State v. Neal , 19 N.C. App. 426 ( 1973 )

199 S.E.2d 143 (1973) 19 N.C. App. 426

STATE of North Carolina
v.
Robert Lee NEAL, and Eugene Davis.

No. 7319SC604.

Court of Appeals of North Carolina.

September 19, 1973.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Charles M. Hensey, Raleigh, for the State.

Johnson & Jenkins by Cecil R. Jenkins, Jr., Kannapolis, for defendant appellants.

MORRIS, Judge.

Appellants contend that the trial court erred in allowing an in-court identification of defendants because it was tainted by an illegal out-of-court identification. Specifically, they contend that the photographic identification of defendants by the prosecuting witness prior to trial constituted a lineup and that defendants were entitled to have counsel present. Such contention is untenable.

"A suspect has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether he is at liberty or in custody at the time. State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970); State v. Jacobs, 277 N.C. 151, 176 S.E.2d 744 (1970). Such pretrial identification procedure is not a critical stage of the proceeding as delineated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)." State v. Stepney, 280 N.C. 306, 313, 185 S.E.2d 844, 849 (1972).

In addition, appellants contend that the photographic identification was so suggestive as to render invalid the in-court identification. It is well established that a conviction based on an in-court identification following a pretrial photographic identification will be set aside only if the photographic identification procedure is so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970). In the case sub judice the identifying witness, Yates, testified that he picked up the defendants in his cab around 4:00 or 5:00 p.m. and drove them for a short while before and after the robbery. At the police station he was given a stack of ten photographs, four of which were photographs of the two defendants. Following a voir dire examination of Yates, the trial court found that his in-court identification was based upon his impression formed at the time of the robbery and was not tainted by the photographic identification.

We believe the trial court's finding was correct. In State v. McPherson, supra, it was held that placing two photographs of defendants in a stack of seven or eight to be examined was not so impermissibly suggestive as to render invalid an in-court identification where the victim had ample opportunity to see his assailants in good light at the time of the robbery. In United States v. Cunningham, 423 F.2d 1269 (4th Cir. 1970), it was held not to be impermissibly suggestive when 14 photographs were shown, and seven of them depicted defendants. In Simmons v. United States, supra, six of an undisclosed total of photographs were of one defendant, and the procedure was held not to be suggestive. The identification here is no more suggestive than was that of the McPherson, Cunningham and Simmons cases, supra.

Appellant contends that the court erred in allowing Officer Yates to testify regarding the microphone on the cab's radio. Although this evidence may have been in fact inadmissible, appellant is precluded from raising the point on appeal, for he made no motion to strike the answer given by Officer Yates. The record does not show the question in response to which Officer Yates offered the testimony; rather, it shows that counsel's objection was made after the answer.

In cases where inadmissibility becomes apparent upon the answer rather than the question itself, the objection may be made as soon as the inadmissibility becomes known, and it should be made in the form of a motion to strike. State v. Little, 278 N.C. 484, 180 S.E.2d 17 (1971). Failure to interpose a timely objection in the form of a motion to strike constitutes waiver of the exception and cannot be considered on appeal. State v. Dickens, 11 N.C.App. 392, 181 S.E.2d 257 (1971); State v. Battle, 267 N.C. 513, 148 S.E.2d 599 (1966).

Appellants also contend that they were prejudiced by the introduction of State's Exhibit No. 2, a knife found on the person of defendant Neal but not used in the commission of the felony. This knife was a relatively insignificant part of the State's case, and, in our opinion, appellants were not injured by its introduction in light of the other evidence of their guilt. This result is consistent with the holding of the Supreme Court in State v. Carnes, 279 N.C. 549, 184 S.E.2d 235 (1971).

Appellants further assign as error the failure of the trial court to dismiss the cases. It is true that no evidence was introduced concerning the robbery of Terry Simpson; however, the point is moot since there was no conviction in those cases. There was no error in the court's failure to dismiss the cases involving the robbery of Gary Dry. When taken in the light most favorable to the State, the evidence presented was clearly sufficient to get to the jury.

Appellants have excepted in their fifth through ninth assignments of error to the trial court's charge to the jury. This court has said in interpreting Rule 19(d) of the Rules of Practice in the Court of Appeals of North Carolina:

"Assignments of error to the charge should quote the portion of the charge to which appellant objects, and assignments based on failure to charge should set out appellant's contention as to what the court should have charged. . . . A mere reference to the exception number and the page number of the record where the exception appears . . . will not present the alleged error for review. (Citations omitted.)" State v. Brown, 9 N.C.App. 534, 538, 176 S.E.2d 907, 909 (1970).

Appellants have not complied with Rule 19(d) relative to their exceptions to the trial court's charge—which we find to be without prejudicial error—and those exceptions will not be discussed.

The sentences of defendants cannot be considered cruel and unusual punishment, for the are within the limits established by G.S. § 14-87. Since State v. Manuel, 20 N.C. 144 (1838), the appellate courts of this State have held that when punishment does not exceed the limit fixed by statute, it cannot be considered cruel and unusual in a constitutional sense. Accord State v. Powell, 6 N.C.App. 8, 169 S. E.2d 210 (1969); State v. Atkinson, 278 N.C. 168, 179 S.E.2d 410 (1971).

We have reviewed all of defendants' assignments of error, and in our opinion no error has been made sufficiently prejudicial to warrant a new trial.

No error.

BRITT and PARKER, JJ., concur.