State v. Blackwell

174 S.E.2d 534 (1970)

276 N.C. 714

STATE of North Carolina v. Tyrone William BLACKWELL.

No. 38.

Supreme Court of North Carolina.

June 12, 1970.

*538 Atty. Gen. Robert Morgan and Deputy Atty. Gen. James F. Bullock, for the State.

James M. Hayes, Jr., and W. Warren Sparrow, Winston-Salem, for defendant.

BRANCH, Justice.

Defendant first contends that he is deprived of due process because the provisions of G.S. § 14-21 allowed the same jury in this capital case to determine his innocence or guilt and to recommend imprisonment for life upon a verdict of guilty.

Defendant correctly concedes that this argument is contrary to North Carolina authority. We adhere to the decisions of this Court. State v. Roseboro, 276 N.C. 185, 171 S.E.2d 886; State v. Hill, 276 N.C. 1, 170 S.E.2d 885; State v. Ruth, 276 N.C. 36, 170 S.E.2d 897; State v. Atkinson, 275 N.C. 288, 167 S.E.2d 241; State v. Spence, 274 N.C. 536, 164 S.E.2d 593.

Defendant also assigns as error the failure of the trial court to grant his motion for judgment as of nonsuit. His motion is founded on the contention that the vital in-court identification by the prosecuting witness was tainted by illegal out-of-court identification, thereby making all testimony relative to identification inadmissible.

Defendant's counsel made no objection to the in-court identification by the prosecuting witness, nor did he move to strike the testimony concerning the in-court identification. On cross-examination he elicited testimony concerning identification of defendant by photograph and the testimony concerning identification of defendant by a confrontation in the police station.

When a specific question is asked, objection should be made before the witness has time to answer. However, when admissibility is not indicated by the question and only becomes apparent by the content of the answer, objection should be made immediately by a motion to strike the answer, or the objectionable part of it. Stansbury, North Carolina Evidence 2d, § 27, at 51; State v. Battle, 267 N.C. 513, 148 S.E.2d 599; State v. McKethan, 269 N.C. 81, 152 S.E.2d 341.

Failure to object in apt time to incompetent testimony results in a waiver of objection so that admission of the evidence will not be reviewed on appeal unless the evidence is forbidden by statute or results from questions asked by the trial judge or a juror. State v. McKethan, supra; State v. Battle, supra; State v. Warren, 236 N.C. 358, 72 S.E.2d 763; State v. Merrick, 172 N.C. 870, 90 S.E. 257.

It is apparent that defendant's able and experienced trial lawyer chose to waive the right to interpose objection for the purpose of high-lighting and accentuating his skillful attack by cross-examination on the veracity and credibility of the prosecuting witness' testimony.

Both this Court and the United States Supreme Court recognize that under our system of jurisprudence the trial of criminal cases is adversary in nature. To hold that an accused, represented by counsel, may choose one theory of trial and, upon an adverse verdict, call upon the appellate court to grant relief on the ground that the presiding judge should have intervened and guided his defense to another theory, would destroy the adversary system of trial and further tilt the scales of justice in favor of *539 the criminal by prolonging ad infinitum the pronouncement of judgment in criminal cases.

The exceptions upon which this assignment of error is based are Exceptions Nos. 4, 6, 7 and 9. Exception 4 relates to a ruling on evidence when prosecuting witness was under cross-examination. She had testified concerning the identity of defendant at the police station. She was asked:

Q. He told you he had never seen you before, didn't he? MR. YOKLEY: OBJECTION, your Honor. THE COURT: SUSTAINED. EXCEPTION NO. 4.

Exception No. 6 concerns a question on direct examination relative to identification of defendant from photographs. The record shows:

Q. At that time when you selected those photographs did you know the photographs matched the names that you had given Officer Koontz? MR. HAYES: OBJECTION. THE COURT: OVERRULED. EXCEPTION NO. 5. A. No, sir.

Exceptions 7 and 9 relate to denial of defendant's motion for nonsuit at the close of the State's evidence and at the close of all the evidence. This assignment of error does not comply with our Rules because it attempts to present several different questions of law in one assignment, thereby becoming broadside and ineffective. State v. Kirby, 276 N.C. 123, 171 S.E.2d 416; Hines v. Frink and Frink v. Hines, 257 N.C. 723, 127 S.E.2d 509; Rule of Practice in the Supreme Court No. 19(3).

Further, when this Court passes upon an exception to the trial court's refusal to grant a defendant's motion for judgment as of nonsuit, it must consider all evidence admitted at the trial, whether competent or incompetent. Thus, it is apparent that defendant's motion for judgment as of nonsuit did not challenge the evidence identifying defendant so as to properly bring it before us upon appeal. State v. Stallings, 267 N.C. 405, 148 S.E.2d 252; State v. Mitchell, 265 N.C. 584, 144 S.E.2d 646.

