{ "id": 8525878, "name": "STATE OF NORTH CAROLINA v. ROGER DALE SUMMEY", "name_abbreviation": "State v. Summey", "decision_date": "1993-04-06", "docket_number": "No. 9127SC1057", "first_page": "518", "last_page": "529", "citations": [ { "type": "official", "cite": "109 N.C. App. 518" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "8 ALR5th 775", "category": "reporters:specialty", "reporter": "A.L.R. 5th", "opinion_index": -1 }, { "cite": "43 ALR4th 579", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "290 S.E.2d 614", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572929 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0647-01" ] }, { "cite": "343 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "897" } ], "opinion_index": 0 }, { "cite": "317 N.C. 119", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774636 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0119-01" ] }, { "cite": "324 S.E.2d 841", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 779", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750808 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0779-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-87", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 0 }, { "cite": "384 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2492416, 2492358, 2491983, 2490036, 2492763 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0276-05", "/nc/325/0276-04", "/nc/325/0276-01", "/nc/325/0276-03", "/nc/325/0276-02" ] }, { "cite": "379 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "93 N.C. App. 682", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528521 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc-app/93/0682-01" ] }, { "cite": "367 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517321 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0229-01" ] }, { "cite": "341 S.E.2d 565", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 337", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4700970 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0337-01" ] }, { "cite": "335 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 264", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521821 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0264-01" ] }, { "cite": "370 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 733", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518633 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0733-01" ] }, { "cite": "290 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "633" } ], "opinion_index": 0 }, { "cite": "305 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571096 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0463-01" ] }, { "cite": "272 S.E.2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 561", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522759 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0561-01" ] }, { "cite": "234 S.E.2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571329 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0527-01" ] }, { "cite": "322 S.E.2d 148", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "parenthetical": "merely because the witness observed the defendant at the preliminary hearing seated at the defense table wearing prison clothes was not impermissibly suggestive" } ], "opinion_index": 0 }, { "cite": "312 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4749024 ], "year": 1984, "pin_cites": [ { "parenthetical": "merely because the witness observed the defendant at the preliminary hearing seated at the defense table wearing prison clothes was not impermissibly suggestive" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0286-01" ] }, { "cite": "239 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 85", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547304 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0085-01" ] }, { "cite": "330 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1985, "pin_cites": [ { "page": "544" }, { "page": "471" }, { "page": "545" }, { "page": "471" } ], "opinion_index": 0 }, { "cite": "313 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725454 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/313/0539-01" ] }, { "cite": "301 S.E.2d 91", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710741 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0159-01" ] }, { "cite": "357 S.E.2d 631", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "634" } ], "opinion_index": 0 }, { "cite": "320 N.C. 96", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4726337 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0096-01" ] } ], "analysis": { "cardinality": 954, "char_count": 25775, "ocr_confidence": 0.749, "pagerank": { "raw": 1.2831439038871714e-07, "percentile": 0.6181007078018834 }, "sha256": "688c09454cbfd1814807569ffd4be10bb793eb308eacd0077a92adc26d025fa1", "simhash": "1:436ad132b4ef9ddd", "word_count": 4243 }, "last_updated": "2023-07-14T20:43:31.464788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and GREENE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROGER DALE SUMMEY" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant contends that the trial court erred (1) by denying defendant\u2019s motions to suppress the identification testimony by the prosecuting witnesses, (2) by failing to give defendant\u2019s requested instruction on eyewitness identification testimony, (3) by allowing the SBI serologist to testify that she could not exclude defendant as the person who deposited semen in the sample taken from the prosecuting witness, and (4) by denying defendant\u2019s motion to dismiss the charges of armed robbery. We find no prejudicial error in defendant\u2019s trial.