35 N.C. App. 335 | N.C. Ct. App. | 1978
The defendant contends that although the motion to suppress evidence of the viewing was properly allowed, the court erred in allowing the in-court identification for the reason that the in-court identification was so tainted by the unlawful viewing that the two cannot be separated. We do not agree.
An in-court identification of an accused by a witness who took part in such an improperly conducted pre-trial confrontation must be excluded unless it is first determined by the trial judge on voir dire that the in-court identification is of independent origin and thus not tainted by the illegal pre-trial identification. United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926 (1967); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974), modified on other grounds, 428 U.S. 902, 49 L.Ed. 2d 1205, 96 S.Ct. 3202 (1976). The trial court found from the voir dire ex-
The findings and conclusions of the trial court are indeed supported by competent evidence. The witness had an excellent opportunity to observe her assailant; on voir dire she testified that it was daylight and “a pretty sunshiny day,” and that she saw the defendant “face to face.” On cross-examination, Mrs. Kinlaw testified, “I’ll never forget his face nor his eyes.” Where the findings and conclusions of the trial court on voir dire are supported by competent evidence, as here, they are conclusive on appeal and must be upheld. State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974); State v. Morris, 279 N.C. 477, 183 S.E. 2d 634 (1971).
From the evidence presented at the trial of this case, the trial judge correctly overruled the defendant’s motion for judgment as of nonsuit on the charge of common law robbery. Upon motion for judgment as of nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom. Where there is sufficient evidence, direct or circumstantial, by which the jury could find that the defendant had committed the offense charged, then the motion should be denied. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); 4 Strong’s N.C. Index 3d, Criminal Law § 106 at 547. We hold that the evidence in this case was sufficient to submit the charge of common law robbery to the jury and sufficient for a conviction of such charge.
The defendant’s assignment of error as to the admission into evidence of certain state exhibits and related testimony is without merit. The defendant contends that there was not enough connection between him and the articles of clothing and other items introduced in evidence by the State because they were not found at the scene of the crime or in the defendant’s possession. This exception is overruled. See State v. Jarrett, 271 N.C. 576, 157 S.E. 2d 4 (1967), and State v. Eagle, 233 N.C. 218, 63 S.E. 2d 170 (1951).
The defendant assigns six exceptions to comments made by the district attorney during the course of the trial. The defendant
We hold that the questions or comments made by the Court before the jury were clearly designed to clarify and promote understanding of the trial and to keep the proceedings running smoothly, and did not constitute an expression of opinion. See State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975), cert. denied, --- U.S. ---,53 L.Ed. 2d 1091, 97 S.Ct. 2971 (1977), and State v. Colson, 274 N.C. 295, 163 S.E. 2d 376 (1968), cert. denied, 393 U.S. 1087, 21 L.Ed. 2d 780, 89 S.Ct. 876 (1969).
We have considered all assignments of error made by the defendant and find them to be without merit. In the trial below of both cases, the defendant has failed to show prejudicial error.
No error.
In Case No. 76CR13651, the defendant was found guilty of obstructing an officer in violation of G.S. 14-223 which provides for a maximum punishment of six months’ imprisonment. The two-year sentence is vacated, and this case is remanded for the entry of a proper sentence.
