State v. Weimer

268 S.E.2d 216 (1980)

300 N.C. 642

STATE of North Carolina v. Jackie Richard WEIMER.

No. 136.

Supreme Court of North Carolina.

July 15, 1980.

*218 Rufus L. Edmisten, Atty. Gen., by Thomas H. Davis, Jr., and Jane Rankin Thompson, Associate Attys. Gen., Raleigh, for the State.

Robert Dennis Hinshaw and Charles J. Alexander, II, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first contends that the assistant district attorney committed reversible error when, on direct examination, he asked witness Turbyfill to look at defendant and to state whether he could identify defendant as the driver of the van.

A voir dire hearing was held at trial on defendant's motion to suppress witness Turbyfill's in-court identification of defendant. At the conclusion of the voir dire, the trial court granted defendant's motion to suppress on the basis of a prior, impermissibly suggestive identification at police headquarters. After the jury returned, direct examination of the witness continued and Mr. Turbyfill described the driver of the van in detail. The assistant district attorney, Mr. Yeatts, then asked the following questions:

Q. All right, sir. Would you look at the defendant here in the courtroom today? A. I beg your pardon, sir? Q. Would you look at the defendant here in the courtroom today? (The witness looks in the direction of the defense table.) Q. Would you state whether or not you can identify that individual as the individual you saw in the van? MR. ALEXANDER: Objection. COURT: Sustained. MR. YEATTS: Do not answer that question.

After a brief cross-examination, the assistant district attorney asked again on redirect examination:

Q. Did you get a good look at the individual that was driving that van? A. Yes, sir, I did. Q. Did you look at him? A. Yes, sir, I did. Q. State whether or not you see him here today. *219 MR. ALEXANDER: Objection, Your Honor. COURT: Sustained. MR. YEATTS: Don't answer that. I have no further questions.

Defendant contends that by these questions the prosecutor placed incompetent and prejudicial matter before the jury.

In light of the court's prior ruling, the prosecutor's line of questioning was clearly improper. However, in each instance the trial court correctly sustained defendant's objection, and the witness was directed not to answer the question. We have held that when the trial court promptly sustains an objection to a question asked by the prosecutor, no prejudice results. State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970); State v. Butler, 269 N.C. 483, 153 S.E.2d 70 (1967). Ordinarily, merely asking a question will not be held to be prejudicial. State v. Barrow, supra; see State v. Williams, 255 N.C. 82, 120 S.E.2d 442 (1961). Moreover, defense counsel failed to request that the court instruct the jury to disregard the prosecutor's questions. Mr. Turbyfill was allowed at trial to give a detailed description of the driver of the van which corresponded to defendant's appearance. In view of the strong evidence of defendant's guilt and the court's prompt action in sustaining defendant's objections, we cannot say that defendant has shown that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial." G.S. 15A-1443(a); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Temple, 269 N.C. 57, 152 S.E.2d 206 (1967).

Defendant next contends that the trial court erred in denying defendant's motion for a continuance based upon pretrial publicity.

Although defendant and Dharlene Moore were originally to be tried jointly, the court on 19 October 1980 granted Ms. Moore's motion for severance. Ms. Moore's trial was set for 22 October 1980, and defendant's trial was continued to the following week of 29 October. Defendant subsequently filed motions for a change of venue and for a continuance in his case, claiming that the extensive publicity surrounding Ms. Moore's trial and particularly the references to defendant in certain news articles made it impossible for him to receive a fair trial in Forsyth County. Both motions were denied by the trial court.

A motion for a continuance is ordinarily within the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970).

During jury selection, several prospective jurors indicated that they had previously read or heard about the case. When questioned individually by the court, however, each of the jurors stated that he had not formed or expressed an opinion about the case and could render a fair and impartial verdict based on the evidence and the law as presented at trial. The record reveals that defendant was given an opportunity to examine prospective jurors on voir dire, but it fails to show that defendant ever requested the removal for cause of any venireman who eventually sat on the impaneled jury. Neither does the record show that defendant had exhausted his peremptory challenges before he passed the jury.

In State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977), this Court upheld the trial judge's refusal to order a continuance, change of venue or separate trials based on facts similar to those in the instant case and in part stated:

"Where the record discloses, as it does in the instant case, that the presiding judge conducted a full inquiry, examined the press releases and the affidavits in support of the motion, and where the record fails to show that any juror objectionable to the defendant was permitted to sit on the trial panel, or that defendant had exhausted his peremptory challenges before he passed the jury, denial of the *220 motion for change of venue was not error. (Citations omitted.)"

Id. at 142, 232 S.E.2d at 441.

We hold that the trial court did not err in denying defendant's motion for a continuance.