\nBy his first and second assignments of error, defendant contends that the trial court committed reversible error in denying his motion to suppress the identification testimony of witnesses Ms. Hannah and Little as there was a substantial risk of misidentification of defendant. Specifically, defendant contends that the pre-trial identification procedures were impermissibly suggestive and tainted the in-court identification testimony because (1) defendant\u2019s picture included in a photographic array contained an ink mark, (2) both Ms. Hannah and Little observed defendant at the probable cause hearing, and (3) Ms. Hannah had an opportunity to view defendant while he was in custody, as well as his booking cards at the Sheriff\u2019s Department.\nA court must exclude pre-trial identification evidence, as well as any in-court identification testimony derived therefrom, as violating due process where the facts reveal a pre-trial identification procedure so impermissibly suggestive that there is a substantial likelihood of irreparable misidentification. State v. Pigott, 320 N.C. 96, 357 S.E.2d 631 (1987); State v. Harris, 308 N.C. 159, 301 S.E.2d 91 (1983). Whether there is a substantial likelihood of mis-identification depends upon a totality of the circumstances. Id. In such a review, the Court must consider:\n(1) The opportunity of the witness to view the criminal at the time of the crime; (2) the witness\u2019 degree of attention; (3) the accuracy of the witness\u2019 prior description; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation.\nPigott, at 99-100, 357 S.E.2d at 634.\nWhen the facts found by the trial judge after a voir dire hearing on a motion to suppress identification testimony are supported by competent evidence, they are binding on the appellate courts. State v. Freeman, 313 N.C. 539, 330 S.E.2d 465 (1985). A determination by the trial judge that the identification testimony had an independent source must be clear and convincing. Id. at 544, 330 S.E.2d at 471. For a photographic lineup to be fair, the officers conducting it must do nothing to induce the witness to select one picture over another. Id. at 545, 330 S.E.2d at 471.\nAt voir dire hearing on defendant\u2019s motion to suppress the identification testimony, the evidence disclosed: Sometime after the incident of 28 July 1989, Ms. Hannah became a dispatcher and clerk for the Gaston County Sheriff\u2019s Department. During this time and before defendant\u2019s trial, she saw defendant a couple of times as he was brought into the sheriff\u2019s office. Ms. Hannah also had access to booking cards kept by the Sheriff\u2019s Department including several on defendant. She also testified that she had seen defendant seated at the defense table during the probable cause hearing and identified him at that time.\nMs. Hannah\u2019s initial description of her assailant was that he was white, fairly tall, and had long, shoulder-length dark brown hair and a bushy beard, two to three inches long. She has also described him as dirty, wearing blue jeans, a bandanna tied around his head, and having either rotten teeth or no front teeth. Ms. Hannah testified he had \u201ca dark mouth and droopy eyes . . . kind of sunk-in eyes.\u201d She could not remember whether the assailant wore a shirt.\nAdditionally, Ms. Hannah testified as to the conditions surrounding her viewing of the perpetrator. There were lights on in the tennis court to the right of the parking lot, a street light to the left of the car and lights all the way around the pool house located beside the parking lot. Ms. Hannah was in the parking lot area approximately ten minutes during which time she observed defendant. Although there were no lights on at the building where Ms. Hannah was later raped, the lights from the pool could still be seen, and she spent approximately fifteen minutes with the perpetrator at that building.\nLittle repeated his initial description of the assailant on voir dire as having long hair, a long beard, being skinny and ugly. Little stated the man wore jeans, no shirt and a brimmed \u201cbush hat.\u201d Little testified that the lighting conditions were not optimum in the park at the time of the encounter but that he was able to make out the facial features of the perpetrators. Little also observed defendant at the probable cause hearing. Little observed Hannah\u2019s assailant for approximately forty-five seconds to a minute and testified that his in-court identification of defendant came from independently recalling seeing his face in Lineberger Park and not from the probable cause hearing or the photographic array.