State v. McLain , 64 N.C. App. 571 ( 1983 )

307 S.E.2d 769 (1983)

STATE of North Carolina
v.
David Lee McLAIN.

No. 8320SC76.

Court of Appeals of North Carolina.

October 18, 1983.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Gen. Charles H. Hobgood, Raleigh, for the State.

W. Reece Saunders, Rockingham, for defendant-appellant.

ARNOLD, Judge.

Defendant first contends that the trial court erred in denying his motion to quash the bill of indictment. This contention is based on the fact that only one of two persons whose names were listed on the bill of indictment was called to testify before the grand jury. Defendant cites G.S. 15A-626(b) as controlling in this matter. That statute reads in part:

In proceedings upon bills of indictment submitted by the prosecutor to the grand jury, the clerk must call as witnesses the persons whose names are listed on the bills by the prosecutor....

The success of defendant's contention depends on whether the language of G.S. 15A-626(b) is mandatory or merely directory. In determining if a statutory provision is to be considered mandatory or directory legislative intent will control, "and this is usually to be ascertained not only from the phraseology of the provision, but also from the nature and purpose, and the consequences which would follow its construction one way or the other." Art Society v. Bridges, State Auditor, 235 N.C. 125, 130, 69 S.E.2d 1, 5 (1952). The logical purpose of the statute is not to insure that all witnesses must be called by the clerk. The purpose of G.S. 15A-626(b) is, in fact, to provide that the clerk only call as witnesses persons whose names appear on the indictment.

In similar cases involving grand jury proceedings the courts have held that the applicable statutory provisions are directory, not mandatory. In State v. Mitchell, the court held that the provisions of G.S. 9-27 (now repealed) relating to the requirement that the foreman shall mark names of witnesses who appeared before the grand jury on the indictment were directory and not mandatory. 260 N.C. 235, 132 S.E.2d 481 (1963). See also State v. Lancaster, 210 N.C. 584, 187 S.E. 802 (1936) and State v. Tudor, 14 N.C.App. 526, 188 S.E.2d 583 (1972). We hold that defendant's motion to quash the bill of indictment was properly denied.

Defendant next contends that the trial court erred in denying his motion to suppress identification testimony of Shirley Murphy. He contends that the pretrial identification which occurred in the Fast Fare parking lot was unnecessarily suggestive and tainted the in-court identification. Defendant further alleges that the pretrial identification occurred at a time when he should have been afforded the benefit of counsel. We disagree with both aspects of his argument. First, it was found at trial that when the officer asked Shirley Murphy to see if she could identify the person in the police car, no suggestions were made to her about that person being the actual perpetrator. Furthermore, the showing of a suspect to a witness while the suspect is in a patrol car beside a policeman is not in and of itself impermissibly suggestive. United States v. Hines, 455 F.2d 1317 (D.C.Cir. 1972).

Regardless of the pretrial identification, Shirley Murphy's in-court identification of the defendant was competent since it was clearly of independent origin. See State v. Jackson, 306 N.C. 642, 295 S.E.2d 383 (1982). She had had plenty of time to observe him and, in fact, had seen him earlier in the store on the night of the robbery. The defendant had been shown to her approximately 30 minutes after the robbery, and he was wearing the same clothing on each occasion that she saw him. We find that the court properly denied defendant's motion to suppress.

Defendant's contention that he was entitled to the presence of counsel when he was shown to Shirley Murphy at the scene of the crime is without merit. Counsel for indigents is required at pretrial identification proceedings only after formal charges have been preferred and where the presence of the indigent was required. G.S. 7A-451(b)(2). See State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S. Ct. 3202, 49 L. Ed. 2d 1205 (1976).

Defendant's third and fourth contentions are that the court erred in failing to properly instruct the jury on the defenses of intoxication and automatism. In both instances we find that defendant failed to object to the judge's charges at trial as is required by Rule 10(b)(2) of the Rules of Appellate Procedure.

We have examined defendant's remaining assignments of error and have found in them no merit.

No error.

WELLS and EAGLES, JJ., concur.