State v. Miller , 37 N.C. App. 163 ( 1978 )

MARTIN, Judge.

In his first assignment of error, defendant contends that the trial court erred in denying his motions at trial for discovery of the statements given by the State’s witnesses to police regarding their descriptions of the robber. He argues that, as a result of the court’s rulings, he was denied his right to due process and right of confrontation in that he was unable effectively to cross-examine, for impeachment purposes, State’s witnesses Fivecoat and Thompson with regards to their in-court identifications of defendant.

In the recent case of State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977), our Supreme Court held that G.S. 15A-904(a), the statute applicable in the case at bar, does not bar the discovery at trial of prosecution witnesses’ statements and that the trial court, in its discretion, must have the power to compel the disclosure of such facts when relevant and not otherwise privileged. In addition, we find in Hardy the following pertinent language:

“. . . [W]e believe justice requires the judge to order an in camera inspection when a specific request is made at trial for disclosure of evidence in the State’s possession that is obviously relevant, competent and not privileged. The relevancy for impeachment purposes of a prior statement of a material State’s witness is obvious.”

Thus, in the instant case, the trial court’s denial, without more, of the subject motions was error.

In our opinion, however, this error was harmless beyond a reasonable doubt, see State v. Tate, 294 N.C. 189, 239 S.E. 2d 821 (1978), for the reason that the record on appeal clearly discloses that defendant was in fact fully informed about the only statements shown to exist, and had ample opportunity to cross-examine the witnesses with respect thereto. Defendant’s cross-examination of Officer Brown, one of the investigating officers, revealed that the only statement taken down by the investigating officers was Mrs. Fivecoat’s description of the two black males. This statement was actually read into the record by Officer Brown and tended to show a discrepancy, in terms of weight and height, when compared with her later description and identification of the armed robber, allegedly defendant. Defendant was, therefore, aware of the contents of this statement before his cross-examination of Mrs. Fivecoat and did in fact cross-examine her on this point at trial. Again, on cross-examination of Officer Brewer, another investigating officer, defendant elicited the text of the statement given by Mrs. Fivecoat and Mr. Thompson. It was identical to the statement read into the record by Officer Brown. In light of the foregoing, we cannot find that defendant was denied his right to cross-examine the witnesses, for impeachment purposes, about their prior statements. This assignment of error is overruled.

Defendant next contends that the trial court erred in denying his motion to suppress the in-court identifications of defendant by the State’s witnesses Fivecoat, Thompson and Sexton. He argues that the pretrial photographic identification procedures used by the police were so suggestive in nature that the subsequent in-court identifications were irreparably tainted.

In-court identification of a defendant by a witness is barred when photographic identification procedures are “so imper-missibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967 (1968). In the instant case, the evidence presented on voir dire established that each of the State’s witnesses was requested to look through literally hundreds of photographs of black males — some in a mug book and the others in two trays which contained approximately twelve hundred (1200) unattached photographs. Each of the State’s witnesses — Fivecoat, Thompson and Sexton — on separate viewings of these photographs selected the same photograph, being the one identified on voir dire as the photograph of defendant. Prior to trial, the witnesses were shown the photograph of defendant and asked to identify it as being the one they had picked out. We are of the opinion that this record does not disclose a photographic procedure so impermissibly suggestive as to violate defendant’s constitutional right to due process.

Even were we to find that the pretrial photographic identification of defendant was impermissibly suggestive, which we expressly do not do, the in-court identification of defendant by the State’s witnesses would be admissible if found to be of independent origin based solely upon the witnesses’ observations at the time of the offense. State v. Bundridge, 294 N.C. 45, 239 S.E. 2d 811 (1978). At the conclusion of the voir dire, the trial court found, inter glia: (1) that the interior of the store where the robbery occurred was well lighted with fluorescent lights; (2) that both Mrs. Fivecoat and Mr. Thompson had opportunity to observe the face of the person holding the shotgun for several minutes; (3) that Sexton was outside the store in a well lighted area and was able to observe the face of the person with the shotgun for forty-five seconds as he headed straight towards Sexton; (4) that Mrs. Fivecoat’s initial description of the armed robber was inconsistent with a later description, but was the result of her state of anxiety and excitement on the occasion of the robbery; and (5) that both Thompson and Sexton described the armed robber as a man similar in stature to defendant. Based on these findings, which are supported by competent evidence, the trial court concluded that the in-court identifications of the defendant by the State’s three eyewitnesses were of independent origin, based upon observations made by them at the scene of the alleged robbery. We find no error in the court’s conclusion. This assignment of error is overruled.

By his next contention, defendant argues that the trial court’s remarks to defense counsel denied defendant his rights to effective counsel and confrontation of witnesses. We disagree. The instances of the trial court’s comments to defense counsel were numerous. Suffice it to say that in each of these instances, the court’s comments were efforts to control the trial by preventing defense counsel from testifying, arguing with witnesses, interrupting witnesses and repeating issues already exhausted. We find defendant’s reliance on State v. Rhodes, 290 N.C. 16, 224 S.E. 2d 631 (1976) misplaced. That case was clearly limited to the inherent dangers concomitant with judicial warnings and admonitions to a witness with reference to perjury, and therefore, is in-apposite to the case at bar. This assignment of error is overruled.

We have carefully reviewed defendant’s remaining assignments of error and find them to be without merit. Defendant received a fair trial free from prejudicial error.

No error.

Judges VAUGHN and MITCHELL concur in the result.