{ "id": 8555367, "name": "STATE OF NORTH CAROLINA v. JAMES ODELL McLAMB", "name_abbreviation": "State v. McLamb", "decision_date": "1972-03-29", "docket_number": "No. 7210SC50", "first_page": "705", "last_page": "711", "citations": [ { "type": "official", "cite": "13 N.C. App. 705" } ], "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": "178 S.E. 2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "277 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567347 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/277/0680-01" ] }, { "cite": "135 S.E. 2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "261 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575197 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/261/0657-01" ] }, { "cite": "155 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 780", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571186 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0780-01" ] }, { "cite": "154 S.E. 2d 897", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 769", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571055 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0769-01" ] }, { "cite": "173 S.E. 2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 N.C. App. 17", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548587 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/8/0017-01" ] }, { "cite": "184 S.E. 2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570959 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0515-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "weight": 3, "pin_cites": [ { "page": "488" }, { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "172 S.E. 2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561509 ], "opinion_index": 0, "case_paths": [ "/nc/276/0391-01" ] }, { "cite": "394 U.S. 440", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173399 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/394/0440-01" ] }, { "cite": "184 S.E. 2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 595", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571345 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0595-01" ] }, { "cite": "181 S.E. 2d 184", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "11 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554757 ], "opinion_index": 0, "case_paths": [ "/nc-app/11/0337-01" ] }, { "cite": "140 S.E. 300", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "opinion_index": 0 }, { "cite": "194 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614271 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nc/194/0615-01" ] }, { "cite": "151 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563551 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0532-01" ] }, { "cite": "99 S.E. 2d 61", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "246 N.C. 501", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627159 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/246/0501-01" ] }, { "cite": "162 S.E. 2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 204", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552127 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0204-01" ] }, { "cite": "150 S.E. 2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562538 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0411-01" ] } ], "analysis": { "cardinality": 698, "char_count": 13713, "ocr_confidence": 0.54, "pagerank": { "raw": 3.0292165104134185e-07, "percentile": 0.8544797399385061 }, "sha256": "01d4614c726315c9094c754074d4311360447d6d34f893b46b580bb6be6cdca7", "simhash": "1:b6f162366f3f9625", "word_count": 2284 }, "last_updated": "2023-07-14T21:18:15.024983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Vaughn concurs.", "Judge Brock concurs in the result." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES ODELL McLAMB" ], "opinions": [ { "text": "HEDRICK, Judge.\nThe defendant argues that the court erred \u201cin continuing to call the jury in for report on its progress without instructing that they were not to depart from any conscientious belief as to what the true facts might be.\u201d This contention is without merit. The record reveals the jury reported to the court on four occasions during its deliberations which covered a period of time in excess of four hours and twenty-four minutes. Three of these occasions related to whether the court would recess for the day. The fourth occasion related to the progress the jury was making in its deliberations. We have examined and find that all of the instructions given to the jury during its deliberations were in the form which has been many times approved by the appellate courts of this State. State v. McKissick, 268 N.C. 411, 150 S.E. 2d 767 (1966); State v. Fuller, 2 N.C. App. 204, 162 S.E. 2d 517 (1968).\nThe defendant\u2019s 26th and 27th exceptions relate to the polling of the jury. The record discloses that the first juror polled did not understand the question put to her by the clerk. Upon inquiry by the court as to whether she fully understood the question and whether she had, in fact, agreed to the verdict as reported by the foreman, the juror stated that she did agree to the verdict and that she still assented thereto.\n\u201c . . . The polling of the jury is for one purpose only, to ascertain whether the verdict as returned is the verdict of each juror and whether he then assents thereto.\u201d Highway Commission v. Privett, 246 N.C. 501, 99 S.E. 2d 61 (1957).\nWe hold the court did not commit prejudicial error in questioning the juror to determine if the verdict returned by the foreman was1 her verdict and if she still assented thereto. State v. Miller, 268 N.C. 532, 151 S.E. 2d 47 (1966); Trantham v. Furniture Co., 194 N.C. 615, 140 S.E. 300 (1927).