{ "id": 8554011, "name": "STATE OF NORTH CAROLINA v. ROBERT LEE NEAL, and EUGENE DAVIS", "name_abbreviation": "State v. Neal", "decision_date": "1973-09-19", "docket_number": "No. 7319SC604", "first_page": "426", "last_page": "431", "citations": [ { "type": "official", "cite": "19 N.C. App. 426" } ], "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": "179 S.E. 2d 410", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 168", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559899 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0168-01" ] }, { "cite": "169 S.E. 2d 210", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 8", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546657 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0008-01" ] }, { "cite": "20 N.C. 144", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8691066 ], "year": 1838, "opinion_index": 0, "case_paths": [ "/nc/20/0144-01" ] }, { "cite": "176 S.E. 2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C.App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552248 ], "year": 1970, "pin_cites": [ { "page": "538" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0534-01" ] }, { "cite": "184 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 549", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571126 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0549-01" ] }, { "cite": "148 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559766 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0513-01" ] }, { "cite": "181 S.E. 2d 257", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "11 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555129 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/11/0392-01" ] }, { "cite": "180 S.E. 2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 484", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560736 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0484-01" ] }, { "cite": "423 F. 2d 1269", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 5874349 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/423/1269-01" ] }, { "cite": "172 S.E. 2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561802 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0482-01" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] }, { "cite": "185 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571880 ], "year": 1972, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0306-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "176 S.E. 2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563477 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0151-01" ] }, { "cite": "175 S.E. 2d 583", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561810 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0065-01" ] } ], "analysis": { "cardinality": 581, "char_count": 11528, "ocr_confidence": 0.557, "pagerank": { "raw": 1.2423255458136376e-07, "percentile": 0.6082451139043241 }, "sha256": "f1ffe742acebd71d9948353952e8807aa070dffa4dc3fe5a21aff23eb1ef08e4", "simhash": "1:26611126e46c00de", "word_count": 1938 }, "last_updated": "2023-07-14T21:32:34.966448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LEE NEAL, and EUGENE DAVIS" ], "opinions": [ { "text": "MORRIS, Judge.\nAppellants contend that the trial court erred in allowing an in-court identification of defendants because it was tainted by an illegal out-of-court identification. Specifically, they contend that the photographic identification of defendants by the prosecuting witness prior to trial constituted a lineup and that defendants were entitled to have counsel present. Such contention is untenable.\n\u201cA suspect has no constitutional right to the presence of counsel when eyewitnesses are viewing photographs for purposes of identification, and this is true regardless of whether he is at liberty or in custody at the time. State v. Accor and Moore, 277 N.C. 65, 175 S.E. 2d 583 (1970); State v. Jacobs, 277 N.C. 151, 176 S.E. 2d 744 (1970). Such pretrial identification procedure is not a critical stage of the proceeding as delineated in United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926 (1967), and Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951 (1967).\u201d State v. Stepney, 280 N.C. 306, 313, 185 S.E. 2d 844 (1972).\nIn addition, appellants contend that the photographic identification was so suggestive as to render invalid the in-court identification. It is well established that a conviction based on an in-court identification following a pretrial photographic identification will be set aside only if the photographic identification procedure is so suggestive as to give rise to a substantial likelihood of irreparable misidentification. Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed. 2d 1247 (1968); State v. McPherson, 276 N.C. 482, 172 S.E. 2d 50 (1970). In the case sub judice the identifying witness, Yates, testified that he picked up the defendants in his cab around 4:00 or 5:00 p.m. and drove them for a short while before and after the robbery. At the police station he was given a stack of ten photographs, four of which were photographs of the two defendants. Following a voir dire examination of Yates, the trial court found that his in-court identification was based upon his impression formed at the time of the robbery and was not tainted by the photographic identification.