State v. Baldwin , 59 N.C. App. 430 ( 1982 )

ARNOLD, Judge.

Defendant first attacks the refusal of the trial court to suppress the in-court identification of the defendant by Carlton. He argues that not only was the pretrial showing of photographs improper, but that the in-court identification did not meet the tests to remove the taint of illegality. We disagree.

Even though the photograph showing here was unnecessarily suggestive, as the State concedes, the in-court identification is still admissible if it is of independent origin. State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974), vacated and remanded as to death penalty only, 428 U.S. 902 (1976). The burden of showing that the in-court identification is of independent origin is on the State. State v. McCraw, 300 N.C. 610, 268 S.E. 2d 173 (1980). Standards to be used to determine reliability of the in-court identification were set out in Neil v. Biggers, 409 U.S. 188 (1972). They are:

[1] the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation and [5] the length of time between the crime and the confrontation.

409 U.S. at 199. See also, State v. Clark, 301 N.C. 176, 183, 270 S.E. 2d 425, 429 (1980). Our application of these factors to this case leads us to find the in-court identification proper.

First, Carlton looked into the defendant’s face in the car until he pulled the gun. Carlton estimated that he looked at the defendant for three or four minutes. This also establishes the requisite degree of attention, the second factor.

On the third factor, Carlton described the person who robbed him as a large black man, probably over six feet tall and weighing over 200 pounds. Defendant is black, over six feet tall and weighs over 200 pounds. Fourth, he was certain at the confrontation. Carlton did not waiver in his identification at trial.

Fifth, the length of time between the crime and the trial was about ten weeks. That is not too long to damage the reliability of the in-court identification, especially since Carlton identified the defendant as the man in one of two photographs within minutes after the crime. The court in Neil upheld a station-house identification as reliable that occurred seven months after the crime occurred.

We find enough evidence in the record to support the trial judge’s findings of fact on this point and thus are bound by them. See Clark, 301 N.C. at 183, 270 S.E. 2d at 429.

We reject defendant’s second assignment of error that the trial judge should have instructed the jury that the pointing and firing of the gun had to occur contemporaneously when he charged on the assault with a deadly weapon charge. A look at the instruction on this point reveals that any reasonable juror would not have thought it ambiguous or misleading as the defendant claims. In reviewing instructions on appeal, they should be read contextually and as a whole. State v. Wright, 302 N.C. 122, 273 S.E. 2d 699 (1981).

Defendant’s next three attacks concern the resisting arrest charge. He first argues that testimony about his abusive behavior and language while he was handcuffed should not have been admitted because it is not relevant to this charge. We disagree.

G.S. 14-223, the resisting arrest statute that defendant was convicted under, states “If any person shall willfully and unlawfully resist, delay or obstruct a public- officer in discharging or attempting to discharge a duty of his office, he shall be guilty. . . .” Defendant’s conduct, even while handcuffed, is relevant to his guilt under the statute because it illustrates his general demeanor. “[I]t is well established in this jurisdiction that in criminal cases, every circumstance that is calculated to shed any light upon the supposed crime is admissible into evidence.” State v. Bundridge, 294 N.C. 45, 51, 239 S.E. 2d 811, 816 (1977).

The second attack on this charge is also erroneous. Defendant contends that it was incorrect to instruct the jury that he threatened the officers when he was charged with resisting arrest. His basic argument is that the indictment did not give him notice that the threats would be used against him.

An indictment for resisting arrest must only include a general description of the defendant’s actions. State v. Wiggs, 269 N.C. 507, 153 S.E. 2d 84 (1967). That standard was certainly met here where the indictment charges that defendant “unlawfully and wilfully did resist, delay and obstruct PSO W. P. Hoffman . . . by struggling with Officer W. P. Hoffman and attempting to get free of PSO W. P. Hoffman’s grasp.” This indictment was notice to the defendant that he should expect the facts surrounding the arrest to be brought out at trial, including his abusive language.

Defendant’s third contention on this charge is that by his instructions the trial judge took a question of fact from the jury on if defendant’s conduct was resisting arrest under the statute. The judge stated:

So I charge you that if you find from the evidence beyond a reasonable doubt that . . . the defendant . . . willfully and unlawfully struggled to get away and threatened W. P. Hoffman . . . while the officer was making a lawful arrest, it would be your duty to return a verdict of guilty as to this offense. However, if you do not so find or if you have a reasonable doubt as to one or more of those things, it would be your duty to return a verdict of not guilty as to that offense.

The instruction on this offense was proper because the judge gave the jury the duty of determining if the evidence proved all elements of the crime. We will not speculate on what the jury “could have found” as the defendant suggests. There was sufficient evidence to support the guilty verdict on this charge.

A final attack by defendant alleges that the summary of the evidence by the trial judge in his instruction was prejudicial because he did not label any of his summary as defendant’s evidence. We find no error on this point for the following reasons.

First, the summary met the G.S. 15A-1232 requirement that a trial judge “is not required to state the evidence except to the extent necessary to explain the application of law to the evidence.” Second, the judge instructed on all material features of the case as required by State v. Ward, 300 N.C. 150, 266 S.E. 2d 581 (1980). Finally, even though the defendant presented no evidence, the trial judge stated facts favorable to him in summarizing the State’s case. An example would be where the summary concluded that Officer Hoffman saw the gun pointed in his direction, but only heard, rather than saw, a shot.

No error.

Judges Martin and WHICHARD concur.