35 N.C. App. 85 | N.C. Ct. App. | 1978
Defendant contends that the trial court committed reversible error by allowing the State’s witness, Carl Boswell, to make an in-court identification of defendant. He argues that the pretrial identification procedure in which defendant was shown singly to Boswell was so suggestive as to lead to a tainted identification. We cannot agree.
Although the practice of showing suspects singly for identification purposes has been recognized as suggestive and has been widely condemned, whether such confrontation violates due process depends upon the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 34 L.Ed. 2d 401, 93 S.Ct. 375 (1972); State v. Lankford, 28 N.C. App. 521, 221 S.E. 2d 913 (1976). In Neil v. Biggers, supra, the United States Supreme Court listed some factors which should be considered in determining whether the “totality of the circumstances” indicates the identification was reliable. These factors include the opportunity of the witness to view the criminal at the time of the crime, the witness’s description of the
In the present case the record discloses that the armed robbery took place in a small grocery store lit by three naked, seventy-five watt light bulbs, and that witness Boswell was, at one point, as close as five or six feet from defendant. Boswell testified that the defendant was in the store for about eight, ten, or twelve minutes. Defendant points out that the witness failed to describe correctly the color of the jacket worn by the robber and that Boswell did not describe defendant as having a mustache. We do not believe, however, that a witness must be able to describe with perfect accuracy a person he observes in the process of committing a crime. The description given by Boswell, his apparently earnest and independent efforts to identify the proper person, his certainty once he saw defendant’s teeth and defendant’s ear bob, and the short interval of time between the crime and the confrontation, are all factors tending to show that under the totality of the circumstances the identification was reliable. We, therefore, find no error in the trial court’s conclusions and its admission of the in-court identification. State v. Lankford, supra.
Defendant’s second assignment of error is that the trial court erred in admitting corroborative hearsay evidence of State’s witness T. M. Owens concerning Boswell’s description of the armed robber. Defendant argues that there was no evidence that Boswell, whose testimony Owens was corroborating, ever talked to Owens. The record, however, shows that Boswell talked to four or five deputies concerning the description of the robber; he stated at one point that Owens arrived shortly after deputy sheriff Gay, that he did not believe Owens wrote down the description, but that Gay did. We think this was sufficient evidence from which to infer that Boswell talked to Owens. Hence, such evidence was corroborative and was properly admitted.
The final assignment of error which we consider is defendant’s argument that the trial court erred in denying defendant’s motion for mistrial after the prosecutor cross-examined defendant concerning past criminal acts. According to the record, defendant denied, in response to the prosecutor’s question, that he had ever been convicted of any criminal offense other than
Our courts have consistently held that once a defendant elects to testify in his own behalf he subjects himself to impeachment by questions relating to past criminal acts. See, e.g. State v. McKenna, 289 N.C. 668, 224 S.E. 2d 537, vacated and remanded on other grounds sub nom McKenna v. North Carolina, — U.S. —, 50 L.Ed. 2d 278, 97 S.Ct. 301 (1976). Of course, the prosecutor who asks such questions must do so in good faith, but where the record shows no bad faith on the part of the prosecutor the judge’s allowing such questions is presumed correct. State v. Gaiten, 277 N.C. 236, 176 S.E. 2d 778 (1970).
In the case at bar, the court sustained defendant’s objection to the question. Defendant has shown no bad faith on the part of the prosecutor and we, therefore, find no error in the question prejudicial to defendant.
Defendant’s other assignments of error have been reviewed by this Court and no error has been found.
No error.