\nWe believe the trial court\u2019s finding was correct. In State v. McPherson, supra, it was held that placing two photographs of defendants in a stack of seven or eight to be examined was not so impermissibly suggestive as to render invalid an in-court identification where the victim had ample opportunity to see his assailants in good light at the time of the robbery. In U.S. v. Cunningham, 423 F. 2d 1269 (4th Cir. 1970), it was held not to be impermissibly suggestive when 14 photographs were shown, and seven of them depicted defendants. In Simmons v. U.S., supra, six of an undisclosed total of photographs were of one defendant, and the procedure was held not to be suggestive. The identification here is no more suggestive than was that of the McPherson, Cunningham and Simmons cases, supra.\nAppellant contends that the court erred in allowing Officer Yates to testify regarding the microphone on the cab\u2019s radio. Although this evidence may have been in fact inadmissible, appellant is precluded from raising the point on appeal, for he made no motion to strike the answer given by Officer Yates. The record does not show the question in response to which Officer Yates offered the testimony; rather, it shows that counsel\u2019s objection was made after the answer.\nIn cases where inadmissibility becomes apparent upon the answer rather than the question itself, the objection may be made as soon as the inadmissibility becomes known, and it should be made in the form of a motion to strike. State v. Little, 278 N.C. 484, 180 S.E. 2d 17 (1971). Failure to interpose a timely objection in the form of a motion to strike constitutes waiver of the exception and cannot be considered on appeal. State v. Dickens, 11 N.C. App. 392, 181 S.E. 2d 257 (1971); State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966).\nAppellants also contend that they were prejudiced by the introduction of State\u2019s Exhibit No. 2, a knife found on the person of defendant Neal but not used in the commission of the felony. This knife was a relatively insignificant part of the State\u2019s case, and, in our opinion, appellants were not injured by its introduction in light of the other evidence of their guilt. This result is consistent with the holding of the Supreme Court in State v. Carnes, 279 N.C. 549, 184 S.E. 2d 235 (1971).\nAppellants further assign as error the failure of the trial court to dismiss the cases. It is true that no evidence was introduced concerning the robbery of Terry Simpson; however, the point is moot since there was no conviction in those cases: There was no error in the court\u2019s failure to dismiss the cases involving the robbery of Gary Dry. When taken in the light most favorable to the State, the evidence presented was clearly sufficient to get to the jury.\nAppellants have excepted in their fifth through ninth assignments of error to the trial court\u2019s charge to the jury. This court has said in interpreting Rule 19(d) of the Rules of Practice in the Court of Appeals of North Carolina:\n\u201cAssignments of error to the charge should quote the portion of the charge to which appellant objects, and assignments based on failure to charge should set out appellant\u2019s contention as to what the court should have charged ... A mere reference to the exception number and the page number of the record where the exception appears ... will not present the alleged error for review. (Citations omitted.)\u201d State v. Brown, 9 N.C.App. 534, 538, 176 S.E. 2d 907 (1970).\nAppellants have not complied with Rule 19(d) relative to their exceptions to the trial court\u2019s charge \u2014 which we find to be without prejudicial error \u2014 and those exceptions will not be discussed.\nThe sentences of defendants cannot be considered cruel and unusual punishment, for they are within the limits established by G.S. 14-87. Since State v. Manuel, 20 N.C. 144 (1838), the appellate courts of this State have held that when punishment does not exceed the limit fixed by statute, it cannot be considered cruel and unusual in a constitutional sense. Accord State v. Powell, 6 N.C. App. 8, 169 S.E. 2d 210 (1969); State v. Atkinson, 278 N.C. 168, 179 S.E. 2d 410 (1971).\nWe have reviewed all of defendants\u2019 assignments of error, and in our opinion no error has been made sufficiently prejudicial to warrant a new trial.\nNo error.\nJudges Britt and Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Morgan, by Assistant Attorney General Hensey, for the State.", "Johnson and Jenkins, by Cecil R. Jenkins, Jr., for defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LEE NEAL, and EUGENE DAVIS\nNo. 7319SC604\n(Filed 19 September 1973)\n1. Constitutional Law \u00a7 32; Criminal Law \u00a7 66 \u2014 photographic identification\u2014 no right to counsel\nA pretrial photographic identification of defendants by the prosecuting witness did not constitute a lineup entitling defendants to have counsel present.