{
  "id": 8549506,
  "name": "STATE OF NORTH CAROLINA v. THOMAS LEE DUNLAP",
  "name_abbreviation": "State v. Dunlap",
  "decision_date": "1972-09-20",
  "docket_number": "No. 7220SC694",
  "first_page": "176",
  "last_page": "178",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
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  "analysis": {
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  "last_updated": "2023-07-14T16:27:31.279819+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Graham concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS LEE DUNLAP"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nDefendant\u2019s court-appointed counsel brings forward four assignments of error. In his first assignment of error, defendant contends that hearsay evidence was admitted to his prejudice. Lt. Wise testified that defendant\u2019s automobile bore license plate No. AK 4674 and that prior to seeing the automobile and tag he was familiar with the number. He, without objection, was asked why he was familiar with the number. The witness responded that the manager of the laundry had given him the number. Defendant voiced a general objection which was overruled. The laundry manager was tendered as a witness for the State but defendant declined to question him. Defendant failed to move to strike the answer. Moreover, the same witness immediately thereafter, without objection, testified to the same fact. We hold that no prejudicial error is shown. State v. Battle, 267 N.C. 513, 148 S.E. 2d 599. State v. Tyson, 242 N.C. 574, 89 S.E. 2d 138.\nDefendant\u2019s next contention is that there was a fatal variance between the bill of indictment and the evidence as to the type of weapon used. This assignment of error lacks merit. The indictment charged defendant with robbery with the use of firearms, to wit a shotgun. All the evidence tended to show a robbery with the use of a firearm, to wit a \u201cgun.\u201d There is no variance between the allegation and the proof and, if the variance argued by defendant did exist, it would not constitute a material variance.\nDefendant next argues that it was error to admit the rebuttal testimony of Lt. Wise without a voir dire hearing to determine whether defendant voluntarily made the statements while in the Lieutenant\u2019s custody. The record discloses that defendant made no objection to either the question or Lt. Wise\u2019s answer which related defendant\u2019s prior inconsistent statement. Furthermore, the credibility of a defendant who testifies on his own behalf may be impeached by use of his earlier conflicting statements even if such statements were made under conditions rendering them inadmissible for purposes of establishing elements of the offense against the defendant. Harris v. New York, 401 U.S. 222, 28 L.Ed 2d 1, 91 S.Ct. 643; State v. Bryant, 280 N.C. 551, 187 S.E. 2d 111.\nThe defendant\u2019s fourth assignment of error, that the court failed to instruct the jury that it might return a verdict of guilty of common law robbery, is likewise without merit. All the evidence tends to show robbery with firearms. State v. Parker, 262 N.C. 679, 138 S.E. 2d 496.\nNo error.\nJudges Parker and Graham concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan by Associate Attorney Walter E. Ricks III for the State, appellee.",
      "Joseph G. Davis, Jr. for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS LEE DUNLAP\nNo. 7220SC694\n(Filed 20 September 1972)\n1. Criminal Law \u00a7 169\u2014 hearsay \u2014 general objection after answer \u2014 same testimony admitted without objection\nDefendant was not prejudiced by the admission of hearsay testimony where he failed to object to the question asked the witness but entered a general objection only after the witness answered the question, and the witness was thereafter allowed to give the same testimony without objection.\n2. Robbery \u00a7 4\u2014 indictment for robbery with shotgun \u2014 evidence as to \u201ca gun\u201d\nThere was no fatal variance between an indictment charging robbery with a shotgun and evidence that the robbery was committed with \u201ca gun.\u201d\n3. Criminal Law \u00a7 75\u2014 in-custody statements \u2014 admission for impeachment \u2014 failure to hold voir dire\nThe trial court did not err in the admission of defendant\u2019s in-custody statements for the purpose of impeaching defendant\u2019s trial testimony without holding a voir dire hearing to determine the volun-tariness of the in-custody statements, as defendant failed to object to testimony of such statements, and such statements are admissible for impeachment purposes even if made under conditions rendering them inadmissible for purposes of establishing elements of the offense against defendant.\n4. Robbery \u00a7 5\u2014 armed robbery \u2014 failure to submit common law robbery\nThe trial court in an armed robbery prosecution did not err in failing to submit to the jury an issue of common law robbery.\nAppeal by defendant from Collier, Judge, 6 March 1972 Session of Superior Court held in Richmond County.\nDefendant was tried on bills of indictment charging him with armed robbery and assault with a deadly weapon. The indictments specified the firearm and the deadly weapon employed in the respective offenses as a shotgun and the arrest warrant charged the use of \u201ca dangerous weapon to wit a saw of shot gun (sic).\u201d\nThe State produced the evidence of certain laundry employees that on 24 July 1971 defendant went to the Sanitary Laundry in Hamlet, North Carolina, near closing time at 6:00 p.m., that defendant produced a \u201cgun\u201d out of a paper bag which one employee had thought might have contained clothing, and that defendant robbed one of the laundry employees of approximately $250.00. The employees further testified that the defendant had visited the laundry on two previous occasions and on one such occasion, 3 July 1971, one of the employees had taken down the license tag number of the automobile used by defendant and had given that number to her employer. Lt. Wise of the Hamlet Police Force testified that defendant was the owner of a green automobile with license tag number AK 4674.\nDefendant\u2019s evidence was to the effect that he had been to the Sanitary Laundry on 3 July but he denied being there on the day of the robbery. Defendant testified that he was playing basketball at a family cookout at the time of the alleged robbery and several members of defendant\u2019s family corroborated his testimony.\nIn rebuttal, the State recalled Lt. Wise who testified that when he took defendant into custody on 26 July 1971 he advised defendant of his constitutional rights and defendant volunteered the information that he knew all about the reasons for his arrest and that he, the defendant, had gone to the laundry on 24 July 1971 at about 4:00 or 4:30 p.m. in order to have a pair of pants pressed, but denied having committed the robbery.\nThe jury returned verdicts of guilty as charged. Defendant was sentenced to a term of from twelve to fifteen years imprisonment and appealed.\nAttorney General Robert Morgan by Associate Attorney Walter E. Ricks III for the State, appellee.\nJoseph G. Davis, Jr. for defendant appellant."
  },
  "file_name": "0176-01",
  "first_page_order": 200,
  "last_page_order": 202
}