motions for nonsuit were also properly overruled. At the trial Mrs. Walker positively identified defendants as the men who robbed and kidnapped her. Her testimony disclosed a reasonable possibility that she had observed her assailants sufficiently to permit subsequent identification, and the credibility of that identification was for the jury. State v. Miller, 270 N.C. 726, 154 S.E.2d 902, cited by defendants, is distinguishable on its facts.

Defendants next contend that the trial court erred in failing to suppress Mrs. Walker's in-court identification of them as the persons who had robbed and kidnapped her. At the close of an extensive voir dire, the trial court made detailed factual findings and concluded that Mrs. Walker's incourt identification of defendants was "lawful and regular in all respects." We agree. Plenary evidence was presented at the voir dire examination to support the trial court's lengthy findings of fact and its conclusion that Mrs. Walker had ample opportunity to observe the defendants during the kidnapping and robbery. Approximately 30 minutes elapsed between the time Mrs. Walker picked up the defendants and her subsequent release by them. Although it was dark throughout this period, street lights, the taxi's exterior and interior lighting, a lack of disguises and blindfolds, the close proximity of assailants and victim, their brutality towards her and her composed and *287 alert behavior, combined to afford her a number of opportunities to observe the defendants' physical appearances. Mrs. Walker described these opportunities and testified to her determination to make the most of them. During her conversation with Goldsboro Police Sergeant Robert Wilson immediately after her release, Mrs. Walker was able to give a description of the defendants' physical characteristics and clothing, a description which was confirmed when defendants were apprehended by the police later that evening. On this record, the conclusion is compelling that when Mrs. Walker left defendants' presence, she carried with her an accurate mental image of each.

Notwithstanding these facts, defendant Faire contends that his in-court identification was tainted by photographic identification procedure which occurred at the police station on the night of his arrest and which he contends was impermissibly suggestive. A conviction based on in-court identification following a pretrial photographic identification will be set aside only if the photographic identification procedure was so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. U.S., 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968); State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972); State v. Neal, 19 N.C.App. 426, 199 S.E.2d 143 (1973). In the present case, evidence at the voir dire disclosed that shortly after Mrs. Walker was released by her assailants, she was taken to the Goldsboro Police Station where she was asked to examine a book containing more than fifty photographs of Negro males. She did so, but recognized no one. Later during the same evening she was shown a group of six photographs, all in black and white and all of black men. One was a picture of defendant Faire which had just been made after he had been arrested and brought to the station. The other five had been picked at random by one of the officers from pictures of black males as near the age of Elijah Faire as possible. Mrs. Walker positively and unhesitatingly identified Faire as one of her assailants as soon as she saw his picture. At the conclusion of the voir dire the court made detailed findings of the foregoing facts and further found that at the time the group of six photographs was shown Mrs. Walker, the officer did not tell her that they had just picked up two black males and did not suggest in any way whom she should identify. The evidence fully supports the court's findings and conclusion that Mrs. Walker's in-court identification of defendant Faire was of independent origin and was not tainted by any out-of-court photographic identification procedure so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Nor does the fact that defendant Faire was in custody but was not represented by counsel when the photographic identification occurred render the in-court identification inadmissible. The Sixth Amendment does not grant the right to counsel at photographic displays conducted by the prosecution for the purpose of allowing the witness to attempt an identification of the offender. United States v. Ash, 413 U.S. 300, 93 S. Ct. 2568, 37 L. Ed. 2d 619 (1973). The in-court identification testimony of Mrs. Walker was properly admitted against defendant Faire.

After Mrs. Walker identified the picture of Faire and as she was leaving the police station, she passed the dispatcher's office and, looking through an open door, saw defendant Carr. She identified Carr to the police as one of her attackers. At the conclusion of the voir dire hearing the trial judge found that this confrontation was unarranged and accidental and that Mrs. Walker's in-court identification was of an independent origin. These findings, supported by competent evidence, are binding on appeal and dispose of defendant Carr's assignments of error directed to allowing Mrs. Walker's in-court identification testimony against him. State v. McPherson, 276 N.C. 482, 172 S.E.2d 50. The fact that Carr was not represented by counsel at the time Mrs. Walker saw him in the police station *288 did not require exclusion on constitutional grounds of her in-court identification testimony. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972).

Defendant Faire's contention that he was illegally arrested is not supported by the record. Officer May, who made the arrest, testified that as he approached the cab in which defendants were seated, he saw Faire take a pistol from his right front pocket and throw it underneath the front seat. The officer immediately arrested Faire for carrying a concealed weapon, and this arrest was clearly legal under G.S. § 15-41(1). In addition, at the time of this arrest, Officer Wilson, who accompanied Officer May, had already interviewed Mrs. Walker and had received from her a description of the two men who had assaulted her. The arrest would also have been justified under G.S. § 15-41(2).

We have carefully examined all of appellants' remaining assignments of error and find no prejudicial error such as would warrant the granting of a new trial. Accordingly, in the trial and judgments appealed from we find,

No error.

CAMPBELL and BRITT, JJ., concur.