State v. JohnsonState v. Johnson
- Reporters:
- , ,
- Before:
- Hedrick
Defendant, by his first assignment’ of error, asserts that the trial court committеd error by allowing the in-court identification of defendant by the рrosecuting witness. The trial court, following the established procedure, conducted a voir- dire to *185ascertain if the witness’ in-court identifiсation was of independent origin and not tainted by impermissibly suggestive out of court procedures.
Evidence elicited at this voir dire disclosed that the victim “got а good look” at defendant at the time of the alleged rоbbery; that the robbery occurred in broad daylight; and that the victim hаd seen defendant on several occasions prior to the alleged robbery. Further evidence tended to show that after the defendant was apprehended, he was taken to the emergency room of a local hospital and wаs identified there by the victim as the perpetrator of the сrime.
At the completion of the voir dire, the trial court made findings of fact and concluded that thе prosecuting witness’ in-court identification was based upon his observation of the defendant at the time of the alleged rоbbery. The findings of the trial court are supported by competent evidence and thus are binding upon this court. State v. Morris, 279 N.C. 477, 481, 183 S.E. 2d 634, 637 (1971). Moreover, these findings support the conclusion that the in-court identificatiоn was of independent origin. Therefore, this assignment is without merit.
By his next аssignment of error the defendant maintains that the trial court erred in admitting into evidence certain testimony of a State’s witness, Officer G. A. Floyd. The officer testified that he observed a subject mаtching the description given to him by the prosecuting witness and that hе approached this man. Officer Floyd then testified that upon searching the subject, he discovered a hawkbill knife and arrested defendant for carrying a concealed weaрon. Defendant contends that the admission of such testimony ovеr his objection was prejudicial error.
Even conceding, arguendo, that the admission of this evidence was error and that it would have been technicаlly correct to strike this particular portion of the officer’s testimony, we are of the persuasion that admission of this еvidence was mere technical error, not prejudicial error. “Where there is abundant evidence to support thе main contentions of the state, the admission of evidence, even though technically incompetent, will not be held prеjudicial when defendant does not affirmatively make it appear that he was prejudiced thereby or that the admission of the evidence could have affected the result.” 3 Strong, North Carolina Index 2d, Criminal Law, § 196, p. 135.
*186Finally, defendant contends that the triаl court committed error in its charge to the jury. The specifiс portions of the charge which are attacked as erroneous deal with the judge’s instructions that the defendant was not being tried for armed robbery and carrying a concealed weapon. Although it would probably have been preferable that the able trial judge not mention these other offenses, wе believe his only purpose in mentioning them was to clarify the issues for the jury and to make sure that the jury understood that those offenses were not involved in this case. Therefore, this assignment of error is without merit.
In the trial of defendant, we find no prejudicial error.
No error.
Judges Britt and Carson concur.