State v. McVay

• Decision Date: 16 December 1970
• Docket Number: No. 66,66
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Danny McVAY. STATE of North Carolina v. Woodrow SIMMONS.

Page 874

177 S.E.2d 874

277 N.C. 410

STATE of North Carolina v. Danny McVAY.

STATE of North Carolina v. Woodrow SIMMONS.

No. 66.

Supreme Court of North Carolina.

Dec. 16, 1970.

Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard Rich, Jr., for the State.

W. Herbert Brown, Jr., Charlotte, for defendant-appellant McVay.

James J. Caldwell, Charlotte, for defendant-appellant Simmons.

BOBBITT, Chief Justice.

Defendants excepted to and assign as error the consolidation for trial of the four indictments. This assignment is without merit. The State's motion for consolidation was addressed to the sound discretion of the presiding judge. State v. Yoes, 271 N.C. 616, 641, 157 S.E.2d 386, 406, and cases cited. There is no basis for a contention that he abused his discretion. Ordinarily, consolidation is appropriate when the offenses charged are of the same class and are so connected in time and place that evidence at the trial upon one of the indictments would be competent and admissible at the trial on the other(s). State v. Hamilton, 264 N.C. 277, 283, 141 S.E.2d 506, 511, and cases cited; State v. Overman, 269 N.C. 453, 466, 153 S.E.2d 44, 56, and cases cited. State v. Dyer, 239 N.C. 713, 80 S.E.2d 269, cited by defendants, involved an entirely different factual situation. In separate indictments, each of two men was charged with having received stolen goods, knowing them to have been stolen, the property of Colonial Stores, Inc. The alleged crimes were unrelated. The occurred at different times and places and under different circumstances. Neither defendant was present or in any way involved when the crime charged against the other was committed.

Each defendant excepted to and assigned as error the admission, over his objection, of the in-court identification by King of McVay as the man who robbed Mrs. King and of Simmons as the man who robbed him (King). When King's identification testimony was proffered, each defendant objected and the jury was excused. In the absence of the jury, a Voir dire hearing was conducted. The evidence offered consisted of the testimony of King and of W. O. Holmberg and of Dale M. Travis. Holmberg and Travis are members of the Criminal Investigation Bureau of the Charlotte Police Department.

At the conclusion of the Voir dire hearing, Judge Anglin made the following findings of fact:

'FINDINGS OF FACT

'That the parking lot was well lighted--about like daylight; that during the robbery the witness King was part of the time face to face with the man who took his wallet; that the witness King in court pointed to the defendant Simmons as the one who robbed him; that the witness King got a good look at the other man while his wife was being robbed; that he was on one side of the car and they were on the other; that he was looking over the hood of the car; that in court the witness King pointed to the defendant McVay as the one who robbed his wife; that the witness King was positive as to his in-court identification of each defendant based on what he saw at the time of the robbery and on nothing more.

'That three or four days after the robbery officers showed photographs of six to ten different men to the witness King at his home; that he did not recognize any photograph as being of the man who robbed him or of the man who robbed his wife; that later a group of fifteen to twenty photographs were shown by officers to him at his home and he picked out two which he was almost positive were photographs of the men who robbed him and his wife; that they were photographs of the defendant Simmons and the defendant McVay.

'That on 20 April 1970 at the preliminary hearing in these cases the witness Elbert King saw two men and that he 'knew' they were the ones who robbed him and his wife; that the photographs had nothing to do with his recognizing the men; that the defendants McVay and Simmons were the defendants at the preliminary hearing and each defendant had counsel present representing him and participating in the hearing.

'That on or about 6 or 7 March, 1970, at the instance of officers the defendant McVay and the defendant Simmons each voluntarily went with the officer to the criminal investigation center for interrogation with respect to an investigation of the Alexander murder case; that neither McVay nor Simmons was under arrest while at the center; that during the time the defendants were at the center a photograph was taken of each defendant separately, no photograph being taken of them together; that those single photographs were in the second group shown to the witness King at his home.

'That from clear and convicing evidence the in-court identification of the defendant McVay and the in-court identification of the defendant Simmons by the witness Elbert King is each of independent origin, based solely on what he saw at the time of the robbery and does not result from any out-of-court confrontation or from any photograph or from any pretrial identification procedures suggestive and conducive to mistaken identification.'

Upon these findings of fact, the court ruled the in-court identifications by King of McVay and of Simmons were competent and admissible in evidence. Each defendant excepted to and assigned as error the court's 'findings of fact' and rulings 'relating to * * * King's in-court identification of * * * McVay and of * * * Simmons on voir dire.' No exception was addressed to any specific finding of fact. Nor does either defendant assert there is no competent evidence to support the court's findings of fact.

It seems appropriate to call attention to certain evidential facts.

Prior to the preliminary hearing, there was no corporeal lineup or confrontation. The...