\nThe defendant next contends the court erred in refusing to allow a voir dire examination prior to the testimony of an eyewitness to the crime charged. After the witness McCauley had described the events leading up to, during, and immediately after the moneybag had been grabbed from him at the bank, the solicitor asked the following question: \u201cState whether or not the person that you observed that grabbed the bag is in the court today.\u201d Over defendant\u2019s objection and after the judge had been informed at the bench that \u201cidentification was made from pictures,\u201d the witness was allowed to identify the defendant as the person who grabbed the bag and ran down the street.\nIn his brief, the defendant asserts \u201cthat the objection raised puts the case squarely under the holding of State v. Moffitt, 11 N.C. App. 337, 181 S.E. 2d 184.\u201d We do not agree. In Moffitt the court was concerned with the necessity of a voir dire examination before admitting into evidence out-of-court photographic identification. The exception here presents the question of whether the court committed prejudicial error by not conducting a voir dire examination of the witness ex mero motu to determine whether his in-court identification of the defendant was of independent origin and not tainted by the out-of-court photographic identification.\nIn State v. Banner, 279 N.C. 595, 184 S.E. 2d 257 (1971), Justice Higgins, writing for the Court, said:\n\u201c * * * Both federal and state cases hold evidence of a prior identification will not invalidate the in-court identification unless the former was fundamentally unfair. The totality of the circumstances surrounding the prior identification will determine its admissibility at the trial. To remove the likelihood of a false identification is the purpose of the exclusionary rule. If the in-court identification is of independent origin, a prior confrontation of a suspect in the custody of the officers will not warrant excluding the identifying testimony. Foster v. California, 394 U.S. 440, 22 L.Ed. 2d 402; State v. Austin, 276 N.C. 391, 172 S.E. 2d 507, and cases therein cited.\u201d\nAt the trial the defendant did not object to the evidence of the out-of-court photographic identification. He does not contend that the photographic identification procedure was fundamentally unfair, or that it tended in any way to taint the in-court identification.\nIn United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926, the United States Supreme Court said:\n\u201cWhere, as here, the admissibility of evidence of the lineup identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. * * *\n\u201cWe think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 9 L.Ed. 2d 441, 455, 83 S.Ct. 407, \u2018\u201c[Wjhether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.\u201d Maguire, Evidence of Guilt 221 (1959).\u2019 * * * Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant\u2019s actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. * * *\n\u201cOn the record now before us we cannot make the determination whether the in-court identifications had an independent origin. * * * We therefore think the appropriate procedure to be followed is to vacate the conviction pending a hearing to determine whether the in-court identifications had an independent source, or whether, in any event, the introduction of the evidence was harmless error, Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824, and for the District Court to reinstate the conviction or order a new trial, as may be proper.\u201d\nOn the record before us, we can make a determination that the in-court identification did have an independent origin. McCauley had ample opportunity to observe this defendant from a distance of six to eight feet immediately after the moneybag had been taken from him at the bank, and, upon pursuit, to see first his right and then his left facial profile. The witness\u2019 in-court identification of this defendant was positive. It had an origin independent of and prior to his observation of the photos at his place of business. State v. Williams, 279 N.C. 515, 184 S.E. 2d 282 (1971). This assignment of error is overruled.\nThe defendant contends the court committed prejudicial error in its instructions to the jury. We have carefully considered all the exceptions embraced in this assignment of error and conclude that the court fairly, adequately and correctly declared and explained the law arising on the evidence in the case, in accordance with the requirements of G.S. 1-180.\nThe defendant contends the court erred in overruling his objection to the following question:\n\u201cQ. Did Chief Young at any time suggest which picture you should pick out?\nA. No, sir.\u201d\nWhen the question complained of was asked, the witness had already testified, without objection, in considerable detail, about having picked the defendant\u2019s picture out of a group of photographs shown to him at his place of business by Chief Young three weeks after the crime. Although the question may be leading, under the circumstances of this case we do not think the court abused its discretion in overruling the objection. 2 Strong, N. C. Index 2d, Criminal Law, \u00a7 87. This assignment of error is overruled.\nThe defendant insists the judge expressed an opinion on the evidence, in violation of the provisions of G.S. 1-180, when he asked the witness McCauley the following question: \u201cWhat do you mean when you say you picked out this one picture.\u201d Immediately before the court asked the question complained of, the witness had testified: \u201cHe showed me 4 or 5 pictures. I don\u2019t know there was that many of them and I picked out this one picture.