State v. Thomas

• Decision Date: 07 February 1978
• Docket Number: No. 7716SC747,7716SC747
• Citation: 241 S.E.2d 128,35 N.C.App. 198
• Parties: STATE of North Carolina v. John Franklin THOMAS, Jr.
• Court: North Carolina Court of Appeals

Page 128

241 S.E.2d 128

35 N.C.App. 198

STATE of North Carolina v. John Franklin THOMAS, Jr.

No. 7716SC747.

Court of Appeals of North Carolina.

Feb. 7, 1978.

Atty. Gen. Rufus L. Edmisten by Associate Atty. George W. Lennon, Raleigh, for the State.

L. J. Britt & Son by Bruce W. Huggins, Lumberton, for defendant-appellant.

PARKER, Judge.

The crimes for which defendant was tried occurred in the early afternoon of 6 August 1976 at the Center Grocery, operated by Henry Prevatte. Pearl Kinlaw Stanley, testifying for the State, stated that she was driving home on 6 August and drove past Mr. Prevatte's grocery store on the way. She noticed a dark red car beside the store, and a black man was standing to the right of the car, wiping the hood. She attached no particular significance to these observations until she arrived at her home and heard on her police scanner radio that the grocery store had been robbed.

Defendant unsuccessfully objected to Pearl Kinlaw Stanley's testimony regarding what she heard on the police scanner radio, and for his first assignment of error he now contends that his objection should have been sustained because the testimony was hearsay. "Hearsay evidence consists of the offering into evidence of a statement, oral or written, made by a person other than the witness for the purpose of establishing the truth of the matter so stated." Wilson v. Indemnity Co., 272 N.C. 183, 188, 158 S.E.2d 1, 5 (1967). The testimony regarding what was heard on the police scanner radio was not offered for the purpose of establishing the truth of the matter stated, i. e., that the grocery store had been robbed. Instead, the facts sought to be established were that the statement was made and that the witness heard the statement, thereby explaining why she remembered seeing the man at the grocery store. Hence, the testimony was not hearsay. Moreover, the admission of the statement that the grocery store had been robbed could not have been prejudicial to defendant. There was ample, uncontradicted evidence to show that Mr. Prevatte's grocery store was robbed that afternoon, and defendant never contended to the contrary; his defense was an alibi. Consequently, defendant's first assignment of error is overruled.

Defendant's second assignment of error is "(t)hat the Court erred in allowing testimony by Henry Prevatte identifying the defendant, without first properly allowing defendant's counsel an opportunity to examine the witness as to the basis of his identification." Henry Prevatte testified for the State that defendant was the person who robbed his store and assaulted him. Citing State v. Tuggle, 284 N.C. 515, 201 S.E.2d 884 (1974), State v. McVay, 277 N.C. 410, 177 S.E.2d 874 (1970), and State v. Collins, 22 N.C.App. 590, 207 S.E.2d 278 (1974), defendant contends that the trial court should have conducted a voir dire hearing to determine the admissibility of Mr. Prevatte's testimony identifying him as the robber. The cases cited by defendant, however, require the trial judge to conduct a voir dire hearing only when the admissibility of in-court identification testimony is challenged on the ground that it is tainted by constitutionally impermissible out-of-court identification procedures. Defendant made no such challenge in this case. He made only a general objection to Mr. Prevatte's in-court identification testimony, and at no point in the trial did he request a voir dire examination.

We recognize that, ever upon a general objection only, the better procedure is for the trial judge to conduct a hearing in the absence of the jury, find facts, and thereupon determine the admissibility of in-court identification testimony. "Failure to conduct the voir dire, however, does not necessarily render such evidence incompetent." State v. Stepney, 280 N.C. 306, 314, 185 S.E.2d 844, 850 (1972). In the present case there is nothing which even suggests that Mr. Prevatte's in-court identification testimony might have been tainted by any pre-trial identification procedures made under constitutionally impermissible circumstances. There was no pre-trial identification by use of photographs, and the only time Mr. Prevatte saw and identified defendant after the robbery and prior to trial was at the preliminary hearing. Viewing of a defendant at a preliminary hearing by a witness who is offered to testify to the identification of defendant is not, of itself, such a confrontation as will taint the witness's in-court identification unless other circumstances are shown which are so unnecessarily suggestive and conducive to irreparable mistaken identification as would deprive the defendant of due process. State v. Covington, 290 N.C. 313, 226 S.E.2d 629 (1976). No such circumstances were shown in the present case. Moreover, there was clear and convincing evidence that Mr. Prevatte's in-court identification of the defendant originated with and was based on his observations of the defendant at the time of the crimes and upon his acquaintance with the defendant prior to that time. He testified that defendant "had worked in that area putting in tobacco, and had come in and out of the store," and that he "knew his (defendant's) name before that day, but (he) couldn't remember it that day." All of the evidence shows that the assault and robbery occurred in daylight and that Mr. Prevatte had ample opportunity to observe the man who assailed and robbed him. Under these...