State v. Tyson

180 S.E.2d 1 (1971)

278 N.C. 491

STATE of North Carolina v. Bobby TYSON. STATE of North Carolina v. Harold Douglas GAINES.

No. 61.

Supreme Court of North Carolina.

April 14, 1971.

*3 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Isham B. Hudson, Jr., for the State.

Ernest H. Morton, Jr., Albemarle, for defendant Bobby Tyson.

E. S. Hudson, Albemarle, for defendant Harold Douglas Gaines.

LAKE, Justice.

The defendants have brought forward in their brief only those assignments of error which relate to the admission of the in-court identifications of them by the witness Furr and to the failure of the trial court to instruct the jury concerning the offense of common law robbery. The other assignments of error set forth in their statements of the case on appeal are, therefore, deemed abandoned. State v. Ray, 274 N.C. 556, 164 S.E.2d 457; State v. Spears, 268 N.C. 303, 150 S.E.2d 499; Strong, N.C.Index 2d, Criminal Law, § 166. We have, nevertheless, considered all of the assignments of error and we find no merit in those so abandoned by the defendants.

There was no error in the failure of the court to charge the jury as to the offense of common law robbery. Although this is an offense included in the offense of robbery with the use of firearms so that the indictments would have supported convictions thereof, State v. Rowland, 263 N.C. 353, 139 S.E.2d 661, there was no evidence whatever of any robbery except with the use of firearms. In such case the law does not require an instruction as to the lesser offense and there was no error in instructing the jury to return, as to each defendant in each case, a verdict of guilty of robbery with the use of firearms or a verdict of not guilty, which the court did. State v. Williams, 275 N.C. 77, 88, 165 S.E.2d 481; State v. Bridges, 266 N.C. 354, 146 S.E.2d 107; State v. Hicks, 241 N.C. 156, 84 S.E.2d 545; Strong, N.C.Index 2d, Criminal Law, § 115.

There is, likewise, no merit in the contention that the court erred in finding and concluding that the in-court identification *4 of each defendant by the witness Furr was independent in origin and untainted by any suggestive procedures by law enforcement officers. There is nothing whatever in the record to suggest, even remotely, that there was any line-up, or any display of photographs of either defendant or of the person of either defendant to this witness by any officer or employee of any law enforcement agency. The witness' testimony is clear and positive to the contrary and is sufficient to show ample opportunity for him to observe both defendants at the time of the robberies. The only time he saw the defendant Tyson between the date of the robberies and the commencement of the trial was at Tyson's preliminary hearing on these charges. He never saw the defendant Gaines between the date of the robberies and the commencement of the trial, Gaines having waived a preliminary hearing according to his counsel's brief. The uncontradicted evidence on the voir dire is ample to support the trial court's findings of fact. These are, therefore, binding upon us. See: State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744; State v. Gray, 268 N.C. 69, 79, 150 S.E.2d 1; Strong, N.C.Index 2d, Criminal Law, § 76, p. 586. The court's findings of fact support its conclusion that the identifications of both defendants by the witness Furr were admissible in evidence.

Furthermore, neither defendant objected to Furr's in-court identification of him when it was put in evidence and neither objected to the equally positive and unequivocal identifications by the witness Clodfelter. See Stansbury, North Carolina Evidence, 2d Ed., § 27. Nothing in the record indicates that anything transpired after the in-court identification of Tyson by the witness Furr to cast doubt upon its admissibility. Nevertheless, the trial judge, out of an abundance of caution, made inquiry, in the absence of the jury, into the possibility of impermissibly suggestive police methods leading to some prior identification of the defendant Tyson by this witness. Tyson's testimony on the voir dire suggested nothing whatever of this nature. The testimony on voir dire by the witness shows clearly there was no effort by anyone to lead him into an identification of either defendant as one of the robbers.

In their brief the defendants argue that when the witness Furr came to the courtroom for the trial, he necessarily knew the defendants were charged with robbing him and so, of course, expected to see in the courtroom men whom the law enforcement officers believed were the robbers. Consequently, they say, the witness came to the courtroom mentally preconditioned to identify as members of the group which robbed him those whom he saw in the courtroom charged with the offense. This, they contend, disqualifies the witness to testify that the persons he saw there were, in fact, the ones who robbed him.

This contention is an amplification of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149, which has the support of no decision by any court thus far called to our attention. To accept it as a correct application of the Fourteenth Amendment to the United States Constitution would, of course, make it impossible for the victim or any other eye witness to a crime to testify that he recognizes the defendant as its perpetrator, without first having, for each witness, some sort of line-up procedure to test his recollection of the perpetrator's appearance. This is not required. See, State v. Jacobs, supra. The decision in the Wade case was designed to promote fairness in the use of line-ups, not to require them. The contention of the defendants is predicated upon the assumption, completely unsupported by anything in the record, that the witness came to court prepared to identify as the one who robbed him whomsoever might be the defendant on trial. It overlooks the obvious truth that when the victim of a crime comes to court to testify, his motivation is his desire to bring the actual wrongdoer to justice, which purpose would be defeated by his identification of someone else as the perpetrator of the crime.

No error.