State v. McCain

249 S.E.2d 812 (1978)

39 N.C. App. 213

STATE of North Carolina v. Roy McCAIN, Jr.

No. 7826SC779.

Court of Appeals of North Carolina.

December 19, 1978.

*814 Atty. Gen. Rufus L. Edmisten, by Special Deputy Atty. Gen. John R. B. Matthis and Asst. Atty. Gen. Acie L. Ward, Raleigh, for the State.

Gene H. Kendall, Charlotte, for defendant-appellant.

HARRY C. MARTIN, Judge.

Counsel for appellant failed to include in the record on appeal the order of the trial court overruling defendant's objection to the in-court identification of defendant. This is in violation of Rule 9(b)(3)(viii) and (x) of the North Carolina Rules of Appellate Procedure. These rules are mandatory. The defendant appellant has the duty to see that the record on appeal is properly made up. State v. Stubbs, 265 N.C. 420, 144 S.E.2d 262 (1965); State v. Byrd, 4 N.C.App. 672, 167 S.E.2d 522 (1969). Defendant does include in the record on appeal a statement that the court ruled the in-court identification was admissible as being based upon Foust's observance of defendant at the Jiffy House and the apartment and not based upon any subsequent identification of defendant. Defendant objected to this ruling.

We hold the trial court properly admitted the in-court identification of defendant. There is ample evidence in the voir dire and before the jury to sustain the court's ruling that the in-court identification was independently based upon Foust's observation of defendant and Sandra at the Jiffy House and at the time of the robbery. Being fully supported by the evidence, this conclusion must be upheld. State v. Branch, 288 N.C. 514, 220 S.E.2d 495 (1975), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977).

Defendant did not have a constitutional right to counsel at the time of the show-up in the hospital. Although defendant and Sandra were in custody, they had not been formally arrested or charged. The Sixth Amendment right to counsel only applies at or after the time that adversary judicial proceedings have been initiated against defendant. Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932); Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), modified as to sentence of execution, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205 (1976).

The principles of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), have no applicability to this issue. The Miranda decision is concerned with Fifth Amendment rights preventing compulsory self-incrimination.

The evidence of in-court identification must also survive the due process test. This is expressed in terms of the "totality of the circumstances" in Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). There the Court set out several factors to be considered in determining whether the circumstances surrounding the identification complied with due process requirements. In evaluating the likelihood of misidentification, factors to be considered are: (1) the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention; (2) the manner in which the show-up was conducted; (3) the accuracy of witness's prior description of the criminal; (4) whether witness has identified someone else as the criminal; (5) prior identification of defendant as the criminal; (6) failure to identify defendant on a prior occasion; (7) lapse of time between alleged act and show-up. State v. Branch, supra.

*815 In Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977), the Court held even though the out-of-court identification was suggestive it did not per so exclude the evidence. The test remains whether under the "totality of the circumstances" the identification was reliable, even though the show-up was suggestive. "The standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment." Manson, supra. The testimony of the show-up identification of McCain at the hospital complies with the standards of Manson and was admissible. The show-up was not constitutionally impermissible. It was not so suggestive and conducive to mistaken identification as to offend fundamental standards of decency, fairness, and justice. Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967); State v. Hunt, 287 N.C. 360, 215 S.E.2d 40 (1975).

The trial court's ruling as to the in-court identification of McCain is supported by the principles in the trilogy of Kirby, Neil, and Manson. Foust was able to see and observe defendant and Sandra over an extended period of time; he gave them close attention and remembered many details about them; the officer did not say he had the two who robbed Foust; the show-up lasted only a few seconds; Foust gave the officers an accurate description of defendant and Sandra and the apartment and its location; Foust did not identify anyone else as the perpetrator of the robbery; he did not fail to identify defendant; the lapse of time between the robbery and the show-up was only a few hours. The evidence supports the finding that the in-court identification of McCain was of independent origin based solely upon Foust's recollection of McCain at the time of the crime. Under the totality of all the circumstances, the in-court identification is not tainted by the hospital show-up.

While counsel do not refer to Article 14 of Chapter 15A of the General Statutes of North Carolina in their briefs, the terms of the statute itself recognize that it does not set out exclusive procedures for non-testimonial identification. N.C. Gen.Stat. 15A-272. The facts of this case do not show a violation of this Article in the identification of defendant. State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977).

No error.

MORRIS, C. J., and ERWIN, J., concur.