Appeal by the state pursuant to G.S. 7A-30(2), and cross-appeal by defendant, from decision of the Court of Appeals [54 N.C. App. 631,
We conclude that the Court of Appeals erred in dismissing the state's appeal. We also conclude that the trial judge erred in granting defendant's motion to suppress the identification testimony of Aleasia Mungo. With respect to defendant's cross-appeal, we agree with the Court of Appeals that defendant had no right to appeal. However, we treat the papers filed by defendant as a petition for a writ of certiorari to review the part of the trial court's order adverse to him, and allow the petition. We conclude that the trial judge did not err in denying defendant's motion to suppress the identification testimony of Eddy Mungo.
The Court of Appeals dismissed the state's appeal for the reason that the state failed to file the certificate required by G.S. 15A-979(c) within 10 days after the entry of the judgment.
G.S. 15A-1445(b) provides: "The state may appeal an order by the superior court granting a motion to suppress as provided in G.S. 15A-979."
G.S. 15A-979(c) provides in pertinent part:
An order by the superior court granting a motion to suppress prior to trial is appealable to the appellate division of the General Court of Justice prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case.
The Court of Appeals reasoned that the statute last quoted must be read in conjunction with G.S. 15A-1448(a)(1) which provides that "[a] case remains open for the taking of an appeal to the appellate division for a period of 10 days after the entry of judgment"; that, construed as a whole, these statutes mandate that the state pursue its right to appeal by submitting to the trial judge the certificate required by G.S. 15A-979(c) within the time period the case remains viable for appeal under G.S. 15A-1448(a)(1) or the order will not be held appealable; that the legislature has accorded to the state a specific procedure for appeal of this particular type of order granting a motion to suppress prior to trial; and that the burden is on the state to demonstrate that it has fully complied with all statutory requirements.
In the case at hand, the appeal entry states that the prosecution gave oral notice of appeal in open court on 9 December 1980. The record on appeal includes a document entitled "Certification by Prosecutor" signed by the Attorney General on behalf of the district attorney and is dated 16 February 1981. The Court of Appeals held that the state had failed to properly perfect its appeal, therefore, the appellate court has no jurisdiction.
In its challenge to the holding of the Court of Appeals, the state argues that since the statutes do not expressly provide when the certificate envisioned by G.S. 15A-979(c) must be filed, thus giving rise to an ambiguity, the court should look to the purpose of the statute's provisions in determining timing. The state then argues that two obvious purposes of the certificate are to require the prosecutor to certify that the appeal is not taken for purpose of delay, and that the suppressed evidence is essential to the case; that the certificate should not be filed by the district attorney until he has had an opportunity to review the transcript and the judge's findings to decide whether an appeal might be fruitful or would, in fact, be a futile gesture which might be construed as an effort to delay final disposition of the case; that the district attorney should have adequate time to reevaluate his case in light of the order suppressing evidence; and that to require the certificate within 10 days of entry of judgment would not advance the purposes of the certificate.
We find the state's argument persuasive. We hold that the certificate envisioned by G.S. 15A-979(c) is timely filed if it is filed prior to the certification of the record on appeal to the appellate division. In the case at hand, since the certificate was served as a part of the record on appeal on 16 February 1981, and the record was certified by the clerk of superior court to the appellate division on 24 April 1981, the certificate was timely served.
We now reach the question whether the trial judge erred in suppressing the identification testimony of Aleasia Mungo. The state contends first that the following finding of fact made by the trial judge pursuant to the hearing on defendant's motion to suppress is not supported by the evidence:
her bedroom, she was unable to recognize the face of the individual to the point of making an identification of the face. (Emphasis added.)
At the hearing, Aleasia testified, in pertinent part, that on the night of 3 September 1980 she was 17 years old and living with her mother; that her brother Eddy also lived there; that on the early morning of that day she was asleep alone in her bedroom when "I felt somebody looking at me"; that she then turned around, looked and saw Thomas (defendant) standing by her bed; that the person standing by her bed was a black male with broad shoulders, short hair and a goatee; that the intruder started going out the door leading to her bedroom; that she got out of her bed; that she did not quite get out to the door of the bedroom when the intruder tried to grab her "as if he was trying to grab my mouth"; that "he just grabbed my hands"; that she started calling her mother as loud as she could; that the intruder then let her go, ran and she fell to the floor; that she did not recognize defendant at the time he grabbed her but she did recognize him when he first came into her room and she saw him; that she knew defendant because she had seen him walking around in the community; that although she had never spoken with him she had seen him on more than one occasion; that when the police came to her home she pointed out to the police where defendant lived (this being less than two blocks from her home); that a short while after she pointed out to the police where defendant lived, the police brought defendant back to her ...