{
  "id": 8552477,
  "name": "STATE OF NORTH CAROLINA v. FRED DAVIS",
  "name_abbreviation": "State v. Davis",
  "decision_date": "1977-08-03",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judges Parker and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FRED DAVIS"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nPrior to Blalock\u2019s in-court identification of defendant, a voir dire was conducted. On voir dire, Blalock testified that the two men entered her store at approximately 5:50 p.m. on 21 July 1975; that the store was illuminated by 12 ceiling lights as well as by outside light coming through the store\u2019s windows; that the door through which the men entered was located six or seven feet from her position; that she could see the faces of both men; that defendant came within two feet of her; that the men were in the store six or seven minutes; that she had no difficulty in seeing the men\u2019s faces; that she identified defendant from a lineup of six men; that she recognized defendant from his eyes and the shape of his face; and that her in-court identification of defendant was based solely upon defendant\u2019s appearance at the time of the robbery attempt.\nDefendant\u2019s evidence on voir dire tended to show that his attorney was present at the lineup; that Blalock had described the robber as 20-25 years of age, 6'-6'2\" tall, wearing a green jumpsuit, with plaited hair, heavy sideburns and a moustache; that defense counsel made certain objections to the makeup of the lineup, particularly as to the height and head and facial hair of some of the suspects; that a photograph was taken of the lineup ; that the quality of the photograph was very bad due to defective film; and that the six young black males in the lineup were 160 pounds; 5'10\", 160 pounds; 6'2\", 180 pounds, 6'2\", 170 pounds; 5'11\", 160 pounds; and 6'1\", 160 pounds, respectively.\nAt the conclusion of the evidence, the trial court made findings of fact and concluded \u201c . . . that the witness\u2019 in-court identification of the defendant was based solely on her observation of the defendant at the time he came into her store and that the lineup was not impermissibly suggestive or otherwise tainted as to affect her independent observation of the defendant at the time of the alleged crime.\u201d It then ordered that Blalock\u2019s in-court identification of defendant be admitted into evidence.\nBy assignments of error numbered 2, 9 (a), and 10, defendant contends that the trial court erred in allowing Blalock\u2019s in-court identification of defendant on the grounds that it was based primarily on an impermissibly suggestive lineup procedure. We disagree.\n\u201cWhen the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification (s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts. (Citations omitted.)\u201d State v. Tuggle, 284 N.C. 515, 520, 201 S.E. 2d 884, 887 (1974).\nIn the present case, the trial court\u2019s findings were supported by competent evidence and are binding on this Court. Moreover, the evidence clearly shows that Blalock had ample opportunity to observe and identify the robber, that her in-court identification was of independent origin and that the pretrial lineup was not so impermissively suggestive as to abridge defendant\u2019s constitutional rights. These assignments are overruled.\nDuring the lineup proceedings, defense counsel made various objections to the police officers concerning what he alleged to be suggestive procedures which they employed. On voir dire, counsel attempted to question a deputy sheriff as to his (counsel\u2019s) conversation and objections to the officers at the lineup. The State, while conceding defendant\u2019s right on voir dire to cross-examine the officers fully concerning the lineup procedures and the appearances of the suspects, objected to the line of questioning on the grounds that counsel\u2019s own thoughts at that time were incompetent. The court sustained the State\u2019s objections. By his 8th assignment of error, defendant contends that the trial court erred in so limiting counsel\u2019s interrogation of the witness on voir dire. Again, we disagree. The record reveals that subsequently during the voir dire, the trial court reversed its ruling limiting counsel\u2019s questioning of the officer. Thus, defense counsel had a full and fair opportunity to interrogate the officer concerning the alleged improprieties in the lineup procedure. Consequently, defendant\u2019s rights have not been prejudiced thereby. This assignment is overruled.