State v. Banner , 279 N.C. 595 ( 1971 )

HIGGINS, Justice.

The defendant’s exceptions and assignments of error involve (1) the failure of the court to conduct a voir dire to determine if defendant’s constitutional rights were violated by failure to provide counsel during the pre-trial identification; (2) the failure of the court to sustain the motion to dismiss at the close of the evidence; and (3) the failure of the court to submit to the jury the lesser offense of common law robbery.

The objection to Miss Bradsher’s in-court identification cannot be sustained. The defendant was picked up 15 minutes after and near the scene of the holdup. The arresting officer in the vicinity made the arrest after he received the radio description from police headquarters. Miss Bradsher gave a detailed description of the robber’s attire — rusty or orange colored pants and a sweat shirt with white and “goldish” orange stripes going around the body. As the robber left the scene, Miss Bradsher had noted a tear in the right rear of his pants.

The fact the robber did not have the purple hat, the white coat or the sunglasses does not weaken the identification. It would be normal for a guilty party to change his appearance as quickly as possible to escape detection and arrest. One out at night without a hat, or without sunglasses would not be unusual. However, it would seem unusual for one to appear on a cold December night in his shirt sleeves. Moreover, a second man on the street wearing a gold and white sweat shirt, orange colored corduroy pants with a tear on the right hip would be as infrequent as a visit to earth by Halley’s Comet. In his testimony the defendant admitted he was wearing the described clothing at the time of his arrest. He did not claim to have swapped clothes between the time of the holdup and his arrest. The motion to dismiss was properly denied.

The defendant argues Miss Bradsher’s in-court identification was tainted by the confrontation at the scene immediately after the robbery and at a time when the defendant was without counsel. He contends the in-court testimony should have been excluded. Both federal and state cases hold evidence of a prior identification will not invalidate the in-court identification unless the former was fundamentally unfair. The totality of the circumstances surrounding the prior identification will determine its admissibility at the trial. To remove the likelihood of a false identification is the purpose of the exclusionary rule. If the in-court identification is of independent origin, a prior confrontation of a suspect in the custody of the officers will not warrant excluding the identifying testimony. Foster v. California, 394 U.S. 440, 22 L. Ed. 2d 402; State v. Austin, 276 N.C. 391, 172 S.E. 2d 507, and cases therein cited.

This the officers knew: The defendant was arrested near the time and place of the robbery, attired in a shirt with alternating white and gold stripes around the body, golden orange colored corduroy trousers with a tear on the right hip. Surely this description with the other evidence was sufficient to make out the case of robbery. However, to guard against charging one whom the victim might exonerate, the officers requested the witness to look at the defendant. The physical evidence was sufficient to make out the case. Hence the defendant’s chance of release depended not on a failure of the witness to identify him, but on her opinion he was not the robber. The confrontation was to guard against holding the wrong man. State v. McNeil, 277 N.C. 162, 176 S.E. 2d 732.

In this case the defendant did not request a voir dire. Neither did he make a motion to suppress the identification at the scene of the robbery. The evidence offered shows the defendant was not prejudiced by the fact the State’s chief witness saw him in the custody of the officers 15 minutes after the robbery wearing this unusual attire without a lawyer at his side.

The exceptions to the court’s failure to submit to the jury the offense of common law robbery was not error. All the evidence was to the effect that the robber drew a pistol, cocked it and threatened to use it unless Miss Bradsher, the attendant, surrendered to him the contents of the cash register. There was no evidence upon which to predicate a charge of common law robbery. State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399; State v. Owens, 277 N.C. 697, 178 S.E. 2d 442.

Other assignments of error are formal and need not be discussed.

In the trial and judgment, we find

No error.