State v. McVay , 277 N.C. 410 ( 1970 )

177 S.E.2d 874 (1970) 277 N.C. 410

STATE of North Carolina
v.
Danny McVAY.
STATE of North Carolina
v.
Woodrow SIMMONS.

No. 66.

Supreme Court of North Carolina.

December 16, 1970.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard Rich, Jr., for the State.

W. Herbert Brown, Jr., Charlotte, for defendant-appellant McVay.

James J. Caldwell, Charlotte, for defendant-appellant Simmons.

BOBBITT, Chief Justice.

Defendants excepted to and assign as error the consolidation for trial of the four indictments. This assignment is without merit. The State's motion for consolidation was addressed to the sound discretion of the presiding judge. State v. Yoes, 271 N.C. 616, 641, 157 S.E.2d 386, 406, and cases cited. There is no basis for a contention that he abused his discretion. Ordinarily, consolidation is appropriate when the offenses charged are of the same class and are so connected in time and place that evidence at the trial upon one of the indictments would be competent and admissible at the trial on the other(s). State v. Hamilton, 264 N.C. 277, 283, 141 S.E.2d 506, 511, and cases cited; State v. Overman, 269 N.C. 453, 466, 153 S.E.2d 44, 56, and cases cited. State v. Dyer, 239 N.C. 713, 80 S.E.2d 269, cited by defendants, involved an entirely different factual situation. In separate indictments, each of two men was charged with having received stolen goods, knowing them to have been stolen, the property of Colonial Stores, Inc. The alleged crimes were unrelated. They occurred at different times and places and under different circumstances. Neither defendant was present or in any way involved when the crime charged against the other was committed.

Each defendant excepted to and assigned as error the admission, over his objection, of the in-court identification by King of McVay as the man who robbed Mrs. King and of Simmons as the man who robbed him (King). When King's identification testimony was proffered, each defendant objected and the jury was excused. In the absence of the jury, a voir dire hearing was conducted. The evidence offered consisted of the testimony of King and of W. O. Holmberg and of Dale M. Travis. Holmberg and Travis are members of the Criminal Investigation Bureau of the Charlotte Police Department.

At the conclusion of the voir dire hearing, Judge Anglin made the following findings of fact:

"FINDINGS OF FACT

"That the parking lot was well lighted— about like daylight; that during the robbery the witness King was part of the time face to face with the man who took his wallet; that the witness King in court pointed to the defendant Simmons as the one who robbed him; that the witness King got a good look at the other man while his wife was being robbed; that he was on one side of the car and they were on the other; that he was looking over the hood of the car; that in court the witness King pointed to the defendant McVay as the one who robbed his wife; that the witness King was positive as to his in-court identification of each defendant based on what he saw at the time of the robbery and on nothing more.

"That three or four days after the robbery officers showed photographs of six to ten different men to the witness King at his home; that he did not recognize any photograph as being of the man who robbed him or of the man who robbed his wife; that later a group of fifteen to twenty photographs were shown by officers to him at his home and he picked out two which he was almost positive were photographs of the men who robbed him and his wife; that they were photographs of the defendant Simmons and the defendant McVay.

"That on 20 April 1970 at the preliminary hearing in these cases the witness Elbert King saw two men and that he ``knew' they were the ones who robbed him and his wife; that the photographs had nothing to do with his recognizing the men; that the defendants McVay and Simmons were the defendants at the preliminary hearing and each defendant had counsel present representing him and participating in the hearing.

"That on or about 6 or 7 March, 1970, at the instance of officers the defendant McVay and the defendant Simmons each voluntarily went with the officer to the criminal investigation center for interrogation with respect to an investigation of the Alexander murder case; that neither McVay nor Simmons was under arrest while at the center; that during the time the defendants were at the center a photograph was taken of each defendant separately, no photograph being taken of them together; that those single photographs were in the second group shown to the witness King at his home.

"That from clear and convicing evidence the in-court identification of the defendant McVay and the in-court identification of the defendant Simmons by the witness Elbert King is each of independent origin, based solely on what he saw at the time of the robbery and does not result from any out-of-court confrontation or from any photograph or from any pretrial identification procedures suggestive and conducive to mistaken identification."

