State v. Moses

• Decision Date: 05 March 1975
• Docket Number: No. 7426SC1040,7426SC1040
• Citation: 212 S.E.2d 226,25 N.C.App. 41
• Parties: STATE of North Carolina v. Willie MOSES, Jr.
• Court: North Carolina Court of Appeals

Page 226

212 S.E.2d 226

25 N.C.App. 41

STATE of North Carolina v. Willie MOSES, Jr.

No. 7426SC1040.

Court of Appeals of North Carolina.

March 5, 1975.

Atty. Gen. Rufus L. Edmisten by Associate Atty. Robert P. Gruber, Raleigh, for the State.

Blum & Sheely by Michael Sheely, Charlotte, for defendant-appellant.

BRITT, Judge.

Defendant assigns as error the failure of the court to grant his motion for a postponement of the trial for the reason that his counsel was involved in the trial of a murder case for several days prior to the trial of this case and did not have opportunity to make proper preparation. We find no merit in the assignment.

While a motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion, 2 Strong, N.C. Index 2d, Criminal Law, § 91, where the motion is based on a right guaranteed by the Federal and State constitutions, a question of law is presented and the ruling is reviewable. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974). Defendant has timely raised the constitutional question in this case and we have reviewed the court's ruling; nevertheless, under the facts appearing, we conclude that the court did not err in denying defendant's motion for continuance.

By his fifth assignment of error, defendant contends the court erred and abused its discretion when, over defendant's objection, it allowed the State to reopen its case and present additional testimony. We have carefully considered this assignment, particularly with respect to the statement made by the court at the time it permitted the State to reopen its case, but conclude that the court did not abuse its discretion. The assignment of error is overruled.

Defendant assigns as error the failure of the court to allow his timely made motions for nonsuit. No worthwhile purpose would be served in further summarizing the evidence presented at trial. It suffices to say that we consider the evidence sufficient to survive the motions for nonsuit and the assignment is overruled.

Defendant assigns as error the failure of the court to make sufficient findings of fact that the in-court identification of defendant by witness Seabrook was of independent origin and not tainted by the photographs shown him by police. This assignment has merit.

After defendant pleaded not guilty and a jury was selected and impaneled, in the absence of the jury, defendant moved to suppress the testimony of witnesses Jett and Seabrook. The court conducted a voir dire hearing at which police officer Williams, Jett, and Seabrook testified. Thereafter, the court made findings of fact with respect to the procedure followed by police in displaying the photographs to Jett and Seabrook and then concluded:

Upon the foregoing Findings of Fact, the Court concludes as a matter of law that the out of court identification of the defendant, Moses, by Ronnie Jett and of the defendants, Moses and Abrams, by Floyd Seabrook were lawful; and that neither Ronnie Jett's in court identification of defendant Moses nor Floyd Seabrook's in court identification of both defendant Moses and defendant Abrams were tainted by any improper police activity during the out of court photographic lineup procedure.

It is noted that defendant's exceptions and assignment of error do not relate to the testimony of the witness Jett but only to the testimony of Seabrook. That being true, the question as to admissibility of testimony given at trial by Jett is not presented.

In State v. Ingram, 20 N.C.App. 35, 38, 200 S.E.2d 417, 419 (1973), this court said:

It also appears that where photographs are used by police as an aid in identification, and there is an objection to an in-court identification, and requests for a voir dire hearing, the court must make a factual determination as to whether the State has established by clear and convincing proof that the in-court identification is of independent origin, untainted by the illegality, if any, underlying the photographic identification. State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. McDonald, 11 N.C.App. 497, 181 S.E.2d 744 (1971), cert. den. 279 N.C. 396, 183 S.E.2d 243; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

In our opinion, in the case at bar the findings of fact with respect to Seabrook's testimony were not sufficient. In State v. Accor and Moore, Supra, in which case the new trial was ordered, defendants contended that their photographs were obtained...