State v. Harvey

MARTIN, Judge.

Defendant contends the court erred in allowing the in-court identification of the defendant by Mr. Hodges.

Before Hodges’ identification testimony was admitted in evidence, a voir dire hearing was held to determine its admissibility. State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E. 2d 583 (1970). On voir dire the State offered evidence tending to show that Hodges observed defendant for about ten minutes during the robbery, and that the motel was brightly lighted. On 26 February 1975, after defendant had been arrested, Hodges observed him in a lineup and identified him as one of the robbers. After his arrest and prior to the lineup defendant was given the Miranda warning, but he was not specifically told that he had a right to have counsel at the lineup. The court held that evidence of the lineup would not be admitted, but Hodges’ in-court identification testimony would be admitted. It found that Hodges’ “ . . . in-court identification of the defendant is of independent origin and is not tainted by any out-of-court observation of the defendant or by any other thing.”

Where such findings are supported by competent evidence, they are conclusive on appellate courts. In a ruling on this point, the North Carolina Supreme Court has stated:

“When the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification(s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts.” (Citations omitted.) State v. Tuggle, 284 N.C. 515, 520, 201 S.E. 2d 884, 887 (1974).

In the present case, there was ample competent evidence to support the court’s finding that Hodges’ identification was independent of anything which occurred at the lineup. The evidence before the trial judge showed that the witness saw the defendant at close range for a period of ten minutes in a well-lighted area and he had ample opportunity to observe the defendant.

The trial court’s finding that the witness’s identification was independent of anything which occurred at the lineup being supported by competent evidence, the in-court identification testimony was competent and admissible. Defendant’s first assignment of error is therefore overruled.

Defendant next contends the trial court erred by allowing the State to cross-examine the defendant about his lineup identification by Hodges.

The trial record reveals that the defendant’s lineup was improperly conducted because of the failure of the law enforcement officers to specifically advise the defendant of his right to have counsel present at the lineup. Moreover, there is no evidence that the defendant had knowledge of or had waived his right to have counsel present at the lineup. See State v. Williams, 279 N.C. 663, 185 S.E. 2d 174 (1971). In ruling on this point, the trial judge in the instant case stated that he would disallow any evidence as to the identification lineup itself but he found that the in-court identification was of independent origin and not tainted. It was therefore improper for the district attorney to cross-examine the defendant about his lineup identification by Hodges, direct evidence about the lineup by Hodges having been excluded by the court.

Even though the trial judge erred in allowing the State to cross-examine the defendant about the lineup identification, it is evident that some errors are harmless and not every erroneous ruling on the admissibility of evidence will result in the obtaining of a new trial. See Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284, 89 S.Ct. 1726 (1969) ; Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967) ; Board of Education v. Lamm, 276 N.C. 487, 173 S.E. 2d 281 (1970) ; 1 Stansbury, N. C. Evidence, § 9, (Brandis Rev. 1973).

The test for harmless error is whether the evidence which was admitted would, if excluded, have changed the result of the trial. See 1 Stansbury, N. C. Evidence, supra. On this same point, the North Carolina Supreme Court has stated that the “ . . . test of harmless error is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” (Citation omitted.) State v. Thacker, 281 N.C. 447, 455, 189 S.E. 2d 145, 150 (1972).

In the case at bar, we do not think that the admission on cross-examination of the defendant’s testimony concerning the lineup identification contributed to his conviction and we believe that its admission was harmless beyond a reasonable doubt. See State v. Thacker, supra. Even if the questions addressed to the defendant concerning the lineup had been excluded, there was still overwhelming evidence from which a jury could find that the defendant was guilty as charged. This assignment of error is therefore overruled.

We have carefully considered the defendant’s remaining assignments of error and find them to be without merit.

Defendant had a fair trial free of prejudicial error.

No error.

Judges Britt and Hedrick concur.