State v. Cole , 14 N.C. App. 733 ( 1972 )

VAUGHN, Judge.

Defendant assigns errors with respect to the “in-court” identification of defendant. The same are overruled. It is clear that the in-court identification of the defendant was not based on illegal pre-trial procedures and the judge so found. It is clear that the witness had ample opportunity to observe defendant as he passed her just prior to the assault and during the assault. Shortly thereafter the witness recognized defendant as he walked across the street while she was in the diner. Obviously the witness’ identification was independent of her sighting of the defendant at the police station where she immediatiely identified him to her husband. State v. Williams, 279 N.C. 515, 184 S.E. 2d 282.

Several assignments of error are brought forward with respect to certain comments and questions by the trial judge during the course of the trial. For the most part, these comments and questions appear to have been unnecessary and the same are disapproved. It does not follow, however, that every ill-advised comment or question by trial judge must constitute reversible error. State v. Perry, 231 N.C. 467, 57 S.E. 2d 774. On the facts of this case, we hold that the questions and comments by the judge could not have had any effect on the result of the trial.

Counsel for appellant contends that it was error not to allow him “to argue to the jury that the in-court identification made by the prosecuting witness was tainted due to an illegal confrontation between him and the prosecuting witness and was not of independent origin.” We disagree. While argument of counsel as to the weakness of testimony relating to identification of strangers may have been perfectly proper, the court had determined that there had been no illegal confrontation in this case and the court properly disallowed argument to the contrary especially where, as here, counsel was attempting to do so by reading excerpts from a case dealing with the effect of an illegal pre-trial “lineup.”

Defendant was ably represented at trial and on appeal. We find no error which would entitle defendant to a new trial.

No error.

Judges Morris and Graham concur.