State v. Hunter

216 S.E.2d 420, 26 N.C. App. 489, 1975 N.C. App. LEXIS 2085

• Court: Court of Appeals of North Carolina
• Decided: July 2, 1975
• Docket: No. 757SC320
• Status: Published

Opinion

ARNOLD, Judge.

Defendants contend that their in-court identification by the robbery victim was based on impermissible pretrial identification procedures and therefore was erroneously admitted. This contention is without merit.

“When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification (s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence,' they are conclusive on appellate courts. [Citations omitted].”'

State v. Tuggle, 284 N.C. 515, 520, 201 S.E. 2d 884, 887 (1974); accord, State v. Shore, 285 N.C. 328, 204 S.E. 2d 682 (1974); State v. Richmond, 23 N.C. App. 683, 209 S.E. 2d 535 (1974).

Before concluding that Killebrew’s testimony was admissible, the court conducted a thorough voir dire hearing, made detailed findings of fact, and determined that the witness had had ample opportunity to observe each defendant at the time of the robbery and that the in-court identification was of independent origin and not based on any illegalout-of-court identification. These findings are based on competent evidence. The in-court .identification was admissible.-

Defendants next contend that it was error to allow Gray to answer the solicitor’s question, “Where did you get your 'marijuana?” and to allow the solicitor to argue that Gray “was selling grass, preying upon the weakness of his fellow human beings.” This contention also is without merit.

Whether the solicitor exceeded the wide latitude afforded counsel in argument before the jury is a question which rests largely in the trial court’s discretion. See State v. Westbrook, 279 N.C. 18, 181 S.E. 2d 572, modified 408 U.S. 939 (1972) ; 2 Strong, N. C. Index 2d, Criminal Law § 102, pp. 641-45. Defendant Gray testified that he had obtained money by selling marijuana. In response to the solicitor’s question, he said he was unable to recall the name of his supplier. The solicitor’s characterization of Gray was inferable from Gray’s own testimony. The argument was not improper.

Defendants further contend that the court erred in denying their motions for nonsuit. We find no merit in this contention. Viewed in the light most favorable to the State, the testimony of C. P. Killebrew was sufficient to require that the case be submitted to the jury.

Finally, defendants contend that the court’s charge contained an inadequate definition of reasonable doubt. This is a feckless contention. The North Carolina Supreme Court approved an almost identical instruction in State v. Brackett, 218 N.C. 369, 11 S.E. 2d 146 (1940). See also State v. Flippin, 280 N.C. 682, 186 S.E. 2d 917 (1972). We have examined the charge and find it adequate in all respects.

Defendants have received a fair trial free from prejudicial error.

No error.

Chief Judge Brock and Judge Parker concur.