STATE of North Carolina
v.
Lee Thomas HAMILTON.
No. 26.
Supreme Court of North Carolina.
October 3, 1979.*351 Atty. Gen., Rufus L. Edmisten by Asst. Atty. Gen., Thomas F. Moffitt, Raleigh, for the State.
Joe P. McCollum, Jr., Monroe, for defendant-appellant.
BRITT, Justice.
By his first assignment of error, defendant contends the trial court erred in *352 denying his motion for a change of venue because of unfavorable pretrial publicity. The assignment is without merit. This motion was addressed to the sound discretion of the trial judge and his ruling thereon will not be disturbed absent a showing of abuse of discretion. 4 Strong's N.C. Index 3d, Criminal Law § 15.1. We perceive no abuse of discretion in this case.
By his second and third assignments of error, defendant contends the trial court erred (1) in admitting into evidence photographs of him and others used in the identifying procedure, and (2) in admitting Teresa's testimony identifying him as her assailant. There is no merit in these assignments.
With respect to the photographs, defendant argues that in State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970), this court recognized the principle that when photographs are used to identify a defendant, the state must show that a photograph of the defendant was lawfully obtained; and that absent such a showing, the photograph and evidence relating thereto, when objected to by the defendant, are inadmissible at trial. We hold that the principle was not violated in the case at hand.
While she was testifying, Teresa was asked if she could identify the man who committed the acts complained of. Defendant objected, the jury was taken from the courtroom, and the court conducted a voir dire. Evidence presented at the voir dire tended to show that around 11:00 a. m. on 5 October 1978 Sheriff Fowler and other officers went to Teresa's hospital room. After obtaining permission from hospital personnel to talk to her, they proceeded to do so. She told them that she would be able to identify the man who molested her. The officers thereupon placed photographs of five young black males, including defendant, on a table and Teresa immediately selected a photograph of defendant as a photograph of her assailant.
The photograph of defendant had on it the date of 5 October 1978 and the sheriff testified that it was made on that date. Other testimony showed that defendant was arrested at the home of his girl friend around 3:30 that morning, carried to the sheriff's office and "processed" which included being photographed and fingerprinted. Following the voir dire the court made findings of fact and concluded, among other things, that "there were no illegal identification procedures" in connection with the victim's identification of defendant.
G.S. 15A-502(a)(1) authorizes the photographing of a person charged with a felony or a misdemeanor when the person has been "arrested"; G.S. 15A-502(b) and (c) set forth certain exceptions not pertinent to the case at hand. Of course, the arrest must have been lawful. The evidence in this case was more than sufficient to show that there was probable cause to arrest defendant on the morning of 5 October 1978, hence his arrest was lawful.
A new trial was granted in Accor and Moore primarily for the reason that there was no showing that defendants were being lawfully detained at the time their photographs were being taken. That was not the case here.
With respect to the admission of Teresa's testimony identifying defendant, clearly there was no error. She testified at the voir dire. The court found and concluded that she had ample opportunity to view defendant at the time the crimes were committed, that there was nothing to indicate that her identification was tainted and that her identification of defendant at trial was of independent origin, based solely on what she saw at the time the alleged crimes were committed. The court's findings are amply supported by the evidence, therefore, this court is bound by them. State v. Woods, 286 N.C. 612, 213 S.E.2d 214 (1975), death sentence vacated, 428 U.S. 903, 96 S.Ct. 3207, 49 L.Ed.2d 1208 (1976); State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974). The findings fully support the conclusions of law.
Defendant's main argument on these assignments appears to be that the court did not make sufficient findings of *353 fact. Should we concede that point, which we do not, the error was harmless in view of the fact that the record shows that the pretrial identification procedure was proper and that the in-court identification of defendant had an origin independent of the pretrial identification. State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972); State v. Williams, 274 N.C. 328, 163 S.E.2d 353 (1968).
By the next assignment of error argued in his brief, defendant contends the trial court erred in reciting evidence in the jury charge that was not presented to the jury. This assignment has no merit.
