State v. Weimer

• Decision Date: 15 July 1980
• Docket Number: No. 136,136
• Parties: STATE of North Carolina v. Jackie Richard WEIMER.
• Court: North Carolina Supreme Court

Page 216

268 S.E.2d 216

300 N.C. 642

STATE of North Carolina v. Jackie Richard WEIMER.

No. 136.

Supreme Court of North Carolina.

July 15, 1980.

Rufus L. Edmisten, Atty. Gen., by Thomas H. Davis, Jr., and Jane Rankin Thompson, Associate Attys. Gen., Raleigh, for the State.

Robert Dennis Hinshaw and Charles J. Alexander, II, Winston-Salem, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first contends that the assistant district attorney committed reversible error when, on direct examination, he asked witness Turbyfill to look at defendant and to state whether he could identify defendant as the driver of the van.

A voir dire hearing was held at trial on defendant's motion to suppress witness Turbyfill's in-court identification of defendant. At the conclusion of the voir dire, the trial court granted defendant's motion to suppress on the basis of a prior, impermissibly suggestive identification at police headquarters. After the jury returned, direct examination of the witness continued and Mr. Turbyfill described the driver of the van in detail. The assistant district attorney, Mr. Yeatts, then asked the following questions:

Q. All right, sir. Would you look at the defendant here in the courtroom today?

A. I beg your pardon, sir?

Q. Would you look at the defendant here in the courtroom today?

(The witness looks in the direction of the defense table.)

Q. Would you state whether or not you can identify that individual as the individual you saw in the van?

MR. ALEXANDER: Objection.

COURT: Sustained.

MR. YEATTS: Do not answer that question.

After a brief cross-examination, the assistant district attorney asked again on redirect examination:

Q. Did you get a good look at the individual that was driving that van?

A. Yes, sir, I did.

Q. Did you look at him?

A. Yes, sir, I did.

Q. State whether or not you see him here today.

MR. ALEXANDER: Objection, Your Honor.

COURT: Sustained.

MR. YEATTS: Don't answer that. I have no further questions.

Defendant contends that by these questions the prosecutor placed incompetent and prejudicial matter before the jury.

In light of the court's prior ruling, the prosecutor's line of questioning was clearly improper. However, in each instance the trial court correctly sustained defendant's objection, and the witness was directed not to answer the question. We have held that when the trial court promptly sustains an objection to a question asked by the prosecutor, no prejudice results. State v. Barrow, 276 N.C. 381, 172 S.E.2d 512 (1970); State v. Butler, 269 N.C. 483, 153 S.E.2d 70 (1967). Ordinarily, merely asking a question will not be held to be prejudicial. State v. Barrow, supra; see State v. Williams, 255 N.C. 82, 120 S.E.2d 442 (1961). Moreover, defense counsel failed to request that the court instruct the jury to disregard the prosecutor's questions. Mr. Turbyfill was allowed at trial to give a detailed description of the driver of the van which corresponded to defendant's appearance. In view of the strong evidence of defendant's guilt and the court's prompt action in sustaining defendant's objections, we cannot say that defendant has shown that "there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at trial." G.S. 15A-1443(a); State v. Williams, 275 N.C. 77, 165 S.E.2d 481 (1969); State v. Temple, 269 N.C. 57, 152 S.E.2d 206 (1967).

Defendant next contends that the trial court erred in denying defendant's motion for a continuance based upon pretrial publicity.

Although defendant and Dharlene Moore were originally to be tried jointly, the court on 19 October 1980 granted Ms. Moore's motion for severance. Ms. Moore's trial was set for 22 October 1980, and defendant's trial was continued to the following week of 29 October. Defendant subsequently filed motions for a change of venue and for a continuance in his case, claiming that the extensive publicity surrounding Ms. Moore's trial and particularly the references to defendant in certain news articles made it impossible for him to receive a fair trial in Forsyth County. Both motions were denied by the trial court.

A motion for a continuance is ordinarily within the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Baldwin, 276 N.C. 690, 174 S.E.2d 526 (1970).

During jury selection, several prospective jurors indicated that they had previously read or heard about the case. When questioned individually by the court, however, each of the jurors stated that he had not formed or expressed an opinion about the case and could render a fair and impartial verdict based on the evidence and the law as presented at trial. The record reveals that defendant was given an opportunity to examine prospective jurors on voir dire, but it fails to show that defendant ever requested the removal for cause of any venireman who eventually sat on the impaneled jury. Neither does the record show that defendant had exhausted his peremptory challenges before he passed the jury.

In State v. Tilley, 292 N.C. 132, 232 S.E.2d 433 (1977), this Court upheld the trial judge's refusal to order a continuance, change of venue or separate trials based on facts similar to those in the instant case and in part stated:

"Where the record discloses, as it does in the instant case, that the presiding judge conducted a full inquiry, examined the press releases and the affidavits in support of the motion, and where the record fails to show that any juror objectionable to the defendant was permitted to sit on the trial panel, or that defendant had exhausted his peremptory challenges before he passed the jury, denial of the motion for change of venue was not error. (Citations omitted.)"

Id. at 142, 232 S.E.2d at 441.

We hold that the trial court did not err in denying defendant's motion for a continuance.

By his final assignment, defendant contends that the trial court erred in allowing witness Betty Ballard to identify Dharlene Moore as the person who shot Miller. He claims that Ms. Ballard's identification was tainted by an impermissibly suggestive pretrial identification procedure in which she was shown a photograph of Ms. Moore in the district attorney's office.

It is now well settled that an in-court identification is competent evidence, even if the witness took part in an illegal pretrial confrontation or photographic identification, where it is first determined by the trial judge on clear and convincing evidence that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Yancey, 291 N.C. 656, 231 S.E.2d 637 (1977); State v. Henderson, 285 N.C. 1, 203 S.E.2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed.2d 1205 (1976); 1 Stansbury's North Carolina Evidence § 57 (Brandis Rev. 1973).

In the instant case, Ms. Ballard, a supermarket employee, testified that she was standing at a cash register near the exit of Food World when she heard Steven Miller call for help and the sound of two gunshots. She observed a person leave the manager's office and walk out of the store. This person faced Ms. Ballard at all times before leaving the store. Although the witness stated that she did not pay much attention to the clothing, she described the person as wearing blue jeans and tennis shoes. She could not recall whether the person was wearing sunglasses or a hat. The person had a husky build, dark brown hair, a pale, rounded face with no facial hair and was about five feet six inches in height. Ms. Ballard admitted that Ms. Moore appeared slimmer and had lighter hair at trial than Ms. Ballard had remembered. Although at the time the witness believed that the person she had seen was a young white male, she told people on the night of the crime that "I'll never forget the face as long as I live." Ms. Ballard further testified that her identification of Ms. Moore was independent...