State v. Campbell

HEDRICK, Judge.

Defendant’s first, second, fourth, and fifth assignments of error relate to the admission and exclusion of evidence. First, defendant contends the court erred in allowing the district attorney to ask leading questions on direct examination. This assignment of error is based upon five exceptions noted in the record. Assuming arguendo that the questions to which defendant objected, forming the basis for these exceptions, were in fact leading questions, the court’s ruling upon them will not be disturbed on appeal absent a showing of abuse of discretion. State v. Noell, 284 N.C. 670, 202 S.E. 2d 750 (1974); State v. Watkins, 283 N.C. 504, 196 S.E. 2d 750 (1973). In the present case, the questions challenged either sought to have the witness clarify her previous testimony or describe, as in the case of the State’s witness Molly Ferrell Twine, how she picked out a photograph during a photographic identification procedure conducted by Officer R. V. Venable of the Winston-Salem Police Department. Defendant has shown no prejudice by the allowance of these questions and we hold the court did not abuse its discretion in its ruling upon them. This assignment of error is without merit.

Defendant’s second assignment of error is based upon Exceptions Nos. 2 and 14. Exception No. 2 is set out in the record as follows:

Q. Could it not be that your seeing him in District Court down there when he was called around is not the reason that you can so well identify him at this point, is that not possible?

Mr. COLE: Objection to what is possible, Your Honor.

THE Court: Sustained.

DEFENDANT’S EXCEPTION NO. 2.

Defendant contends that because the witness “could have been mistaken” as to her identification of defendant, the court’s sustaining the State’s objection unduly restricted defendant’s “constitutional right of confrontation.” The record, however, does not contain what the witness would have testified had she been allowed to do so and thus we are unable to determine whether defendant has been prejudiced as a result. See State v. Satterfield, 300 N.C. 621, 268 S.E. 2d 510 (1980). Moreover, the witness thereafter testified on redirect that “I am basing my identity right now on when I seen him in the bank.” This assignment of error is without merit.

After testifying that they had picked out a photograph of defendant during a photographic identification procedure conducted by Officer Venable, State’s witnesses Twine and Deborah Roberts, both employees of First Union National Bank who observed defendant at the bank on the days in question, were allowed to testify, over defendant’s objection, that they picked out another photograph labeled State’s Exhibit 1(b), as being of the man accompanying defendant in the bank on 20 February and 21 February 1980. Officer Venable was thereafter allowed to testify, again over defendant’s objection, that State’s Exhibit 1(b) was a photograph of defendant’s brother, Roy George Campbell. Defendant’s exceptions to this testimony constitute the basis for his fourth and fifth assignments of error. He contends that such testimony was irrelevant and “highly prejudicial.” We do not agree. The challenged testimony tends to corroborate the witnesses’ testimony regarding their identification of defendant and further sets forth the events and circumstances surrounding such identification. Defendant could not have been prejudiced by this testimony since he had already been identified in the first photograph picked out by the witnesses. These assignments of error are meritless.

Based on his third assignment of error, defendant contends that the court improperly denied his motion to suppress the in-court identification of defendant by the State’s witnesses Twine, Roberts, and Michael Lee Rabb, a custodian at the local school where defendant was observed on 20 February 1980. In his brief, defendant argues that “[bjecause of the errors cited in Questions Presented 1 through 3, supra [Assignments of Error Nos. 1, 2, 4, and 5] the Court did not have an adequate basis to rule on the motion to suppress,” and that the “Trial Judge, by virtue of his rulings on the State’s evidence, denied the defendant’s counsel the opportunity to show the totality of circumstances.” We disagree. We have already determined that the court did not err in its rulings assigned as error by defendant under his “Questions Presented 1 through 3.” Moreover, the record contains nothing to suggest that the court did not follow the proper procedures for determining the admissibility of identification testimony. See 1 Stansbury’s N. C. Evidence § 57 (Brandis rev. 1973). The Court conducted an extensive voir dire hearing, after which it made detailed findings of fact as to the circumstances of the witnesses’ observation of defendant on 20 February and 21 February 1980. The Court’s findings were amply supported by the evidence adduced at the hearing and in turn support the court’s conclusions that the in-court identification of defendant by the three State’s witnesses was independent of any previous photographic identification procedure, and that their identification of defendant was based upon what they observed on 20 February and 21 February 1980. Defendant’s argument borders on the frivolous and the assignment of error is meritless.

We hold defendant had a fair trial free from prejudicial error.

No error.

Judges Hill and Whichard concur.