51 N.C. App. 511 | N.C. Ct. App. | 1981
Defendants were represented by separate counsel at trial and they have filed separate briefs. Defendant Snowden’s 12 assignments of error are identical to 12 of defendant Boggs’ 14 assignments of error and, as their arguments are also identical, we will address these assignments jointly.
Defendants’ first assignments of error concern the admissibility, over their objections, of the in-court testimony of Sandra K. Williams. The defendants argue that this testimony was tainted by an out-of-court identification procedure conducted in an impermissibly suggestive manner.
It is well-established that the primary illegality of an out-of-court identification will render the in-court identification inadmissible unless it is first determined that the in-court identification is of an independent origin. State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974). In this case the trial judge conducted an extensive voir dire hearing and subsequently suppressed Ms. Williams’ identification of defendants at the roadside confrontation. Therefore, the question before the court is whether under all of the circumstances the suggestive pretrial procedure gave rise to a substantial likelihood of irreparable misidentification. Manson v. Brathwaite, 432 U.S. 98, 53 L. Ed. 2d 140, 97 S. Ct. 2243 (1977); State v. Nelson, 298 N.C. 573, 260 S.E. 2d 629 (1979). It is the strong probability of misidentification which violates a defendant’s right to due process.
Unnecessarily suggestive circumstances alone do not require the exclusion of identification evidence. Factors to be considered are: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness’s degree of attention during the commission of the crime; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the challenged confrontation; and (5) the length of time between the crime and the confrontation. Neil v. Biggers, 409 U.S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974). Against these factors are weighed the “corrupting influence” of any suggestive circumstances leading to, and surrounding, the contested identification. Manson v. Brathwaite, supra.
Defendants’ second assignment of error is that the trial court erred in taking an active role in the defendants’ trial by expressing an opinion as to their guilt. The expression of an opinion by the trial judge can deprive an accused of a fair trial, but whether the challenged remarks were prejudicial must be determined by what was said, and its probable effect upon the jury in light of all attendant circumstances. The burden of showing prejudice is on the appellant. State v. Faircloth, 297 N.C. 388, 255 S.E. 2d 366 (1979).
We find no prejudice has been shown. All but one of the challenged comments and actions occurred during the voir dire hearing in the absence of the jury. The question asked in front of the j ury was a proper focusing of one of defendants’ questions on cross-examination. Defendants further argue, however, that even if the judge’s remarks were not prejudicial in themselves, an examination of the record indicates a general trend of hostility which had a cumulative effect of prejudice and therefore a new trial must be allowed. We disagree. No general trend of hostility is shown by the record, and defendants’ contention in this regard is without merit. See State v. Staley, 292 N.C. 160, 232 S.E. 2d 680 (1977).
Defendants’ next contention is that the trial court erred in not suppressing the items seized in the motor vehicle in which the defendants were riding in that there was no probable cause to stop the vehicle. They base their contention on the grounds that there was no evidence to indicate that the car in which they were stopped by the police was involved in a robbery, and that at the time it was stopped it was being operated in all respects in compliance with the law.
Detention, or “investigative custody,” without probable
Officer Evans testified that he had been given a detailed description of the robbers; he saw the car as he was leaving the Stop-N-Go at approximately 4:00 a.m., and the driver of the car appeared to fit the description of one of the robbers. These facts are sufficient to create in Officer Evans an honest and reasonable suspicion that one or more of the occupants of the car had committed the armed robbery. We find, therefore, that stopping the car in which the defendants were riding was lawful, and the property in plain view within the vehicle was lawfully seized and properly admitted into evidence. State v. Smith, 289 N.C. 143, 221 S.E. 2d 247 (1976); aff'd 291 N.C. 505, 231 S.E. 2d 663 (1977); Matter of Beddingfield, supra.
Defendants also argue that evidence found during a search of defendant Snowden’s person was illegally seized and improperly admitted. Having established that there was probable cause to stop the vehicle in which defendants were riding, it is clear that the search of defendant Snowden was lawful as a search incident to an arrest. State v. Tilley, 44 N.C. App. 313, 260 S.E. 2d 794 (1979).
We can further find no error in the judge’s instructions, or in his denial of defendants’ motions. Moreover, we have carefully considered all of defendant’s remaining joint assignments of error, and defendant Boggs’ two separate assignments, and find no merit in them.
Defendants’ trial was free of prejudicial error.