By his final assignment, defendant contends that the trial court erred in allowing witness Betty Ballard to identify Dharlene Moore as the person who shot Miller. He claims that Ms. Ballard's identification was tainted by an impermissibly suggestive pretrial identification procedure in which she was shown a photograph of Ms. Moore in the district attorney's office.

It is now well settled that an in-court identification is competent evidence, even if the witness took part in an illegal pretrial confrontation or photographic identification, where it is first determined by the trial judge on clear and convincing evidence that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205 (1976); 1 Stansbury's North Carolina Evidence § 57 (Brandis Rev. 1973).

In the instant case, Ms. Ballard, a supermarket employee, testified that she was standing at a cash register near the exit of Food World when she heard Steven Miller call for help and the sound of two gunshots. She observed a person leave the manager's office and walk out of the store. This person faced Ms. Ballard at all times before leaving the store. Although the witness stated that she did not pay much attention to the clothing, she described the person as wearing blue jeans and tennis shoes. She could not recall whether the person was wearing sunglasses or a hat. The person had a husky build, dark brown hair, a pale, rounded face with no facial hair and was about five feet six inches in height. Ms. Ballard admitted that Ms. Moore appeared slimmer and had lighter hair at trial than Ms. Ballard had remembered. Although at the time the witness believed that the person she had seen was a young white male, she told people on the night of the crime that "I'll never forget the face as long as I live." Ms. Ballard further testified that her identification of Ms. Moore was independent of any photograph she had seen.

At the conclusion of the voir dire examination, the trial court made findings of fact consistent with the evidence set forth above and, inter alia, found "from clear and convincing evidence that the identification of Ms. Moore was based solely on the observation of having seen Mrs. Moore immediately after Mr. Miller was shot in the Food World Grocery Store on June 30, 1978." The trial judge's finding that the identification testimony was based solely on the witness' observation of defendant on 30 June 1978 was supported by competent evidence and is binding on this court. State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974). Any discrepancies or contradictions in her testimony go to the weight rather than the competency of the testimony. State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972). Thus, the trial court's ruling admitting Ms. Ballard's identification testimony was without error.

Although not necessary for determination of this assignment of error, we further note that the challenged pretrial procedure was not "so unnecessarily suggestive and conducive to irreparable mistaken identification" as to deny defendant due process of law. Stovall v. Denno, 388 U.S. 293, 302, 87 S. Ct. 1967, 1972, 18 L. Ed. 2d 1199, 1206 (1967).

In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), the United States Supreme Court set forth the standard for determining whether an in-court identification following an allegedly suggestive pretrial identification procedure satisfies the requirements of due process. There the Court stated,

*221 [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

Id. at 384, 88 S. Ct. at 971, 19 L. Ed. 2d at 1253; accord, State v. Long, 293 N.C. 286, 237 S.E.2d 728 (1977); State v. Smith, 278 N.C. 476, 180 S.E.2d 7 (1971); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970).

Ms. Ballard testified on voir dire that the week prior to the trial of Dharlene Moore she met with the district attorney. While in his office, Ms. Ballard saw a photograph lying on the desk and asked to see it. Although she recognized the person in the photograph as being the assailant, no one asked her to identify the person depicted in the photograph, and she made no statement about it.

Concerning the suggestiveness of the pretrial photographic procedure, the trial court found "from clear and convincing evidence that the photographic show-up by one photograph was not so impermissibly suggestive as to cause Mrs. Ballard to identify Mrs. Moore on the basis of the photograph." The evidence supports this finding, and the finding would in turn support the trial judge's ruling admitting the identification testimony.

Our conclusion that the evidence was properly admitted is supported by decisions of this and other jurisdictions holding that the exhibition of a single photograph does not necessarily result in a substantial likelihood of misidentification. See Annot., 39 A.L.R.3d 1000, 1013 (1971), and cases cited therein. Furthermore, it has been held that "unrigged" courtroom and station house confrontations which amount to single exhibitions of the accused do not necessarily violate due process. State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977); State v. Tuggle, supra; State v. Bass, supra.

Since we have concluded that the court's findings and conclusions are supported by competent evidence, we do not deem it necessary to determine whether defendant has standing to challenge Ms. Ballard's identification of Ms. Moore because of an allegedly suggestive pretrial identification. See generally, United States v. Salvucci, ___ U.S. ___, 100 S. Ct. 2439, 65 L. Ed. 2d 468 (1980); United States v. Payner, ___ U.S. ___, 100 S. Ct. 2547, 65 L. Ed. 2d 619 (1980).

We have carefully considered the entire record and find no error warranting a new trial.

NO ERROR.