State v. Phifer

HEDRICK, Judge. Defendant’s first, second and third assignments of error challenge Little’s in-court identification of defendant as the perpetrator of the crime charged. When the defendant objected to the testimony of Little’s identification of the defendant as the person he saw and spoke [103] to in his den, the trial judge followed the procedure prescribed by Chief Justice Bobbitt in State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E. 2d 583 (1970) by conducting a voir dire hearing in the absence of the jury, where, after hearing the testimony of Little, Deputy Sheriff Harward, and the defendant, the court made findings of fact as to any out of court confrontation between the witness and the defendant, and as to what the witness observed during and immediately after the housebreaking. There was competent, clear and convincing evidence to support the court’s findings that the in-court identification of the defendant by Little was of independent origin, based exclusively on what he observed during and immediately after the housebreaking, and did not result from any out of court confrontation or from any pretrial identification procedure suggestive of 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), cert. denied 400 U.S. 946, 27 L.Ed. 2d 252, 91 S.Ct. 253 (1970); State v. Sneed, 14 N.C. App. 468, 188 S.E. 2d 537 (1972). By his fourth assignment of error, defendant contends the court erred in denying his motion for judgment as of nonsuit. There was plenary, competent evidence to require submission of the case to the jury-and to support the verdict. Defendant assigns as error the form of the court’s instruction concerning his failure to testify when the court stated: “Therefore, you must be very careful not to allow his silence to influence your decision in any way.” While an instruction more nearly in the language of G.S. 8-54 is preferable, State v. McNeill, 229 N.C. 377, 49 S.E. 2d 733 (1948), and State v. Powell, 11 N.C. App. 465, 181 S.E. 2d 754 (1971), cert. denied 279 N.C. 396 (1971), we do not consider the instructions given to be prejudicial and therefore overrule this assignment of error. Finally, by his sixth assignment of error, the defendant contends “the court erred in commenting upon the evidence in the court’s charge to the jury” in violation of G.S. 1-180. We have examined the four exceptions upon which this assignment of error is based and find them to be without merit. [104] The defendant had a fair trial free from prejudicial error. No error. Chief Judge Mallard and Judge Morris concur.