State v. McPherson

Citation276 N.C. 482,172 S.E.2d 50
Decision Date15 April 1970
Docket NumberNo. 33,33
CourtNorth Carolina Supreme Court
PartiesSTATE of North Carolina v. Charlie McPHERSON, Robert Lee Jones and Ronald Michael Harris.

Robert Morgan, Atty. Gen., Andrew A. Vanore, Jr., Asst. Atty. Gen., for the State.

C. C. Malone, Jr., Durham, for defendant McPherson.

W. G. Pearson, II, Durham, for defendant Jones.

Blackwell W. Brogden, Durham, for defendant Harris.

HIGGINS, Justice.

The defendants argue here they are entitled to have the decision of the Court of Appeals reversed and a new trial awarded because of three alleged prejudicial errors committed during the trial: (1) The failure of the trial judge to sustain objection to the evidence of Alvin Fisher identifying them as the three men who robbed him on the night of April 4, 1969; (2) The prejudicial remarks made by the judge in the presence of the jury; and (3) The refusal of the judge to permit counsel for the defendants to insert in the record the answer to question which the court, on State's objection, had ruled incompetent.

At the trial, the defendants moved to suppress the in-court identifications of the defendants by the witness Fisher. The court excused the jury and conducted a voir dire hearing to determine the question raised by the defendant's motion.

The evidence before the trial judge on the voir dire examination was not in conflict. The victim, Fisher, and the investigating officer, Cameron, were the only witnesses who gave testimony. In substance, their evidence disclosed that three men, in their late teens, robbed Alvin Fisher by the threatened use of a pistol, taking from him three $1 bills and $3.00 in change. Prior to and during the robbery, Fisher had opportunity, under good lights, to observe his assailants. Immediately after the robbery, he notified the police, giving detailed descriptions of the three men who robbed him.

The day following the robbery, Officer Cameron went to Fisher's home, displayed to him 7 or 8 double photographs (front and side views) and asked whether Fisher recognized any of them. Fisher at once identified the photographs of McPherson and Jones as two of the men who robbed him. He so informed Officer Cameron. Fisher did not find any photograph of the third robber. The photograph of the defendant Harris was not among those exhibited by Officer Cameron. When Fisher was asked on cross examination whether his identification was based on his having seen McPherson and Jones at the time of the robbery, or from the pictures, he answered, 'Seeing them and the pictures'.

On Monday following the hold up, Fisher went to police headquarters for a conference with Officer Cameron, who was investigating the robbery. As Fisher passed one of the interrogation rooms, he happened to observe Officer Leathers in conference with the defendant Harris, whom he recognized immediately as the one who held the gun during the robbery. He immediately so informed Officer Cameron. Fisher identified Harris on first sight. The evidence disclosed that his opportunity to observe Harris in police headquarters was unarranged and was coincidental. Officer Leathers was investigating another case. Officer Cameron was investigating the Fisher robbery. Neither suspected that Harris was implicated in Fisher's case, and neither had anything to do with the confrontation between Harris and Fisher.

Fisher, who had never seen his assailants prior to the robbery, and Officer Cameron, who had only Fisher's description to guide him in the selection of the 7 or 8 photographs for Fisher's examination, were following the customary investigative procedure where the participants were unknown to the victim or to the police. The officer, on the basis of the descriptions given to him by the victim, selected 7 or 8 photographs, presumably of persons who, to some extent, answered the descriptions. There is nothing unlawful or inherently wrong in submitting photographs under such circumstances. It is worthy of note that in the probing cross examinations of Fisher and Cameron, defense counsel ascertained that Cameron had with him in court the pictures which he displayed to Fisher and from which Fisher made the identifications. These pictures were kept from the jury by the action of the defendants. Although they had been identified, they were excluded on the defendants' objection.

The involvement of Harris in Fisher's case may be the key to what McPherson meant by his remark to Fisher at the beginning of the robbery, 'You are next'.

The court found as a fact, and concluded as a matter of law, that Fisher's in-court identifications of the defendants were neither tainted by the display of the photographs of McPherson and Jones, nor by the accidental confrontation between Fisher and Harris. The evidence and findings dispose of the defendants' first assignment of error. State v. Wright, 275 N.C. 242, 166 S.E.2d 681; State v. Williams, 274 N.C. 328, 163 S.E.2d 353; State v. Gray, 268 N.C. 69, 150...

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42 cases
  • State v. Chance, 78
    • United States
    • United States State Supreme Court of North Carolina
    • December 15, 1971
    ...absence of showing that the verdict was improperly influenced thereby.' The above statement was quoted with approval in State v. McPherson, 276 N.C. 482, 172 S.E.2d 50. This record does not show what the witness would have said had he or she been allowed to answer, and a denial would have b......
  • State v. Britt, 151
    • United States
    • United States State Supreme Court of North Carolina
    • January 31, 1977
    ...verdict was improperly influenced thereby.' State v. Edwards, 228 N.C. 153, 154, 44 S.E.2d 725, 726 (1947). See also State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970). Here, no such showing appears. This assignment is On substantially similar evidence, three juries have been convinced ......
  • State v. Hatcher, 69
    • United States
    • United States State Supreme Court of North Carolina
    • December 16, 1970
    ...arrest and were therefore properly admitted into evidence. See State v. Austin, 276 N.C. 391, 172 S.E.2d 507 (1970); State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969); State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970); Gilbert......
  • State v. Billups
    • United States
    • United States State Supreme Court of North Carolina
    • January 6, 1981
    ...289 N.C. 19, 220 S.E.2d 293 (1975), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed.2d 1210 (1976); State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970). Defendant's assignment of error as to the manner in which the photographic identification was conducted is without merit. ......
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