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62 N.C. App. 623

State v. Carroll

Court of Appeals of North Carolina · decided 1983-06-21

Relies on State v. Gray · State v. Leggett · Matter of Ordinance of Annexation No. 1977-4

Decided 1983-06-21

Judge EAGLES

¶1dissenting.

¶2I respectfully dissent. The majority deals with each asserted error separately, each independent of the others.

¶3It is correct that two photographic showups of six persons each in which defendant was the only one appearing in both is not sufficient standing alone to conclude that the identification was impermissibly suggestive. State v. Leggett, 305 N.C. 213, 287 S.E. 2d 832 (1982); State v. Battle, 61 N.C. App. 87, 300 S.E. 2d 276 (1983).

¶4It is also true that the defendant’s photograph, presented in a different manner, i.e., one view of defendant versus two views of each other person in the photographic showup, is not sufficient standing alone to require a finding that the procedure was imper-missibly suggestive. State v. Conyers, 33 N.C. App. 654, 236 S.E. 2d 393, appeal dismissed, 293 N.C. 362, 238 S.E. 2d 150 (1977).

¶5Furthermore, it has been held that where the hairstyles of all other persons in a photographic showup (except defendant’s) are dissimilar to the description given by the victim, it is not sufficient standing alone to require a finding that the procedure was impermissibly suggestive. State v. Gray, 292 N.C. 270, 233 S.E. 2d 905 (1977).

¶6Finally, the fact that the photograph of the defendant is newer than the others and was obtained especially for this showup is not by itself unnecessarily suggestive. State v. Cobb, 295 N.C. 1, 243 S.E. 2d 759 (1978).

¶7I would hold that the pre-trial photographic identification was subject to impermissibly suggestive procedures and must be considered in light of the totality of the circumstances including the following:

(a) In the identification of her assailant, prosecutrix never mentioned a mustache and never noticed a mustache on her attacker (according to her trial testimony). At the time of the offense, this defendant had what was characterized as a prominent mustache.
(b) The assailant covered his face with his hand and was seen in the predawn dark by the prosecutrix, on the porch where there was a porch light, for just “two or three sec*630onds” and for another ten seconds in an area of the apartment so dimly lit that only a facial outline of the assailant was discernible.
(c) All other persons in the photographic showups were represented by two photographs each, while defendant was depicted in one photograph.
(d) At the first photographic showup, the prosecutrix selected defendant’s photograph on a tentative basis but wanted a second photograph because she was uncertain.
(e) Between the time of the first and second photographic showup a police officer told the prosecutrix that the photograph about which she had been unsure was of a resident of her apartment complex.
(f) Following the officer’s conversation with the pros-ecutrix about the defendant’s residence in the same apartment complex, prosecutrix was shown a second group of photographs of six individuals in which defendant was the only one who had also been depicted in the first lineup (albeit by only one photograph). Upon viewing the second photographic showup, prosecutrix then acknowledged recognizing the defendant as a resident of her apartment complex and acknowledged having seen him around the apartment complex before and since the attack. She thereafter identified him as her assailant.
(g) Prosecutrix’s description of her assailant described his hair length as coming down near the ears, just over the ears or exactly to the center of the ears. Of the photographs displayed, only the defendant’s hairstyle roughly approximated that description — all others were not even remotely similar. This dissimilarity of hairstyles was noticeable in both photographic showups.

¶8In the case sub judice, as distinguished from Leggettand other cases cited by the majority, the observation by the pros-ecutrix was not in broad daylight, but was at night, before dawn, momentarily on a porch and in a room illuminated only by an outside porch light. The total period of observation was only a very brief time — ten seconds —in the heat of a violent struggle which resulted in the assailant running away. Here, there was no in-*631person lineup under the scrutiny of defendant’s attorney in conjunction with the photographic identification; only two unsupervised photographic showups.

¶9Prosecutrix testified that at the second showup she recalled having seen defendant in the apartment complex where they both lived and thereupon “put two and two together” and then named defendant as her assailant. The function of an identification witness is to relate what they saw or otherwise observed — not to piece together factors and not to jump to conclusions properly within the province of the jury.

¶10As the cases indicate, no one of these suggestive factors standing alone would be sufficient to characterize the procedure as impermissibly suggestive. Here, however, these factors do not stand alone; they stand together cumulatively and each adds to the overall suggestiveness of the identification procedure. When an extrajudicial identification is surrounded by so many suggestive factors, it is suspect. Considering the totality of the circumstances, as we are required to do, I would hold that the combination of the suggestive factors and procedures is so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Based on the impermissibly suggestive procedures, I would reverse.

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