Appeal by defendant from Allsbrook, Judge. Judgment entered 8 April 1981 in Superior Court, Lenoir County. Heard in the Court of Appeals 6 January 1982.
Morris, Chief Judge. Judges Hedrick and Martin (Robert M.) concur.
Defendant assigns error to the trial court's summary of defendant's evidence, alleging material misstatements of the testimony of William Dudley, owner and operator of the Eagle Taxi Stand, and omission of Ella Burney's testimony. Defendant asserts that the jury could have inferred from such irregularities that the judge expressed an opinion, rendering the summary prejudicial. We disagree.
"It is well settled in this jurisdiction that in determining the propriety of the trial judge's charge to the jury, the reviewing court must consider the instructions in their entirety, and not in detached fragments." State v. Wright, 302 N.C. 122, 127, 273 S.E.2d 699, 703 (1981). When reviewed contextually, it is evident that the trial judge's charge included an even recapitulation of the evidence presented by both defendant and the state. The trial court abbreviated the testimony of defendant's witness, Dudley, as follows:
Mr. William K. Dudley testified that he owns and operates the Eagle Taxi Stand and was operating it on October 17, 1980, and that he is there most of the time and he knows that the lights were very bad around that company on October 17, 1980; that the city has installed one or more lights around there within the past two months but that did not exist on October 17, 1980; that yesterday was the first time that he has ever seen the defendant and that he knows most of the people who are there, at least knows them by face and he's never seen the defendant before yesterday.
In fact, Dudley testified that he had known defendant for an undetermined period but that the first time he saw defendant near the taxi stand was the day before the trial. We deem the trial judge's misstatement immaterial, since the judge accurately recalled that Dudley testified he had not seen defendant at the taxi stand until the day before trial. The defendant has the
burden of proving an improper expression of opinion and that such an expression was prejudicial. State v. Green, 268 N.C. 690, 151 S.E.2d 606 (1966). Defendant has failed to make such a showing. It must have been clear to the jury after the instructions were given that Dudley had not seen defendant at the stand during the time period in which the alleged drug sale took place, regardless of the actual length of Dudley's acquaintanceship with defendant.
Nor was there prejudicial error in the trial judge's omission of Miss Burney's testimony from his summary. The law does not require recapitulation of all the evidence in the charge of the court to the jury. The judge is required to state the evidence only to the extent necessary to explain the application of the law to the evidence. State v. Looney, 294 N.C. 1, 240 S.E.2d 612 (1978). Miss Burney said that she met defendant at approximately 10:00 on 17 October, but did not know his whereabouts prior to that time. She otherwise corroborated wearing that evening. Her testimony was, therefore, not exonerative, but merely served to impeach the credibility of Fletcher. Since the testimony of neither Dudley nor Miss Burney was "substantive evidence which would exculpate defendant, the trial judge was not required to summarize this evidence in order to explain and apply the law to the evidence in this case." State v. Adcox, 303 N.C. 133, 141, 277 S.E.2d 398, 403 (1981).
Furthermore, the record fails to show that any misstatement or omission in the court's summary of the evidence was brought to the attention of the court prior to the jury's retiring. In this case, as in the matter of State v. McCoy, 34 N.C. App. 567, 239 S.E.2d 300 (1977), "the defendant contends that the trial judge erred in his charge to the jury by relating the evidence in such a way as to convey an opinion that he favored the State." Id. at 569, 239 S.E.2d at 302. We held in McCoy that "[a] misstatement of the evidence, which is not called to the attention of the trial judge, may not be the basis for a proper assignment of error." Id. at 570, 239 S.E.2d at 302. Defendant's dereliction in bringing the misstatement and omission of evidence to the attention of the court, his failure to show prejudice, the nonexculpatory nature of the testimony, and the court's issuance of cautionary instructions, require dismissal of this assignment of error.
Defendant next assigns error to the ruling of the trial court regarding the pretrial identification procedures and subsequent in-court identification on the grounds that the photographic identification procedure was suggestive and that the evidence was insufficient to support the trial court's findings of fact and conclusions of law, and its ruling that the in-court identification was of independent origin.
The issue in evaluating a pretrial photographic identification procedure is whether the procedure was "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." State v. Legette, 292 N.C. 44, 51, 231 S.E.2d 896, 900 (1977), quoting Simmons v. U.S., 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968).
Factors to be considered in evaluating the likelihood of mistaken identification include (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of the witness' prior description of the criminal, (4) the level of certainty demonstrated by the witness ...