State v. Haskins , 34 N.C. App. 376 ( 1977 )

ARNOLD, Judge.

During presentation of the State’s evidence, witness Poole, who had previously identified the photographs of defendants, was allowed to testify as to the identity of the men who attempted to rob him. Defendants claim that under Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967 (1968), which sets forth the reason for excluding in-court identifications following pretrial photographic identifications, the in-court identification of the two defendants should not have been allowed. We cannot agree. In State v. Knight, 282 N.C. 220, 225, 192 S.E. 2d 283, 287 (1972), the North Carolina courts adopted Simmons:

“ ‘[CJonvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ ”

In the present case, upon objection by defense counsel, the trial court properly ordered a voir dire hearing to determine the admissibility of Poole’s testimony. During voir dire, there was competent evidence that Poole was shown a total of fifteen color photographs, all of young black males shown from the waist up and all of the same size. Defendants argue that since the pictures of the three defendants had a noticeably different background, the identification procedure was impermissibly suggestive. The defendants, however, having failed on this appeal to submit copies of the photographs, may not now ask this Court to reverse the findings of the trial court on this question.

Defendants’ further suggestion that witness Poole did not have a sufficient opportunity to observe the defendants during the criminal act is likewise without merit. There was competent evidence that Poole looked at both defendants in a well-lighted setting. The trial court, therefore, properly concluded that the pretrial photographic procedure was in no way so unnecessarily suggestive as to lead to irreparable mistaken identification.

Defendants also contend that the trial court erred by failing to conduct the trial in an impartial manner, to wit, by assisting the prosecuting attorney during the trial, and by improperly instructing the jury on the facts. We find no merit in these contentions. In the exercise of his duty to supervise and control the course of a trial so as to insure justice for all parties, a trial judge may interrogate a witness for the purpose of clarifying his testimony. State v. Colson, 274 N.C. 295, 163 S.E. 2d 376 (1968), cert. denied sub nom. Colson v. North Carolina, 393 U.S. 1087, 21 L.Ed. 2d 780, 89 S.Ct. 876 (1969). We have reviewed the record in the present case and find that the trial judge’s request that the prosecutor ask certain clarifying questions was in no way prejudicial to either defendant.

Defendants also argue that the court improperly instructed the jury by making reference to a drawing of a service station, an exhibit which was not in evidence but which had been used during a voir dire hearing. The court later corrected itself and asked the jurors to strike from their minds any such reference. In reviewing the whole record, we do not believe that the court’s mistaken reference to the existence of an exhibit not in evidence had any bearing on the outcome of this case.

We have considered defendants’ other assignments of error and we find

No error.

Chief Judge BROCK and Judge PARKER concur.