State v. Smith

204 S.E.2d 693 (1974) 21 N.C. App. 426

STATE of North Carolina
v.
Toneo SMITH.

No. 7412SC205.

Court of Appeals of North Carolina.

May 1, 1974.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. James L. Blackburn, Raleigh, for the State.

Cherry & Grimes by Donald W. Grimes, Fayetteville, for defendant appellant.

HEDRICK, Judge.

By his first assignment of error the defendant contends that the trial court erred in denying his motion for a voir dire hearing as to the legality of the prosecuting witness' in-court identification of the defendant. Although the better practice dictates "that the trial judge, even upon a general objection only, should conduct a voir dire in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony. . . [f]ailure to conduct the voir dire. . . does not necessarily render such evidence incompetent." State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1971).

In the instant case the evidence discloses that during the robbery, which took place in daylight, the prosecuting witness was within two feet of the defendant. The witness testified, "I didn't have any difficulty seeing Smith. He was in front of me." Other testimony reveals that the prosecuting witness did observe the defendant in the booking room of the Fayetteville Police Department approximately fifteen minutes after the robbery; however, where as here, the evidence is clear and convincing that the in-court identification of the defendant originated with observation of the defendant at the time of the robbery and was not tainted by the subsequent police station showup, the failure to conduct a voir dire must be deemed harmless error. State v. Stepney, supra.

Defendant's second assignment of error challenges the failure of the trial court to grant his motion to set aside the verdict as being against the weight of the evidence. Such a motion is addressed to the sound discretion of the trial judge; and, there having been no showing of a manifest abuse of this discretion, the ruling of the trial court denying the defendant's motion is not reviewable on this appeal. State v. Massey, 273 N.C. 721, 161 S.E.2d 103 (1968), Grant v. Artis, 253 N.C. 226, 116 S.E.2d 383 (1960).

Defendant was afforded a fair trial, free from prejudicial error.

No error.

CAMPBELL and BALEY, JJ., concur.