Appeal by defendant from Davis, Judge. Judgment entered 3 October 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 13 October 1981.
Clark, Judge. Judges Hedrick and Martin (Harry C.) concur.
The defendant first challenges the admissibility of the identification evidence. At voir dire upon defendant's motion to suppress identification testimony, Katie Glenn and her boyfriend, Willie Simpson, testified that about 8:30 a.m. they were in the duplex apartment adjoining that of Virginia Potts when they saw a young black man pulling on the door of the Potts apartment. They observed him for two or three minutes from a distance of several feet. When Simpson went out the back door, the man left, and, while walking away, looked back at them about five times.
Simpson took Ms. Glenn to work and returned about 40 minutes later. He saw the same man come out of the Potts apartment carrying a stereo set. He told the man to bring it back, but the man would not do so. Simpson got his rifle and fired two shots over the man's head. The man dropped the stereo set and ran.
The following day Simpson and Ms. Glenn went to the Law Enforcement Center where they were shown, separately, six photographs. Both selected the photograph of the defendant, Exhibit 6, as the man they saw at the Potts apartment.
The trial judge made findings of fact and concluded that the identification of the defendant by Ms. Glenn and Simpson was of independent origin, untainted by any pretrial identification procedure which was unnecessarily suggestive and conducive to irreparable mistaken identification.
The findings of fact by the trial judge were supported by clear and convincing evidence, and the findings of fact in turn supported the conclusion that the in-court identification was of independent origin based on their observation of the defendant at the scene of the crime. See State v. Wilson, 296 N.C. 298, 250 S.E.2d 621 (1979). We hold that the identification testimony was admissible.
The defendant assigns as error the failure of the trial court to give the requested portions of N.C.P.I. -- Crim. 104.90 relating to identifications made after the crime. The trial court gave the following instructions from N.C.P.I. -- Crim. 104.90:
"I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime
charged beyond a reasonable doubt. This means that you, the Jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty. Now, the main aspects of identification are the observations of the offender by the witnesses before or at the time of the offense. Now, in examining the testimony of the witnesses, as to their observation of the perpetrator before, or at the time of the crime, you should consider such things as the lighting on the front porch of Virginia Potts, the lighting on the back porch, whether it was daylight or dark. You should also consider those things such as the close proximity of the witness, whether or not there was any face to face contact, whether they were able to observe the entire body of the defendant or only a portion of the body, the length of time the defendant may have been in the presence of the witness and the length of time they may have observed his features and his face. Now, the identification witnesses are witnesses just like any other witness. That is, you should assess the credibility of the identification witnesses in the same way that you would any other witness, in determining the adequacy of his observation and his capacity to observe.
As I have instructed you earlier, the State must prove beyond a reasonable doubt that the defendant was the perpetrator of the crime charged. If after weighing all the testimony, you are not satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged, it would be your duty to return a verdict of Not Guilty."
However, the court failed to give, as requested by defendant, the following paragraph from ...