\nDetective James Anderson testified on voir dire that a picture of defendant shown to Ms. Hannah and Little at a photographic array held four days after the incident and identified by both as their assailant had an unexplainable ink mark on its plastic cover which the other pictures shown to Ms. Hannah and Little did not. Anderson did not believe that the mark had been there at the time of the identification and had never noticed it before. Ms. Hannah took twelve seconds and Little fourteen seconds to identify the photograph of defendant as the perpetrator at the photographic array.\nAt the conclusion of the voir dire hearing, the trial court entered findings of fact and concluded that the evidence supported the findings that both Ms. Hannah and Little had ample opportunity to observe defendant at the time of the crimes and that the pre-trial identification procedures were not impermissibly suggestive.\nThe trial judge determined that the ink mark on the plastic covering over defendant\u2019s picture in the photographic array was not suggestive, but was merely an idle pen scratch and, in any event, was not an indicative mark. The trial judge found that the photographic array was not impermissibly suggestive. The trial judge also concluded that the fact that Ms. Hannah and Little observed defendant seated at the defense table during the probable cause hearing was not impermissibly suggestive. Finally, the court found that the pre-trial identification procedure was not imper-missibly suggestive merely because Ms. Hannah had the opportunity to view defendant, as well as his booking cards, while he was in custody. The trial judge concluded that defendant could come into the view of a prosecuting witness anywhere and that because of Ms. Hannah\u2019s previous identifications through admissible photos and at the probable cause hearing, the viewing of defendant by Ms. Hannah at the jail where she worked was harmless and not prejudicial.\nWe find no error in the denial of defendant\u2019s motion and hold that under the totality of circumstances, the pre-trial identification procedures in this case were not so impermissibly suggestive as to give rise to a substantial likelihood of mistaken identification. Both witnesses had ample opportunity to view defendant for several minutes, each of them demonstrated attentiveness to his physical characteristics, each of their prior descriptions of defendant was accurate and conformed to each other\u2019s testimony, each demonstrated certainty at all times in identifying defendant\u2019s photograph and person, and the length of time between the crime and confrontation was relatively brief, there being only four days between the crime and the photographic array. While defendant points to several instances of conflicting testimony, such as the failure to observe defendant\u2019s tatoos and the type of headgear worn by the assailant, a witness does not have to be able to describe with perfect accuracy a person he observes in the process of committing a crime. State v. Daniels, 35 N.C. App. 85, 239 S.E.2d 880 (1978). Merely because defendant was the only bearded person in the courtroom at the time and because he was seated at the defense table is not on its face impermissibly suggestive. Our Supreme Court has specifically held that the viewing of a defendant in a courtroom during varying stages of a criminal proceeding is not in and of itself such a confrontation as will taint an in-court identification. State v. Hannah, 312 N.C. 286, 322 S.E.2d 148 (1984) (merely because the witness observed the defendant at the preliminary hearing seated at the defense table wearing prison clothes was not impermissibly suggestive). Nor does the fact that Ms. Hannah saw defendant, and his booking cards, in the course of her employment at the Sheriff\u2019s Department taint her identification. Our courts have held repeatedly that confrontations between a victim or witness and a suspect following a crime are not automatically so suggestive as to violate a defendant\u2019s constitutional rights. State v. Thomas, 292 N.C. 527, 234 S.E.2d 615 (1977); State v. Jordan, 49 N.C. App. 561, 272 S.E.2d 405 (1980). The findings of the trial court are supported by clear and convincing competent evidence and are thereby binding on this Court. We find no error in the denial of defendant\u2019s motions to suppress the identification testimony of Little and Ms. Hannah.\nBy defendant\u2019s next assignment of error, he contends that the trial court erred when it failed to give his requested jury instruction regarding eyewitness identification testimony. Defendant contends that because the instruction he requested was supported by the law and not given in substance, the trial court erred. We disagree.\nDefendant submitted a written request for instructions on eyewitness identification testimony taken nearly verbatim from the 1986 North Carolina Pattern Jury Instructions. This requested instruction included a list of factors for the jury to consider in evaluating eyewitness testimony as to observations of the perpetrator before, at the time of and after the offense. The trial court declined the request and instead gave the Pattern Jury Instruction on eyewitness identification as it was revised in 1989. The instruction as given instructed the jury that the State had the burden of proving the identity of the defendant as the perpetrator of the crime beyond a reasonable doubt, but did not include the list of factors.