#### STATE OF NORTH CAROLINA v. JIMMY LEE WINGARD

No. 7026SC513

(Filed 18 November 1970)

1. Criminal Law § 66— validity of in-court identification of defendant — sufficiency of findings and evidence

Trial court’s findings and conclusion that the State witness’ in-court identification of the defendant as the perpetrator of a common law robbery was of independent origin and was not tainted by any illegal out-of-court confrontation, held supported by plenary evidence.

2. Criminal Law § 175— findings on voir dire — review on appeal

Findings of the trial court upon voir dire are binding on appeal when supported by competent evidence.

Appeal by defendant from Anglin, J., 1 June 1970 Schedule “C” Criminal Session, Mecklenburg Superior Court.

The defendant was charged in a bill of indictment, proper in form, with common law robbery. Upon a plea of not guilty, *720the jury returned a verdict of guilty as charged. From a judgment imposing a ten-year sentence, the defendant appealed to the North Carolina Court of Appeals.

Robert Morgan, Attorney General, and Howard P. Satislcy, Staff Attorney, for the State.

Lacy W. Blue for defendant appellant.

HEDRICK, Judge.

[1] The appellant assigns as error the court’s allowing the in-court identification of the defendant by the State’s only witness, Barbara R. Jones. The appellant contends that the in-court identification of the defendant by the witness was tainted by an out-of-court confrontation. After a voir dire examination of the witness, the court made the following findings of fact and conclusion of law:

> “That Mrs. Barbara Jones observed the man who hit Robert Gainey for a period of about ten minutes while such man was in the store during the time the robbery occurred; that she told the police that this man was very short, about five feet three or four inches tall, with ‘African Bush’ hair and protruding teeth; that about two weeks after the robbery a detective showed her photographs of two men and a woman and asked her about identifying them; that she told the detective she could identify the man if she saw him, but not from the photographs shown to her; that one of the photographs was of the defendant; that after the robbery she first saw the man who hit Mr. Gainey in April, 1970 ‘in this courtroom’ at his trial in another case; that the solicitor called his name and read charges against him; that she didn’t know his name until then; that no one told her that he was in the instant robbery case; that in identifying the defendant she based her opinion on what she saw at the time of the robbery; that when she saw him in the courtroom in April, he was with Mr. Lacy Blue seated at a table; that Mr. Blue is his counsel in the instant case; that from clear and convincing evidence in-court identification of the defendant by the witness Barbara Jones is of independent origin based on what she saw at the robbery and does not result from any out-of-court confrontation or from any pretrial identification procedures suggestive and conducive to mistaken identification.”

*721 [1, 2] Findings of the trial court upon voir dire are binding on appeal when supported by competent evidence. State v. Childs, 269 N.C. 307, 152 S.E. 2d 453 (1967); State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966). We hold that there was plenary competent evidence to support the court’s findings of fact, and clearly the findings justify the conclusion that the witness’ in-court identification of the defendant as the perpetrator of the crime was of independent origin and not tainted by the out-of-court confrontation. State v. Hughes, 5 N.C. App. 639, 169 S.E. 2d 1 (1969); State v. Keel, 5 N.C. App. 330, 168 S.E. 2d 465 (1969).

We have carefully examined the entire record and hold that the defendant had a fair trial free from prejudicial error.

No error.

Chief Judge Mallard and Judge Paeker concur.