State v. McMullin , 23 N.C. App. 90 ( 1974 )

208 S.E.2d 228 (1974) 23 N.C. App. 90

STATE of North Carolina
v.
Frank Ervin McMULLIN.

No. 7421SC501.

Court of Appeals of North Carolina.

September 18, 1974.

Atty. Gen. James H. Carson, Jr. by Asst. Atty. Gen. Donald A. Davis, Raleigh, for the State.

Harrell Powell, Jr., and Edward L. Powell, Winston-Salem, for defendant.

BROCK, Chief Judge.

Defendant assigns as error the admission of the in-court identification of the defendant by the witness Michael Mitchell. Upon objection, a voir dire was conducted. The witness testified that he had known defendant prior to this occasion, having seen him around this same intersection about every other weekend. However, the witness knew defendant only by his first name, Frank; he knew defendant's brother only by his first name, Willie. He told the investigating officers that Frank did the cutting. Willie was arrested at the scene, but Frank ran. The police showed the witness two photographs, one of Frank McMullin and one of Willie McMullin. The witness pointed out the photograph of Frank McMullin as being the person he knew as Frank and the photograph of Willie McMullin as being the person he knew as Willie. Based upon this identification, a warrant was issued for the arrest of the defendant Frank McMullin. The witness identified Frank McMullin in court as the person he had previously known only by the name Frank, and identified him in court as the person who stabbed the deceased.

The trial judge made findings of fact based upon competent evidence that the in-court identification was based upon the witness' acquaintance with Frank prior to and at the time of the stabbing. Thereafter he permitted the witness to identify defendant before the jury.

We concede that it would have been better police practice to have shown the witness several photographs from which to select the defendant's photograph; nevertheless it is clear that the in-court identification was not tainted or influenced in any way by the procedure followed by the police in this case. They were not trying to engage in a procedure to permit the witness to identify the person who committed the offense. The witness already knew the defendant, albeit he did not know defendant's last name. The police were merely trying to guard against the possibility of arresting the wrong Frank. In our opinion the trial judge was correct in admitting the in-court identification of defendant by the witness Michael Mitchell.

During the presentation of the State's evidence, Mattie Ray Mitchell, the mother of the witness Michael Mitchell, testified. She was acquainted with defendant and his brother and knew both their first and last names. She saw defendant and his brother fighting with Jessie Lee Fowler at the time of the fatal stabbing. During her testimony she stated: "That is all the part of it I seen and I said, "Lord, have mercy, there's Frank standing up there cutting that man,' and I'm scared of Frank." Defendant thereafter objected and the objection was overruled. However, defendant did not move to strike what he considered to be the objectionable part of the witness' answer. When inadmissibility is not indicated by the question, but becomes apparent by some feature of the answer, the objection should be by way of motion to strike the objectionable part of the answer. Stansbury's North Carolina Evidence, Brandis Revision, § 27. In any event the cross-examination of the witness as to why she had not testified at a previous trial of this case brought out again that she was afraid of Frank and was afraid to testify.

Lastly defendant assigns as error that the trial judge allowed the State to introduce into evidence a pocketknife taken from the defendant at the time of his arrest twenty days after the offense. There was no evidence which related the pocketknife to the stabbing of the deceased.

Assuming arguendo that it was error to admit the knife into evidence, it was nonprejudicial beyond a reasonable doubt. The eyewitness description of defendant's stabbing the deceased and the evidence of death as a result of the stab wounds is so overwhelming that the introduction of the knife could not have had any influence on the jury verdict.

In our opinion defendant had a fair trial, free from prejudicial error.

No error.

MORRIS and MARTIN, JJ., concur.