State v. Collins

224 S.E.2d 647 (1976)

29 N.C. App. 478

STATE of North Carolina v. John COLLINS.

No. 7626SC4.

Court of Appeals of North Carolina.

May 19, 1976.

*649 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert P. Gruber, Raleigh, for the State.

Waggoner, Hasty & Kratt by John H. Hasty, Charlotte, for defendant-appellant.

ARNOLD, Judge.

Defendant contends that the trial court erred in extending the time of defendant's trial beyond the 120 days provided in G.S. 15A-761, Article IV(c). We cannot agree.

G.S. 15A-761, Article IV(c) provides: "In respect of any proceeding made possible by this Article, trial shall be commenced within 120 days of the arrival of the prisoner in the receiving state, but for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance." [Emphasis added]

A hearing was held 10 October 1975 to determine whether there was "good cause" to extend the date of defendant's trial beyond the 120 days statutory period. The State's attorney argued that "all the witnesses are not available . . . [and] [t]he State, based on these reasons, would request that the case be called at the next convenient date for the purposes of disposition."

At the conclusion of the hearing the trial judge found "that on October 10, 1975, the State has some, but not all, of its witnesses available . . . [and] [u]pon the foregoing findings of fact, the court concludes that the State has shown good cause in open court, the prisoner and his counsel being present, for the requested and reasonable continuance."

It was approximately six years after the crime before defendant was apprehended. We see no error in the continuance for "good cause" because of the unavailability of the State's witnesses.

Defendant next contends that the trial court erred in failing to suppress the testimony of Willie Culthbertson regarding his in-court identification of defendant. He argues that Culthbertson's in-court identification was tainted by the earlier photographic identification.

"The test under the due process clause as to pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification as to offend fundamental standards of decency, fairness, and justice." State v. Henderson, 285 N.C. 1, 9, 203 S.E.2d 10, 16 (1974). The pre-trial identification procedure in the instant case was not suggestive or otherwise improper. The trial court properly determined on voir dire that Culthbertson's incourt identification was based on his observations of the defendant at the scene of the crime. Furthermore, we note that defendant admitted that he was in the Blue Mist Grill on 22 March 1969, and that he did the shooting. The trial court did not err in denying the defendant's motion to suppress Culthbertson's testimony.

Defendant assigns error to the trial judge's instructions to the jury. He argues that the trial court improperly instructed the jury regarding the defense of accidental homicide. The trial judge charged the jury as follows: "If David Ford died by accident or misadventure, that is, without wrongful purpose or negligence or criminal negligence on the part of the defendant, the defendant would not be guilty. The burden of proving an accident is not on the defendant. His assertion of accident is merely a denial that he has committed any crime. The burden remains on the State to prove the defendant's guilt beyond a reasonable doubt."

The trial judge properly stated the law and we do not find the charge to be misleading. See State v. McLamb, 20 N.C.App. 164, 200 S.E.2d 838 (1973).

Defendant's remaining assignments of error have been carefully reviewed and they are without merit.

No error.

BRITT and VAUGHN, JJ., concur.*650