State v. Brackett
State v. Brackett
Opinion of the Court
Defendant’s first contention is that Judge Martin erred in finding that the in-court identification of defendant by Mrs. Grady E. Smith, the victim of the attempted armed robbery, was based solely on her observations of defendant on the day of the crime and was not tainted or influenced by a series of photographs shown to her by investigating officer, Deputy Tom Moore. This contention, by implication, also challenges the finding by Judge Martin that there was nothing in the earlier photographic showing “so impermissibly suggestive as to taint Mrs. Smith’s in-court identification.” Since a voir dire hearing was held to determine the propriety of admitting identification testimony, the findings of Judge Martin are conclusive on appeal if they are supported by competent evidence in the record. State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974).
Evidence introduced by the State on voir dire tended to show that Mrs. Smith saw the defendant twice on 6 September 1976, the day of the incident. The first opportunity she had to observe defendant was when he and a friend entered her store that morning. Defendant and his friend walked about the store and then defendant went over to the cash register and purchased a package of chewing gum. When he paid for the gum, he was
The State’s evidence further showed on voir dire that Officer Tom Moore, a Deputy Sheriff of Edgecombe County, took a number of photographs to Mrs. Smith and asked her if she could pick out the two men who entered her store on 6 September 1976. The photographs were all of black males. Mrs. Smith recognized two men in the photographs, the defendant and his friend.
The defendant did not offer any evidence on voir dire, but cross-examination of Mrs. Smith revealed the fact that the photographs were not shown to Mrs. Smith until April of 1977, seven months after the attempted robbery. Cross-examination also brought out the fact that when Mrs. Smith was handed the photographs in April, she promptly selected the defendant’s picture from the group.
We hold that there is ample, competent evidence to support Judge Martin’s findings. Mrs. Smith had an opportunity to observe defendant twice; she observed him from close range; she observed him under good lighting, and she observed him for between five and ten minutes on one occasion alone. We hold that this evidence is sufficient to support the finding that the in-court identification was based solely on Mrs. Smith’s recall of events of 6 September 1976. The record is void of any evidence of impropriety in the photographic showing. Therefore, we hold that the evidence supports the finding that there was nothing imper-missively suggestive about the photographic identification procedure used.
We cannot agree with defendant’s contention that the seven-month lapse of time between the attempted armed robbery and
Defendant next argues that the trial judge pressured the jury into reaching a verdict. The record shows that the case was submitted to the jury around 5:00 p.m. on the day of the trial. Judge Martin called the jury into the courtroom at approximately 5:35 p.m. to inquire about the progress of the jury’s deliberations and also to ask if the jury wanted the court to send out for supper. The foreman informed the judge that one vote had been taken and they were about to take a second vote when called into the courtroom. The first vote had resulted in a 4 to 8 split. The jury agreed to take a second vote before arrangements were made for supper. They retired to deliberate again at 6:40 p.m. and returned at 6:44 p.m. The foreman announced that a second vote had been taken and the split was 2 to 10. Judge Martin then asked the foreman if he wanted the court to send out for dinner or did he wish to continue deliberations. When the foreman did not answer, Judge Martin suggested that in view of the fact that the jury was making some progress, they retire and continue deliberations and if no verdict was reached within a reasonable
Defendant contends that the verdict was coerced because the trial judge sent the jury back to continue deliberations without instructing the jury that no one should surrender his or her conscientious convictions in order to agree upon a verdict. We disagree. Whether the verdict was improperly coerced is determined by reviewing the facts and circumstances of the particular case before the court. State v. McKissick, 268 N.C. 411, 150 S.E. 2d 767 (1968). It is not error, per se, if on every occasion that the jury is called in or returns to report its progress, there is a failure by the trial judge to instruct the jury that each member should follow his or her conscience and not feel compelled to reach a verdict. State v. McLamb, 13 N.C. App. 705, 187 S.E. 2d 458 (1972); State v. Carr, 23 N.C. App. 546, 209 S.E. 2d 320 (1974); State v. Sutton, 31 N.C. App. 697, 230 S.E. 2d 572 (1976). We find nothing in Judge Martin’s action that would improperly coerce a verdict.
Defendant’s other contention relates to his motions to dismiss and motion to set aside the verdict. Since defendant bases his arguments on the failure of the State to properly identify the perpetrator of the crime, it is without merit.
No error.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.