STATE of North Carolina
v.
Baxter Park HUNSUCKER.
No. 6814SC459.
Court of Appeals of North Carolina.
December 18, 1968. Certiorari Denied January 31, 1969.*508 T. W. Bruton, Atty. Gen., by Christine Y. Denson, Raleigh, Staff Atty., for the State.
A. William Kennon, Durham, for defendant.
BROCK, Judge.
The defendant was represented at his trial, and is represented for this appeal, by counsel appointed by the court. The County of Durham will pay for the printing of the record on appeal, for the reporter's transcript, and for printing defendant's brief.
The defendant brings forward three assignments of error. Assignment of error number one is stated as follows: "The court erred in allowing the State's witness, Lewis Walker, to make an in-court identification of the defendant in that it was the sole product of and rested entirely on a previous confrontation between the accused and the witness wherein the accused was submitted to the view of the witness in the absence of court-appointed or retained counsel."
During the direct examination of Lewis Walker, the solicitor asked him if he had seen the defendant the evening of 16 October 1967. At this point the defendant objected and Judge Clark allowed an examination of the witness out of the presence of the jury. The testimony of Lewis Walker upon this examination disclosed in substance the following: That immediately after the robbery he called the police and reported the incident. That he gave them a general description of the defendant. That after looking through the police *509 picture files for about one and one-half days he found a photograph of defendant. That he did not see the defendant in person from the time of the robbery until he saw him in the courtroom on or about 22 February 1968 when the case was first scheduled for trial. That he was subpoenaed to court as a witness on or about 22 February 1968. That he went into the courtroom and took a seat in the spectator section. That he did not talk to the solicitor or any of the officers, and did not see any of the other State's witnesses. That while seated in the courtroom he saw the defendant enter a door to the courtroom and he immediately and positively recognized him as one of the persons who robbed him on 16 October 1967. That defendant was not announced before he entered, nor had his case been called by the solicitor. That defendant was not dressed in prison clothes or in any fashion to indicate that he was a prisoner. That no one suggested to him that defendant was the one who robbed him. That as soon as he saw defendant enter the door he recognized him as one of the robbers. That some time later the case was called by the solicitor and the defendant stood up and announced that he did not have an attorney. That Judge C. W. Hall, who was presiding at that session, appointed counsel for the defendant and continued the case to a subsequent session. That the witness did not divulge to anyone the fact that he had recognized the defendant.
The defendant concedes in his brief that "nothing in the record indicates that the purpose of the confrontation was for identification purposes." However he argues that the circumstances warrant an inference that the action of the State was designed to give the witness an opportunity to make a positive identification of the accused. And further, that the accused being without counsel at the time, the in-court identification at the time of the trial was the product of an illegal identification process and therefore not admissible. Defendant cites 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; Stovall v. Denno, 388 U.S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199; and State v. Wright, 274 N.C. 84, 161 S.E.2d 581, in support of his argument.
The rationale underlying the decisions in the cases relied upon by defendant is that unfairness in the "lineup" or other arranged identification process may arise by exhibiting the accused so as to suggest his identity to the witness and thereby obtain a positive identification from the witness which the witness will not later admit was indefinite or mistaken; and that the absence of counsel at this stage of the proceeding would prevent any effective cross-examination of the witness relative to the identification process. It was never intended by the decisions that the victim of, or witness to, a crime should have to keep his eyes closed from the time of the event until he is seated in the witness chair, except when the accused is accompanied by counsel. The recognition complained of by defendant was as unplanned and free of suggestion as though the witness had recognized the accused as he walked down the street. True, it occurred in the courtroom at a session of court to which the witness had been subpoenaed to testify in the trial of the accused; but there were others present, spectators, attorneys, witnesses, and defendants in other cases. There was nothing about the accused to suggest to the witness that he was the robber, except his person which the witness immediately recognized. There was no communication by the witness to any of the other witnesses, the officers, or the solicitor that he had recognized the defendant as one of the robbers; and therefore there was no compulsion upon the witness to "stick to his identification." None of the facts here present a case which falls within the rationale of Wade, Gilbert, Stovall, or Wright. This assignment of error is overruled.
Defendant next assigns as error that he was not allowed to cross-examine the *510 State's witness, Lewis Walker, upon his failure to recognize the other robber in a lineup conducted in New York in an extradition proceeding. Judge Clark allowed such examination out of the presence of the jury but excluded it from consideration by the jury. The examination upon this question disclosed that Lewis Walker had stated from the outset to the investigating officers that he was not certain he could identify the other robber; that he had not had an opportunity to observe him as closely or for as long a period as he had observed this defendant. That when he went to New York in June 1968 to undertake an identification he told the judge there "I do not think I can make positive identification." That there were approximately twelve people standing against the wall in the judge's chambers, and the judge asked him if he saw one of the men there who held him up on 16 October 1967. That he told the judge "No, I don't think so." That the judge asked if he was sure and he told him that one of the men looked very much like one of the men and pointed to that one. That the judge stated "that is not him," and dismissed the proceeding.
With respect to this second robber the witness had stated from the beginning that he felt unable to identify him. The fact that he was unable to do what he had always felt he was unable to do seems to us to lend credence to his identification of the accused prior to that time. This failure to do what he had felt from the beginning that he could not do seems to us to have no bearing upon his ability to recognize the defendant with whom he was more directly involved at the time of the robbery. The testimony sought to be elicited by this examination was immaterial upon the question of the witness's ability to recognize this defendant, and its exclusion cannot, therefore, be held to be error. This assignment of error is overruled.
Defendant next assigns as error that the trial judge failed to instruct the jury to disregard certain argument by the solicitor which was not supported by any evidence.
The only evidence offered by the defendant was by way of seven depositions of witnesses taken in New York. These depositions tended to show that the defendant was in New York at the time of the alleged offense on 16 October 1967. During the course of his argument to the jury the solicitor referred to the depositions and stated that there was no Bible present when the defense witnesses were sworn. Defense counsel immediately objected to this statement on the grounds there was no evidence to support such an argument. Judge Clark sustained this objection, stating there was no evidence in the record of such a state of facts. Counsel made no request for instruction to the jury to disregard this statement by the solicitor, and no specific instruction to this effect was given by the judge.
Defendant's objection was made and promptly sustained by the judge in the presence of the jury. Certainly the stopping of the solicitor's argument to the jury by lodging the objection, and the ruling of the judge, attracted the attention of the jurors. It is clear that the jurors were apprised that the solicitor's argument was without evidentiary foundation. Under these circumstances the sustaining of the defendant's objection and the statement by the judge in the presence of the jury was tantamount to an instruction to disregard the argument. Absent a specific request for further instruction, we hold that it was not prejudicial error in this case to fail to further instruct the jury to disregard the portion of the solicitor's argument which was the subject of the objection. This assignment of error is overruled.
No error.
BRITT and PARKER, JJ., concur.