State v. Willis , 20 N.C. App. 365 ( 1974 )

CARSON, Judge.

The defendant assigns as error the allowing of the in-eourt identification of the defendants. The defendant contends the pre-trial showing of the photographs was so highly suggestive as to give rise to a substantial likelihood of irreparable mis-identification. Prior to the ruling on the in-court identification, the trial court conducted a complete voir dire and made findings of fact and conclusions of law based on the evidence. It is well established in North Carolina that such findings of fact and conclusions based thereon on the voir dire examination are binding on the appellate courts if supported by evidence. State v. Accor and State v. Moore, 281 N.C. 287, 188 S.E. 2d 332 (1972); State v. Pate, 19 N.C. App. 701, 200 S.E. 2d 217 (1973). There is plenary evidence in the instant case to support such findings. Even if the pre-trial use of the photographs had been suggestive, the facts in this case would support an in-court identification. It is equally well established in this jurisdiction that an in-court identification may be made if the witness had ample opportunity to observe the defendant and the in-court identification is based on the observations made at the time of the crime rather than the later use of the photographs. State v. Knight, 282 N.C. 220, 192 S.E. 2d 283 (1972); State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972); State v. Neal, 19 N.C. App. 426, 199 S.E. 2d 143 (1973). The facts in this case would support no other conclusion, and this assignment of error is without merit.

The other assignment of error by the defendant is the Court’s refusal to grant a continuance and change of venue because of the news article which appeared on page 3 of the Charlotte News. Such motions are addressed to the sound discretion of the trial court and will not be reviewed except when such discretion is abused. State v. Baldwin, 276 N.C. 690, 174 S.E. 2d 526 (1970); State v. Ray, 274 N.C. 556, 164 S.E. 2d 457 (1968); State v. Fountain, 14 N.C. App. 82, 187 S.E. 2d 493 (1972). Here, there was no showing of any publicity prior to the article in question. It was short and factual and was on page 3 of the paper. When this matter was brought to the Court’s attention, all prospective jurors who even had access to the newspaper were excused. Furthermore, the Court excused the jurors on its own motion and without referring to the article or its contents. It is difficult to perceive how the Court could have been any fairer to the defendants, or how any prejudice could have resulted from this procedure.

No error.

Chief Judge Brock and Judge Morris concur.