{ "id": 11465323, "name": "STATE OF NORTH CAROLINA v. MELVIN CURTIS SMITH", "name_abbreviation": "State v. Smith", "decision_date": "1998-07-07", "docket_number": "No. COA97-1112", "first_page": "71", "last_page": "79", "citations": [ { "type": "official", "cite": "130 N.C. App. 71" } ], "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": "290 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "409", "parenthetical": "holding that identification not inherently incredible where victim did not see attacker's face, which was covered with something plastic, but identified him based on \"the sound of his voice and the size and shape of him\"" } ], "opinion_index": 0 }, { "cite": "56 N.C. App. 771", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524412 ], "year": 1982, "pin_cites": [ { "page": "773", "parenthetical": "holding that identification not inherently incredible where victim did not see attacker's face, which was covered with something plastic, but identified him based on \"the sound of his voice and the size and shape of him\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/56/0771-01" ] }, { "cite": "289 S.E.2d 368", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "372", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "305 N.C. 356", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569882 ], "year": 1982, "pin_cites": [ { "page": "363", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/305/0356-01" ] }, { "cite": "393 S.E.2d 781", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1990, "pin_cites": [ { "page": "787" } ], "opinion_index": 0 }, { "cite": "327 N.C. 162", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2496850 ], "year": 1990, "pin_cites": [ { "page": "171" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0162-01" ] }, { "cite": "455 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "883", "parenthetical": "quoting State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990)" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 508", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11919420 ], "year": 1995, "pin_cites": [ { "page": "511-12", "parenthetical": "quoting State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0508-01" ] }, { "cite": "112 S.E.2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "pin_cites": [ { "page": "92" } ], "opinion_index": 0 }, { "cite": "251 N.C. 550", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626486 ], "year": 1960, "pin_cites": [ { "page": "558" } ], "opinion_index": 0, "case_paths": [ "/nc/251/0550-01" ] }, { "cite": "242 S.E.2d 806", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "813", "parenthetical": "quoting State v. Graves, 251 N.C. 550, 558, 112 S.E.2d 85, 92 (1960)" } ], "opinion_index": 0 }, { "cite": "294 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574285 ], "year": 1978, "pin_cites": [ { "page": "700", "parenthetical": "quoting State v. Graves, 251 N.C. 550, 558, 112 S.E.2d 85, 92 (1960)" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0689-01" ] }, { "cite": "318 S.E.2d 329", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "334", "parenthetical": "finding no merit to defendant's argument that the trial court failed to assist him where defendant failed \"to make the necessary motions and applications to secure the presence of an unwilling witness\"" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 691", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526923 ], "year": 1984, "pin_cites": [ { "page": "700", "parenthetical": "finding no merit to defendant's argument that the trial court failed to assist him where defendant failed \"to make the necessary motions and applications to secure the presence of an unwilling witness\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0691-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "66 U.S.L.W. 3417", "category": "reporters:specialty", "reporter": "U.S.L.W.", "year": 1997, "pin_cites": [ { "parenthetical": "No. 97-6543" } ], "opinion_index": 0 }, { "cite": "139 L. Ed. 2d 614", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1997, "pin_cites": [ { "parenthetical": "No. 97-6543" } ], "opinion_index": 0 }, { "cite": "488 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "542", "parenthetical": "No. 97-6543" } ], "opinion_index": 0 }, { "cite": "346 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139622 ], "year": 1997, "pin_cites": [ { "page": "506-07", "parenthetical": "No. 97-6543" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0497-01" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "stating that \"even though a trial court's rulings on relevancy technically are not discretionary . . . such rulings are given great deference on appeal\"" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "pin_cites": [ { "parenthetical": "stating that \"even though a trial court's rulings on relevancy technically are not discretionary . . . such rulings are given great deference on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "308 S.E.2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "295" } ], "opinion_index": 0 }, { "cite": "309 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4760471 ], "year": 1983, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0606-01" ] }, { "cite": "330 S.E.2d 465", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "471" }, { "page": "471" } ], "opinion_index": 0 }, { "cite": "313 