State v. Segarra

216 S.E.2d 399 (1975)

26 N.C. App. 399

STATE of North Carolina v. George SEGARRA.

No. 7512SC312.

Court of Appeals of North Carolina.

July 2, 1975.

Certiorari Denied October 7, 1975.

*401 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Lester V. Chalmers, Jr., and Associate Attorney T. Laurence Pollard, Raleigh, for the State.

Downing, David, Vallery & Maxwell by Ray C. Vallery, Fayetteville, for defendant-appellant.

Certiorari Denied by Supreme Court October 7, 1975.

HEDRICK, Judge.

By his first assignment of error, defendant contends the court erred (1) in asking questions of the State's witnesses on the *402 voir dire hearing to such an extent that it assumed the role of the prosecution and (2) in allowing the witness Bellows to identify the defendant at trial as one of his assailants.

While the trial judge did ask questions of the two State's witnesses who testified at the voir dire hearing regarding Bellows' identification of the defendant, there is nothing in the record to support the defendant's contention that the court assumed the role of the prosecution or that the judge committed error by asking questions of the witnesses. Since the very purpose of such a hearing is to enable the judge to determine whether the witness' identification of the defendant at the trial as a perpetrator of the crime was based entirely on his observations during the commission of the crime, we think the trial judge is and should be at liberty to make such inquiries as he deems necessary to enable him to make a fair and independent determination of the question.

After the voir dire hearing, the trial judge made findings and concluded that Bellow's "in-court" identification of the defendant was based on his observations at the time of the commission of the crime and that such identification was not tainted by the "out-of-court" photographic identification procedure. There is plenary competent evidence in the record to support the findings of the trial judge which in turn support his conclusion. This assignment of error has no merit.

Next, defendant contends the court erred in allowing the six photographs used by the police in the pre-trial identification procedure to be introduced into evidence and exhibited to the jury. Defendant argues that the court erred in not instructing the jury that these photographs were admitted for the sole purpose of illustrating the testimony of Officer Burns.

It is well-settled that when evidence competent for one purpose only and not for another is offered, the objecting party must request the court to restrict the consideration of the jury to that aspect of the evidence which is competent. Failure of the trial judge to give a limiting instruction in the absence of a request therefor is not error. State v. Goodson, 273 N.C. 128, 159 S.E.2d 310 (1968).

Defendant argues that the admission of the photographs was prejudicial error because the writing on the photographs, particularly on the photograph of the defendant, indicated that the defendant had committed other offenses and thereby presented his character to the jury in an unfavorable light. All of the photographs in question contain written material indicating that the subjects were or had been in the custody of local law enforcement officials. All of the photographs likewise have identification markings which indicate that the photographs were used in a pre-trial identification procedure in this case. The photograph of the defendant has the following legend beneath his face:

The written material on the photographs of the five individuals other than the defendant could not possibly tend to show that the defendant had committed other crimes and therefore could not have placed him in an unfavorable light in the eyes of the jury. We find no error in the admission of these photographs into evidence for the purpose of illustrating Burns' testimony.

However, the figures "8 13 74" on the photograph of the defendant obviously refer to the date the photograph was taken by the City County Bureau of Identification. This at least indicates that the defendant was in police custody two months prior to the commission of the offense for which he was being tried. While we are of the opinion that the admission of this photograph *403 without deleting or covering the written material was error, see Annot. 30 A.L.R.3d 908 (1970), we are of the opinion that the error was harmless beyond a reasonable doubt, State v. Cauthen, 18 N.C. App. 591, 197 S.E.2d 567 (1973), cert. denied, 283 N.C. 755, 198 S.E.2d 724 (1973), cert. denied, 415 U.S. 926, 94 S. Ct. 1432, 39 L. Ed. 2d 483 (1974). Prior to introduction of the photograph into evidence, the defendant had been identified by Bellows and Anna Martino; and Merritt Hope, one of the accomplices, had given detailed testimony of the defendant's complicity in the crime. In the light of these overwhelming circumstances, we do not perceive how the admission of the unexpurgated photograph of the defendant could have been prejudicial. This assignment of error is not sustained.

Based on exceptions nineteen through twenty-five, defendant contends the court erred in allowing Officer Burns to testify at trial as to what the witness Merritt L. Hope had told him during the officer's pre-trial investigation of the assault and robbery of Bellows by Hope, the defendant, and a third individual.

This aspect of Officer Burns's testimony was clearly admitted into evidence for the purpose of corroborating Hope's prior account of the events of the night of 15 October 1974. In fact, when the defendant initially objected to the testimony complained of, the trial judge correctly instructed the jury that Burns's testimony as to anything said to him by Hope was offered only for the purpose of corroborating Hope, if the jury believed that it did, and for no other purpose. We have reviewed the testimony objected to and find no substantial variance between it and what Hope testified to at trial. Slight variances in corroborating testimony do not render such testimony inadmissible. State v. Case, 253 N.C. 130, 116 S.E.2d 429 (1960). These exceptions are without merit.

Finally, defendant contends the trial court erred in failing to submit to the jury the lesser included offenses of armed robbery. "The necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The presence of such evidence is the determinative factor." State v. Hicks, 241 N.C. 156, 159, 84 S.E.2d 545, 547 (1954).

In the instant case, there was no evidence introduced at trial from which a jury could find that a crime of lesser degree than robbery with the use or threatened use of a firearm or other dangerous weapon had been committed. All the evidence tended to show that if the defendant committed a crime at all he and two accomplices robbed Allen Bellows with the use or threatened use of a pistol, a tree limb, and an iron pipe. This assignment of error is not sustained.

We have carefully considered defendant's other assignment of error regarding the court's failure to give equal stress to the contentions of the State and the defendant and find it to be without merit.

Defendant had a fair trial free from prejudicial error.

No error.

BRITT and MARTIN, JJ., concur.