State v. Rollins

Court of Appeals of North Carolina

State v. Rollins

192 S.E.2d 606, 16 N.C. App. 616, 1972 N.C. App. LEXIS 1777

CourtCourt of Appeals of North Carolina

DecidedNovember 22, 1972

DocketNo. 7227SC739

StatusPublished

This text of 192 S.E.2d 606 (State v. Rollins) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Rollins, 192 S.E.2d 606, 16 N.C. App. 616, 1972 N.C. App. LEXIS 1777 (N.C. Ct. App. 1972).

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Opinion

GRAHAM, Judge.

Defendant’s only assignment of error is to the overruling of his objection to the in-court identification testimony by Neill Barnes. This assignment of error is overruled.

A voir dire examination was conducted before the witness was permitted to identify defendant in court. Barnes testified on voir dire that several days after the robbery he went with police officers to a poolroom in Gastonia. They asked him to look around to see if he recognized anyone. After looking over 15 or 20 people inside the poolroom, Barnes pointed defendant out to officers as the man who committed the robbery. The [618]*618officers did not tell Barnes who their suspect was nor did they assist him in any way in making the identification. Defendant contends this procedure was illegal for the reason that he had no opportunity to have counsel present at the time. This contention is without merit. Defendant was not in custody at the time, and no charges relating to the robbery had been made against him. Consequently, his out-of-court identification by Barnes did not occur during a time when he was entitled, as a matter of constitutional right, to counsel. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed. 2d 411 (1972); State v. Reaves, 15 N.C. App. 476, 190 S.E. 2d 358. Moreover, the trial court found from evidence elicited on voir dire that Barnes’ in-court identification of defendant was based solely upon his observation of defendant at the time of the alleged robbery. This finding is supported by the evidence.

We find that defendant had a fair trial free from prejudicial error.

No error.

Judges Hedrick and Vaughn concur.

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GRAHAM, Judge.

Defendant’s only assignment of error is to the overruling of his objection to the in-court identification testimony by Neill Barnes. This assignment of error is overruled.

A voir dire examination was conducted before the witness was permitted to identify defendant in court. Barnes testified on voir dire that several days after the robbery he went with police officers to a poolroom in Gastonia. They asked him to look around to see if he recognized anyone. After looking over 15 or 20 people inside the poolroom, Barnes pointed defendant out to officers as the man who committed the robbery. The [618]*618officers did not tell Barnes who their suspect was nor did they assist him in any way in making the identification. Defendant contends this procedure was illegal for the reason that he had no opportunity to have counsel present at the time. This contention is without merit. Defendant was not in custody at the time, and no charges relating to the robbery had been made against him. Consequently, his out-of-court identification by Barnes did not occur during a time when he was entitled, as a matter of constitutional right, to counsel. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed. 2d 411 (1972); State v. Reaves, 15 N.C. App. 476, 190 S.E. 2d 358. Moreover, the trial court found from evidence elicited on voir dire that Barnes’ in-court identification of defendant was based solely upon his observation of defendant at the time of the alleged robbery. This finding is supported by the evidence.

We find that defendant had a fair trial free from prejudicial error.

No error.

Judges Hedrick and Vaughn concur.

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Bluebook (online)

192 S.E.2d 606, 16 N.C. App. 616, 1972 N.C. App. LEXIS 1777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rollins-ncctapp-1972.

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