State v. ConyersAnnotate this Case
236 S.E.2d 393 (1977)
33 N.C. App. 654
STATE of North Carolina v. Ronnie Louis CONYERS.
Court of Appeals of North Carolina.
July 20, 1977.
Certiorari Allowed October 4, 1977.
*395 Atty. Gen. Rufus L. Edmisten by Associate Atty. Thomas H. Davis, Jr., Raleigh, for the State.
Asst. Public Defender D. Lamar Dowda, Greensboro, for defendant appellant.
Certiorari Allowed by Supreme Court October 4, 1977.
Defendant assigns error to the admission of the in-court identification testimony of the State's witnesses, Robertson and Fuller. He contends this testimony should have been excluded because of impermissibly suggestive out-of-court photographic identification procedures. In support of this contention, defendant points out that a border on two of the group of eight photographs which were shown separately to each witness was tinged with yellow; that one of the photographs with a yellow tinge on the border was that of the defendant; and that the other photograph with a yellow tinge on the border was that of one of the other men accused of participating in the same robbery. Defendant contends that because of the distinctive yellow borders on these two critical photographs, the photographic identification procedure in this case was "patently suggestive as a matter of law." From this he argues that reversible error occurred when the court admitted the in-court identification testimony of Robertson and Fuller. We do not agree.
Prior to admitting the in-court identification testimony of these two witnesses, the court in each case conducted a voir dire examination. After the voir dire examination held to determine the admissibility of Fuller's in-court identification testimony, the court made full findings of fact, both concerning the out-of-court photographic identification procedure which had been followed and concerning the opportunity which Fuller had had to observe the two men who had come to the back of the store on the night of the robbery. In this latter connection Fuller testified at the voir dire hearing that the back area of the store was well lighted with fluorescent lights, which he described as "bright daylight lights," that the two men were in the back of the store with him for approximately three to five minutes, and that for much of that time "the man with the knife," whom he identified as the defendant, was facing him. The court found on this evidence that the store was well illuminated; that Fuller had had an opportunity to observe the man who held the knife at his throat; and that Fuller did observe that man. The court further found as a fact "that Fuller's impression that the defendant resembles the man who put the knife to his throat as aforesaid is based upon his recollection of the appearance of the man who put the knife to his throat as aforesaid, and that it is in nowise based upon his viewing of photographs exhibited to him by Greensboro police officers, as aforesaid." Since these findings are fully supported by the evidence, they are binding on this appeal. State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975); State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974); State v. Harmon, 21 N.C.App. 508, 204 S.E.2d 883 (1974). Thus, even if the use of a photograph having a yellow tinged border which made it distinctive from the other photographs should be considered by itself to be impermissibly suggestive, the court's finding, which is supported by clear and convincing evidence, that Fuller's identification testimony was of independent origin supports the court's ruling that his testimony was admissible.
The situation in connection with the identification testimony of the witness, Burnetta Robertson, is somewhat different. Following the voir dire hearing held to determine the admissibility of her in-court identification testimony, the court made no finding that her identification of the defendant was of independent origin. The court did find that "none of the photographs exhibited to Mrs. Robertson by the detective, K. W. Brady, bore any markings other than markings and shows (sic) and *396 color placed on the photographic paper at the time of the development of the photographs." The court further found that Detective Brady exhibited all of the photographs shown Mrs. Robertson without comment regarding any photograph. On these findings the court concluded "that no impermissible thing was said or done to or in the presence of (sic) hearing of Mrs. Robertson as the aforesaid photographs were exhibited to her." Defendant now contends that this conclusion was erroneous as a matter of law solely because of the yellow tinge, which the evidence shows resulted from the photographic developmental process and not from any action of the police, which appeared on the border of the photograph of the defendant and which made it distinctive from the other photographs. Defendant's contention presents a serious problem. Obviously, any marking or coloring on a particular photograph, whether placed there deliberately or as a result of accident, which sets it apart from others shown in a photographic lineup, presents the danger that the attention of the person viewing the lineup might be focused unduly upon that photograph and thus lead to the danger of misidentification. Obviously, also, fairness requires that every precaution should be exercised to avoid that danger. Nevertheless, the admission over defendant's objection at trial of eyewitness identification testimony following a pretrial identification by photograph will be held reversible error only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Knight, 282 N.C. 200, 192 S.E.2d 283 (1972). The only feature of the photographic identification procedure in the present case which was even remotely suggestive was the fact of the tinged yellow border on defendant's photograph. We do not believe that this fact alone made the photographic identification procedure followed in this case "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Moreover, Mrs. Robertson's in-court identification testimony before the jury in this case was so weakshe testified only that defendant "resembles one of the guys who went to the back"and the other evidence of defendant's guilt, including his signed confessions was so overwhelming, that the admission of her testimony, if error at all, was harmless beyond any reasonable doubt. We find no reversible error resulted from the court's ruling allowing Mrs. Robertson to testify that defendant resembled one of the robbers.
