
161 S.E.2d 581 (1968)
274 N.C. 84
STATE
v.
Nat Villiam WRIGHT.
No. 740.
Supreme Court of North Carolina.
June 14, 1968.
*586 T. W. Bruton, Atty. Gen., by Bernard A. Harrell, Asst. Atty. Gen., for the State.
E. C. Harris, Jr. and C. Wallace Vickers, Durham, for defendant appellant.
HUSKINS, Justice.
Defendant brings forward the following assignments, to wit: (1) The court erred in permitting the prosecuting witness to identify defendant as her assailant because such in-court identification was based upon the out-of-court confrontation at the police station following her abortive attempt to identify him in a line-up, no counsel being present to represent him; (2) the court erred in permitting Officers Upchurch and King to testify regarding defendant's inculpatory statements to them, no counsel being present to represent him; (3) the court erred in failing to nonsuit, and (4) the court erred in failing to charge on circumstantial evidence.
Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, lays down the governing principle that as a constitutional prerequisite to the admissibility of statements obtained from an accused during custodial police interrogation, the suspect must be advised in unequivocal terms (1) that he has a right to remain silent; (2) that anything he says can and will be used against him in court; (3) that he has a right to consult with a lawyer and to have a lawyer with him during interrogation; and (4) that if he is an indigent a lawyer will be appointed to represent him. After having been so advised, a defendant may waive these constitutional rights provided the waiver is made voluntarily, knowingly, and intelligently.
"The test of admissibility is whether the statement by the defendant was in fact made voluntarily." State v. Gray, 268 N.C. 69, 150 S.E.2d 1. See also State v. Rogers, 233 N.C. 390, 64 S.E. *587 2d 572, 28 A.L.R.2d 1104; State v. Gosnell, 208 N.C. 401, 181 S.E. 323; State v. Livingston, 202 N.C. 809, 164 S.E. 337. The admission is rendered incompetent by circumstances indicating coercion or involuntary action. State v. Guffey, 261 N.C. 322, 134 S.E.2d 619. The "totality of circumstances" under which the statement is made should be considered. State v. Chamberlain, 263 N.C. 406, 139 S.E.2d 620. Mental capacity of the defendant, State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396, whether he is in custody, State v. Guffey, supra, the presence or absence of mental coercion without physical torture or threats, State v. Chamberlain, supra, are all circumstances to be considered in passing upon the admissibility of a pretrial confession and in passing upon the voluntariness of a waiver of constitutional rights.
Confrontation for identification is a "critical stage" of pretrial proceedings requiring the presence of counsel unless waived. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. That being true, Mrs. Byrd's out-of-court identification of defendant at the police station on August 20 was violative of defendant's constitutional right to counsel at that stage, and evidence of it was incompetent at the trial, unless defendant had voluntarily, knowingly and intelligently waived his right to counsel. United States v. Wade, supra; Gilbert v. State of California, supra.
The authorities hold, however, that handwriting samples, blood samples, fingerprints, clothing, hair, voice demonstrations, even the body itself, are identifying physical characteristics and outside the protection of the Fifth Amendment privilege against self-incrimination. Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Gilbert v. State of California, supra; United States v. Wade, supra; State v. Gaskill, 256 N.C. 652, 124 S.E.2d 873; Annotation: Accused's Right to Counsel under the Federal Constitution, 18 L.Ed.2d 1420. Such pretrial police investigating procedures are not of such a nature as to constitute "critical" stages at which the accused is entitled to the assistance of counsel guaranteed by the Sixth Amendment and made obligatory upon the states by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed. 2d 923. Therefore, requiring the accused to walk, to wear certain type clothing, to talk and repeat words allegedly uttered by the assailant at the time of the crime, nothing else appearing, are pretrial procedures which defendant may be compelled to perform without violating his constitutional rights under the Fifth, Sixth and Fourteenth Amendments. Even so, when performed by the accused for purposes of identification by the prosecutrix they then become part of a "critical" stage requiring the presence of counsel unless that right has been voluntarily, knowingly, and intelligently waived. Gilbert v. State of California, supra. It thus becomes necessary to examine the facts and circumstances under which defendant allegedly waived his right to assistance of counsel at the confrontation with Mrs. Byrd for identification purposes and during in-custody interrogation by Officers Upchurch and King.
