{ "id": 8552890, "name": "STATE OF NORTH CAROLINA v. GEORGE SEGARRA", "name_abbreviation": "State v. Segarra", "decision_date": "1975-07-02", "docket_number": "No. 7512SC312", "first_page": "399", "last_page": "404", "citations": [ { "type": "official", "cite": "26 N.C. App. 399" } ], "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": "84 S.E. 2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "547" } ], "opinion_index": 0 }, { "cite": "241 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8604316 ], "year": 1954, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0156-01" ] }, { "cite": "116 S.E. 2d 429", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "253 N.C. 130", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622810 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/253/0130-01" ] }, { "cite": "415 U.S. 926", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6234881, 6234625, 6236132, 6235526, 6237864, 6235178, 6235793, 6237138, 6234323, 6237494, 6236730, 6238491, 6236414 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/415/0926-03", "/us/415/0926-02", "/us/415/0926-07", "/us/415/0926-05", "/us/415/0926-12", "/us/415/0926-04", "/us/415/0926-06", "/us/415/0926-10", "/us/415/0926-01", "/us/415/0926-11", "/us/415/0926-09", "/us/415/0926-13", "/us/415/0926-08" ] }, { "cite": "198 S.E. 2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 755", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560581, 8560619, 8560653, 8560602, 8560637 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0755-01", "/nc/283/0755-03", "/nc/283/0755-05", "/nc/283/0755-02", "/nc/283/0755-04" ] }, { "cite": "197 S.E. 2d 567", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 591", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552627 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0591-01" ] }, { "cite": "30 A.L.R. 3d 908", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1970, "opinion_index": 0 }, { "cite": "159 S.E. 2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 128", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574745 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0128-01" ] } ], "analysis": { "cardinality": 605, "char_count": 12729, "ocr_confidence": 0.592, "pagerank": { "raw": 3.1041044334924905e-07, "percentile": 0.8595383360188181 }, "sha256": "76ede6ea3a14a7eb9f7df5f6b702d6652b3c68843873902b66b4100376df6b7a", "simhash": "1:0bee86066e725ce5", "word_count": 2136 }, "last_updated": "2023-07-14T16:59:13.418266+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Martin concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE SEGARRA" ], "opinions": [ { "text": "HEDRICK, Judge.\nBy his first assignment of error, defendant contends the court erred (1) in asking questions of the State\u2019s witnesses on the voir dire hearing to such an extent that it assumed the role of the prosecution and (2) in allowing the witness Bellows to identify the defendant at trial as one of his assailants.\nWhile the trial judge did ask questions of the two State\u2019s witnesses who testified at the voir dire hearing regarding Bellows\u2019 identification of the defendant, there is nothing in the record to support the defendant\u2019s contention that the court assumed the role of the prosecution or that the judge committed error by asking questions of the witnesses. Since the very purpose of such a hearing is to enable the judge to determine whether the witness\u2019 identification of the defendant at the trial as a peretrator of the crime was based entirely on his observations during the commission of the crime, we think the trial judge is and should be at liberty to make such inquiries as he deems necessary to enable him to make a fair and independent determination of the question.\nAfter the voir dire hearing, the trial judge made findings and concluded that Bellows\u2019s \u201cin-court\u201d identification of the defendant was based on his observations at the time of the commission of the crime and that such identification was not tainted by the \u201cout-of-court\u201d photographic identification procedure. There is plenary competent evidence in the record to support the findings of the trial judge which in turn support his conclusion. This assignment of error has no merit.\nNext, defendant contends the court erred in allowing the six photographs used by the police in the pre-trial identification procedure to be introduced into evidence and exhibited to the jury. Defendant argues that the court erred in not instructing the jury that these photographs were admitted for the sole purpose of illustrating the testimony of Officer Burns.\nIt is well-settled that when evidence competent for one purpose only and not for another is offered, the objecting party must request the court to restrict the consideration of the jury to that aspect of the evidence which is competent. Failure of the trial judge to give a limiting instruction in the absence of a request therefor is not error. State v. Goodson, 273 N.C. 128, 159 S.E. 2d 310 (1968).