Defendant assigns error to the admission in evidence of his signed confession. Prior to admitting this evidence, the court conducted another voir dire hearing. At this hearing defendant testified and admitted he signed the confession after signing a waiver of his rights. He testified that he did so only because the officers promised that his bail would be reduced and that he would be placed on probation in return for his testimony against Ben Haith. The officers who took the confession denied making any such promises. At the conclusion of the voir dire hearing, the court made full findings of fact. These are fully supported by competent evidence. They are therefore binding on this appeal. State v. Thompson, 287 N.C. 303, 214 S.E.2d 742 (1975). These findings in turn fully support the court's conclusion that the defendant "knowingly, intelligently, and intentionally waived his said rights and freely, voluntarily, intelligently, and intentionally" made his confession. There was no error in admitting the confession in evidence.
Defendant has made a number of assignments of error dealing with portions of the court's charge to the jury. For example, defendant assigns error because at one point the court instructed the jury that reasonable doubt "is intended to imply a possibility of innocence." The use of the phrase "possibility of innocence" as synonymous with "reasonable doubt" has been expressly disapproved by our Supreme Court and by this Court. State v. Edwards, 286 N.C. 140, 209 S.E.2d 789 (1974); State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972); State v. Chaney, 15 N.C.App. 166, 189 S.E.2d 594 (1972). However, no prejudice *397 resulted to the defendant, since the instruction was more favorable to the defendant than that to which he was entitled.
Defendant has also assigned error to other portions of the charge dealing with reasonable doubt. The charge, when read contextually, fairly and clearly stated the law; therefore, the isolated portions to which defendant excepted will not be held prejudicial. State v. Quick, 20 N.C.App. 589, 202 S.E.2d 299 (1974).
Defendant has also assigned error to the failure of the court to define the doctrine of aiding and abetting and to apply it to the facts of this case. We find no error. "A person who actually commits the offense or is present with another and does some act which forms a part thereof, although not doing all of the acts necessary to constitute the crime, is a principal in the first degree." State v. Mitchell, 24 N.C. App. 484, 486, 211 S.E.2d 645, 646 (1975). Where the defendant is present with another and with a common purpose does some act which forms a part of the offense charged, the judge must then explain and apply the law of "acting in concert." Id. Here, defendant was indicted as an active participant for the crime of armed robbery. All the State's evidence tended to show that defendant was present and with a common purpose did some act forming a part of the offense charged by helping accost one employee in the back of the store while Ben Haith was robbing the other employee in the front of the store. The court properly instructed the jury on "acting in concert" and was under no duty to instruct on aiding and abetting. Defendant's assignment of error is without merit.
Defendant's assignments of error to the denial of his motion for nonsuit and to the denial of his motion to set aside the verdict are also overruled. There was plenary evidence to send the case to the jury. Since the motion to set aside the verdict is discretionary, the refusal to grant said motion is not reviewable on appeal, absent an abuse of discretion. State v. Dull, 289 N.C. 55, 220 S.E.2d 344 (1975). Defendant has failed to show an abuse of discretion.
Defendant received a fair trial free from prejudicial error.
BRITT and MARTIN, JJ., concur.