State v. HarmonState v. Harmon
- Reporters:
- , ,
- Before:
- Baley
Thе identification of defendant was the principal point at issue in the trial сourt. The victim, Robert Edwin Hall, testified that the defendant was the man who robbed and stаbbed him. Defendant contends that this identification testimony should not have been аdmitted. “When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification (s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proferred testimony meets the tests of admissibility. When the facts so found аre supported by competent evidence, they are conclusivе on appellate courts.” State v. McVay, 277 N.C. 410, 417, 177 S.E. 2d 874, 878; accord, State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677; State v. Smith, 278 N.C. 476, 180 S.E. 2d 7. In this case the court complied fully with the requirements of the MeVay case. A voir dire hearing was held, and at the conclusion of the hearing the court made findings of fact. In these findings of fact the court stated that Hall looked directly into the face of defendant when he was robbed; that after the robbery, a police officer showed Hall a group оf photographs, *510 and Hall picked out a photograph of defendаnt; that this identification procedure was carried out properly and withоut undue suggestiveness; and that regardless of any possible defects in the photоgraphic identification procedure, Hall’s in-court identification testimony was based on his original observation of defendant at the time of the robbеry. These findings of fact are amply supported by the evidence, and they fully justify the court’s decision to admit the identification testimony into evidence.
The trial court sustained objections to questions by defense counsel on cross-еxamination of Hall, but there are no answers placed in the record frоm which any determination of possible prejudice could be made. The quеstions were of doubtful relevance either to the issue of guilt or innocence or for purposes of impeachment. The court was clearly within its disсretion in limiting cross-examination when it sustained these objections. 1 Stansbury, N. C. Evidencе (Brandis rev.) §§ 35, 42; Potts v. Howser, 274 N.C. 49, 161 S.E. 2d 737; Foxman v. Hanes, 218 N.C. 722, 12 S.E. 2d 258.
Defendant argues that since the State offered no evidence specifically indicating that defendant used a deadly weapon, the court should have instructed the jury on the lesser included offenses of common law robbery, larceny from the person and simple assault. The uncontradictеd evidence shows that the victim, Hall, was cut severely, and that nineteen stitchеs were required to close the wound. Obviously, such a severe injury could not havе been inflicted except by the use of a knife or other deadly weapon, and therefore the court acted properly in refusing to charge on the lesser included offenses.
Defendant asserts that the trial court failеd to instruct the jury properly on “felonious taking.” “Felonious taking” is an essential еlement of the crime of armed robbery, and it means “ ‘a taking with the felonious intеnt on the part of the taker to deprive the owner of his property рermanently and to convert it to the use of the taker.’ ” State v. Mundy, 265 N.C. 528, 530, 144 S.E. 2d 572, 574. In every armed robbеry case the judge must instruct the jury on this element of the crime, but lie need not use thе specific words “felonious taking”; he is only required to describe in accurаte terms the state of mind necessary for the crime. Id.; State v. Spratt, 265 N.C. 524, 144 S.E. 2d 569. In this case the court charged as follows:
*511 “For you to find the defendаnt guilty of robbery with a dangerous weapon, the State must prove seven things beyоnd a reasonable doubt.
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“Fourth, that at the time of the taking [of Hall’s propеrty] , the defendant intended to deprive him of its use permanently.
“Fifth, the defendant knew he was not entitled to take the property.”
This is a sufficient description оf the state of mind which is necessary to commit the crime of armed robbery. State v. Scarborough, 20 N.C. App. 571, 202 S.E. 2d 358.
The other assignments of error concerning the summarizing of evidence and instructions in the charge have been carefully considered and determined to be without merit.
Defendant has received a fair trial free from prejudicial error.
No error.
Chief Judge Brock and Judge Parker concur.