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North Carolina v. Robinson10/3/1991
--REF-->328 N.C. at 711, 403 S.E.2d at 290.
Defendant argues that the sole purpose of Dr. Sciara's testimony was to establish that deficiencies in defendant's ability to communicate facts resulted from a psychological condition rather than from fabrication. The State's success in attacking Dr. Sciara's testimony, defendant argues, created a substantial likelihood that the jury's failure to accept defendant's testimony rested heavily upon this attack upon Dr. Sciara's opinion.
Before granting a new trial to a defendant under the plain error rule, the appellate court must be convinced that absent the alleged error, the jury probably would have reached a different verdict. Id. We do not believe defendant has met this heavy burden. The jury heard testimony from defendant that he was in Thomasville, not High Point, on the night of the murder. The jury heard testimony from an alibi witness who testified that he had bought drugs from defendant in Thomasville around the time of the murder. The jury also heard testimony from three eyewitnesses who placed defendant at the scene of the crime. The jury believed the three eyewitnesses. We do not believe that absent the State's cross-examination of Dr. Sciara, the jury probably would have reached a different verdict. Having found that the defendant cannot satisfy the plain error standard, we find it unnecessary to reach the merits of defendant's argument.
Next, defendant argues that the trial court committed prejudicial error by refusing to suppress the in-court identification testimony of Cotner and Hill on the grounds that these identifications were based upon impermissibly suggestive pretrial identification procedures which created a substantial likelihood of irreparable misidentification and that their pretrial identifications improperly tainted all subsequent in-court identifications. Defendant argues that the trial court incorrectly concluded that he waived his right to contest the identification testimony of Cotner and Hill by failing to file a written motion to suppress prior to trial. According to defendant, an oral suppression motion was proper in this case for two reasons. First, defendant contends that when the trial judge allowed his request for a physical lineup, the trial court stated that his trial counsel had the right to contest the State's identification
evidence by oral objection at the time any such testimony was proffered. Defendant further contends that the State did not object to this procedure. Second, defendant argues that he lacked a reasonable opportunity to file a written pretrial suppression motion. Defendant argues that the State did not provide him with copies of the descriptions given by Cotner and Hill to the police of the shorter man who perpetrated the crime until the day after the case was called for trial. Finally, defendant argues that several of the pictures in the photographic lineup did not match the descriptions given by Cotner or Hill. Therefore, defendant argues, the photographs were impermissibly suggestive.
The State responds that both Cotner and Hill were eyewitnesses to the crimes, as well as surviving victims, and each had the opportunity to view the defendant, who was not wearing a mask at the time of the crimes. The State contends that the evidence in this case supports the findings that both witnesses had ample opportunity to observe defendant at the time of the crimes and the pretrial identification procedures were not impermissibly suggestive. We agree.
Both witnesses were subjected to the following pretrial identification procedures: a photographic lineup shown to Cotner by Detectives Royal and McNeil on 11 March 198
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