STATE of North Carolina
v.
Clayton DeVonne MORRIS.
No. 10.
Supreme Court of North Carolina.
October 13, 1971.*637 Henry E. Fisher, Charlotte, for defendant appellant.
Robert Morgan, Atty. Gen., Eugene Hafer, Asst. Atty. Gen., for the State of North Carolina.
HUSKINS, Justice:
Defendant's first assignment of error is based on the contention that his in-court identification by the witness Rohrer was tainted by a pretrial photographic identification. He argues that the findings and conclusions of the trial judge to the contrary are erroneous and that his motion to suppress the in-court identification should have been allowed.
In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), identification by photograph was expressly approved and the Court held 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."
The test laid down in Simmons has been applied by this Court in many cases, including State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970); State v. Hatcher, 277 N.C. 380, 177 S.E.2d 892 (1970), and State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970). When applied to the facts in this case, three is small chance that the photographs viewed by the witness Rohrer led to misidentification of defendant. The record shows that the witness viewed eight, ten or twelve pictures from which he recognized the face of the defendant. Prior to the robbery the witness had seen the defendant a number of times on the lawn of a home across the street from the site of the robbery. Defendant had been in the Little General Store five to ten times making purchases and had been observed by the witness on those occasions. The witness told investigating officers that he knew defendant but did not know his name. Defendant himself testified at the trial: "Yes, I knew Mr. Rohrer but not by name. I did not know his name until the hearing. Yes, Mr. Rohrer waited on me when I went in the store." There is nothing in the record to support the contention that impermissibly suggestive procedures were employed by the officers when the photographs were exhibited to the witness. Therefore, had the in-court identification been based on the pretrial photographic identification, it would have been competent anyway.
The trial judge found as a fact on voir dire, however, that the State had established by clear and convincing proof that the in-court identification of defendant by the witness Rohrer was independent in origin, based on observations made by the witness at the scene of the robbery and on his previous observations of defendant. The evidence overwhelmingly supports this finding. "Such findings of fact, so made by the trial judge, are conclusive if they are supported by competent evidence in the record." State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970); State v. McVay and Simmons, 277 N.C. 410, 177 S.E.2d 874 (1970); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971). We hold that defendant's motion to suppress the in-court identification was properly denied and the evidence properly admitted.
Defendant assigns as error the denial of his motion for nonsuit at the close of all the evidence. Such motion draws into question the sufficiency of all of the evidence to go to the jury, and the evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable inference to be drawn therefrom. State v. Primes, 275 *638 N.C. 61, 165 S.E.2d 225 (1969). "Only the evidence favorable to the State will be considered, and the evidence relating to matters of defense or the defendant's evidence in conflict with that of the State will not be considered." State v. Vincent, 278 N.C. 63, 178 S.E.2d 608 (1971), and cases cited. Applying this well-established rule, there was ample evidence to require its submission to the jury and to support a verdict of guilty as charged. State v. McWilliams, 277 N.C. 680, 178 S.E.2d 476 (1971). Defendant's motion for nonsuit was properly denied.
Prejudicial error does not appear, and the verdict and judgment must therefore be upheld.
No error.