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4725454 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "544" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0539-01" ] }, { "cite": "441 S.E.2d 621", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "624" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527273 ], "year": 1994, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/nc-app/114/0156-01" ] } ], "analysis": { "cardinality": 935, "char_count": 19708, "ocr_confidence": 0.778, "pagerank": { "raw": 6.323771877050583e-08, "percentile": 0.388754131997657 }, "sha256": "6eaee8559473194617f92c8b342184d97f584c6f6bb1e32fd40061b2c5b4c6d6", "simhash": "1:8a3a60362566ce2a", "word_count": 3136 }, "last_updated": "2023-07-14T19:24:27.441929+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and MARTIN, Mark D., concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MELVIN CURTIS SMITH" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nDefendant Melvin Curtis Smith appeals his conviction of second degree murder on the grounds that the State failed to produce sufficient evidence of his guilt. Having reviewed defendant\u2019s arguments, we find no error.\nThe testimony of the State\u2019s witnesses tended to show that at approximately 8:00 p.m. on 12 September 1995, Paul Wilson (hereinafter \u201cWilson\u201d) hailed a cab in Kinston, North Carolina. Terrence Jones (hereinafter \u201cJones\u201d), the cabdriver, already had a passenger seated in the front. Wilson sat in back seat behind the passenger. Wilson did not see the passenger\u2019s face at any point during the eight-minute ride, but he continually observed the back of the passenger\u2019s head, neck and shoulders.\nWhile en route to Wilson\u2019s destination, Jones and the passenger engaged in a friendly discussion about sports. Wilson, who was preoccupied with meeting his wife as scheduled, did not pay close attention to the conversation until it became argumentative. The passenger had told Jones to go one way, but Jones proceeded in the opposite direction. This made the passenger angry, so he ordered Jones to pull over. As Jones slowed the vehicle to a stop, the passenger turned toward him, said \u201cDrive, M\u2014 F \u2014 ,\u201d and struck him in the chest. The force of the blow knocked Jones out of the cab, and Wilson tumbled out to escape being harmed. The passenger, then, slid behind the wheel and sped away. Wilson ran to a nearby house to call 911, but by the time the rescue squad arrived, Jones was dead. The passenger had stabbed Jones in the chest.\nOn 18 October 1995, Detective Paul Hinson of the Kinston Sheriff\u2019s Department went to Wilson\u2019s place of employment to show him a photographic line-up, which Hinson had compiled based on information, gathered during his investigation of the stabbing. The line-up consisted of six photographs of black males, one of whom was defendant. When Wilson viewed the line-up, he recognized defendant and said, \u201cif [he] didn\u2019t know that [defendant] was still doing time, [he] would swear that that was him in that car who killed the cabdriver.\u201d Wilson did not make a positive identification at that time.\nWilson was troubled after viewing the line-up, because he believed that defendant was the passenger who had stabbed Jones. Later that evening, Wilson discussed his concerns with his nephew and his wife. During the course of these discussions, Wilson learned that defendant was not in jail when the stabbing occurred, so he went to the police station on 21 October 1995 and asked to see the line-up again. At this second viewing, Wilson told the investigating officer, Detective Jennifer Canady, that he was \u201calmost 100 percent sure\u201d that defendant was the front seat passenger in Jones\u2019 cab. To be certain, however, Wilson requested an in-person line-up so that he could view the subjects from the back, to see their necks and shoulders and the shapes of their heads. Wilson returned to the police station on 23 October 1995 and saw two in-person line-ups, each consisting of five black, male subjects. Wilson did not pick anyone out of the first lineup, but from the second, he positively identified defendant, stating \u201cthere\u2019s your murderer.\u201d\nPrior to trial, defendant moved to suppress Wilson\u2019s identification testimony on the grounds that the identification procedure was impermissibly suggestive. Following a voir dire hearing, the trial court denied the motion and allowed the jury to consider Wilson\u2019s identification testimony. At the close of all the evidence, the case was submitted to the jury. The jury deliberated and found defendant guilty of second degree murder. The trial court sentenced defendant to imprisonment at the North Carolina Department of Corrections for a minimum term of 180 months and a maximum term of 225 months. Defendant appeals.\nDefendant first assigns error to the trial court\u2019s failure to suppress Wilson\u2019s eye witness identification, alleging that the identification was not the product of independent recollection, but the result of impermissibly suggestive identification procedures. We cannot agree.