\nA trial court is not required to give a requested instruction in the exact language of the request, but where the request is correct in law and supported by the evidence in the case, the court must give the instruction in substance. State v. Green, 305 N.C. 463, 290 S.E.2d 625 (1982). In Green, the defendant requested an instruction similar to that requested in this case, and the trial court actually gave an instruction virtually identical to that given in the case sub judice. In response to defendant\u2019s assignment of error to the failure to grant the requested instruction, the Supreme Court held:\nWe think the trial court here gave in substance that portion of the requested instruction which was correct in law. The instruction clearly emphasized the importance of proper identification of the defendant and emphasized that the burden of proving such identity beyond a reasonable doubt was on the State. Read contextually, the charge adequately explained to the jury the various factors they should consider in evaluating the testimony of witnesses. ... no further instructions were necessary.\nId., at 477, 290 S.E.2d at 633. We conclude that the trial court in this case properly instructed the jury with respect to the identification testimony.\nDefendant next assigns as error the admission of testimony by Agent Milks, an expert witness in the area of forensic serology, that she could not exclude defendant as the person who deposited the semen in a sample taken from Ms. Hannah. During the State\u2019s case the following exchange took place between the prosecutor and Milks:\nQ. You said that \u2014 Agent Milks, you said that they [the serology tests] were inconclusive?\nA. That\u2019s Correct.\nQ. Well, what was it that \u2014 did you obtain anything from your analysis that was less than conclusive?\nA. I detected the presence of spermatozoa, but I have no opinion as to who that originated from.\nQ. And from your examination of the semen and the blood, you were unable to exclude the blood of [the defendant] \u2014 that was submitted for your analysis as the person who deposited the semen.\nMr. Morris: Objection.\nQ. Is that correct?\nThe Court: Overruled.\nA. That\u2019s correct. I cannot exclude him.\nDefendant contends that Milks\u2019 testimony that she could not \u201cexclude\u201d defendant as the source of the semen was not helpful to the jury and was prejudicially worded to give the impression that Milks believed that defendant was the donor of the semen, but could not establish that fact through use of the serology tests.\nA trial court\u2019s ruling on an evidentiary point is presumed to be correct. State v. Herring, 322 N.C. 733, 370 S.E.2d 363 (1988). Whether a judge\u2019s actions amount to reversible error is a question to be considered in light of all of the circumstances. State v. Heath, 77 N.C. App. 264, 335 S.E.2d 350 (1985), rev\u2019d on other grounds, 316 N.C. 337, 341 S.E.2d 565 (1986). In this case, Agent Milks had earlier testified, without objection, that she had no opinion as to the identity of the person whose spermatozoa she found. Defendant has failed to demonstrate a reasonable possibility that the jury would have reached a different result at trial had the challenged testimony been excluded. N.C. Gen. Stat. \u00a7 15A-1443(a) (1988); State v. Martin, 322 N.C. 229, 367 S.E.2d 618 (1988). In light of Agent Milks\u2019 testimony taken as a whole and the opportunity of defendant to cross-examine Agent Milks at trial, the challenged testimony was not prejudicial nor was there a reasonable possibility that a different result would have been reached if the trial court had excluded the statement. State v. Ward, 93 N.C. App. 682, 379 S.E.2d 251, disc. review denied, 325 N.C. 276, 384 S.E.2d 528 (1989).\nDefendant\u2019s final assignment of error is the trial court\u2019s denial of defendant\u2019s motion to dismiss the charges of armed robbery. Defendant was convicted of robbery with a dangerous weapon. The statutory crime of robbery with a dangerous weapon requires that the dangerous weapon be one which endangers or threatens life. N.C. Gen. Stat. \u00a7 14-87 (1986). Defendant contends that because evidence was presented that the victims in this case were robbed with a pellet pistol and a BB rifle with a broken stock, no dangerous weapon was used and the charge of armed robbery should have been dismissed. We disagree.\nOur Supreme Court has established rules with which to resolve sufficiency of evidence questions in. armed robbery cases where the instrument used appears to be, but may not in fact be a dangerous weapon capable of endangering or threatening life. State v. Joyner, 312 N.C. 779, 324 S.E.2d 841 (1985). A summary of those rules relevant to the present case includes:\nIn an armed robbery case the jury may conclude that the weapon is what it appears to the victim to be in the absence of any evidence to the contrary. If, however, there is any evidence that the weapon was, in fact, not what it appeared to the victim to be, the jury must determine what, in fact, the instrument was.\nState v. Allen, 317 N.C. 119, 125, 343 S.E.2d 893, 897 (1986).