Upon these findings of fact, the court ruled the in-court identifications by King of McVay and of Simmons were competent and admissible in evidence. Each defendant excepted to and assigned as error the court's "findings of fact" and rulings "relating to * * * King's in-court identification of * * * McVay and of * * * Simmons on voir dire." No exception was addressed to any specific finding of fact. Nor does either defendant assert there is no competent evidence to support the court's findings of fact.

It seems appropriate to call attention to certain evidential facts.

Prior to the preliminary hearing, there was no corporeal lineup or confrontation. The photographs of McVay and Simmons, which were exhibited to and identified by King on March 21st or March 22nd, had been taken on March 6th or March 7th at the Criminal Investigation Bureau in connection with the investigation of the Alexander murder case. McVay and Simmons were released after they had been interrogated and photographed on March 6th or March 7th. They were at liberty on March 21st or March 22nd when King identified these photographs ("was almost positive") as photographs of the men who had robbed him and his wife. There exists a unanimity of opinion to the effect defendants' Sixth Amendment rights are not violated by the absence of counsel when photographic identifications were made under such circumstances. State v. Accor, 277 N.C. 65, 80, 175 S.E.2d 583, 592-593, and cases there cited. Defendants' counsel do not contend otherwise.

The Alexander murder occurred on March 6th or March 7th. As indicated, neither defendant testified at the voir dire hearing. Although each testified at trial, neither testified that his visit to the Criminal Investigation Bureau and his interrogation by the officers and the taking of his photographs during the investigation of the Alexander murder case was otherwise than voluntary. Suffice to say, there was ample competent evidence to support the court's positive finding that each defendant voluntarily went with the officers to the Criminal Investigation Bureau in connection with the Alexander murder case. Moreover, there was competent, clear and convincing evidence to support the court's positive finding that "the in-court identification of the defendant McVay and the in-court identification of the defendant Simmons by the witness Elbert King (was) each of independent origin, based solely on what he saw at the time of the robbery and (did) not result from any out-of-court confrontation or from any photograph or from any pretrial identification procedures suggestive and conducive to mistaken identification."

"In the establishment of a factual background by which to determine whether a confession meets the tests of admissibility, the trial court must make the findings of fact. When the facts so found are supported by competent evidence, they are conclusive on appellate courts, both State and Federal." State v. Barnes, 264 N.C. 517, 521, 142 S.E.2d 344, 346-347, and cases cited. 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. See State v. Blackwell, 276 N.C. 714, 721, 174 S.E.2d 534, 539.

It is noted that the State did not offer in evidence either the photograph of McVay or the photograph of Simmons which King had identified on March 21st or March 22nd. In this respect, inter alia, this case is distinguishable from Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 and State v. Accor, supra. The only evidence before the jury relating to the exhibition of photographs to King was elicited by counsel for defendants on cross-examination of King.

Defendants have failed to show error in connection with the admission in evidence of King's in-court identification testimony. Since King's testimony was sufficient to require submission of each defendant's case to the jury, the assignments of error directed to the overruling of the motions to dismiss and for judgments as in case of nonsuit are without merit.

Defendants excepted to and assign as error the asserted failure of the court "to instruct the jury of the possibility that it could find one defendant guilty and the other defendant not guilty." Neither defendant excepted to any particular portion of the charge as a basis for this assignment of error. Suffice to say, the charge contains no instruction comparable to that considered by this Court in State v. Williford, 275 N.C. 575, 169 S.E.2d 851, the only decision cited by defendants. Here, Judge Anglin took up each indictment separately and explained in detail what the State had to prove in order to warrant a finding that the defendant named therein was guilty of armed robbery or of common-law robbery, and that if the jury failed to so find it would be their duty to return a verdict of not guilty as to the defendant in the indictment under consideration. There was no confusion in the instructions. On the contrary, each defendant's case was considered separately and each defendant's guilt or innocence was made to depend upon what he did and not on what somebody else may have done.

Defendants' remaining assignments of error are patently without merit and were properly abandoned by defendants' counsel.

For the reasons indicated, the verdicts and judgments will not be disturbed.

No error.

MOORE, J., did not participate in the consideration or decision of this case.