No. 7326SC509 | N.C. Ct. App. | Jul 25, 1973
Defendant assigns as error the in-court identification by-Kirkland and contends particularly that the trial court’s conclusions of law on voir dire are improper as the findings of fact are not based entirely on voir dire testimony. The record does indicate that the only witness to testify on voir dire was Kirkland, but that the court’s findings of fact include facts testified to by police officers, whose testimony was taken before the jury after the voir dire examination had been concluded. While the court’s findings based on the voir dire are not entirely proper, still there has been committed no prejudicial error.
Early in his testimony, after having described the events taking place in his driveway and garage, Kirkland testified without objection that: “The man that I saw in the window and the man that was tugging on the other side of the door from me raising and lowering it is in the Courtroom at this time. The defendant, the man in the blue shirt to the left is that man.” As Kirkland was about to relate some conversation that he heard, defendant’s counsel objected on the ground that it had not been established whether the speaker was the defendant, or the other man still unidentified. In response to questioning by the court, Kirkland again testified without objection that the defendant was the man he saw at the garage door.
Absent a timely objection to the identification testimony and request for a voir dire hearing thereon, it is not error for the trial court to receive such testimony and proceed with the trial. State v. Cook, 280 N.C. 642" court="N.C." date_filed="1972-03-15" href="https://app.midpage.ai/document/state-v-cook-1343522?utm_source=webapp" opinion_id="1343522">280 N.C. 642, 187 S.E. 2d 104 (1972). Nevertheless, there is evidence that the witness had ample opportunity to observe the defendant, and there is no evidence showing a possibility of misidentification through suggestiveness of pretrial photographic identification. The evidence is proper and quite sufficient to warrant submission of the case to the jury.
There was no error in the court’s allowing the witness to stand in front of the defendant to show how far from the defendant he was at the time of the garage door scuffle. See State v. Cook, supra, in which the prosecuting witness was allowed to identify the defendant by placing her hand on his shoulder.
Defendant’s wife testified on his behalf to the effect that on the morning of 25 January he had not driven the Cadillac. The State was allowed to put into evidence rebuttal testimony
This rebuttal testimony was properly admitted with limiting instructions. The testimony related to matter pertinent and material to the inquiry, the defendant’s alibi. State v. Mack, 282 N.C. 334, 193 S.E. 2d 71 (1972).
With respect to defendant’s other assignments of error, we find no merit. Defendant has had a fair trial free of prejudicial error.
No error.