23 N.C. App. 498 | N.C. Ct. App. | 1974
On the afternoon of 1 December 1973 Olin McAllister, operator of a country store in Cherokee County, N.- C., was
“It is well established that the primary illegality of an out-of-court identification will render inadmissible the in-court identification unless it is first determined on voir dire that the in-court identification is of independent origin.” State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974). Here, prior to admitting the in-court identification testimony of McAllister, the trial judge held a voir dire hearing on defendant’s motion to suppress. On completion of this hearing the judge made findings that “the identification of the defendant by the witness is based upon witness McAllister having seen the defendant in the store at which time he observed the defendant for a couple of minutes,” and that “from evidence clear and convicting [sic], there was no impermissibly suggestive procedures to aid or taint the witness’s identification of the defendant and the witness McAllister’s in-court identification is independent in origin and is admissible in evidence.”
Where such findings are supported by competent evidence, they are conclusive on appellate courts. State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974). Here, there was ample competent evidence to support the court’s finding that McAllister’s identification was independent in origin of anything which occurred at the lineup and that it was based on his having seen the defendant in the store. The robbery occurred during daylight. McAllister testified at the voir dire hearing that visibility in the store was good, that he and defendant were within three or four feet of the glass front of the store, that the sun shines in there in the evening, and that he and defendant stood looking at each other for a couple of minutes while they were facing each other eight or ten feet apart. He also testified that he based his identification of the defendant as the man who robbed him entirely on the facial features he observed at the time of the robbery. He explained that he had had the experience once before
In summarizing the State’s evidence in order to explain the application of the law thereto, the record indicates that at one point the judge said:
“Now, the State further offered evidence tending to show and does show, that when Sheriff Stalcup was notified it was around 4:30, and it took the Sheriff 10 to 15 minutes to get to the store.” (Emphasis added.)
Defendant contends the italicized words amount to an expression of opinion on the evidence in violation of G.S. 1-180. If so, the judge’s slip of the tongue was certainly not such as to warrant a new trial. The record shows that in other portions of the charge, and in particular in the portion of the charge in which the judge summarized the State’s evidence dealing with the events occurring during the actual commission of the robbery, the judge was careful to state that the State had offered evidence tending to show, and which the State “contends does show,” certain occurrences. (Emphasis added.) Moreover, at the conclusion of his summary of the State’s evidence, the judge instructed the jury:
“Now, members of the jury, that is what some of the evidence for the State tends to show. What it does show, if anything, is a matter entirely for you to determine.”
It is simply not possible that the jury’s verdict could have been influenced by the judge’s single slip of the tongue now complained of, and defendant’s assignment of error addressed to this point is overruled.
We have also carefully examined defendant’s contentions relating to the remaining assignments of error brought forward on this appeal, and find them without merit. We find defendant’s trial free from any prejudicial error.