\nMs. Hannah testified that one of the perpetrators \u201chad a big gun, [i]t looked like a shotgun,\u201d and that another perpetrator whom Ms. Hannah identified as defendant had a gun in his hand that \u201clooked like a long barrel pistol.\u201d Alfred Little described the pistol as \u201chuge\u201d and said that it appeared to be a revolver. The other assailant had a \u201crifle or shotgun.\u201d The only other descriptive evidence regarding the weapons came from witness Turner who testified that he observed defendant and another perpetrator at Lineberger Park on the evening in question from about five or ten feet away. Turner testified that the two men were \u201cholding two guns at the people in the car,\u201d and that defendant had a \u201c.357 pellet, CO-2 cartridge gun\u201d and that the other man had \u201ca rifle, a Crossman BB gun. The stock on it was broke off.\u201d Turner testified that he owned both guns.\nThus, there is evidence that it appeared to the victims that the robbery was committed with dangerous weapons as well as evidence tending to show that the weapons in question were not dangerous weapons within the contemplation of G.S. 14-87. State v. Alston, 305 N.C. 647, 290 S.E.2d 614 (1982). Therefore, the trial court was required to submit the case to the jury on the lesser included offense of common law robbery, as well as armed robbery, and it was for the jury to determine the nature of the weapon used. Id.; State v. Allen, 317 N.C. 119, 343 S.E.2d 893 (1986). In this case, the jury was given instructions as to both armed and common law robbery and a definition of \u201cdangerous weapon\u201d as \u201cone which is likely to cause death or serious bodily injury.\u201d We find no error in the trial court\u2019s denial of defendant\u2019s motion to dismiss the charges of armed robbery.\nWe conclude that defendant received a fair trial free from prejudicial error.\nNo error.\nJudges JOHNSON and GREENE concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Sue Y. Little, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROGER DALE SUMMEY\nNo. 9127SC1057\n(Filed 6 April 1993)\n1. Evidence and Witnesses \u00a7\u00a7 441, 460, 501 (NCI4th)\u2014 robbery, rape, kidnapping \u2014 identification \u2014stray mark on photograph \u2014 observation at probable cause hearing \u2014 viewing while in custody \u2014in court identification not tainted\nThe trial court did not err in a prosecution for robbery, rape, and kidnapping by denying defendant\u2019s motion to suppress identification testimony from Ms. Hannah and Little, the victims, where Ms. Hannah became a dispatcher and clerk for the Sheriffs Department after the incident; she saw defendant as he was being brought into the sheriffs office and had access to booking cards; Ms. Hannah and Little saw defendant seated at the defense table during the probable cause hearing; a picture of defendant shown to Ms. Hannah and Little in a photographic array four days after the incident had an unexplainable ink mark on its plastic cover which the other pictures in the array did not have; and the trial judge determined that the ink mark on the plastic covering the photograph was merely an idle scratch and was not suggestive, that the observation of defendant at the defense table during the probable cause hearing was not impermissibly suggestive, and that the viewing of defendant by Ms. Hannah at the jail where she worked was harmless because of previous identifications. Under the totality of circumstances, the pretrial identification procedures were not so impermissibly suggestive as to give rise to a substantial likelihood of mistaken identification. Both witnesses had ample opportunity to view defendant for several minutes; each of them demonstrated attentiveness to his physical characteristics; each of their prior descriptions of defendant was accurate and conformed to each other\u2019s testimony; each demonstrated certainty at all times in identifying defendant\u2019s photograph and person; and the length of time between the crime and the confrontation was relatively brief, there being only four days between the crime and the photographic array.\nAm Jur 2d, Criminal Law \u00a7\u00a7 802, 974; Evidence \u00a7\u00a7 371-373.\n2. Criminal Law \u00a7 687 (NCI4th)\u2014 instructions \u2014identification testimony \u2014requested instruction not given\nThe trial court properly instructed the jury on identification testimony in a prosecution for robbery, rape, and kidnapping where defendant requested an instruction on eyewitness testimony taken nearly verbatim from the 1986 Pattern Jury Instructions which included a list of factors for the jury to consider, the trial court declined the request, and the court gave instead the Pattern Jury Instruction on eyewitness identification as it was revised in 1989, which did not include the list of factors.\nAm Jur 2d, Trial \u00a7\u00a7 185-188.