{ "id": 8555539, "name": "STATE OF NORTH CAROLINA v. WILLIAM HENRY SMITH, JR.", "name_abbreviation": "State v. Smith", "decision_date": "1975-05-07", "docket_number": "No. 748SC1079", "first_page": "595", "last_page": "598", "citations": [ { "type": "official", "cite": "25 N.C. App. 595" } ], "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": "188 S.E. 2d 332", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "335" } ], "opinion_index": 0 }, { "cite": "281 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574848 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0287-01" ] } ], "analysis": { "cardinality": 417, "char_count": 6944, "ocr_confidence": 0.585, "pagerank": { "raw": 9.505882454708161e-08, "percentile": 0.523075090478248 }, "sha256": "b48e2fce367e7c53b3ca31c49c3277b3fcb63c63ae4c8da4ae8616d7f30fdb14", "simhash": "1:18a5c26e133e1e6a", "word_count": 1122 }, "last_updated": "2023-07-14T15:30:12.075015+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM HENRY SMITH, JR." ], "opinions": [ { "text": "BROCK, Chief Judge.\nDefendant\u2019s first assignment of error challenges the in-court identification of defendant by the prosecuting witness: Was the identification tainted by an impermissively suggestive pretrial photographic identification procedure? Each case must be considered on its own facts, and the findings of fact and conclusions of law drawn from the voir dire examination must be upheld if they are supported by competent evidence.\nBefore Mrs. Casey was allowed to identify defendant as her assailant, a voir dire examination was conducted. In her testimony Mrs. Casey repeatedly described the defendant as her assailant. She stated that she \u201cconcentrated on what he looked like\u201d because \u201cwhenever [she] saw him again, [she] wanted to know what he looked like.\u201d She described defendant as being\n\u201c . . . about 5' 11\u201d.. He weighed about 145 pounds. He was very slim, had on a white tee-shirt and yellow pants and green hat and sunglasses. He had a very short haircut, no sideburns. He had a mustache. It was very light. The complexion of his skin was about medium and he appeared to be between 20 and 24 years old.\u201d\nOn the day after the robbery, six photographs were brought to her. None resembled the defendant. Five weeks later, on 13 August 1974, Mrs. Casey was notified that a man fitting the description of her assailant had been apprehended. Mrs. Casey went to the Kinston Police Department where she viewed a group of nine photographs. She identified defendant\u2019s photograph as being among the nine. On the front of the defendant\u2019s photograph the date 13 August 1974 was written. None of the other photographs were dated in this manner.\nThe defendant complains that prejudicial error appears not only from the \u201cmeager\u201d description of the assailant, the lack of opportunity to observe the assailant, and the length of time between the robbery and identification, but also from the identification of defendant from a photograph bearing the date 13 August 1974.\nThe trial court found that during the robbery Mrs. Casey had ample opportunity to observe her assailant. After weighing the evidence, the court concluded that the in-court identification of defendant was based on Mrs. Casey\u2019s observations at the .time of the offense and was not the result of the photographic identification procedures. Evidence of the photographic procedure was not offered in evidence before the jury.\nWhether an identification has an independent origin or is based on illegal procedures is an issue to be decided by a trial court on a voir dire examination. State v. Accor and State v. Moore, 281 N.C. 287, 188 S.E. 2d 332 (1972). Its findings and conclusions drawn therefrom are binding if supported by evidence. Id. at 291, 188 S.E. 2d at 335. While we disapprove of marking a photograph in such a manner as to make it stand out from others with which it is viewed, there was competent evidence which supported the trial court\u2019s determination that the in-court identification was of independent origin. This assignment of error is overruled.\nThe final argument raised by defendant deals with the failure of the court to award a mistrial when the district attorney, in his jury argument, made reference to matters which had not been introduced into evidence before the jury. The remarks of the district attorney have not been reproduced in the record. However, the court did make the following statement:\n\u201cLadies and gentlemen of the jury, there has been an objection to the argument of the Solicitor for the State. I\u2019ll sustain that objection and I instruct the jury that it must disregard any statements or arguments of the Solicitor with respect to the photographs. You will not consider such argument in determining your verdict.\u201d\nThe argument of counsel is left largely to the discretion and control of the trial court, and in this instance the court gave an immediate curative instruction. This assignment of error is overruled.\nIn our opinion defendant had a fair trial. No prejudicial error has been shown.\nNo error.\nJudges Parker and Arnold concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.", "\u25a0 . Wallace, .Langley, Barwick & Llewellyn, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM HENRY SMITH, JR.\nNo. 748SC1079\n(Filed 7 May 1975)\n1. Criminal Law \u00a7 66\u2014 pretrial photographic identification of defendant \u2014 in-court identification proper\nEvidence was sufficient to support the trial court\u2019s finding that a robbery victim\u2019s identification of defendant was based on her observation of him at the crime scene and not on a subsequent photographic identification where the evidence tended to show that the \u2022 crime took place in daylight, the victim had ample time to observe defendant, the victim studied defendant\u2019s appearance because \u25a0 she wanted to know him when she saw him again, the police showed the victim six photographs on the day after the robbery but none resembled defendant, five weeks later on 13 August 1974 the police notified the victim that a man fitting her assailant\u2019s description had been apprehended, the victim was shown nine photographs from which she identified defendant, defendant\u2019s photograph had the date 13 August 1974 written on it, and none of the other photographs were dated in this manner.\n2. Criminal Law \u00a7 102\u2014 jury argument of solicitor' \u2014 immediate curative instruction \u2014 no prejudice\nDefendant was not prejudiced by the solicitor\u2019s argument which made reference to matters which had not been introduced into evidence before the jury, since the trial court immediately gave a curative instruction.\nAppeal by defendant from Rouse, Judge. Judgment entered 3 October 1974 in Superior Court, Lenoir County. Heard in the Court of Appeals 8 April 1975.\nDefendant was charged with and found guilty of robbery with \u25a0 a firearm.\nThe evidence presented at the trial indicated that on the afternoon of 17 July 1974, defendant approached a yellow Cadillac in which Mrs. Shelby Casey was sitting, and demanded, at gunpoint, that Mrs. Casey give him two pocketbooks that were in the car. One of the pocketbooks belonged to Mrs. Casey and contained approximately $200.00; the other belonged to Mrs. Emma Jet and contained approximately $1,000.00. Defendant attempted to get inside the car, which was locked, through a partially opened window. Mrs. Casey tried to prevent him.from opening the door, but failed. However, she did manage to kick the gun out of defendant\u2019s hand after the door was opened. A struggle ensued, and defendant\u2019s hat and glasses fell off. Defendant finally was able to grab the pocketbooks and escape. The pocketbooks were found later under some nearby bushes.\nDefendant testified that he had been wearing a rhinestone earring in his left ear for three years. The witness\u2019 description of defendant made no mention of this. He also testified that he was elsewhere at the time of the robbery. Three witnesses corroborated this testimony.\nAttorney General Edmisten, by Assistant Attorney General Ralf F. Haskell, for the State.\n\u25a0 . Wallace, .Langley, Barwick & Llewellyn, for the defendant-appellant." }, "file_name": "0595-01", "first_page_order": 623, "last_page_order": 626 }