\u201d\nIt is well settled in this State that the court can ask questions of the witness for the purpose of clarifying his testimony. State v. Dunbar, 8 N.C. App. 17, 173 S.E. 2d 543 (1970). Obviously, the question asked here was for the purpose of clarifying the witness\u2019 testimony and in no way amounted to an expression of an opinion.\nThe defendant\u2019s final assignment of error challenges the ruling of the trial court denying the motion for judgment as of nonsuit made at the close of the State\u2019s evidence. When a defendant offers evidence after his motion for judgment as of nonsuit is overruled, he thereby waives all right to urge that denial as error upon appeal. G.S. 15-173; State v. Prince, 270 N.C. 769, 154 S.E. 2d 897 (1967); State v. Fikes, 270 N.C. 780, 155 S.E. 2d 277 (1967) ; State v. Howell, 261 N.C. 657, 135 S.E. 2d 625 (1964) ; State v. McWilliams, 277 N.C. 680, 178 S.E. 2d 476 (1971). Nevertheless, we have examined all of the evidence and conclude that it was sufficient to require the submission of the case to the jury.\nWe have carefully examined all the defendant\u2019s assignments of error and conclude the defendant had a fair trial free from prejudicial error.\nNo error.\nJudge Vaughn concurs.\nJudge Brock concurs in the result.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Attorney General Robert Morgan and Assistant Attorneys General William W. Melvin and William B. Ray for the State.", "Bailey, Dixon, Wooten & McDonald by Wright T. Dixon, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES ODELL McLAMB\nNo. 7210SC50\n(Filed 29 March 1972)\n1. Criminal Law \u00a7 122\u2014 instructions during jury\u2019s deliberations\nThe trial court, in inquiring about the jury\u2019s progress during its deliberations, sufficiently instructed the jury that no juror should depart from any conscientious belief as to what the true facts might be in order to reach a verdict.\n2. Criminal Law \u00a7 126\u2014 polling the jury \u2014 questions by trial judge\nWhere the record discloses that the first juror polled did not understand the question put to her by the clerk, the trial court did not err in questioning the juror to determine if the verdict returned by the foreman was her verdict and if she still assented thereto.\n3. Criminal Law \u00a7 66\u2014 in-court identification \u2014 pretrial photographic identification \u2014 failure to hold voir dire\nIn this prosecution for common law robbery, the trial court did not commit prejudicial error in failing to conduct a voir dire examination of the prosecuting witness to determine whether his in-court identification of defendant was tainted by an out-of-court photographic identification, where the record shows that the in-court identification was of independent origin from the photographic identification, the witness having observed defendant from a distance of six to eight feet immediately after a moneybag was taken from him and, upon pursuit, having observed defendant\u2019s right and left facial profiles.\n4. Criminal Law \u00a7 87\u2014 photographic identification \u2014 leading question\nWhere a robbery victim had testified that he picked defendant\u2019s picture out of a group of photographs shown to him by a policeman, the trial court did not abuse its discretion in allowing the solicitor to ask a leading question as to whether the policeman had at any time suggested the picture which he should pick.\n5. Criminal Law \u00a7\u00a7 66, 99\u2014 court\u2019s question to prosecuting witness \u2014 expression of opinion\nThe trial court did not express an opinion in asking the prosecuting witness, \u201cWhat do you mean when you say you picked out this one picture,\u201d the question being asked merely to clarify the witness\u2019 testimony.\n6. Criminal Law \u00a7 105\u2014 motion for nonsuit after State\u2019s evidence \u2014 waiver by introducing evidence\nWhen a defendant offers evidence after his motion for judgment of nonsuit is overruled, he thereby waives his right to urge that denial as error on appeal. G.S. 15-173.\nJudge Brock concurs in the result.\nAppeal by defendant from Godwin, Judge, 31 May 1971 Session of Superior Court held in Wake County.\nThe defendant, James Odell McLamb, was charged in a bill of indictment, proper in form, with the felonious larceny of $1,567.00 from O. S. McCauley on 30 May 1970. Upon the defendant\u2019s plea of not guilty, the State offered evidence tending to show that about 5:30 p.m., on 30 May 1970, O. S. McCauley locked approximately $1,576.00, the receipts from his dry cleaning business, in a moneybag and went to the Fidelity Bank at the corner of Main and Raleigh Streets in the Town of Fuquay-Varina, North Carolina, to make a deposit. While Mr. McCauley was preparing to put the money in a night depository, someone pushed him from behind, grabbed the moneybag and ran. When McCauley turned around he saw the defendant six to eight feet away with the moneybag, running down the street. He chased the defendant down Main Street to where he turned into an alley. He pursued the defendant into the alley until he gave out of breath. McCauley talked to Chief of Police Young and described the person who had taken the moneybag and whom he had chased down the street.\nOn 19 June 1971, Chief Young took four photographs to McCauley\u2019s place of business and asked him if he recognized the person who had taken the money. From these photographs, McCauley picked out the defendant\u2019s picture.\nThe defendant testified and offered evidence that he was in Washington, D. C., from 16 May 1970 until about 6 June 1970.\nThe jury found the defendant guilty of felonious larceny, and from a judgment of imprisonment of ten years, the defendant appealed.\nAttorney General Robert Morgan and Assistant Attorneys General William W. Melvin and William B. Ray for the State.\nBailey, Dixon, Wooten & McDonald by Wright T. Dixon, Jr., for defendant appellant." }, "file_name": "0705-01", "first_page_order": 729, "last_page_order": 735 }