198 S.E.2d 241 | N.C. Ct. App. | 1973
STATE of North Carolina
v.
Charles McKINNEY.
Court of Appeals of North Carolina.
*242 Atty. Gen. Robert Morgan, by Asst. Atty. James E. Magner, Jr., Raleigh, for the State.
Richard L. Stanley, Wilmington, for defendant.
BROCK, Judge.
Defendant assigns as error that the trial judge examined the State's witness on voir dire. The primary purpose of the admonition against the trial judge asking questions of witnesses during a trial is to avoid the expression or intimation of an opinion to the jury. However, in this case the jury was not present and could not have been influenced in any way by the judge's questions. Obviously the trial judge may not become an advocate for either side in the trial of a case, but he may ask questions for the purpose of clarifying a witness' testimony. See 7 Strong, N.C. Index 2d, Trial § 10, p. 269. In the case presently before us, the questions asked by the trial judge merely served to clarify the basis of the witness' identification of defendant. Defendant has failed to show an abuse of discretion, and we find no error in the manner in which the questions were propounded.
Defendant has entered a broadside exception to the order of the trial judge which finds facts and concludes that *243 the identification of defendant was independent of the lineup procedure, and, in addition, that the lineup procedure was not illegally suggestive. Defendant makes a broadside exception to the judgment but takes no exception to any particular finding of fact. Therefore, the only question presented is whether the facts found support the trial judge's conclusion. The State's witness was in defendant's company for approximately twenty minutes at the time of the alleged robbery. They were the only two people at the Farmer's Market at the time, and there is nothing in the record to support the contention that the witness did not have more than ample opportunity clearly to observe defendant while they were together. In our view, the findings of fact support the judge's conclusion that the identification of defendant is based upon the victim's observation of defendant immediately preceding the time of the alleged offense. This assignment of error is overruled.
Defendant assigns as error that the trial judge instructed the jury that it could consider the evidence of defendant's flight after he was stopped by the officers. Defendant does not contend that the substance of the instruction was incorrect, but only that the rule which applies to consideration of evidence of flight was not applicable in this case. The evidence in this case tends to show that the robbery was committed at about 5:30 a. m.; the officers broadcasted a report of the incident and a description of the car on the police radio at about 6:30 a. m.; the defendant was stopped by police officers shortly thereafter as he was driving the car some distance from the market; when asked to accompany the officers to the police station, defendant bolted from the police car and ran; and the officers were unable to apprehend him at that time. The evidence of defendant's flight was received without objection at trial, although defendant now undertakes to assign its admission as error. Defendant may not object for the first time on appeal to the admission of evidence at trial. We think the trial judge's instruction upon the consideration the jury might give to the evidence of defendant's flight was appropriate under the evidence before it. This assignment of error is overruled.
We have considered defendant's remaining assignments of error and in our opinion the rulings of the trial court which are complained of do not constitute prejudicial error.
No error.
MORRIS and PARKER, JJ., concur.