\nDefendant argues that the admission of the photographs was prejudicial error because the writing on the photographs, particularly on the photograph of the defendant, indicated that the defendant had committed other offenses and thereby presented his character to the jury in an unfavorable light. All of the. photographs in question contain written material indicating that the subjects were or had been in the custody of local law enforcement officials. All of the photographs likewise have identification markings which indicate that the photographs were used in a pre-trial identification procedure in this case. The photograph of the defendant has the following legend beneath his face:\nCity County\nBur op Identification\n41255 8 13 74\nFayetteville NC\nThe written material on the photographs of the five individuals other than the defendant could not possibly tend to show that the defendant had committed other crimes and therefore could not have placed him in an unfavorable light in the eyes of the jury. We find no error in the admission of these photographs into evidence for the purpose of illustrating Burns\u2019 testimony.\nHowever, the figures \u201c8 13 74\u201d on the photograph of the defendant obviously refer to the date the photograph was taken by the City County Bureau of Identification. This at least indicates that the defendant was in police custody two months prior to the commission of the offense for which he was being tried. While we are of the opinion that the admission of this photograph without deleting or covering the written material was error, see Annot. 30 A.L.R. 3d 908 (1970), we are of the opinion that the error was harmless beyond a reasonable doubt, State v. Cauthen, 18 N.C. App. 591, 197 S.E. 2d 567 (1973), cert. denied, 283 N.C. 755, 198 S.E. 2d 724 (1973), cert. denied, 415 U.S. 926 (1974). Prior to introduction of the photograph into evidence, the defendant had been identified by Bellows and Anna Martino; and Merritt Hope, one of the accomplices, had given detailed testimony of the defendant\u2019s complicity in the crime. In the light of these overwhelming circumstances, we do not perceive how the admission of the unexpurgated photograph of the defendant could have been prejudicial. This assignment of error is not sustained.\nBased on exceptions nineteen through twenty-five, defendant contends the court erred in allowing Officer Burns to testify at trial as to what the witness Merritt L. Hope had told him during the officer\u2019s pre-trial investigation of the assault and robbery of Bellows by Hope, the defendant, and a third individual.\nThis aspect of Officer Burns\u2019s testimony was clearly admitted into evidence for the purpose of corroborating Hope\u2019s prior account of the events of the night of 15 October 1974. In fact, when, the defendant initially objected to the testimony complained of, the trial judge correctly instructed the jury that Burns\u2019s testimony as to anything said to him by Hope was offered only for the purpose of corroborating Hope, if the jury believed that it did, and for no other purpose. We have reviewed the testimony objected to and find no substantial variance between it and what Hope testified to at trial. Slight variances in corroborating testimony do not render such testimony inadmissible. State v. Case, 253 N.C. 130, 116 S.E. 2d 429 (1960). These exceptions are without merit.\nFinally, defendant contends the trial court erred in failing to submit to the jury the lesser included offenses of armed robbery. \u201cThe necessity for instructing the jury as to an included crime of lesser degree than that charged arises when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed. The pres ence of such evidence is the determinative factor.\u201d State v. Hicks, 241 N.C. 156, 159, 84 S.E. 2d 545, 547 (1954).\nIn the instant case, there was no evidence introduced at trial from which a jury could find that a crime of lesser degree than robbery with the use or threatened use of a firearm or other dangerous weapon had been committed. All the evidence tended to show that if the defendant committed a crime at all he and two accomplices robbed Allen Bellows with the use or threatened use of a pistol, a tree limb, and an iron pipe. This assignment of error is not sustained.\nWe have carefully considered defendant\u2019s other assignment of error regarding the court\u2019s failure to give equal stress to the contentions of the State and the defendant and find it to be without merit.\nDefendant had a fair trial free from prejudicial error.\nNo error.\nJudges Britt and Martin concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Attorney General Edmisten by Assistant Attorney General Lester V. Chalmers, Jr., and Associate Attorney T. Laurence Pollard for the State.", "Downing, David, Vallery and Maxwell by Ray C. Vallery for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE SEGARRA\nNo. 7512SC312\n(Filed 2 July 1975)\n1. Criminal Law \u00a7 66\u2014 voir dire on identification of defendant \u2014 questions by court proper\nWhile the trial judge did ask questions of the two State\u2019s witnesses who testified at the voir dire hearing regarding an armed robbery victim\u2019s identification of the defendant, there is nothing in the record to support the defendant\u2019s contention that the court assumed the role of the prosecution or that the judge committed any error by asking questions of the witnesses.