State v. Johnson

223 S.E.2d 400 (1976)

29 N.C. App. 141

STATE of North Carolina v. Terry JOHNSON.

No. 7520SC950.

Court of Appeals of North Carolina.

April 7, 1976.

Certiorari Denied and Appeal Dismissed June 17, 1976.

*401 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert R. Reilly, Raleigh, for the State.

Webb, Lee, Davis, Gibson & Gunter by Joseph G. Davis, Jr., Rockingham, for defendant-appellant.

Certiorari Denied and Appeal Dismissed by Supreme Court June 17, 1976.

BRITT, Judge.

By his first assignment of error defendant contends the court erred in permitting the victim of the robbery to make an in-court identification of him for the reason that the identification was influenced by an impermissibly suggestive out-of-court identification. We find no merit in the assignment.

Before Ms. Hough was allowed to testify in the presence of the jury, the court conducted a voir dire at which she and two police officers testified. She related the vivid description of her robber which she gave to police immediately after the robbery and stated that the person (defendant) which police brought to the store some forty-five minutes later was the robber. The police corroborated her testimony with respect to the description of the robber which she provided. They also testified that they arrested defendant at the Rebel Inn "for questioning" and he agreed to go with them to the Kwik Pik Store. The court made findings of fact substantially as testified to *402 by the witnesses and concluded that the victim's identification of defendant was based on her observation of him at the time of the robbery, that the identification was of independent origin and was in no way tainted or influenced by an impermissibly suggestive confrontation.

We hold that the court's findings were supported by competent, clear, and convincing evidence, and that the findings fully support the conclusions of law and the admission of the testimony. Our holding finds support in many cases including Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); United States v. Cunningham, 141 U.S.App.D.C. 177, 436 F.2d 907 (1970); and Terry v. Peyton, 433 F.2d 1016 (4th Cir. 1970).

In his other assignment of error defendant contends the court erred in admitting the testimony of Debra Teal for the reason that on the date she allegedly talked with him she was employed by the Rockingham Police Department and that she did not advise him of his constitutional rights. This assignment has no merit.

The court conducted a voir dire with respect to Miss Teal's testimony and found as facts that on the date in question she was employed by the City of Rockingham as a radio dispatcher with the police department; that her duties included answering the telephone, dispatching cars to wreck scenes, answering the "PIN" machine and taking calls from the fire department and rescue squad; that she was not a sworn police officer and did not have the power of arrest; that she did not make criminal investigations, did not interview witnesses or defendants and was not employed to take statements from anyone. The court concluded that at the time she talked with defendant that she was not in any way acting as a police officer, and, in fact, was not a law enforcement officer, and that even though defendant was in custody her talking with him was not a police interrogation.

The question appears to be one of first impression and while we are unable to cite any direct authority to support our holding, we conclude that the admission of Miss Teal's testimony was proper in view of the findings of fact and conclusions of law made by the trial judge.

We hold that defendant received a fair trial, free from prejudicial error.

No error.

PARKER and CLARK, JJ., concur.