\nA defendant who moves to suppress an out-of-court eyewitness identification must first show that the identification process was unnecessarily suggestive. State v. Capps, 114 N.C. App. 156, 162, 441 S.E.2d 621, 624 (1994). If the defendant successfully makes this showing, he must then prove that under the totality of the circumstances, the suggestive procedures gave rise to a substantial likelihood of irreparable misidentification. Id. Where the defendant fails to show that impermissibly suggestive procedures were used in procuring the identification, the inquiry ends, and the trial court need not exclude the identification. State v. Freeman, 313 N.C. 539, 544, 330 S.E.2d 465, 471 (1985).\nThe fact that the identifying witness is acquainted with the defendant does not, by itself, make a photographic line-up impermis-sibly suggestive. \u201c \u2018All that is required is that the lineup be a fair one and that the officers conducting it do nothing to induce the witness to select one picture rather than another.\u2019 \u201d Freeman, 313 N.C. at 545, 330 S.E.2d at 471 (quoting State v. Grimes, 309 N.C. 606, 610, 308 S.E.2d 293, 295 (1983)).\nIn the instant case, the trial court conducted a voir dire hearing to determine the admissibility of Wilson\u2019s out-of-court identification. The evidence showed that approximately one month after the incident, Wilson viewed a photographic line-up assembled by the Kinston police. The line-up contained photographs of six black males, including defendant. When Wilson saw the line-up, he recognized defendant as Jones\u2019 front seat passenger from the \u201cmuscles in his arms and muscles up here [his shoulders] and the way his head sticks out.\u201d Wilson also stated that he was acquainted with defendant, but except for the 12 September 1995 stabbing, it had been at least seven years since he had last seen defendant. Wilson did not positively identify defendant during the initial line-up, because he believed that defendant was \u201cdoing time\u201d when the stabbing occurred.\nThe evidence further showed that Wilson was \u201cbothered\u201d after viewing the initial line-up, and he requested a second look on 21 October 1995. This time, Wilson was \u201calmost 100 percent sure\u201d that defendant was the killer, but \u201cbecause he didn\u2019t want to accuse anybody unfairly,\u201d he asked to see an in-person line-up so that he could view the subjects from the back. At the 23 October 1995 in-person line-up, Wilson positively identified defendant as the \u201cmurderer.\u201d Explaining the basis for his identification, Wilson stated,\nI could see the back of his head and the way his ears stuck out and the way he had leaned his head as I was looking at him and his shoulders. And I was positive that that was the one.\nOver the course of the investigation, Wilson viewed 50 to 75 pictures in police \u201cmug books,\u201d two photographic line-ups, and two in-person line-ups. At no time did Wilson identify anyone other than defendant. Moreover, there was no evidence whatsoever that the police said or did anything to induce Wilson to choose defendant over another individual.\nUpon these facts, the trial court found that \u201cWilson\u2019s identification of [defendant] was not obtained as a result of procedures that were unnecessarily suggestive or conducive to irreparable mistake and misidentification.\u201d The trial court further found that \u201c[w]hile Wilson\u2019s identification of [defendant] is not \u2018strong,\u2019 his credibility is for the jury to determine, together will [sic] all other facts and circumstances at trial.\u201d The evidence adduced at the voir dire hearing amply supports these findings; thus, they are conclusive on appeal. These findings, likewise, support the trial court\u2019s conclusion that the procedures employed by the Kinston police in obtaining the identification of defendant were not impermissibly suggestive as a matter of law. Accordingly, we overrule defendant\u2019s first assignment of error. Furthermore, in light of our decision, we need not consider defendant\u2019s second and third assignments of error, which are based on the premise that Wilson\u2019s identification of defendant resulted from imper-missibly suggestive procedures.\nWe turn now to defendant\u2019s fourth assignment of error, by which he objects to the admission of Jacqueline Wilson\u2019s testimony regarding her husband\u2019s sleeping patterns before and after he identified defendant. Defendant contends that this evidence was irrelevant and inadmissible under Rules 401 and 402 of the North Carolina Rules of Evidence. Alternatively, defendant argues that the evidence should have been excluded under Rule 403 on the grounds that its probative value was \u201csubstantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.\u201d N.C.R. Evid. 403. Again, we are not persuaded.\nRelevant evidence is that which has any tendency to prove \u201cany fact that is of consequence to the determination of the action.\u201d N.C.R. Evid. 401. Our Courts have broadly construed this definition and have given trial courts considerable freedom in determining relevance and admissibility. See State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226 (1991) (stating that \u201ceven though a trial court\u2019s rulings on relevancy technically are not discretionary . . . such rulings are given great deference on appeal\u201d). Likewise, the question of whether to exclude evidence under Rule 403 is entrusted to the sound discretion of the trial court, and its decision in this respect will not be overturned absent a manifest abuse of that discretion. State v. Cagle, 346 N.C. 497, 506-07, 488 S.E.2d 535, 542, cert. denied, 139 L. Ed. 2d 614, 66 U.S.L.W. 3417 (U.S.N.C. Dec. 15, 1997) (No. 97-6543).