\n2. Criminal Law \u00a7 66\u2014 identification of defendants \u2014 observation at crime scene as basis\nWhere the identifying witness picked up the defendants in his cab, drove them for a short while before and after the robbery, and subsequently made an out-of-court photographic identification of defendants, the witness\u2019s in-court identification of defendants was based upon his impression formed at the time of the robbery and was not tainted by the photographic identification.\n3. Criminal Law \u00a7 66 \u2014 photographic identification of defendants \u2014 no suggestiveness\nWhere the identifying witness was given a stack of ten photographs, four of which were photographs of the two defendants, the identification procedure was not so suggestive as to give rise to a substantial likelihood of irreparable misidentifieation.\n4. Criminal Law \u00a7 162\u2014 objection to evidence \u2014 failure to make motion to strike\nWhere inadmissibility of evidence \u25a0 becomes apparent upon the answer rather than the question itself, objection may be made as soon as the inadmissibility becomes known, and- it should be made in the form of a motion to strike; failure to make a motion to strike precludes defendant from raising the question of admissibility on appeal.\n5. Robbery \u00a7 3\u2014 armed robbery \u2014 admission of knife not used in robbery\nIn light of other evidence of defendants\u2019 guilt, they were not prejudiced by the introduction into evidence of a knife found on the person of one defendant but not used in the commission of the crime charged.\n6. Robbery \u00a7 4\u2014 robbery of cab driver at knife point \u2014 sufficiency of evidence\nEvidence in an armed robbery case was sufficient to be submitted to the jury where it tended to show that the victim picked up defendants in his cab and that they robbed him of $62 at knife point.\n7. Criminal Law \u00a7 163 \u2014 exception to charge \u2014 form\nExceptions to the trial court\u2019s charge which do not comply with Court of Appeals Rule 19(d) are not considered by the court on appeal.\n8. Constitutional Law \u00a7 36; Robbery \u00a7 6 \u2014 armed robbery \u2014 no cruel and unusual punishment\nSentences, within the statutory limits for armed robbery were not cruel and unusual.\nOn certiorwri to review the order of McConnell, Judge,, at the 12 December 1972 Session of Cabarrus Superior Court.\n-Defendants\u2019 in this case were indicted for the armed robbery of one Gary Dry and one Terry Simpson. The cases were consolidated without objection and were tried before a jury at the 12 December 1972 Criminal Session of Cabarrus County Superior Court. Both defendants pleaded not guilty to both counts and. were convicted of the armed robbery of Dry but not of Simpson.\nState\u2019s evidence consisted of the following testimony:\nGary Dry testified that the two defendants were passengers in his cab around 4:00 or 5:00 p.m. on the day of the robbery and that they robbed him of $62 at knife point. Following a voir dire examination, Dry was permitted to, testify that he recognized the defendants in the courtroom as his assailants.\nPolice Officer J. W. Yates testified as to the account Dry gave him of the robbery. He was allowed over objection to testify that Dry said one- of the defendants severed the cord on the microphone on the cab\u2019s radio and threw it out the window. He further testified that when he and Dry returned to the scene of the robbery, they discovered the microphone in the bushes eight to ten feet from the side of the road with a portion of apparently severed cord attached.\nThe State rested its case, and defendants\u2019 motion to dismiss was overruled.\nIn an attempt to establish an alibi for both defendants, the defense presented the following testimony:\nCoy Blackman and Roosevelt Parks testified that they were with both defendants around 4:30 or 5:00 on the afternoon of the robbery and that they drove them to Fisher Town.\nDefendant Davis then took the stand and testified that Blackman took Neal and him to Fisher Town and that they were in Fisher Town together until about 11:30 p.m. shooting pool and drinking beer. At about 11:30 they went to a taxi stand to get a ride home, and while they were waiting for a taxi, the North Kannapolis police arrested them for public drunkenness. They were taken back to Kannapolis and put in the local jail. At about 6:00 a.m. the next morning Officer Yates and another officer arrested both defendants (in jail) for armed robbery.\nThe State\u2019s rebuttal evidence: Officer Yates returned to the stand and testified that he arrested both defendants at 8:13 p.m.\nThe motion of each defendant to dismiss was renewed and overruled.\nAttorney General Morgan, by Assistant Attorney General Hensey, for the State.\nJohnson and Jenkins, by Cecil R. Jenkins, Jr., for defendant appellants." }, "file_name": "0426-01", "first_page_order": 450, "last_page_order": 455 }