{ "id": 8554735, "name": "STATE OF NORTH CAROLINA v. CHARLES HOUSTON", "name_abbreviation": "State v. Houston", "decision_date": "1973-10-10", "docket_number": "No. 7322SC565", "first_page": "542", "last_page": "548", "citations": [ { "type": "official", "cite": "19 N.C. App. 542" } ], "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 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555170 ], "year": 1971, "pin_cites": [ { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0638-01" ] }, { "cite": "138 S.E. 2d 630", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 747", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571793 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0747-01" ] }, { "cite": "173 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560935 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0253-01" ] }, { "cite": "132 S.E. 2d 354", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573591 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0186-01" ] }, { "cite": "199 S.E. 2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "19 N.C. App. 426", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554011 ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0426-01" ] }, { "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": "167 S.E. 2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553531 ], "year": 1969, "pin_cites": [ { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/4/0367-01" ] } ], "analysis": { "cardinality": 604, "char_count": 13400, "ocr_confidence": 0.559, "pagerank": { "raw": 2.0744398911096394e-07, "percentile": 0.7582131236222652 }, "sha256": "245e41184e3149a1eee104df14f82ee0dbff61be2a43e577f45d46bcf0c6cd5b", "simhash": "1:1f6b8569ccbf119c", "word_count": 2211 }, "last_updated": "2023-07-14T21:32:34.966448+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES HOUSTON" ], "opinions": [ { "text": "MORRIS, Judge.\nRule 11 of the General Rules of Practice for the Superior and District Courts states that \u201c[w]hen several counsel are employed by the same party the examination or cross-examination of each witness for such party shall be conducted by one counsel, but the counsel may change with each successive witness or, with leave of the court in a prolonged examination.\u201d This rule clearly leaves it to the discretion of the trial court to permit a change of counsel if a lengthy examination is imminent. Assuming the circumstances of the present case did not bring it within the purview of the rule, appellant has failed to show that he was prejudiced by the court\u2019s overruling his objection. It has been stated by this Court that\n\u201c[m]ere technical error will not entitle defendant to a new trial; it is necessary that error be material and prejudicial and amount to a denial of some substantial right. Whether technical error is prejudicial is to be determined upon the basis of whether there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.\u201d State v. Garnett, 4 N.C. App. 367, 373, 167 S.E. 2d 63 (1969), quoting 3 Strong, N.C. Index 2d, Criminal Law, \u00a7 167.\nIt is further appellant\u2019s contention that the trial court erred in its conclusions of law that Mrs. Johnson\u2019s in-court identification of defendant was based upon her opportunity to observe defendant at the date of the break-in and was not tainted by an out-of-court photographic identification. We do not agree.\nA conviction based upon 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 misidentifi-cation. 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); State v. Neal and Davis, 19 N.C. App. 426, 199 S.E. 2d 143. Appellant\u2019s contention that the court .failed to find as a fact or conclude as a matter of law that the in-court identification was based on the independent memory of the witness is without merit. The conclusions that the witness had ample opportunity to observe defendant and that the in-court identification was not tainted by the photographic identification is tantamount to a conclusion that the identification was based upon her independent memory.\nAppellant also urges that the trial court erred in admitting into evidence the pretrial statement made by the witnesses Campbell and Feimster to Deputy Tate. It is his position that these statements \u2014 offered to corroborate the testimony of Campbell and Feimster \u2014 are inadmissible in that portions are contradictory to the testimony of the witnesses. This contention cannot be sustained, for portions of the statements do in fact corroborate testimony of Campbell and Feimster, and the objections of appellant did not specify the objectionable portions.\nIn State v. Brooks, 260 N.C. 186, 132 S.E. 2d 354 (1963), appellant sought a new trial on the grounds that \u2022 a written statement introduced as corroboration of the testimony of a State\u2019s witness was not a \u201cprior consistent statement.