\nIn the present case, the credibility of Wilson\u2019s identification of defendant was at issue. Therefore, evidence tending to shed light on Wilson\u2019s moods and sleep patterns throughout the identification process could be deemed relevant in accessing the reliability of the identification. Wilson\u2019s wife described his behavior in the weeks following the incident as \u201cwalking around in circles,\u201d \u201ctalking [things] over [to] himself,\u201d \u201cnervous,\u201d \u201csweating,\u201d and \u201creally upset.\u201d Regarding Wilson\u2019s sleep patterns during that time, Mrs. Wilson testified as follows:\nHe would go to sleep and wake up in a fright. He would also be mumbling things like . . . help me, help me. And you could hear him struggling, tossing and turning. He\u2019d wake up in a cold sweat. He would \u2014 it really was on his conscience what was going on.\nLater, when Wilson positively identified defendant in the in-person line-up, Mrs. Wilson observed that \u201c[h]e looked like ... a burden had been lifted off his shoulders.\u201d She stated that he was no longer agitated and that he no longer had trouble sleeping. She noted that the night of the in-person line-up \u201cwas really about the first night that he really got a good night\u2019s sleep.\u201d Defendant has not shown, and we do not perceive, any unfair prejudice resulting from this testimony. Thus, we conclude that the trial court committed no error in admitting Mrs. Wilson\u2019s testimony, and defendant\u2019s fourth assignment of error is denied.\nNext, defendant assigns error to the trial court\u2019s \u201cfail[ure] to take action to ensure that the witness, Latisha Graham, aka Altisha Graham, was present in order to testify for defendant.\u201d A review of the record, however, reveals that defendant took no action to preserve this question for our review. This notwithstanding, defendant\u2019s argument is wholly without merit.\nRule 10(b)(1) of the North Carolina Rules of Appellate Procedure requires a party to make a \u201ctimely request, objection, or motion\u201d during the proceedings in order to preserve an issue for review. N.C.R. App. P. 10(b)(1). Failure to do so constitutes a waiver of the right to raise the issue on appeal. State v. Eason, 328 N.C. 409, 402 S.E.2d 809 (1991). In this case, defendant issued a subpoena requesting that Graham appear and testify on his behalf. Concerning the efforts made to produce Graham\u2019s attendance, the trial court noted the following for the record:\nI asked the Sheriff\u2019s Department and the Police Department to see if they could locate Ms. Graham who has not responded to [defense counsel\u2019s] subpoena and as of the present time, she is unavailable. We can\u2019t find her [.]\nDefendant\u2019s only response to this statement was \u201cYes, sir.\u201d He did not request a recess, move for a continuance, or request the issuance of a material witness order pursuant to North Carolina General Statutes section 15A-803. Since defendant failed to avail himself of the methods to secure Graham\u2019s attendance, he cannot now argue that the trial court failed to assist him in locating and subpoenaing his witness. See State v. Poindexter, 69 N.C. App. 691, 700, 318 S.E.2d 329, 334 (1984) (finding no merit to defendant\u2019s argument that the trial court failed to assist him where defendant failed \u201cto make the necessary motions and applications to secure the presence of an unwilling witness\u201d). Furthermore, our Supreme Court has made it abundantly clear that a defendant \u201c \u2018may not place the burden on the officers of the law and the court to see that he procures the attendance of witnesses and makes preparation for his defense.\u2019 \u201d State v. Tindall, 294 N.C. 689, 700, 242 S.E.2d 806, 813 (1978) (quoting State v. Graves, 251 N.C. 550, 558, 112 S.E.2d 85, 92 (1960)). Thus, even had defendant taken steps to preserve this assignment of error, there would be no merit to his argument.\nDefendant\u2019s final assignment of error is the trial court\u2019s denial of his motion to dismiss the murder charge at the close of the State\u2019s evidence. Defendant argues that this ruling was error, because Wilson\u2019s identification was inherently incredible, and thus, the evidence of defendant\u2019s guilt was legally insufficient. We must disagree, as there was ample evidence in the record to support a finding that defendant perpetrated the murder of Jones.\n\u201cIn ruling upon a motion to dismiss, the trial court must determine whether, \u2018upon consideration of all of the evidence in the light most favorable to the State, there is substantial evidence that the crime charged . . . was committed and that defendant was the perpetrator.\u2019 \u201d State v. Beasley, 118 N.C. App. 508, 511-12, 455 S.E.2d 880, 883 (1995) (quoting State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781, 787 (1990)). Questions of credibility and the proper weight to be given eyewitness identification testimony are for the jury to decide. Id. \u201cIn determining whether a witness\u2019 identification testimony is inherently incredible requiring dismissal, the test is whether \u2018there is a reasonable possibility of observation sufficient to permit subsequent identification.