Defendant argues that the court mistakenly referred to evidence (1) quoting him as stating that his girl friend burned his clothing, and (2) that blood was found on his clothing. He submits that while such evidence was shown on voir dire, it was not presented to the jury. We disagree.
A careful examination of the jury charge discloses that while the court was reviewing the testimony, and particularly that of S.B.I. Agent Richardson which included statements made by defendant to him, the court said that "he stated that she had burned them (defendant's clothing) out in the backyard". This statement standing alone might indicate that the court was referring to defendant. However, the next sentence in the charge is: "That was brought out on cross-examination of one of the witnesses." Defendant was not a witness at trial. Therefore, it is clear that the court was referring to a statement by Agent Richardson or some other witness.
The reference in the jury charge to blood having been found on defendant's clothing is clearly supported by the evidence. The statement given by defendant to Agent Richardson (Exhibit 16) was admitted into evidence and it contains several references to blood on defendant's clothing.
The assignment of error is overruled.
By the last assignment of error argued in his brief, defendant contends the trial court committed error by expressing an opinion on the evidence. We find no merit in this assignment.
Evidently this assignment is based on Exceptions 9 and 10 to the jury charge. Portions of the charge relating to these exceptions are as follows:
The fact that he made a statement should be scrutinized by you. He would contend that he didn't make it; and if he did make it, it wasn't voluntary. You heard the officers testify that they advised him of his constitutional rights to remain silent, and the other rights that they advised him of; and that he made this statement; and that he made it freely and voluntarily. That is a matter for the jury to determine. (The evidence tends to show that the defendant confessed that he committed the crime charged in this case.) EXCEPTION NO. 9
That is what the statement said. If you find that the defendant made that confession, then you will consider all of the circumstances under which it was made in determining whether it was a truthful confession, and the weight you will give it.
(He made two conflicting statements.) EXCEPTION NO. 10
The defendant will contend that he was under pressure to make it, and that it was not a voluntary statement; and that it was not truthful; that the first statement was the truth. He contends they were conflicting statements, and you should consider this.
With respect to Exception 9, this court has approved many times the use of the words "the evidence tends to show". See State v. Roberts, 293 N.C. 1, 235 S.E.2d 203 (1977); State v. Bailey, 280 N.C. 264, 185 S.E.2d 683, cert. denied, 409 U.S. 948, 93 S.Ct. 293, 34 L.Ed.2d 218 (1972); State v. Huggins, 269 N.C. 752, 153 S.E.2d 475 (1967). We then consider whether the statement referred to amounted to "a confession" of the crimes charged.
In his statement defendant admitted going to the Pressley home in the nighttime, removing the screen from and raising the window of a bedroom occupied by two persons, *354 entering the room through the open window, going back through the window with 11-year-old Teresa, going with her to some weeds at the edge of the yard and having sexual intercourse with her.
G.S. 14-21 provides, inter alia, that every person who unlawfully and carnally knows and abuses any female child under the age of 12 years shall be guilty of rape. Burglary in the first degree is the breaking and entering during the nighttime of an occupied dwelling or sleeping apartment with intent to commit a felony therein. State v. Bell, 285 N.C. 746, 208 S.E.2d 506 (1974). Clearly, defendant's statement amounted to a "confession" of the crimes of rape and burglary in the first degree, two of the three offenses with which he was charged.
With respect to the court's instruction that defendant made two conflicting statements, this instruction, when considered with the quoted sentences which followed, was favorable to defendant. In the first statement, defendant said that any blood on his clothing came from Fleeta (his girl friend). In the second statement he said that there was blood on his clothing after he had intercourse with Teresa and that Fleeta questioned him about it. The court's instruction reminded the jury that they should consider both of the statements. The burden is on defendant not only to show error but that the error was prejudicial to him. 4 Strong's N.C. Index 3d, Criminal Law § 167. This he has failed to do.
We conclude that defendant received a fair trial free from prejudicial error.
No error.
BROCK, J., took no part in the consideration or decision of this case.