Appeal by defendant from McConnell, J., 4 December 1978 Criminal Session of Union Superior Court.
Britt, Justice. Justice Brock took no part in the consideration or decision of this case.
By his first assignment of error, defendant contends the trial court erred in denying his motion for a change of venue because of unfavorable pretrial publicity. The assignment is without merit. This motion was addressed to the sound discretion of the trial judge and his ruling thereon will not be disturbed absent a showing of abuse of discretion. 4 Strong's N.C. Index 3d, Criminal Law § 15.1. We perceive no abuse of discretion in this case.
By his second and third assignments of error, defendant contends the trial court erred (1) in admitting into evidence photographs of him and others used in the identifying procedure, and (2) in admitting Teresa's testimony identifying him as her assailant. There is no merit in these assignments.
With respect to the photographs, defendant argues that in State v. Accor and Moore, 277 N.C. 65, 175 S.E.2d 583 (1970), this court recognized the principle that when photographs are used to identify a defendant, the state must show that a photograph of the defendant was lawfully obtained; and that absent such a showing, the photograph and evidence relating thereto, when objected to by the defendant, are inadmissible at trial. We hold that the principle was not violated in the case at hand.
While she was testifying, Teresa was asked if she could identify the man who committed the acts complained of. Defendant objected,
the jury was taken from the courtroom, and the court conducted a voir dire. Evidence presented at the voir dire tended to show that around 11:00 a.m. on 5 October 1978 Sheriff Fowler and other officers went to Teresa's hospital room. After obtaining permission from hospital personnel to talk to her, they proceeded to do so. She told them that she would be able to identify the man who molested her. The officers thereupon placed photographs of five young black males, including defendant, on a table and Teresa immediately selected a photograph of defendant as a photograph of her assailant.
The photograph of defendant had on it the date of 5 October 1978 and the sheriff testified that it was made on that date. Other testimony showed that defendant was arrested at the home of his girl friend around 3:30 that morning, carried to the sheriff's office and "processed" which included being photographed and finger-printed. Following the voir dire the court made findings of fact and concluded, among other things, that "there were no illegal identification procedures" in connection with the victim's identification of defendant.
G.S. 15A-502(a)(1) authorizes the photographing of a person charged with a felony or a misdemeanor when the person has been "arrested"; G.S. 15A-502(b) and (c) set forth certain exceptions not pertinent to the case at hand. Of course, the arrest must have been lawful. The evidence in this case was more than sufficient to show that there was probable cause to arrest defendant on the morning of 5 October 1978, hence his arrest was lawful.
A new trial was granted in Accor and Moore primarily for the reason that there was no showing that defendants were being lawfully detained at the time their photographs were being taken. That was not the case here.
With respect to the admission of Teresa's testimony identifying defendant, clearly there was no error. She testified at the voir dire. The court found and concluded that she had ample opportunity to view defendant at the time the crimes were committed, that there was nothing to indicate that her identification was tainted and that her identification of defendant at trial was of independent origin, based solely on what she saw at the time the alleged ...