\n2. Criminal Law \u00a7 66\u2014 identification of defendant \u2014 observation at crime scene as basis\nEvidence was sufficient to support the trial court\u2019s findings and conclusions that an armed robbery victim\u2019s in-eourt identification of defendant was based on his observations at the time of the crime and was not tainted by an out-of-court photographic identification procedure conducted in the victim\u2019s hospital room 10 days after the crime.\n3. Criminal Law \u00a7\u00a7 43, 85\u2014 photograph of defendant \u2014 markings indicating prior public custody \u2014 admission harmless error\nWhere the trial court allowed into evidence the six photographs used by the police in a pre-trial identification procedure and all six had written material on them indicating that the subjects were or had been in the custody of local law enforcement officials, the trial court did not err with respect to the photographs of the five individuals other than the defendant; however, admission of defendant\u2019s photograph with the figures \u201c8 13 74\u201d on it indicated to the jury that defendant was in police custody two months prior to the commission of the offense for which he was being tried, and such admission was harmless error.\n4. Criminal Law \u00a7 89\u2014 corroborating evidence \u2014 admissibility\nThe trial court did not err in admitting into evidence testimony of an officer which corroborated that of one of defendant\u2019s accomplices.\n5. Robbery \u00a7 5\u2014 armed robbery \u2014 failure to submit lesser included offenses \u2014 > no error\nWhere all the evidence tended to show that if the defendant committed a crime at all he and two accomplices robbed their victim with the use or threatened use of a pistol, a tree limb, and an iron pipe, the trial court in a prosecution for armed robbery did not err in failing to submit to the jury lesser included offenses.\nAppeal by defendant from Fountain, Judge. Judgment entered 29 January 1975 in Superior Court, Cumberland County. Heard in the Court of Appeals 17 June 1975.\nThis is a criminal prosecution wherein the defendant, George Segarra, was charged in a bill of indictment, proper in form, with armed robbery.\nDefendant entered a plea of not guilty, and the State offered evidence tending to show the following: On the night of 15 October 1974 Allen Bellows and a friend, Willie Christors, met two girls, Anna Martino and Cheryl Snow, at a pizza parlor on Hay Street in Fayetteville. The four of them went to Miss Snow\u2019s house on Shaw Road in Cumberland County. About thirty minutes later Bellows and Christors decided to return to Fay-etteville. When they walked out the door of the house leading to the driveway, the defendant and two other men came around the side of the house. The defendant had a piece of wood in this hand which was about three feet long and \u201cabout as thick as a wrist.\u201d One of the men had a pistol. When Bellows yelled to his friend, \u201cThis is a robbery,\u201d and attempted to escape, the defendant and one of the other men grabbed him and began to hit him about his head and shoulders. The defendant hit Bellows by swinging the stick \u201clike a baseball bat,\u201d and the second ,man hit Bellows with a \u201clong piece of ... a galvanized pipe.\u201d Bellows fell to the ground, and his assailants took $2,000 in American Express Traveler\u2019s Checks and $260 in cash from out of his pockets. Bellows was hospitalized for sixteen days. As a result of being beaten, he suffered cracked ribs, injuries to his head, and bruises and lacerations. One of his eyes was damaged so badly that it had to be removed. \u25a0\nDet. Sgt. Robert L. Burns of the Cumberland County Sheriff\u2019s Department testified that due to the severity of Bellows\u2019 injuries he was not able to discuss the robbery with Bellows until 24 October 1974. On 25 October 1974, Officer Burns showed Bellows a total of fourteen photographs. Bellows immediately picked the defendant\u2019s photograph out of a group of six. photographs as one of the men who had participated in the robbery. The six photographs depicted men of approximately the. same age who had similar features and coloring.\nThe State also offered the testimony of Merritt L. Hope who stated that he, the defendant, and another man n\u00e1med .Spott, followed Bellows and Christors from Hay Street to Cheryl Snow\u2019s house. When Bellows and Christors came out of the house, Scott pointed a gun at them and said, \u201cHold it, we\u2019re going to take your money.\u201d Bellows indicated that he wa\u00e1 mot going to comply with their demands, and while Hope heldr.the gun on Christors, Scott and the defendant beat and robbed Bellows. The defendant hit Bellows with an \u201cobject [which] looked like a tree. ... It was about 4 feet long and a little larger than a 2 by 4 stick.\u201d About an hour and a half after the robbery, Hope, the defendant, and Scott split the money taken from Bellows and Christors, which consisted in part of Traveler\u2019s Checks.\nThe defendant offered no evidence.\nThe jury returned a verdict of guilty. From a judgment that the defendant be imprisoned for not less than twenty-five (25) nor more than thirty (30) years, he appealed.\nAttorney General Edmisten by Assistant Attorney General Lester V. Chalmers, Jr., and Associate Attorney T. Laurence Pollard for the State.\nDowning, David, Vallery and Maxwell by Ray C. Vallery for defendant appellant." }, "file_name": "0399-01", "first_page_order": 427, "last_page_order": 432 }