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North Carolina v. Robinson10/3/1991
6 in which Cotner selected a photograph of defendant; a photographic lineup shown to Hill by Detective Royal on 11 March 1986, in which Hill selected defendant's photograph as looking like the person who shot him; and just prior to trial, some eighteen months after the crimes, counsel for defendant requested a live lineup procedure at which time both Cotner and Hill identified defendant as the perpetrator. At trial, during the testimony of Cotner and Hill, defense counsel objected to any in-court identification of defendant without counsel being given the opportunity for a voir dire to determine whether the identifications had been tainted by impermissible procedures. The trial judge heard arguments from both parties, at which time the State argued that defendant was procedurally barred from contesting the pretrial procedures pursuant to N.C.G.S. § 15A-975 because he failed to make a pretrial motion. The trial judge allowed voir dire hearings on the eyewitness identification.
At the conclusion of each of the voir dire hearings, the trial judge entered an order making extensive findings of fact and concluded that the pretrial identification procedures were in no way
suggestive or conducive to mistaken identification and that the witnesses' in-court identifications were of independent origin based solely on the observation of defendant at the time of the crimes. The findings of fact, defendant concedes, are generally consistent with the record evidence. The findings of fact made by the trial judge are supported by the evidence and are binding on this Court. State v. Hunt, 287 N.C. 360, 372, 215 S.E.2d 40, 48 (1975). These findings support the conclusions of law that the pretrial identification procedures were not tainted and that the in-court identifications were based solely on the witnesses' observation of defendant at the time of the crimes. Thus, the trial court did not err in denying defendant's motions to suppress the in-court identifications. Id. We need not address defendant's contention that some of the persons in the photographic lineup did not match the description given by Cotner and Hill because defendant did not raise this issue at the trial level. State v. Benson, 323 N.C. 318, 322, 372 S.E.2d 517, 519 (1988). We conclude, however, that defendant is not entitled to any relief under the plain error standard. State v. Mitchell, 328 N.C. at 711, 403 S.E.2d at 290.
In defendant's next argument, he contends that the trial court committed prejudicial error by failing to submit the issue of defendant's guilt of second-degree murder to the jury on the grounds that the issue of defendant being guilty of second-degree murder arose upon the evidence and that the trial court's failure to submit that issue created an impermissible risk that the jury relied upon an invalid statutory aggravating circumstance at the sentencing hearing. Defendant argues that the trial judge should have instructed on second-degree murder because of the evidence "of panic, the very short amount of time that we're talking about, and the general circumstances of stress as described by both victims." Defendant contends that N.C.G.S. § 15A-1232 requires a trial court to submit "the different permissible verdicts arising on the evidence . . . under proper instructions." Finally, defendant argues that in the event that the jury had not convicted him of first-degree murder on the basis of malice, premeditation, and deliberation, the trial court could not have submitted the underlying robbery as an aggravating circumstance at the sentencing hearing.
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