In this jurisdiction, when the State offers a confession by a defendant, and the defendant objects, the proper and better procedure requires the trial judge to excuse the jury and in its absence hear evidence, find facts, and thereupon determine the admissibility of the evidence. State v. Wright, 274 N.C. 84, 161 S.E.2d 581; State v. Vickers, 274 N.C. 311, 163 S.E.2d 481; State v. Gray, 268 N.C. 69, 150 S.E.2d 1. However, such evidence is not necessarily rendered incompetent by failure to hold a voir dire hearing. State v. Williams, 274 N.C. 328, 163 S.E.2d 353. In proper cases the voir dire procedure may be invoked concerning identification testimony; however, defendant cannot challenge an in-court identification so as to obtain a voir dire hearing, and a ruling on the offered testimony on the basis that it was "tainted" by prior photographic identification procedures, a "line-up", or other in-custody confrontation without, at least, a general objection. This Court still adheres to the rule requiring at least a general objection by defendant before the voir dire procedure is invoked. State v. Vickers, supra. See also: Woody v. United States, 126 U.S. App.D.C. 353, 379 F.2d 130 (1967); Morris v. Boles, 286 F.2d 395 (4th Cir. 1967).

The Rules of the Supreme Court have been dictated by experience and stem from a desire to expedite business. They are mandatory and will be enforced. However, because of the seriousness of the charge and the severity of the punishment necessarily imposed upon the return of the verdict of guilty in this case, we have further considered this record.

We first consider defendant's contention that the pretrial identification of *540 defendant by photograph was improper and tainted the in-court identification of defendant.

This identification by photograph was made before any personal confrontation between the prosecuting witness and defendant, before he was served with warrant, and apparently before defendant was in custody. The prosecuting witness had been given the names of defendants by some person and she had in turn given their names to the police. The names furnished were not names of persons known to her. Thereafter, Officer Koontz presented her with fifteen or twenty photographs to examine in an attempt to identify her assailants. She picked defendants' photographs without any information as to which photograph was a likeness of each defendant. She was then told that she had chosen the photographs of the men whose names she had furnished to the police. In connection with this identification process, the prosecuting witness testified: "* * * there was a whole lot of pictures. They won't tell you anything. They just give you pictures to look at." She selected this defendant's photograph from the group as being one of the men who raped her.

In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247, the United States Supreme Court stated:

"We are unwilling to prohibit its employment (initial identification by photograph), either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. * * *"

This record does not show that the procedure used in identifying defendant by photograph was so suggestive "as to give rise to a very substantial likelihood of irreparable misidentification." The use of the photographs was proper and did not taint the in-court identification.

We are well aware of the rules adopted by the cases of United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149; Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199, which hold that in cases of in-custody identification where there was a "line-up" or a presentation of the suspect alone to the witness, the suspect has the constitutional right to have counsel present, and when counsel is not present, testimony of witnesses' identification is inadmissible and renders inadmissible any in-court identification of the suspect unless it is first determined that the in-court identification is of independent origin and is untainted by the illegal line-up or other in-custody confrontation.

The instant case is distinguishable from Wade v. United States, supra, and Gilbert v. California, supra. In Wade, the defendant's counsel moved to strike the courtroom identification after the confrontation testimony was elicited on cross-examination. In Gilbert, defendant's counsel moved, in the absence of the jury, to strike as soon as the in-court testimony was offered. In the instant case no such motion was ever made. In United States v. Wade, supra, it is stated:

"We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 9 L. Ed. 2d 441, [455, 83 S. Ct. 407,] `"[W]hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint."' * * Application of this test in the present context requires consideration of various factors; for example, the prior opportunity *541 to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup."

In the instant case defendant had ample opportunity to observe defendant; there was no discrepancy between defendant's actual description and the pre-lineup description; there was no identification, prior to the in-custody confrontation, of another person; there was an identification by picture of defendant prior to the incustody confrontation; there was no failure to identify defendant on a prior occasion; and the in-custody identification was made within five or six days of the alleged criminal act.

We think this record clearly establishes that the in-court identification was based upon observation of the suspect immediately before and at the time the crime was committed, so that the in-court identification was of independent origin and untainted by any illegality in the identification by photograph or the in-custody confrontation.

For reasons stated, this assignment of error is overruled.

Defendant assigns as error the admission in evidence of a portion of the solicitor's cross-examination of defendant, as follows:

Q. What were you charged and convicted of in New York? MR. HAYES: OBJECT, your Honor. THE COURT: OVERRULED. EXCEPTION NO. 8. A. I don't mind telling. I was charged and convicted of fighting the girl that I have the kids by. I was charged (also) with nonsupport but she dropped the charges. That is all I remember at the time.

When a defendant voluntarily becomes a witness in his own behalf, he may be cross-examined with respect to previous convictions of crime. The answers given are conclusive and are admissible as affecting his credibility as a witness. Whether the cross-examination goes too far or is unfair is a matter for determination of the trial judge and rests largely in his sole discretion. State v. Brown, 266 N. C. 55, 145 S.E.2d 297; State v. Sheffield, 251 N.C. 309, 111 S.E.2d 195; State v. Neal, 222 N.C. 546, 23 S.E.2d 911; State v. Howie, 213 N.C. 782, 197 S.E. 611; Stansbury, North Carolina Evidence, 2d ed., § 112; State v. Snipes, 166 N.C. 440, 81 S.E. 409; and State v. Little, 174 N.C. 793, 94 S.E. 97. Here, no abuse of discretion is shown and the question is within the scope of proper cross-examination. Defendant shows no prejudice because he had previously admitted, without objection, that he had been convicted of malicious injury to property, assault with a deadly weapon, public drunkenness, disorderly conduct, assault, nonsupport, violation of prohibition laws, and escape.

This assignment of error is without merit.

In the trial below we find

No Error.

SHARP, J., concurs in result.