\u2019 \u201d Id. (quoting State v. Turner, 305 N.C. 356, 363, 289 S.E.2d 368, 372 (1982) (citation omitted)).\nThe evidence shows that Wilson sat behind Jones\u2019 assailant in a taxicab for approximately eight minutes, looking at the back of his head, neck, and shoulders. At one point during the ride, Wilson also observed the assailant\u2019s profile. These observations were sufficient to allow Wilson to subsequently identify the assailant based on \u201cthe muscles in his arms [and shoulders],\u201d the shape of his head, and \u201cthe way his ears stuck out.\u201d Wilson\u2019s credibility and the weight to be accorded his identification testimony were for the jury to determine. Therefore, defendant has failed to show that the identification evidence was inherently incredible. See State v. Murphy, 56 N.C. App. 771, 773, 290 S.E.2d 408, 409 (1982) (holding that identification not inherently incredible where victim did not see attacker\u2019s face, which was covered with something plastic, but identified him based on \u201cthe sound of his voice and the size and shape of him\u201d).\nMoreover, the State presented additional evidence of defendant\u2019s guilt in the form of his own statements. Several weeks after the murder, defendant was in Pitt County detention center on other charges, when he encountered an acquaintance, Enrico Cotton, who told defendant that the police believed he had murdered Jones. According to Cotton, defendant replied that \u201che weren\u2019t worrying about that [expletive], . . . because they ain\u2019t got no murder weapon; they ain\u2019t got no case.\u201d During the same period, defendant wrote a letter to his girlfriend stating the he would \u201cbe home soon to take care of [his] murders.\u201d This evidence, together with Wilson\u2019s identification testimony, and taken in the light most favorable to the State, was legally sufficient to overcome defendant\u2019s motion to dismiss. Accordingly, defendant\u2019s final assignment of error fails.\nBased upon all of the foregoing stated reasons, we conclude that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges GREENE and MARTIN, Mark D., concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General Thomas O. Lawton, III, for the State.", "Harrison and Simpson, P.A., by Fred W. Harrison, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MELVIN CURTIS SMITH\nNo. COA97-1112\n(Filed 7 July 1998)\n1. Evidence\u2014 eyewitness identification \u2014 admissibility\nThere was no error in a second-degree murder prosecution in the trial court\u2019s admission of an eyewitness identification where the evidence at the voir dire hearing amply supports the findings, and the findings support the trial court\u2019s conclusion that the procedures employed by the Kinston police in obtaining the identification of defendant were not impermissibly suggestive as a matter of law.\n2. Evidence\u2014 sleeping patterns of witness \u2014 admissible\nThe trial court did not err in a second-degree murder prosecution by admitting the testimony of an eyewitness\u2019s wife as to her husband\u2019s sleeping patterns before and after he identified defendant. The credibility of the identification was at issue and evidence tending to shed light on the witness\u2019s moods and sleep patterns throughout the identification process could be deemed relevant in assessing the reliability of the identification.\n3. Criminal Law\u2014 efforts to locate defense witness\u2014 sufficiency\nEven if a second-degree murder defendant had taken steps to preserve an assignment of error concerning the State\u2019s efforts to produce a defense witness, he could not argue that the trial court failed to assist him in locating and subpoenaing his witness because his only response to the court\u2019s statement that the witness could not be found was \u201cYes, sir\u201d and he did not request a recess, move for a continuance, or request the issuance of a material witness order pursuant to N.C.G.S. \u00a7 15A-803.\n4. Homicide\u2014 second-degree murder \u2014 sufficiency of evidence \u2014 eyewitness identification\nThe trial court did not err by denying defendant\u2019s motion to dismiss a second-degree murder charge at the close of the State\u2019s evidence where defendant argued that the eyewitness identification was inherently incredible, but the evidence shows that the eyewitness sat behind the assailant in a taxi cab for approximately eight minutes, looking at the back of the assailant\u2019s head, neck, and shoulders; the eyewitness also observed the assailant\u2019s profile at one point during the ride; these observations were sufficient to allow him to subsequently identify the assailant based on his arms and shoulders, the shape of his head, and the way his ears stuck out; the credibility and weight to be accorded the identification were for the jury to determine; and the State presented additional evidence of defendant\u2019s guilt in the form of his own statements.\nAppeal by defendant from judgment entered 10 April 1997 by Judge Howard E. Manning, Jr. in Lenoir County Superior Court. Heard in the Court of Appeals 13 May 1998.\nAttorney General Michael F. Easley, by Assistant Attorney General Thomas O. Lawton, III, for the State.\nHarrison and Simpson, P.A., by Fred W. Harrison, for defendant-appellant." }, "file_name": "0071-01", "first_page_order": 103, "last_page_order": 111 }