State v. Bumper

169 S.E.2d 65 (1969)

5 N.C. App. 528

STATE of North Carolina v. Wayne Darnell BUMPER.

No. 6915SC342.

Court of Appeals of North Carolina.

August 13, 1969.

*67 Robert Morgan, Atty. Gen., by Thomas B. Wood, Staff Atty., Harrison Lewis, Deputy Atty. Gen., Raleigh, for the State.

Clarence Ross, Ross, Wood & Dodge, Graham, for defendant.

BROCK, Judge.

The two felonious assault cases were previously tried at the 24 October 1966 Session. Also, at that time an indictment charging defendant with the rape of Loretta Nelson was consolidated for trial with the two felonious assault charges. Defendant's appeal from the 1966 conviction is reported in State v. Bumpers, 270 N.C. 521, 155 S.E.2d 173, in which the convictions were affirmed. However, on certiorari, the Supreme Court of the United States (Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L.Ed.2d 797) reversed *68 the convictions upon the ground that the rifle allegedly used in the felonious assaults and rape was introduced in evidence after an unlawful search and seizure thereof. The rape charge has not been retried.

Defendant assigns as error that the trial judge permitted the sheriff to testify that Monty Jones identified the man holding card No. 7 as his assailant. As noted in the statement of facts, when Sheriff Stockard arranged the lineup on 16 August 1966, each subject in the lineup was given a card. Defendant Wayne Darnell Bumper was given a card with the number "7" on it for the first viewing by the witnesses, and he held a card with the number "2" on it for the second viewing. On cross-examination Monty Jones testified that at the 1966 trial he had stated that he believed defendant was holding a card with number "6" on it. He testified that he was confused at trial about what number defendant was holding at the lineup. The witness had viewed the lineup twice with defendant holding a different number on the second viewing. However, the witness testified that after each viewing he went in and told the sheriff the number being held by the man he said attacked him. The sheriff said that after each viewing Monty Jones reported to him the number which was held by Wayne Darnell Bumper. Concerning the first viewing of the lineup, Sheriff Stockard testified that Monty Jones "came back and reported to me that it was No. 7, I believe." Defendant contends that it was error to allow the sheriff to so testify because his testimony did not corroborate Monty Jones' testimony at the first trial where Jones had stated that he believed he had told the sheriff No. 6.

It is clear that both Monty Jones and the sheriff did not recall positively which number Jones had told the sheriff that Wayne Darnell Bumper was holding, but this does not render the testimony inadmissible; slight variation in the corroborating testimony affects only the credibility of the evidence. State v. Brooks, 260 N.C. 186, 132 S.E.2d 354. Also, it is equally clear that both Jones and the sheriff knew it was Wayne Darnell Bumper who had been identified by Jones in both viewings of the lineup. The basic fact to be established was whether the witness properly identified defendant, not whether the witness remembers in January 1969 a number carried by defendant in the first of two lineups in August 1966. A failure to remember positively the number might make good argument to the jury, but it does not affect the admissibility of the testimony. This assignment of error is overruled.

Defendant next assigns as error that the trial judge unduly restricted his cross-examination of the State's witness Monty Jones. On cross-examination of Monty Jones counsel for defendant went into the question of Jones's having stated during the 1966 trial that Wayne Darnell Bumper was holding card No. 6 in the first lineup. The witness admitted several times that at the 1966 trial he had stated he believed he told the sheriff that defendant was holding card No. 6. And when defense counsel made the same inquiry again, upon objection by the State, the trial judge told defense counsel: "Let's don't pursue that particular line of question any further about the number 6."

Defendant had the full benefit of cross-examining the witness on this point; he had clearly established that the witness had stated in the 1966 trial that he believed defendant held the No. 6 card." * * * [T]he extent to which cross-examination for the purpose of impeachment will be permitted rests largely in the discretion of the trial court. Objections to questions which amount to no more than argument with the witness are properly sustained." 7 Strong, N.C. Index 2d, Witnesses, § 8, p. 703. This assignment of error is overruled.

Defendant next assigns as error that the trial judge allowed the State to introduce into evidence, over defendant's objection, the photograph of defendant which Loretta Nelson and Monty Jones had selected as being a photograph of the person *69 who assaulted and robbed them. This photograph had been marked State's exhibit 3A, and on this trial had been identified by Loretta Nelson, Monty Jones, Sheriff Stockard, and Mr. Minter as the photograph selected by the two victims as being a photograph of the person who assaulted them. There is some serious question as to whether defendant specifically objected to this photograph being offered in evidence, but we treat the matter as though objection was properly made.

