State v. Byrd , 40 N.C. App. 172 ( 1979 )

MORRIS, Chief Judge.

The defendant has brought forward six assignments of error, all of which relate to defendant’s contention that the testimony identifying the defendant should have been suppressed. Defendant contends that the identification procedure of showing the suspect individually to Trooper Corbin was under the circumstances so unnecessarily suggestive and conducive to irreparable mistaken identification as to violate due process. Therefore, defendant contends, any testimony concerning the show-up and any in-court identification of the defendant should have been suppressed. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974), modified and affirmed, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed. 2d 1205 (1976).

We note from the record that the trial court did not conduct a voir dire on the admissibility of the identification of the defendant. The defendant objected to the State’s introducing any testimony through the witness Trooper Corbin which identified the defendant or referred to the show-up of defendant at Trooper Corbin’s house. The trial court ruled that defendant had waived any objection to the admissibility of the identification testimony by conducting the following cross-examination of Officer Howard prior to the State’s calling Trooper Corbin:

“Q. Mr. Officer, when Mr. Byrd came into the police station on that occasion, you arrested him, is that right?

A. No, sir.

Q. You didn’t arrest him?

A. Not at that point; no, sir.

Q. All right, Did you take him into custody?

A. I detained him for questioning.

Q. Did you later convey Mr. Byrd over to Mr. Corbin’s house?

A. Yes, sir, I did.

Q. And that was in the same morning?

A. Yes, sir.

Q. And what did you do —did you call Mr. Corbin before you took him over there?

A. Yes, sir.

Q. What did you tell him when you called him?

A. I asked him if he could identify the man, the man who he observed in the truck.

Q. And what did he say?

A. Yes, he could.

Q. And so you took him over there?

A. Yes, sir.

Q. And Mr. Corbin said this is the man?

A. Yes, sir.

Q. You didn’t have a lineup?

A. No, sir.”

The defendant’s own cross-examination of Officer Howard placed before the jury the identification procedure to which defendant now objects. Defendant may not object to the prejudicial effect of a pretrial identification procedure, regardless of whether it may be improper, when he, not the State, has placed that information before the jury. It is a well-established principle of law that an exception to the admission of evidence is generally waived when testimony of the same import is elicited by the objecting party, see e.g., Elledge v. Welch, 238 N.C. 61, 76 S.E. 2d 340 (1953) (dead man’s statute); Shelton v. R.R., 193 N.C. 670, 139 S.E. 232 (1927) (offer of compromise), or when evidence of the same import is admitted without objection. See Mills, Inc. v. Terminal, Inc., 273 N.C. 519, 160 S.E. 2d 735 (1968); McNeil v. Williams, 16 N.C. App. 322, 191 S.E. 2d 916 (1972). Similarly, once defendant has elicited such testimony, there could be no prejudicial effect on the defendant by the State introducing similar testimony. Indeed, the record before us indicates that the State’s only questions with respect to the pretrial identification of the defendant occurred during the examination of Trooper Corbin:

“Q. Now, sir, did you later on the 5th day of November, have an occasion to see the defendant?

A. Yes, sir, I saw a subject that was brought to my house.

Q. And state whether or not the person who was brought to your house is the same man you saw in the truck?

Mr. Douglas; Objection.

The Court; Sustained.

Q. Is the man who was brought to your house in the courtroom today?

A. Yes, sir.”

Assuming arguendo the testimony was improperly admitted, such evidence is not prejudicial when it is merely cumulative. See Board of Education v. Lamm, 276 N.C. 487, 173 S.E. 2d 281 (1970).

Our Supreme Court has suggested that the better practice is for the trial judge, even upon a general objection, to conduct a voir dire outside the hearing of the jury, find facts, and determine the admissibility of the in-court identification testimony. State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972); State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970), cert. denied, 400 U.S. 946, 91 S.Ct. 253, 27 L.Ed. 2d 252 (1970). Nevertheless, where the evidence is clear and convincing that the in-court identification of defendant originated with the observation of the defendant at the time of the crime, failure to hold the voir dire is harmless error. The evidence in this case tends to indicate that Trooper Corbin had known defendant for five or six years, recognized him in the truck, and gave his description to Officer Howard. These facts along with the opportunity to see defendant from within six to eight feet on a well-lighted street present clear and convincing evidence that Trooper Corbin’s out-of-court identification of the defendant originated with the observation of defendant at the scene of the crime and not with the pretrial show-up.

Because we find no prejudicial error in permitting testimony concerning the pretrial identification, it follows, that any in-court identification of the defendant was properly admitted. State v. Williams, 38 N.C. App. 183, 247 S.E. 2d 620 (1978). Similarly, defendant’s remaining assignments of error relating to the court’s failure to strike testimony and to direct a verdict for defendant, which motions were made on the grounds that the evidence identifying the defendant was incompetent, are overruled.

No error.

Judges MARTIN (Harry C.) and CARLTON concur.