24 N.C. App. 489 | N.C. Ct. App. | 1975
Defendant contends that the trial court erred in allowing Mrs. Ingram to testify that the defendant robbed the Kentucky Fried Chicken restaurant on 2 January 1974. He also contends it was error for the trial judge to summarize this testimony in his instructions to the jury. We do not agree.
Although evidence of separate offenses is not admissible on the issue of guilt if its only relevancy is to show the character of the defendant or his disposition to commit an offense of the nature of the one charged, 1 Stansbury’s N. C. Evidence (Brandis Revision) § 91, such evidence will not necessarily be excluded if it tends to identify the defendant as the perpetrator of the crime for which he is on trial. State v. McClain, 240 N.C.
Defendant next contends that the trial court allowed the photographs of the robbery to be admitted into evidence without requiring the State to lay a proper foundation for their authenticity. We do not agree. In this State, the general rule is that where there is evidence of the accuracy of a photograph, it will be admitted into evidence for the limited purpose of explaining or illustrating the testimony of a witness that is relative and material to the matter in controversy. State v. Crowder, 285 N.C. 42, 203 S.E. 2d 38 (1974) ; State v. Foster, 284 N.C. 259, 200 S.E. 2d 782 (1973). Accuracy of the photograph is oftentimes established, as here, by the testimony of a witness who is familiar with the scene, object, or person portrayed therein. State v. Gardner, 228 N.C. 567, 46 S.E. 2d 824 (1948) ; 1 Stansbury’s N. C. Evidence (Brandis Revision) § 34. In the case at bar Mrs. Ingram sufficiently authenticated the photographs and the trial judge properly instructed the jury that the photographs were being allowed into evidence solely for the purpose of illustrating the testimony of Mrs. Ingram.
Finally, defendant contends that the trial judge erred in admitting into evidence the statement allegedly made by-him to Officer Beveridge. The test of the admissibility of the defendant’s confession is whether it was voluntarily and understandingly made. State v. Jones, 278 N.C. 88, 178 S.E. 2d 820 (1971).
“ ‘ . . . When the State offers a confession in a criminal trial and defendant objects, the competency of the confession must be determined by the trial judge in a preliminary inquiry in the absence of the jury. State v. Vickers, 274 N.C. 311, 163 S.E. 2d 481. The trial judge hears the evidence, observes the demeanor of the witnesses, and re*493 solves the question. State v. Barber, 268 N.C. 509, 151 S.E. 2d 51. His findings as to the voluntariness of the confession, and any other facts which determine whether it meets the requirements for admissibility, are conclusive if they are supported by competent evidence in the record. State v. Bishop, 272 N.C. 283, 158 S.E. 2d 511; State v. Gray, 268 N.C. 69, 150 S.E. 2d 1; State v. Barnes, 264 N.C. 517, 142 S.E. 2d 344; State v. Keith, 266 N.C. 263, 145 S.E. 2d 841.’ ” State v. Fox, 277 N.C. 1, 24, 175 S.E. 2d 561, 575 (1970).
Here, upon the defendant’s objection, the trial judge properly conducted a voir dire in the absence of the jury. After hearing evidence from both the State and the defendant on the question of the voluntariness of the defendant’s confession, the trial judge made detailed findings of fact. Although defendant testified that the officers threatened him and elbowed him in the ribs, the record contains sufficient competent evidence to support the findings of the trial judge and the findings support his conclusion that the statement to Officer Beveridge was freely, understandingly and voluntarily made by the defendant.
The defendant had a fair trial free from prejudicial error.
No error.
