Appeal by defendant from Lee, Judge. Judgment entered 23 March 1981 in Superior Court, Cumberland County. Heard in the Court of Appeals 6 May 1982.
Becton, Judge. Judge Hedrick and Judge Hill concur.
The defendant brings forth three arguments on this appeal: (1) that the trial court erred in refusing to suppress the in-court identification of the defendant; (2) that the defendant was deprived of his right to a fair trial as a result of improper questions and arguments by the prosecutor; and (3) that the trial court erred in failing to instruct the jury that a verdict of guilty of the offense of kidnapping required unanimity as to at least one of the alternative means for committing that offense. We find no prejudicial error in this case.
The State's evidence tended to show the following. The prosecuting witness, upon running out of gas on Interstate 95 (I-95), proceeded to walk to a nearby motel hoping to find a gas station open. Being unsuccessful in that endeavor, she decided to walk along I-95 in a southerly direction. She noticed that a 1974 Cadillac was slowing down in the opposite lane of travel and that afterwards two men got out to push the car. She went over and spoke to the men pushing the vehicle, whereupon she found out that they, too, had run out of gas and were going to push the vehicle to Fayetteville. She offered to help push if the men would give her a ride back to her van with some gas. After a short while the prosecutrix changed places with the man who had been steering the car. She steered and he assumed the position she had maintained at the center of the trunk of the car. After approximately an hour of pushing, they arrived at a gas station in Fayetteville where the prosecutrix bought gas for the car and for her van. All four individuals then got into the car. Instead of returning to I-95, the driver of the car proceeded to drive through the City of Fayetteville until he reached a run-down, dead end street. There, the three men proceeded to rape the prosecutrix and rob her of her rings and the contents of her wallet.
The incident was reported to the Fayetteville Police Department which undertook an investigation of the crime and later arrested the defendant. The prosecutrix was asked to view a pre-trial line-up which included the defendant. After viewing the line-up for approximately five to ten minutes, she indicated that one of the men who raped her was the defendant. She indicated that she was not positive, however. After the line-up she inquired
of Officer Sessoms, who was present during the line-up, how she had done and if she had picked the one who had been arrested. The officer indicated that she had.
Prior to trial, the trial court entertained a motion to suppress the in-court identification of the defendant. Testimony by the prosecutrix and Officer Sessoms was admitted. After making findings of fact, including one regarding the post line-up conversation between the prosecutrix and Officer Sessoms, the trial court denied the motion.
It is well settled that a defendant is entitled to a line-up free of impermissible suggestions regarding his identity. Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977). The defendant admits that the line-up itself was not unduly suggestive or prejudicial. He maintains, however, that the post line-up conversation between Officer Sessoms and the prosecutrix was unduly suggestive and "a sufficient influence on her that she made an unequivocal in-court identification of the defendant at the motion [to suppress] hearing" whereas her identification at the line-up was tentative. He further argues that on the authority of State v. Harren, 302 N.C. 142, 273 S.E.2d 694 (1981), that the in-court identification should have been suppressed. We do not agree, and we find no prejudicial error.
Even if a pretrial identification process is unduly suggestive, suppression of in-court identification is not required if the in-court identification is independent of the suggestive procedure and thus untainted by it. Manson v. Brathwaite; Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); State v. Clark, 301 N.C. 176, 270 S.E.2d 425 (1980). After a determination that a pretrial line-up is ...