\n3. Evidence and Witnesses \u00a7 2209 (NCI4th)\u2014 rape \u2014 semen testing inconclusive \u2014 testimony that defendant could not be excluded\nThe trial court did not err in a prosecution for robbery, kidnapping, and rape by allowing an expert in forensic serology to testify that tests on semen taken from the victim were inconclusive and that defendant could not be excluded. The expert had testified earlier that she had no opinion as to the identity of the person whose spermatozoa she found and defendant failed to demonstrate a reasonable possibility that the jury would have reached a different result at trial had the testimony been excluded.\nAm Jur 2d, Expert and Opinion Evidence \u00a7 300.\nAdmissibility and weight of blood-grouping tests in disputed paternity cases. 43 ALR4th 579.\n4. Robbery \u00a7 4.3 (NCI3d) \u2014 armed robbery \u2014 pellet pistol and BB gun \u2014armed robbery and common law robbery submitted \u2014 no error\nThe trial court did not err by denying defendant\u2019s motion to dismiss charges of armed robbery where there was evidence that it appeared to the victims that the robbery was committed with dangerous weapons as well as evidence tending to show that the weapons in question were not dangerous weapons within the contemplation of N.C.G.S. \u00a7 14-87. It was for the jury to determine the nature of the weapon used, and the jury was given instructions as to both armed and common law robbery and a definition of \u201cdangerous weapon\u201d as \u201cone which is likely to cause death or serious bodily injury.\u201d\nAm Jur 2d, Robbery \u00a7\u00a7 6 et seq.\nStationary object or attached fixture as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide. 8 ALR5th 775.\nAppeal by defendant from judgments entered 15 July 1991 by Judge Marcus L. Johnson in Gaston County Superior Court. Heard in the Court of Appeals 13 January 1993.\nDefendant was charged in proper bills of indictment with two counts of robbery with a dangerous weapon, three counts of first degree rape, and two counts of first degree kidnapping. At trial, the State\u2019s evidence tended to show the following pertinent facts: On the night of 28 July 1989, Joy Haney Hannah rode with Alfred Little, her friend and co-worker, in Little\u2019s automobile to Lineberger Park in Gastonia. Little parked his car in a parking lot by a swimming pool where he and Ms. Hannah sat and talked.\nSometime thereafter, a black male appeared at the passenger window of Little\u2019s car holding a gun while two white males appeared on the driver\u2019s side of Little\u2019s car. One of the two white men was bearded, had long dark hair, and was also armed with a gun. The three men ordered Ms. Hannah and Little to get out of the car and lie on the ground. The men took money and jewelry from both Hannah and Little.\nThe bearded white male then took Ms. Hannah by the back of her shirt and forced her to walk with him to a building near the swimming pool on the park grounds. The bearded man then had sexual intercourse with Ms. Hannah twice. The black male then appeared at the building and had sexual intercourse with Ms. Hannah while the bearded white male pointed his gun at her. Subsequently, the third man alerted the two men with Ms. Hannah that he thought the police were coming, and all three men ran off.\nAfter the three men left, Ms. Hannah ran to a nearby store where she telephoned the police. She was taken to a hospital and examined.\nAt a photographic array held four days later on 1 August 1989, both Ms. Hannah and Little identified defendant as the bearded white male assailant. After hearing and denying defendant\u2019s motions to suppress the identification testimony the trial court permitted, both Ms. Hannah and Little identified defendant in court as the bearded white male involved in the 28 July 1989 incident.\nState Bureau of Investigation forensic serologist Lucy Milks testified that her attempts to apply blood grouping analysis to determine the origin of spermatozoa taken from Ms. Hannah\u2019s body and underwear were \u201cinconclusive.\u201d\nGeorge Turner testified that he had gone with defendant and three other men to Lineberger Park on the night of 28 July 1989 and later saw defendant and a black man holding guns at people in a car. Turner also testified that he saw defendant in the area of the building by the swimming pool and saw a girl lying beside the building tied up. Turner stated that defendant came to Turner\u2019s house later that evening with some jewelry which he hid under a board and also told Turner that he had \u201craped that girl down in the park.\u201d Turner also testified that the weapons which defendant and the black man had were a pellet pistol and a BB rifle with a broken stock.\nAt the close of the State\u2019s evidence, the trial court dismissed one count of rape and one count of kidnapping. The jury found defendant guilty of all remaining charges; however, the trial court allowed defendant\u2019s post-trial motion to reduce the first degree kidnapping conviction to second degree kidnapping. The trial court entered judgments sentencing him to two consecutive life sentences, a concurrent term of forty years for robbery with a dangerous weapon, and thirty years for second degree kidnapping to run concurrently with the second life sentence. Defendant appealed.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Sue Y. Little, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." }, "file_name": "0518-01", "first_page_order": 546, "last_page_order": 557 }