State v. Byrd ( 1985 )

PHILLIPS, Judge.

Defendant first contends that the trial court erred in denying his motion to suppress the State’s evidence relating to his identification by Ms. Poole. The essence of defendant’s contention is that his constitutional right to counsel at the line-up was violated. This contention is without merit. Defendant’s right to counsel in this case did not attach until he was formally charged with the armed robbery. State v. Sanders, 33 N.C. App. 284, 235 S.E. 2d 94, disc. rev. denied, 293 N.C. 257, 237 S.E. 2d 539 (1977). And contrary to defendant’s contention, in the setting that then existed, the forgery and armed robbery charges were not so closely related that his right to counsel for the armed robbery offense attached when he was arrested for forgery. State v. Leggett, 305 N.C. 213, 287 S.E. 2d 832 (1982). Though upon his arrest for passing the forged check he became a suspect in the armed robbery case, he was only a suspect until Ms. Poole identified him, and the Constitution does not require that mere suspects be furnished counsel at line-ups. Nor has defendant shown any other error in the denial of his motion. The court’s extensive findings of fact, supported by competent evidence, support the trial court’s conclusion that there was no substantial likelihood that defendant was misidentified. State v. Montgomery, 291 N.C. 91, 229 S.E. 2d 572 (1976).

Defendant’s only other contention is that the trial court erred in instructing the jury that his attempted flight when the officers came to arrest him on the forgery charges could be considered as evidence of his guilt in this case. He argues that his flight was clearly a reaction to the bad check transaction, which had just occurred, and not to the armed robbery four days earlier. This argument is rejected. What defendant’s flight meant, if anything, was a question of fact, not law, that was properly left to the jury; and one thing it could have meant was that it was prompted as much by defendant’s commission of the armed robbery as it was by the passing of the check. Under the circumstances the instruction was not error. State v. Irick, 291 N.C. 480, 231 S.E. 2d 833 (1977).

No error.

Judges Webb and Johnson concur.