State v. Sneed

188 S.E.2d 537 (1972)

14 N.C. App. 468

STATE of North Carolina v. Eurston Ivan SNEED.

No. 722SC217.

Court of Appeals of North Carolina.

May 24, 1972.

*538 Atty. Gen. Robert Morgan and Asst. Attys. Gen., William W. Melvin and William B. Ray for the State.

LeRoy Scott, Washington, D. C., for defendant appellant.

HEDRICK, Judge.

The defendant first contends the trial court erred in admitting hearsay evidence in the trial of the case. An examination of the exception upon which this assignment of error is based reveals that the testimony complained of occurred on voir dire hearing to determine the admissibility of the in-court identification of the defendant. In a hearing before a judge without a jury the ordinary rules as to the competency of evidence which are applicable in a jury trial are to some extent relaxed, but if incompetent evidence is admitted, the presumption arises that it was disregarded and did not influence the judge's findings. 7 Strong, N.C. Index 2d, Trial § 57. This assignment of error has no merit.

The defendant next contends the Court erred by finding and concluding "that the defendant's constitutional rights were not violated and that the in-court identification was made through and by the out of court identification." The fourteen exceptions upon which this assignment of error is based relate to the findings and conclusions of the trial judge made after a voir dire hearing to determine the admissibility of the testimony of Brenda Joyce Boyd and Hobson Lewis identifying the defendant as the perpetrator of the crime charged in the bill of indictment. When the defendant challenged the testimony of Boyd and Lewis, the able trial judge followed precisely the procedure set out by Chief Justice Bobbitt in State v. Moore and State v. Accor, 277 N.C. 65, 175 S.E.2d 583 (1970) by having a voir dire hearing in the absence of the jury, where, after hearing the testimony of seven witnesses, including Boyd, Lewis, and the defendant, the Court made detailed findings of fact as to the out of court confrontation between the witnesses and the defendant, and as to what the witnesses 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 identification of the defendant Sneed by the witnesses Boyd and Lewis was each 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 *539 suggestive 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); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970). This assignment of error is overruled.

The defendant contends that the Court erred in denying his motion to strike a portion of the testimony of the witness Theron Hill. The testimony complained of, "He was trying to get in a house. When he saw me, he turned around and ran back through the yard.", came while the Witness Hill, who was working in a building next to the alley where the robbery occurred, was describing how he, after hearing the screams of the witness Boyd, pursued and caught the defendant. In his brief defendant asserts: "This certainly appears to be a conclusion on the part of the witness. The witness could not assert with certainty whether the defendant saw him or not and he could only guess that he saw him and he could only speculate that he ran back through the yard because he did see him."

Although the testimony complained of may be in the nature of a conclusion, it is competent as a shorthand statement of what the witness observed as he pursued the defendant. State v. Bailey, 4 N.C.App. 407, 167 S.E.2d 24 (1969); State v. Nichols, 268 N.C. 152, 150 S.E.2d 21 (1966).

We have reviewed the record and find there was sufficient competent evidence to require the submission of the case to the jury.

The defendant had a fair trial free from prejudicial error.

No error.

BRITT and PARKER, JJ., concur.