State v. Lankford , 28 N.C. App. 521 ( 1976 )

221 S.E.2d 913 (1976) 28 N.C. App. 521

STATE of North Carolina
v.
Terry Steven LANKFORD and Joseph Benjamin Boudreau.

No. 755SC757.

Court of Appeals of North Carolina.

February 18, 1976.

Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Charles J. Murray, Raleigh, for the State.

Prickett & Scott by Carlton S. Prickett, Jr., Wilmington, for defendant Lankford.

James A. MacDonald, Wilmington, for defendant Boudreau.

MARTIN, Judge.

Defendants contend their in-court identification by Carolyn D. Caton was based on unnecessarily suggestive pretrial identification procedures which violated due process.

Our Court has generally held that an in-court identification of the accused by a witness who took part in such pretrial confrontation must be excluded unless it is first determined by the trial judge on voir dire that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972); State v. Smith, 278 N.C. 476, 180 S.E.2d 7 (1971).

Although the practice of showing suspects singly for identification purposes has been recognized as suggestive and widely condemned, whether such a confrontation violates due process depends on the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401; State v. Shore, 285 N.C. 328, 204 S.E.2d 682 (1974). State v. Henderson, supra.

In Neil v. Biggers, supra, the United States Supreme Court considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures and held that even if a pretrial confrontation procedure was suggestive, there is no violation of due process if examination of the "totality of the circumstances" indicates the identification was reliable. The factors set out by the Court ". . . to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time . . . of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."

In the present case, the record discloses that the robbery took place in a well lighted store. The defendants were unmasked. Mrs. Caton had seen the defendants ten minutes prior to the robbery and had a casual conversation with one of the defendants concerning purchases. The defendants ordered Mrs. Caton not to tell the police, and if she did, they would come back. She had ample opportunity to observe the defendants prior to and during the robbery. The witness' curiosity had been aroused by the defendant Lankford's return to the store after a short interval and by the defendant Boudreau's honking of the horn. After seeing the pistol and being told it was not a joke, the victim realized that she was being robbed and from that point on would obviously be paying close attention to the events that were taking place. Mrs. Caton's description of the defendants were not placed in the record on appeal, and its accuracy cannot be determined. There was no equivocation by the witness when she identified the defendants. She testified as follows: "I just walked to the door and identified them," and "[w]hen I walked out I nodded my head and I told Walt Moser it was the two boys." There was approximately a one hour period between the crime and the identification.

Further, the trial court found and concluded that ". . . the witness can and does identify each of them independently of having seen them at the sheriff's office or at any place thereafter and can identify them based solely on observations of each defendant while in the store operated by her on the evening of March 13th and as to such identification of them while in her store the objection is overruled." Since this finding is supported by competent evidence, it alone renders the in-court identification competent even if it be conceded arguendo that the lineup or showup procedure was improper. State v. Shore, supra. The finding, supported by competent evidence, is conclusive on appeal and must be upheld. State v. Shore, supra; State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974).

Weighing all the factors, we find no substantial likelihood of misidentification. The totality of the circumstances indicates that the identification was reliable and hence no violation of due process was committed.

The defendants next assign as error the court's denial of their motion for a directed verdict of not guilty at the conclusion of the State's evidence. Both defendants contend there was no evidence to support the elements of the offense of armed robbery and that only the lessor offense of common law robbery should have been submitted to the jury.

The State's evidence tended to show that both defendants were standing at the counter. When the door opened to the cash register, Boudreau told Mrs. Caton to give him the money. He pulled a pistol and pointed it toward the cash register. She put the money from both cash registers on the counter and both defendants picked it up. Lankford handed the money to Boudreau who was putting it in his pockets. Both defendants told her to go in the back room where Lankford told her to put her hands on the top shelf and turn her back to them. Boudreau threw the gun to Lankford and told him to hit her. Lankford told her to tell the police that two black men robbed her or they would return. They then locked the door and left.

The evidence thus adduced by the State tended to establish that Boudreau was armed with a pistol, that he took the money in question from Caton by the use and threatened use of such pistol, and that he thereby threatened, if he did not in fact, actually endanger the life of Caton, and that Lankford was present, actively participating and assisting Boudreau to do such acts. Consequently, the evidence is amply sufficient to support a finding that Boudreau actually committed the crime of robbery with firearm upon Caton within the meaning of the statute and that Lankford was present, aiding and abetting him in its perpetration.

In his next assignment of error the defendant Lankford argues that it was error for the State's witness to testify that the substance silver nitrate turns black or gray upon coming in contact with moisture since there was no express finding that the witness was an expert.

Defendant made no request for a finding that the witness was qualified to give opinion testimony as an expert witness, and "[i]n the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show an express finding on this matter, the finding, one way or the other, being deemed implicit in the ruling admitting or rejecting the opinion testimony of the witness." State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969). This assignment of error is overruled.

We find no merit in defendant Lankford's assignment of error relating to the charge on aiding and abetting. Defendant contends that the judge did not "instruct the jury that a principal in the second degree must share the same criminal intent as the principal perpetrator of the crime."

The instructions clearly conveyed the concept of a shared felonious intent although those exact words were not used. There is no requirement that those words must be used. "No exact forms or words are required to properly instruct a jury upon ``aiding and abetting' or ``felonious intent'. See State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965); State v. Anderson, 5 N.C.App. 492, 168 S.E.2d 444 (1969). When the entire ``Charge of the Court' as it appears in the record on appeal is considered as a contextual whole, we hold that it is free from prejudicial error." State v. Westry, 15 N.C. App. 1, 189 S.E.2d 618 (1972).

Defendant Boudreau contends that the trial court erred in its charge to the jury when it stated that both defendants contended that they were in the store when in fact, the defendant Boudreau did not testify. We find this contention to be without merit.

A misstatement of the contentions of the parties must be brought to the court's attention in apt time to afford opportunity for correction in order for an exception thereto to be considered on appeal, unless the misstatement was so gross that no objection at the trial was necessary. State v. Brown, 280 N.C. 588, 187 S.E.2d 85 (1972). Since the defendant did not object at the time of the charge, and since the remainder of the court's charge made it clear that the trial judge was referring to the contentions of the defendant Lankford and not to both of the defendants, any possible error committed by the court was harmless.

We have carefully considered defendant Boudreau's remaining assignment of error and conclude that if error was committed, it was not sufficiently prejudicial to warrant a new trial.

As to each defendant, we find

No error.

VAUGHN and CLARK, JJ., concur.