State v. Bumper

• Decision Date: 13 August 1969
• Docket Number: No. 6915SC342,6915SC342
• Citation: 5 N.C.App. 528,169 S.E.2d 65
• Parties: STATE of North Carolina v. Wayne Darnell BUMPER.
• Court: North Carolina Court of Appeals

Page 65

169 S.E.2d 65

5 N.C.App. 528

STATE of North Carolina v. Wayne Darnell BUMPER.

No. 6915SC342.

Court of Appeals of North Carolina.

Aug. 13, 1969.

Robert Morgan, Atty. Gen., by Thomas B. Wood, Staff Atty., Harrison Lewis, Deputy Atty. Gen., Raleigh, for the State.

Clarence Ross, Ross, Wood & Dodge, Graham, for defendant.

BROCK, Judge.

The two felonious assault cases were previously tried at the 24 October 1966 Session. Also, at that time an indictment charging defendant with the rape of Loretta Nelson was consolidated for trial with the two felonious assault charges. Defendant's appeal from the 1966 conviction is reported in State v. Bumpers, 270 N.C. 521, 155 S.E.2d 173, in which the convictions were affirmed. However, on Certiorari, the Supreme Court of the United States (Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797) reversed the convictions upon the ground that the rifle allegedly used in the felonious assaults and rape was introduced in evidence after an unlawful search and seizure thereof. The rape charge has not been retried.

Defendant assigns as error that the trial judge permitted the sheriff to testify that Monty Jones identified the man holding card No. 7 as his assailant. As noted in the statement of facts, when Sheriff Stockard arranged the lineup on 16 August 1966, each subject in the lineup was given a card. Defendant Wayne Darnell Bumper was given a card with the number '7' on it for the first viewing by the witnesses, and he held a card with the number '2' on it for the second viewing. On cross-examination Monty Jones testified that at the 1966 trial he had stated that he believed defendant was holding a card with number '6' on it. He testified that he was confused at trial about what number defendant was holding at the lineup. The witness had viewed the lineup twice with defendant holding a different number on the second viewing. However, the witness testified that after each viewing he went in and told the sheriff the number being held by the man he said attacked him. The sheriff said that after each viewing Monty Jones reported to him the number which was held by Wayne Darnell Bumper. Concerning the first viewing of the lineup, Sheriff Stockard testified that Monty Jones 'came back and reported to me that it was No. 7, I believe.' Defendant contends that it was error to allow the sheriff to so testify because his testimony did not corroborate Monty Jones' testimony at the first trial where Jones had stated that he believed he had told the sheriff No. 6.

It is clear that both Monty Jones and the sheriff did not recall positively which number Jones had told the sheriff that Wayne Darnell Bumber was holding, but this does not render the testimony inadmissible; slight variation in the corroborating testimony affects only the credibility of the evidence. State v. Brooks, 260 N.C. 186, 132 S.E.2d 354. Also, it is equally Clear that both Jones and the sheriff knew it was Wayne Darnell Bumper who had been identified by Jones in both viewings of the lineup. The basic fact to be established was whether the witness properly identified defendant, not whether the witness remembers in January 1969 a number carried by defendant in the first of two lineups in August 1966. A failure to remember positively the number might make good argument to the jury, but it does not affect the admissibility of the testimony. This assignment of error is overruled.

Defendant next assigns as error that the trial judge unduly restricted his cross-examination of the State's witness Monty Jones. On cross-examination of Monty Jones counsel for defendant went into the question of Jones's having stated during the 1966 trial that Wayne Darnell Bumper was holding card No. 6 in the first lineup. The witness admitted several times that at the 1966 trial he had stated he believed he told the sheriff that defendant was holding card No. 6. And when defense counsel made the same inquiry again, upon objection by the State, the trial judge told defense counsel: 'Let's don't pursue that particular line of question any further about the number 6.'

Defendant had the full benefit of cross-examining the witness on this point; he had clearly established that the witness had stated in the 1966 trial that he believed defendant held the No. 6 card. '* * * (T)he extent to which cross-examination for the purpose of impeachment will be permitted rests largely in the discretion of the trial court. Objections to questions which amount to no more than argument with the witness are properly sustained.' 7 Strong, N.C. Index 2d, Witnesses, § 8, p. 703. This assignment of error is overruled.

Defendant next assigns as error that the trial judge allowed the State to introduce into evidence, over defendant's objection, the photograph of defendant which Loretta Nelson and Monty Jones had selected as being a photograph of the person who assaulted and robbed them. This photograph had been marked State's exhibit 3A, and on this trial had been identified by Loretta Nelson, Monty Jones, Sheriff Stockard, and Mr. Minter as the photograph selected by the two victims as being a photograph of the person who assaulted them. There is some serious question as to whether defendant specifically objected to this photograph being offered in evidence, but we treat the matter as though objection was properly made.

There is no showing or contention that the photographic identification was suggestive in any way to the witnesses to cause them to identify defendant. The witnesses were in separate hospitals in separate towns, and each selected the photograph of defendant from a group of about twelve photographs. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, it was said:...