State v. McPherson ( 1970 )

172 S.E.2d 50 (1970) 276 N.C. 482

STATE of North Carolina
v.
Charlie McPHERSON, Robert Lee Jones and Ronald Michael Harris.

No. 33.

Supreme Court of North Carolina.

April 15, 1970.

Robert Morgan, Atty. Gen., Andrew A. Vanore, Jr., Asst. Atty. Gen., for the State.

C. C. Malone, Jr., Durham, for defendant McPherson.

W. G. Pearson, II, Durham, for defendant Jones.

Blackwell M. Brogden, Durham, for defendant Harris.

HIGGINS, Justice.

The defendants argue here they are entitled to have the decision of the Court of Appeals reversed and a new trial awarded because of three alleged prejudicial errors committed during the trial: (1) The failure of the trial judge to sustain objection to the evidence of Alvin Fisher identifying them as the three men who robbed him on the night of April 4, 1969; (2) The prejudicial remarks made by the judge in the presence of the jury; and (3) The refusal of the judge to permit counsel for the defendants to insert in the record the answer to a question which the court, on State's objection, had ruled incompetent.

At the trial, the defendants moved to suppress the in-court identifications of the defendants by the witness Fisher. The court excused the jury and conducted a voir dire hearing to determine the question raised by the defendants' motion.

The evidence before the trial judge on the voir dire examination was not in conflict. The victim, Fisher, and the investigating officer, Cameron, were the only witnesses who gave testimony. In substance, their evidence disclosed that three men, in their late teens, robbed Alvin Fisher by the threatened use of a pistol, taking from him three $1 bills and $3.00 in change. Prior to and during the robbery, Fisher had opportunity, under good lights, to observe his assailants. Immediately after the robbery, he notified the police, giving detailed descriptions of the three men who robbed him.

The day following the robbery, Officer Cameron went to Fisher's home, displayed to him 7 or 8 double photographs (front and side views) and asked whether Fisher recognised any of them. Fisher at once identified the photographs of McPherson and Jones as two of the men who robbed him. He so informed Officer Cameron. Fisher did not find any photograph of the third robber. The photograph of the defendant Harris was not among those exhibited by Officer Cameron. When Fisher was asked on cross examination whether his identification was based on his having seen McPherson and Jones at the time of the robbery, or from the pictures, he answered, "Seeing them and the pictures".

On Monday following the hold up, Fisher went to police headquarters for a conference with Officer Cameron, who was investigating the robbery. As Fisher passed one of the interrogation rooms, he happened to observe Officer Leathers in conference with the defendant Harris, whom he recognized immediately as the one who held the gun during the robbery. He immediately so informed Officer Cameron. Fisher identified Harris on first sight. The evidence disclosed that his opportunity to observe Harris in police headquarters was unarranged and was coincidental. Officer Leathers was investigating another case. Officer Cameron was investigating the Fisher robbery. Neither suspected that Harris was implicated in Fisher's case, and neither had anything to do with the confrontation between Harris and Fisher.

Fisher, who had never seen his assailants prior to the robbery, and Officer Cameron, who had only Fisher's description to guide him in the selection of the 7 or 8 photographs for Fisher's examination, were following the customary investigative procedure where the participants were unknown to the victim or to the police. The officer, on the basis of the descriptions given to him by the victim, selected 7 or 8 photographs, presumably of persons who, to some extent, answered the descriptions. There is nothing unlawful or inherently wrong in submitting photographs under such circumstances. It is worthy of note that in the probing cross examinations of Fisher and Cameron, defense counsel ascertained that Cameron had with him in court the pictures which he displayed to Fisher and from which Fisher made the identifications. These pictures were kept from the jury by the action of the defendants. Although they had been identified, they were excluded on the defendants' objection.

The involvement of Harris in Fisher's case may be the key to what McPherson meant by his remark to Fisher at the beginning of the robbery, "You are next".

The court found as a fact, and concluded as a matter of law, that Fisher's in-court identifications of the defendants were neither tainted by the display of the photographs of McPherson and Jones, nor by the accidental confrontation between Fisher and Harris. The evidence and findings dispose of the defendants' first assignment of error. State v. Wright, 275 N.C. 242, 166 S.E.2d 681; State v. Williams, 274 N.C. 328, 163 S.E.2d 353; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Barnes, 264 N.C. 517, 142 S.E.2d 344.

The exhibitions of the photographs and the ruling that the in-court identifications were proper are also supported by federal decisions. Simmons et al. v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199; Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178; United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149. In Simmons, the Supreme Court of the United States said:

"Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrest by allowing eyewitnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method's potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. * * *"

After all, the dominant function of the criminal law is to protect society from criminals rather than to protect criminals from punishment.

The defendants contend they are entitled to a new trial on account of the court's prejudicial remarks made in the presence of the jury. The exchanges between the court and defense counsel are set out in the opinion of the Court of Appeals. At times, neither counsel nor the court acted with proper dignity and restraint during the trial. However, we see nothing in the discussion or exchanges that would prejudice the jury in favor of or against either party. State v. Faust, 254 N.C. 101, 118 S.E.2d 769; State v. Carter, 233 N.C. 581, 65 S.E.2d 9; State v. Jones, 181 N.C. 546, 106 S.E. 817.

Following the lengthy cross examination of Fisher by counsel for both McPherson and Jones, counsel for Harris re-surveyed the entire field. At the end of the cross examination, counsel for Harris asked this question: "What you doing carrying three dollars worth of change around?" The court sustained the objection and the motion for a new trial based thereon was overruled. The court denied the request of counsel to permit the answer of the witness to be inserted in the trial record. Ordinarily, this Court does not approve the refusal of the trial court to permit counsel to insert in the record the answer to a question to which objection has been sustained. However, in this instance a number of things are obvious. The cross examinations had gone far afield and had consumed an unreasonable amount of time in view of the simplicity of the matters at issue. These cross examinations produced nothing of value to the defense. Three dollars in change in the pocket of Fisher, who was on his way to the store, neither impeached his testimony nor justified the defendants in taking it from him at the point of a pistol. Both the question and the answer were immaterial. "The limits of legitimate cross-examination are largely within the discretion of the trial judge, and his ruling thereon will not be held for error in the absence of showing that the verdict was improperly influenced thereby." State v. Edwards, 228 N.C. 153, 44 S.E.2d 725. The exclusion of the answer under the circumstances here disclosed was not error.

After careful review, we conclude the decision of the North Carolina Court of Appeals finding no error in the trial is amply sustained by legal authority. The decision is

Affirmed.