State v. Brown

HEDRICK, Judge.

Defendant first assigns as error the conclusion of the trial court that the in-court identifications of defendant by State’s witnesses Carrie Lynn Schrecengost and Tony Prince were “of independent origin and not tainted by pre-trial identification procedures.”

The record fails to disclose an objection by defendant to testimony of Mrs. Schrecengost that “this man (indicating Brown) to whom I am now taking a look ... is the man that was standing in front of me in Horne’s Motor Lodge on the night of December 25th when I was shot and robbed,” or that defendant objected to testimony of Tony Prince identifying defendant as the perpetrator of the crime charged. Nevertheless, the trial judge, during the testimony of Mrs. Schrecengost and again during the testimony of Tony Prince, conducted voir dire hearings in the absence of the jury and, after hearing testimony of Mrs. Schrecengost and Mr. Prince, made detailed findings of fact as to any out of court confrontation between them and the defendant and as to what they observed during and immediately after the robbery. There was competent, clear and convincing evidence to support the court’s positive findings that the in-court identifications of the defendant by Mrs. Schrecen-gost and Tony Prince were of independent origin, based solely on what they observed during and immediately after the robbery, and did not result from any out of court confrontation or from any pre-trial identification procedure suggestive of and conducive to mistaken identification. Such findings when supported by competent evidence are conclusive on appellate courts, both State and Federal. State v. McVay and State v. Simmons, 279 N.C. 428, 183 S.E. 2d 652 (1971). This assignment of error is overruled.

Defendant assigns as error the denial of his motion for a new trial interposed when the solicitor, in arguing to the jury, stated: “If you don’t march right out of the jury room and convict him, I am going to be sick with you.”

A motion for a mistrial is addressed to the sound discretion of the trial judge and his ruling thereon will not be reviewed on appeal absent a showing of abuse of discretion. State v. Williams, 7 N.C. App. 51, 171 S.E. 2d 39 (1969).

In the instant case, upon objection by defendant, the trial court instructed the jury “to strike these comments from their mind.” Defendant has failed to show an abuse of discretion by the trial judge in the denial of his motion for a new trial.

Defendant has additional assignments of error which we have carefully considered and find to be without merit.

Defendant had a fair trial free from prejudicial error.

No error.

Judges Brock and Vaughn concur.