Defendant was observed by Policeman Carter looking into a window at 1012 Franklin Street, four blocks from 1112 Taylor Street, at 1:50 a. m. on August 20, 1967. He was arrested and warned of his rights as follows:
"You have the right to remain silent, anything you say can and will be used against you in a court of law; you have the right to talk to a lawyer and have him present with you while you are being questioned; if you cannot afford to hire a lawyer one will be appointed to represent you for any questions, if you wish one."
*588 He was thereafter lodged in jail. He was wearing a baseball or fishing cap at the time. At 10:00 a. m. the same day, defendant was advised again orally and in writing as follows:
"Before we ask you any questions, you must understand your rights. You have the right to remain silent. Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer."
Thereupon, defendant signed this waiver:
"I have read the statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me."
Officer Upchurch with Officer King present then talked with defendant for awhile, took him into a little room apart from the main hall in the county jail and explained his rights about being in a line-up. "At that time Detective King wrote out on a piece of paper giving his consent for a line-up and asked him if he would sign it. At that time he told us that he would not sign it but did not mind being in a line-up. He told us that he would not sign it, would not sign anything in writing but gave us his oral consent to us putting him in a line-up." He was then placed in a line-up with nine other prisoners, and Mrs. Byrd viewed them. She stated she could not identify her assailant from the line-up but could do so if she could hear him talk and see him walk. Defendant was then taken from the line-up, made to put on his dark pants and a light shirt and asked to put on his cap. Then, in the presence of the two officers and Mrs. Byrd, defendant was required to repeat, "Hush, hush, if you make a fuss I will kill you. Open up", and required to walk back and forth so Mrs. Byrd could observe his walk. After thus seeing him walk and hearing him talk, Mrs. Byrd identified defendant as the person who entered her bedroom and raped her. Later in court at the trial of this case, Mrs. Byrd identified defendant in the presence of the jury after the trial court had determined the competency of such evidence on a voir dire examination in the jury's absence. The court's findings and determination in that respect are as follows:
"After the alleged date of the offenses for which the defendant was arrested on a peeping tom charge on or about the 20th of August, 1967; that while the defendant was in custody on said peeping tom charge he was questioned by Police Detective Upchurch and other officers about the charges for which he is now being tried; that prior to any questioning by said officers the defendant was fully warned of his constitutional rights to remain silent, that anything he said might be used against him in court; that he had a right to have a lawyer during the interrogation and that he had a right to have a lawyer appointed if he could not afford one; that the defendant stated that he did not desire counsel; that after his rights had been fully explained to him he freely and voluntarily signed a waiver; that there were no threats or promises whatever made by the said officers against the defendant; that in addition to the statements made to the officers by the defendant the officers asked the defendant to utter certain words in the presence of the prosecuting witness, Mrs. Byrd, the words being `Hush, hush, if you make a fuss I will kill you; open up open up,' or words to that effect. *589 That prior to making these utterances no threats of any nature were made against the defendant and no promises made; that the defendant freely, voluntarily and understandingly made statements to Detective Upchurch and in the presence of Officer King, and freely, voluntarily, and understandingly uttered the above quoted words which the officers asked him to utter. The Court therefore concludes that the statements including the words uttered were made freely, voluntarily and understandingly by the defendant, and that the same are competent evidence."
Defendant's first assignment challenges the proceedings thus had and the competency of the evidence thus obtained.
