State v. Herencia

221 S.E.2d 894, 28 N.C. App. 588, 1976 N.C. App. LEXIS 2762

• Court: Court of Appeals of North Carolina
• Decided: February 18, 1976
• Docket: No. 7512SC801
• Status: Published

Opinion

ARNOLD, Judge.

Defendant assigns error to the denial by the trial court of his motion for continuance. Such a motion is within the trial court’s discretion and the exercise of that discretion is not for review in the absence of manifest abuse of discretion. State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972) ; State v. Morrison, 19 N.C. App. 717, 200 S.E. 2d 341 (1973). No abuse is shown in the denial of defendant’s motion.

Defendant contends that the court should have allowed his request for a voir dire on the in-court identification by Mr. Yancy. Defendant argues that since Yancy saw him between the time of the crime and the trial the in-court identification was tainted.

There is no merit in defendant’s argument. Following the robbery the Yancys were at the Fort Brag I.D. Bureau and while there they saw defendant along with Miss Charboneau. The Yancys called the M.P.s, but defendant disappeared before the M.P.s arrived.

The prior confrontation about which defendant argues was neither illegal, nor was it arranged by the police. It happened by chance, and defendant’s rights were not violated in any manner. There is no evidence of any illegal pretrial identification. See State v. Cox, 281 N.C. 275, 188 S.E. 2d 356 (1972).

The evidence from the record is clear and convincing that the in-court identification originated at the time of the robbery. It may have been better practice to have conducted a voir dire, upon defendant’s request, and to have made findings that the in-court identification was of an independent origin, but the failure to do so in this case is harmless error. State v. Stepney, supra; State v. Smith, 21 N.C. App. 426, 204 S.E. 2d 693 (1974).

Defendant’s trial was free of prejudicial error.

No error.

Chief Judge Brock and Judge Parker concur.