State v. Odom , 18 N.C. App. 478 ( 1973 )

HEDRICK,- Judge.

Defendant contends the trial court erred in admitting into evidence witness Cole’s in-court identification of him as the perpetrator of the robbery.

Before allowing Mrs. Cole’s in-court identification of defendant as the person who committed the robbery, the trial judge conducted a voir dire examination in the absence of the jury; and, after hearing testimony of Mrs. Cole, defendant, Deputy Sheriff Joe Warner of Richmond County, and Jesse Goodwin, Jailer of Richmond County, the court made findings and conclusions “[t]hat the identification or show-up of the defendant in the Richmound County Jail was unconstitutional and impermissible.” However, the judge made further findings that the in-court identification of defendant by Mrs. Cole was based “upon her independent memory in her viewing of him in her presence on August 25, 1972” and “was not tainted or rendered incompetent as evidence by the subsequent unconstitutional show-up at the Richmond County Jail.” Such findings when supported by competent evidence are conclusive on appellate courts, both State and Federal. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E. 2d 652 (1971); State v. Sneed, 14 N.C. App. 468, 188 S.E. 2d 537 (1972). There is plenary, competent evidence in the record to support these positive findings. This assignment of error is overruled.

Defendant assigns as error the denial of his motions for judgment as of nonsuit. There is plenary, competent evidence in the record to require submission of this case to the jury and to support the verdict.

Defendant has additional assignments of error which we have carefully, considered and find to be. without merit.

Defendant had a fair trial free from prejudicial error.

No error.

Judges Bkock and VAUGHN concur.