There is no showing or contention that the photographic identification was suggestive in any way to the witnesses to cause them to identify defendant. The witnesses were in separate hospitals in separate towns, and each selected the photograph of defendant from a group of about twelve photographs. In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, it was said: "* * * [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."

Defendant argues, nevertheless, that it was error to allow the photograph in evidence because defendant had offered no contradictory evidence at the time of its admission. However, defendant carefully cross-examined the witnesses concerning whether defendant's name appeared on the photograph at the time it was exhibited to the witnesses. Obviously the State offered the photograph thereafter to illustrate the testimony of the witness as to what the photograph did and did not show. After defendant's searching cross-examination in an attempt to impeach and discredit the identification process, it was proper to allow the photograph to illustrate the witnesses' testimony that defendant's name did not appear in the photograph.

Defendant argues that the photograph as admitted in evidence and displayed to the jury did show, under defendant's likeness a sign which reads, "Police Department, Burlington, N. C., 9495, 7-10-66." And he argues that to allow this to be displayed to the jury was prejudicial to defendant because it indicated to the jury defendant had previously been in custody of the police, and it thereby improperly placed his character in evidence. While counsel for defendant was cross-examining the State's witnesses concerning defendant's name appearing on the photograph, the photograph was available for an inspection from which he should have known that defendant's name in fact did not appear on the face thereof. Having injected this effort to impeach and discredit the identification made by the witnesses, defendant can hardly complain that when the State properly offered the photographs to illustrate its witnesses' testimony, the photograph incidentally showed the words of which defendant now complains.

Defendant next assigns as error that the trial judge overruled defendant's motion for nonsuit upon the charge of assault on Monty Jones, and the charge of armed robbery of Monty Jones and Loretta Nelson. Defendant contends there is a fatal variance between the indictments and the proof with respect to the name of the victim. In each of the bills of indictment the name of Monty Jones appears. On direct examination the witness testified: "My name is Manson Marvin Jones, Jr., * *." On cross-examination he testified: "My legal name is Manson Marvin Jones, Jr. That is the name on my birth certificate." "The name Monty Jones is not my legal name." "It is my nickname. I never changed my name to Monty." On direct examination Loretta Nelson testified: "I am married to Manson Marvin Jones. My husband's nickname is Monty."

It was clear throughout the testimony that Manson Marvin Jones was generally referred to by his nickname "Monty." There was no uncertainty as to the identity *70 of the prosecuting witness. As was said in Bennett v. United States, 227 U.S. 333, 33 S. Ct. 288, 57 L. Ed. 531, "Defendant was indicted for having caused the transportation of Opal Clarke; and, it is said, the testimony showed that her correct name was Jeanette, but that she had gone by the names of Opal and Nellie, her real name, however, being Jeanette Laplante. A variance is hence asserted between the allegation and the proof. The court of appeals rightly disposed of the contention. As the court said, the essential thing is the requirement of correspondence between the allegation of the name of the woman transported and the proof is that the record be in such shape as to inform the defendant of the charge against her and to protect her against another prosecution for the same offense." The record in this case is sufficient for both purposes, and defendant cannot be prejudiced by one of the victims having a nickname which was used in the bill of indictment. The record of defendant's trial clearly shows that Monty Jones and Manson Marvin Jones, Jr., are one and the same person; thus he is protected against a second prosecution for the same offense.

Defendant next assigns as error that the trial judge erred in his charge to the jury in failing to require a finding of felonious intent in the armed robbery charge.

Defendant has lifted out of context that portion of the charge in which the trial judge read pertinent portions of G.S. § 14 87 and was explaining that in order to find defendant guilty as charged it was necessary to find that the robbery was committed with the use or threatened use of firearms. The judge immediately thereafter fully explained the elements of common law robbery to which the element of use of firearms must be added to convict defendant as charged. Although capable of being explained in other ways, the elements of the offense were fully and amply explained to the jury. The case was submitted to the jury under a clear and appropriate explanation of the applicable principles of law. In the trial we find no prejudicial error.

No error.

CAMPBELL and MORRIS, JJ., concur.