\u201d In affirming the manslaughter conviction the Court said:\n\u201cIf a prior statement of a witness, offered in corroboration of his testimony at the trial, contains additional evidence going beyond his testimony, the State is not entitled to introduce this \u2018new\u2019 evidence under a claim of corroboration. . . . (Citations omitted.) However, if the previous statements offered in corroboration are generally consistent with the witness\u2019 testimony, slight variations between them will not render the statements inadmissible. Such variations affect only the credibility of the evidence which is always for the jury.\u201d (Citations omitted.) Id. at 189.\nThe prior statements proffered in Brooks were not contradictory to the testimony they were introduced to corroborate, but portions were not identical. Defendant did not specify the portions of the prior statement objectionable to him. The Court held that:\n\u201cWhere portions of a document are competent as corroborating evidence and other parts incompetent, it is the duty of the party objecting to the evidence to point out the objectionable portions. Objections to evidence en masse will not ordinarily be sustained if any part is competent.\u201d (Citations omitted.) Id.\nIn accord is State v. Strickland, 276 N.C. 253, 173 S.E. 2d 129 (1970). See also 7 Strong, N.C. Index 2d, Trial, \u00a7 15.\nIn the case sub judice, portions of the testimony of Campbell and Feimster are corroborated by portions of their prior statements. Although other portions of the prior statements offer additional matter and vary the testimony somewhat, defendant\u2019s objection was to both statements in their entirety. Thus the prior statements fall within the rule of State v. Brooks, supra, and their admission was proper.\nAppellant\u2019s final assignment of error is to the denial of his motion of nonsuit as to the charges of attempted armed robbery and felonious breaking and entering with intent to commit a felony. There was no prejudice with respect to the attempted armed robbery since defendant was acquitted on that charge. With respect to the breaking and entering charge, there was sufficient evidence to withstand motion for nonsuit. Appellant\u2019s contention that there is no evidence that defendant broke and entered Mrs. Johnson\u2019s house is not well taken, for G.S. 14-54 (a) provides that \u201cAny person who breaks or enters any building with intent to commit any felony or larceny is guilty of a felony and is punishable under G.S. 14-2.\u201d (Emphasis added.) Mrs. Johnson testified that defendant entered her trailer. It is not necessary that the State show a breaking to support a conviction of breaking or entering. State v. Vines, 262 N.C. 747, 138 S.E. 2d 630 (1964).\nThe necessary felonious intent may be found from the actions of defendant once he was within the trailer, i.e., tying up Mrs. Johnson and threatening her. \u201cThe intent with which defendant broke and entered, or entered, may be found by the jury from what he did within the building.\u201d State v. Bronson, 10 N.C. App. 638, 640, 179 S.E. 2d 823 (1971).\nNo error.\nJudges Campbell and Parker concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Morgan, by Assistant Attorney General Boylan, for the State.", "Pope, McMillan and Bender, by Harold J. Bender, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES HOUSTON\nNo. 7322SC565\n(Filed 10 October 1973)\n1. Criminal Law \u00a7\u00a7 87, 167\u2014 change of counsel on voir dire examination \u2014 technical error \u2014 no prejudice to defendant\nIt is within the discretion of the trial court to permit a change of counsel if a lengthy examination is imminent; however, even if the present case did not fall within the purview of that rule and the trial court erred in allowing the solicitor to conduct a voir dire examination in lieu of the assistant solicitor who had begun the examination of the witness, the error was technical and defendant failed to show that he was prejudiced thereby.\n2. Criminal Law \u00a7 66 \u2014 photographic identification of defendant \u2014 in-court identification of defendant not tainted\nIn a prosecution for attempted armed robbery and felonious breaking or entering with intent to commit a felony, the trial court did not err in concluding that a witness\u2019s in-court identification of defendant was based upon her opportunity to observe defendant in daylight for five minutes at the time of the break-in and was not tainted by an out-of-court photographic identification which took place on the same day.\n3. Criminal Law \u00a7 89 \u2014 prior statements \u2014 admissibility for corroborar tion \u2014 failure to specify objectionable portions\nWhere prior statements made by two witnesses were introduced for the purpose of corroboration, portions of the statements did in fact corroborate the testimony but other portions did not, and defendant objected to both statements in their entirety without specifying the objectionable portions, the trial court properly admitted the entire pretrial statements into evidence.\n4. Burglary and Unlawful Breakings \u00a7 5 \u2014 breaking or entering with intent to commit a felony \u2014 necessity of showing a breaking\nSince G.S. 14-54 (a) provides that any person who breaks or enters any building with intent to commit any felony or larceny is guilty of a felony, it is not necessary that the State show a breaking to support a conviction of breaking or entering; therefore, evidence that defendant entered his victim\u2019s trailer, dragged her to the bathroom, bound her and threatened to kill her if she screamed, while his two accomplices searched the premises was sufficient to withstand defendant\u2019s motion for nonsuit on the breaking or entering charge.