\nBy assignment of error numbered 9 (b), defendant argues that his right to counsel at the lineup was denied by virtue of the State\u2019s failure to provide an adequate photograph of the lineup. This argument is feckless. It is true that a person against whom criminal charges have been formally brought is constitutionally guaranteed counsel at an in-custody lineup, and that, absent waiver thereof, when counsel is not present at the lineup, testimony of the identification of the accused at the lineup is rendered inadmissible. Kirby v. Illinois, 406 U.S. 682, 32 L.Ed. 2d 411, 92 S.Ct. 1877 (1972); United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926 (1967); Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951 (1967); State v. Harris, 279 N.C. 177, 181 S.E. 2d 420 (1971). The rationale of this rule is that\n\u201c . . . unfairness in the \u2018lineup\u2019 or other arranged identification process may arise by exhibiting the accused so as to suggest his identity to the witness and thereby obtain a positive identification from the witness which the witness will not later -admit was indefinite or mistaken; and that the absence of counsel at this stage of the proceeding would prevent any effective cross-examination of the witness relative to the identification process.\u201d State v. Hunsucker, 3 N.C. App. 281, 284, 164 S.E. 2d 507, 509 (1968).\nWhere counsel is present at a lineup, his role is that of observer as well as advocate so that any impermissibly suggestive procedures, if not corrected, may be identified hnd exposed at trial through effective examination and cross-examination of witnesses. The key factor is the presence of the attorney during the identification proceedings. E. g., State v. Brown, 280 N.C. 588, 187 S.E. 2d 85, cert. den., 409 U.S. 870, 34 L.Ed. 2d 121, 93 S.Ct. 198 (1972). Defendant does not cite, and research does not reveal, any authority to support his position that the poor quality of a police photograph constitutes a denial of effective assistance of counsel. The uncontroverted facts are that counsel was present throughout the entire identification process and that he made frequent suggestions and criticisms to the conducting officers. Under these circumstances, we believe, and so hold, that defendant suffered no denial of his constitutionally-protected right to counsel. This assignment is overruled.\nThe trial of this case began on Monday, 17 November 1975, and continued through the next day. The State rested its case at approximately 10:20 Tuesday morning. Defendant\u2019s sole witness was to have been Wilbert Davis, who according to defense counsel, would have testified that defendant was with him at the time of the attempted robbery. Defendant issued a subpoena for Davis\u2019 appearance on 12 November, and the subpoena was served on Davis on 13 November. Davis was in court on 17 November, the first day of the trial, but did not return the following day. Thus, when the State rested its case, Davis was not present to testify as to defendant\u2019s alibi. When Davis\u2019 absence was discovered, defendant moved for a mistrial or, alternatively, for a continuance. The trial court conducted an inquiry outside the presence of the jury and determined that the clerk\u2019s file contained no return of the subpoena to show service upon Davis. Although the record is unclear, it appears that the return had not worked its way through the administrative machinery to the clerk\u2019s file by the morning of 18 November and did not do so for several days. The trial court found that the witness was absent, issued an instanter subpoena and denied defendant\u2019s motions. Defendant presented no evidence. After receiving the court\u2019s charge, the jury retired at 11:52 a.m. on 18 November and returned with a verdict of guilty at 12:07 that afternoon.\nBy his 21st assignment of error, defendant contends that the trial court erred in denying his motions for a mistrial or continuance. We are constrained to agree.\nA motion for a continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon will not be reviewed on appeal absent an abuse of discretion. State v. Rigsbee, 285 N.C. 708, 208 S.E. 2d 656 (1974). \u201cBut when the motion is based on a right guaranteed by the Federal and State Constitutions, the question presented is one of law and not of discretion, and the decision of the court below is reviewable.\u201d State v. Smathers, 287 N.C. 226, 230, 214 S.E. 2d 112, 114-15 (1975). The right to assistance of counsel and the right to face one\u2019s accusers and witnesses with other testimony are guaranteed by the Sixth Amendment to the United States Constitution and applicable to the States by the Fourteenth Amendment. This right includes the right to present one\u2019s defense. State v. Smathers, supra; State v. Lane, 258 N.C. 349, 128 S.E. 2d 389 (1962).\nIn the present case, defendant\u2019s entire defense was predicated upon Davis\u2019 alibi testimony. Without it, defendant was prevented from putting on any defense. Moreover, defendant took all possible steps to secure Davis as a witness. In this situation, we hold that defendant was denied the opportunity to prepare and present his defense. The trial court should have granted defendant\u2019s motion for a continuance, and its failure to do so constitutes prejudicial error. Accordingly, there must be a\nNew trial.\nJudges Parker and Clark concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Thomas H. Davis, Jr., for the State.",