In State v. Gray, supra, 268 N.C. 69, 150 S.E.2d 1, Lake, J., speaking for the Court, said:
"When the State proposes to offer in evidence the defendant's confession or admission, and the defendant objects, the proper procedure is for the trial judge to excuse the jury and, in its absence, hear the evidence, both that of the State and that of the defendant, upon the question of the voluntariness of the statement. In the light of such evidence and of his observation of the demeanor of the witnesses, the judge must resolve the question of whether the defendant, if he made the statement, made it voluntarily and with understanding. State v. Barnes, supra [264 N.C. 517, 142 S.E.2d 344]; State v. Outing, supra [255 N.C. 468, 121 S.E.2d 847, cert. den., 369 U.S. 807, 82 S.Ct. 652, 7 L.Ed.2d 555]; State v. Rogers, supra [233 N.C. 390, 64 S.E.2d 572, 28 A.L.R.2d 1104]. The trial judge should make findings of fact with reference to this question and incorporate those findings in the record. Such findings of fact, so made by the trial judge, are conclusive if they are supported by competent evidence in the record. No reviewing court may properly set aside or modify those findings if so supported by competent evidence in the record." [Citations].
Such findings are conclusive in both state and federal courts if supported by competent evidence. Watts v. State of Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801; Lyons v. State of Oklahoma, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Lisenba v. People of State of California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166.
Is there competent evidence in the record to support the finding by the trial judge that defendant freely, voluntarily and understandingly waived his right to counsel at the out-of-court confrontation for identification by the prosecutrix and at the incustody interrogation by the officers?
Defendant's written waiver was to "answer questions and make a statement" without a lawyer. There is competent evidence to support the finding that defendant had been fully advised of his constitutional rights and that this waiver was made voluntarily, knowingly and intelligently. Hence, such findings by the trial judge are conclusive, and "no reviewing court may properly set aside or modify those findings. * * *" State v. Gray, supra. Therefore, the questions asked by the officers and the answers given by defendant relative to removal of the screen, entry of the Byrd home through the window, and touching the woman but not raping her, became competent evidence and were properly admitted for consideration by the jury.
On the other hand, defendant's oral waiver related to "being in a line-up". Defendant refused to sign a consent for a line-up written by Officer King, "said he would not sign anything", but stated he did not mind being in a line-up. Such waiver does not have to be in writing to be valid. State v. McNeil, 263 N.C. 260, 139 S.E.2d 667. Nor is advice of counsel required in regard to making such waiver. State v. Davis, 267 N.C. 429, 148 S.E.2d 250. He was placed in a line-up with nine other prisoners, and the prosecutrix was unable to identify him. This exhausted the procedure to which the defendant had orally consented. *590 "The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it * * *" Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. When he was taken from the line-up, made to put on dark pants and a light shirt and his cap, and then exhibited to the prosecutrix for identification while required to repeat the words allegedly spoken by her assailant at the time the crime was committed and required to walk back and forth so she could observe his walk, the proceeding lost its character as a pretrial investigative procedure and became a "critical" stage requiring the presence of counsel. Hence, findings by the trial judge that defendant freely, voluntarily and understandingly waived his right to counsel at this critical stage of the case are not supported by competent evidence. The out-of-court identification by Mrs. Byrd violated defendant's constitutional rights to the assistance of counsel under the Sixth and Fourteenth Amendments and rendered evidence of such out-of-court identification incompetent at the trial. Likewise, her in-court identification of defendant is incompetent unless it can be shown to have had an independent origin and did not result from the illegal, out-of-court confrontation. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441. In determining the admissibility of her courtroom identification of defendant, the test is whether, granting the primary illegality of her out-of-court identification, the in-court evidence "has been come at by exploitation of the illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Wong Sun v. United States, supra. More simply stated, if the in-court identification had an independent origin it is competent. If it resulted from the illegal, out-of-court confrontation it is incompetent because denial of counsel requires its exclusion. That question should be decided by the trial court on a voir dire examination at the next trial if the State again offers her in-court identification. Wong Sun v. United States, supra.
For the reasons discussed, defendant's first assignment of error is sustained, and his second overruled. The remaining assignments may not arise again, and we refrain from a discussion of them at this time. It suffices to say that there was sufficient competent evidence to carry the case to the jury.
For the error pointed out defendant is entitled to a
New trial.
