State v. Quinn , 36 N.C. App. 611 ( 1978 )

BROCK, Chief Judge.

Defendant assigns error to the in-court identification of him by the witnesses Stinson and Campbell, on the grounds that they were the result of an improper out-of-court confrontation.

As to the identification of defendant by the witness Campbell, defendant’s assignment of error obviously lacks merit. Campbell did not participate in the out-of-court identification procedure. Granted, Campbell’s identification was not positive. However, lack of positiveness as to identification goes to the weight of the evidence and not its admissibility. State v. Bridges, 266 N.C. 354, 146 S.E. 2d 107 (1966).

As to the admissibility of Stinson’s testimony, the facts and circumstances of this case are strikingly similar to those of State v. Westry, 15 N.C. App. 1, 189 S.E. 2d 618, cert. denied 281 N.C. 763 (1972). We see no need to reiterate Chief Judge Mallard’s discussion of the law relating to out-of-court identification procedures and in-court identification independent thereof. In the case sub judice the trial court admitted the identification testimony after finding that Stinson had ample opportunity to observe defendant’s face, that the in-court identification of defendant by Stinson was of independent origin and did not result from any out-of-court confrontation, and that the out-of-court confrontation did not deny defendant due process of law and did not taint and render inadmissible the in-court identification of defendant by Stinson. These findings are supported by the evidence.

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

No error.

Judges Hedrick and Mitchell concur.