      "Gerald R. Chandler for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FRED DAVIS\nNo. 7720SC214\n(Filed 3 August 1977)\n1. Criminal Law \u00a7 66.6\u2014 in-court identification \u2014 pretrial lineup\nThe evidence on voir dire supported findings by the court that a pretrial lineup at which a robbery victim identified defendant was not impermissibly suggestive and that the victim\u2019s in-court identification . was of independent origin and not tainted by the lineup identification.\n2. Criminal Law \u00a7 66.19\u2014 lineup \u2014 voir dire \u2014 reversal of ruling on evidence\nDefendant was not prejudiced when the court sustained the State\u2019s objection to a line of questions defense counsel asked a deputy sheriff on voir dire concerning counsel\u2019s objections to police officers about a lineup at the time it was conducted where the court thereafter reversed its ruling limiting counsel\u2019s questioning of the officer on voir dire.\n3. Criminal Law \u00a7 66.5\u2014 lineup \u2014 poor quality of photograph \u2014 right to counsel\nDefendant was not denied his right to counsel at a lineup because of the poor quality of a police photograph of the lineup where counsel was present during the entire lineup procedure and made frequent suggestions and criticisms to the conducting officers.\n4. Constitutional Law \u00a7 68; Criminal Law \u00a7 91.7\u2014 absence of subpoenaed alibi witness \u2014 denial of continuance \u2014 right to present defense\nDefendant was denied the opportunity to prepare and present his defense by the denial of his motion for continuance made on the ground of the absence of his sole alibi witness where the court denied the motion because the clerk\u2019s file showed no return of service of a subpoena on the witness when in fact the witness had been subpoenaed, but the return had not worked its way through the administrative machinery to the clerk\u2019s file at the time the motion was made.\nAppeal by defendant from Rousseau, Judge. Judgment entered 19 November 1975 in Superior Court, Stanly County. Heard in the Court of Appeals 29 June 1977.\nDefendant was charged by indictment in proper form with attempted armed robbery. He entered a plea of not guilty and was convicted by a jury on the charge. Judgment was entered thereon sentencing defendant to imprisonment for a term of 25 to 30 years.\nThe State introduced evidence which tended to show that on 21 July 1975, Faye C. Blalock was working in Blalock\u2019s Grocery Store in .the Cottonville area of Stanly County. At approximately 6:00 that afternoon, two young black men, whom Blalock identified as defendant and Chester Melton, entered the store. Defendant asked for cigarettes and a soft drink. When Blalock turned around to give them to him, defendant pointed a sawed-off shotgun at her and announced \u201cThis is a hold-up.\u201d Blalock replied \u201cOh, no, it\u2019s not,\u201d turned, and ran screaming from behind the counter out of the store. She looked back and saw the defendant and Melton also running away from the rear of the store.\nChester Melton testified that he was charged with attempted armed robbery with defendant in the case. Melton saw defendant on the morning of 21 July 1975 at Melton\u2019s sister\u2019s house in Charlotte. Defendant told Melton \u201che wanted to pull a job.\u201d They went to Cottonville where defendant gave Melton a gun. Defendant carried a sawed-off shotgun concealed in the sleeve of the jumpsuit he was wearing, and the pair entered Blalock\u2019s grocery. Defendant asked the woman behind the counter for some cigarettes and a soft drink. While she turned to get the items he requested, defendant produced the shotgun and pointed it at her. She ran out the front of the store. Defendant asked Melton where the cash register was located, and Melton falsely replied he did not know, whereupon they ran out the back door to their car.\nOther relevant facts are set out in the opinion below.\nAttorney General Edmisten, by Associate Attorney Thomas H. Davis, Jr., for the State.\nGerald R. Chandler for defendant appellant."
  },
  "file_name": "0736-01",
  "first_page_order": 764,
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}