\nAppeal from Rousseau, Judge, 5 February 1973 Session of Iredell County Superior Court.\nDefendant Charles Houston was charged in a bill of indictment with attempted armed robbery, felonious breaking and entering with intent to commit a felony and felonious possession of burglary tools. Defendant, through his court appointed counsel, pled not guilty to all three charges, and was convicted by the jury of felonious breaking or entering with intent to commit a felony, the charge of felonious possession of burglary tools having been dismissed at the close of the State\u2019s evidence.\nAt the trial, Mrs. Cre\u00f3la Johnson testified that on 28 June 1972 she was living alone in a house trailer in the Scotts community in Iredell County. When she opened her door that morning, she was confronted by a young black male who grabbed her, threw her to the floor and entered the trailer. The young man thereupon dragged Mrs. Johnson into the bathroom, bound her with cord and threatened to kill her if she screamed.\nDefendant\u2019s attorney objected to the assistant solicitor\u2019s question whether Mrs. Johnson saw her assailant in the courtroom. He also objected to the solicitor\u2019s being permitted to conduct the subsequent voir dire examination in lieu of the assistant solicitor who had begun the examination of the witness. Both objections were overruled.\nFollowing the voir dire to determine admissibility of the in-court identification, the court made the following findings of fact:\n\u201c1. That on June 28, 1972, about eleven a.m. Mrs. Johnson was in her trailer in Scotts community of Iredell County.\n2. That she went to her door and a man pushed his way into the house; that it was day-time.\n3. That this person remained in her house approximately five minutes.\n4. That he pulled her from the front door to the bathroom, during which time they were face to face.\n5. That on that same date Officer Tate showed her five pictures, all of which portrayed black males \u2014 two light colored, two dark colored, and one medium colored.\n6. That Mrs. Johnson picked the picture of the defendant Houston in just a few minutes; that Mrs. Johnson had never seen the defendant before June 28, 1972.\n7. That on Sept. 14, 1972, at the preliminary hearing in District Court of Iredell County the defendant Houston was present along with David Campbell who had pleaded guilty to this offense and is not now on trial.\n8. That at said time Mrs. Johnson identified him, David Campbell, as the Negro male who came into her house on June 28.\n9. That Mrs. Johnson told Officer Tate that a light-skinned Negro male came to her door.\n10. That Officer Tate did not recall showing the pictures to the witness, Mrs. Johnson, after June 28, 1972.\n11. That David Campbell and the defendant Houston are both of the same build, have similar hair styles, and similar skin tones, as of Sept. 14, 1972.\u201d\nThe court thereupon concluded:\n\u201c1. That the witness, Mrs. Johnson, had ample opportunity to observe the intruder in her house on June 28; that it was daylight and she was face to face with him approximately five minutes.\n2. That on said date she picked out a picture of the defendant from a group of five, and that her in-court identification of the defendant is not tainted by reason of the photographs or by her misidentification on Sept. 14, 1972.\u201d\nMrs. Johnson was allowed to testify that defendant was the man who entered her trailer on the date in question.\nDavid Campbell and Michael Feimster appeared as witnesses for the State and both testified that on 27 June 1972, the two of them met with defendant and discussed \u201cpulling a job\u201d to get some money from Mrs. Johnson\u2019s house. Campbell testified that he and Houston drove to some woods near Mrs. Johnson\u2019s house. When they approached the house on foot, Houston told Campbell he was going to the front door, but Campbell did not see him enter.\nOver objection of counsel for defendant, Deputy Sheriff Tate was allowed to read into evidence statements he had taken from Campbell and Feimster on an unspecified date prior to trial.\nCampbell\u2019s statement was to the effect that Campbell, Houston and Feimster began discussing the robbery on 27 June. On 28 June the three of them drove to the woods near Mrs. Johnson\u2019s trailer. They approached the house, all three entered, Houston threatened Mrs. Johnson, and Campbell and Feimster searched the premises. All three then ran from the house.\nFeimster\u2019s statement was to the effect that all three entered the trailer, and Feimster searched for a safe. They found no money and left the house.\nAttorney General Morgan, by Assistant Attorney General Boylan, for the State.\nPope, McMillan and Bender, by Harold J. Bender, for defendant appellant." }, "file_name": "0542-01", "first_page_order": 566, "last_page_order": 572 }