State v. Richmond , 1974 N.C. App. LEXIS 2185 ( 1974 )

BALEY, Judge.

Defendant contends that the court erred in admitting the identification testimony of the State’s witness, Walter Woody.

“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 j udge 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.” State v. Tuggle, 284 N.C. 515, 520, 201 S.E. 2d 884, 887; State v. McVay, 277 N.C. 410, 417, 177 S.E. 2d 874, 878; accord, State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677; State v. Smith, 278 N.C. 476, 180 S.E. 2d 7; 1 Stansbury, N. C. Evidence (Brandis rev.), § 57, pp. 176-77.

There is ample evidence to support the finding of the trial court that the identification of defendant by Woody was based upon his face-to-face encounter in the restaurant and not upon any impermissible identification procedure. Woody testified that he observed defendant from a distance, of twenty feet, then approached him, and finally grabbed him by the wrist. When reporting the incident to police authorities, he described defendant as being 5’9” tall, weighing 180 pounds, with dark brown skin. When presented with a lineup of ten photographs, he picked defendant promptly and without difficulty. The court properly admitted the evidence of Walter Woody which identified defendant.

Defendant also assigns as error in connection with his identification by Woody the refusal of the court to permit cross-examination of Woody concerning the appearance of the skin color of individuals portrayed in the photographs used in the identification procedure. While a cross examiner has wide latitude in his examination, the court does have discretion to limit argumentative questioning — particularly about matters of which the witness can have only a speculative opinion. 1 Stansbury, N. C. Evidence (Brandis rev.), § 35, p. 108. Here Woody knew none of the persons whose pictures were presented to him. The exclusion of his evaluation of the shades of color demonstrated in the black and white photographs was not error.

Defendant assigns as error the failure of the trial court to give specific instructions to the jury upon the legal effect of alibi evidence. He made no request for such instructions. Since State v. Hunt, 283 N.C. 617, 197 S.E. 2d 513, a defendant has not been entitled to alibi instructions absent a request. Defendant recognizes the Hunt rule but urges its abandonment. The weight of authority supports the holding of our Supreme Court in Hunt, and we adhere to that decision.

Other assignments of error which relate to the admission or exclusion of evidence and remarks of the trial judge have been carefully considered and are deemed to be without merit or harmless in effect.

Defendant has been accorded a fair hearing and must abide by the jury verdict.

No error.

Judges Morris and Hedrick concur.