State v. Briggs

CAMPBELL, Judge.

The defendant contends that the trial court erred in refusing to allow defendant on examination of prospective jurors to ask if they would be able to return a verdict of not guilty if they thought the defendant was probably guilty. This issue is controlled by State v. Bryant, 282 N.C. 92, 191 S.E. 2d 745 (1972), and warrants no further discussion.

Defendant also contends that it was improper for the police to show the prosecuting witness photographs of possible suspects, from which he identified the defendant without the presence of defendant’s counsel.

It has already been decided that “[a] suspect has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether he is at liberty or in custody at the time. . . . Such pretrial identification procedure is not a critical stage of the proceeding. . . .” State v. Stepney, 280 N.C. 806, 185 S.E. 2d 844 (1972); State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E. 2d 583 (1970).

Defendant also contends that it was error for the trial court not to immediately hold a voir dire inquiry regarding identification of the defendant upon the first testimony about such. This contention has no merit.

It is required that “ [w] hen the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged in the indictment, and the defendant interposes timely objection and requests a voir dire . . . such voir dire should be conducted in the absence of the jury and the competency of the evidence evaluated. . . .” State v. Accor, supra.

Here the State asked, “Will you state whether or not you saw the defendant, Briggs, on that day?” to which the witness replied, “Yes, sir, I did.” No objection was made until after the answer was given, and no motion to strike was made. The defendant neither made a timely objection nor did he request a voir dire, both being conditions imposed by Accor, supra.

However, when the witness began to testify about the means of identifying the defendant, the court, on its own motion, held a voir dire inquiry in the absence of the jury, thus satisfying Accor in every respect.

Here, even if no voir dire had been held, no prejudicial error would have appeared since the record clearly shows that the pretrial photographic identification was not impermissibly suggestive and that the in-court identification had an independent origin based upon the witness’s fifteen minute observation of the defendant at the First Union National Bank while the defendant was attempting to get this witness to approve a cash advance on the Master Charge card. State v. Stepney, supra; State v. McLamb, 13 N.C. App. 705, 187 S.E. 2d 458 (1972), cert. denied, 281 N.C. 316, 188 S.E. 2d 899 (1972).

We have reviewed defendant’s other assignments of error and find them without merit.

No error.

Chief Judge Brock and Judge Britt concur.