{ "id": 8553339, "name": "STATE OF NORTH CAROLINA v. ARTHUR WHITNEY", "name_abbreviation": "State v. Whitney", "decision_date": "1975-07-02", "docket_number": "No. 7526SC182", "first_page": "460", "last_page": "463", "citations": [ { "type": "official", "cite": "26 N.C. App. 460" } ], "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": "61 N.E. 286", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1901, "opinion_index": 0 }, { "cite": "168 N.Y. 264", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2299526 ], "year": 1901, "opinion_index": 0, "case_paths": [ "/ny/168/0264-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "368" } ], "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "125 S.C. 406", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 1978296 ], "weight": 2, "year": 1923, "pin_cites": [ { "page": "417" }, { "page": "807" } ], "opinion_index": 0, "case_paths": [ "/sc/125/0406-01" ] }, { "cite": "32 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613378 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0722-01" ] }, { "cite": "193 S.E. 2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565178 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0357-01" ] }, { "cite": "134 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "pin_cites": [ { "page": "621" } ], "opinion_index": 0 }, { "cite": "261 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573118 ], "year": 1964, "pin_cites": [ { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/nc/261/0322-01" ] }, { "cite": "204 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564140 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0328-01" ] }, { "cite": "201 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "887" } ], "opinion_index": 0 }, { "cite": "284 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562970 ], "year": 1974, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0515-01" ] } ], "analysis": { "cardinality": 525, "char_count": 7939, "ocr_confidence": 0.589, "pagerank": { "raw": 1.487076309803168e-07, "percentile": 0.6623206603937141 }, "sha256": "2f4246c0ad09dd87587ddb7d51dbcffe1ed8a8ecaa45dfaeae409bdb0ec62ea6", "simhash": "1:14f5783b5de63cd5", "word_count": 1337 }, "last_updated": "2023-07-14T16:59:13.418266+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Martin and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ARTHUR WHITNEY" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant first contends that the trial court erred in denying his motion to suppress the in-court identification testimony of Patricia Bailey on the ground that it was tainted by an improper show-up procedure. The rule, as set out in State v. Tuggle, 284 N.C. 515, 520, 201 S.E. 2d 884, 887 (1974), is as follows:\n\u201cWhen the admissibility of in-court identification testimony is challenged on the ground it is tainted by out-of-court identification (s) made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility. When the facts so found are supported by competent evidence, they are conclusive on appellate courts.\u201d [citations omitted.] \u201d\nAccord, State v. Shore, 285 N.C. 328, 204 S.E. 2d 682 (1974). In its order denying defendant\u2019s motion, the court found that Miss Bailey\u2019s identification \u201cwas not tainted in anywise by any suggestive remarks made by the police, but was based solely and exclusively upon her identification of the defendant in her bedroom shortly after 3:00 a.m. of June 10, 1974 . ... \u201d These findings are supported by competent evidence, and we are bound by them.\nDefendant further contends that it was error to allow testimony concerning the statement, made in his presence, that he had been caught as a \u201cPeeping Tom.\u201d We agree. The trial court apparently treated this evidence as an implied admission or an admission by silence, an exception to the hearsay rule. See generally McCormick\u2019s Handbook of the Law of Evidence \u00a7 270, at 651-53 (1972). In State v. Guffey, 261 N.C. 322, 325, 134 S.E. 2d 619, 621 (1964), the North Carolina Supreme Court said:\n\u201cTo render evidence of an admission by silent acquiescence competent, the statement must have been made in the presence and hearing of the defendant, he must have understood it, he must have understood that it contained an accusation against him, it must be of such content or made under such circumstances as to call for a reply, that is, it must be such as to render a reply natural and proper, the declarant or some person present must have the right to the information, and there must have been an opportunity for reply.\u201d\nSee also 2 Stansbury, N. C. Evidence (Brandis rev.), \u00a7 179. The statement in question was made not to defendant but to a police officer as defendant was being placed in custody. It did not call for a reply. Officer McCoy\u2019s testimony was proffered in lieu of testimony by the men who made the statement. It was hearsay and therefore incompetent.\nFinally, defendant contends that the court erred in allowing Dorothea Faulkner to testify that defendant broke into her house and committed certain sex offenses ten days before the alleged burglary at the Bailey residence. Again we agree. Under the general rule, evidence of other offenses is inadmissible for the purpose of proving the offense charged. 1 Stansbury, supra, \u00a7 91. It is true that evidence relevant to the questions of identity or modus operandi is admissible notwithstanding the fact that it involves an independent crime. State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972) ; State v. Biggs, 224 N.C. 722, 32 S.E. 2d 352 (1944). \u201cBut the dangerous tendency and misleading probative force of this class of evidence require that its admission should be subjected by the courts to rigid scrutiny, [citations omitted.]\u201d State v. Lyle, 125 S.C. 406, 417, 118 S.E. 803, 807 (1923), quoted in State v. McClain, 240 N.C. 171, 177, 81 S.E. 2d 364, 368 (1954). See also State v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901). In the case at bar, such evidence went beyond the scope necessary for the limited purpose for which it was offered and included details which could only relate to defendant\u2019s character and inflame the mind of the jury. Defendant was indicted on a charge of burglary, not rape. We hold that the admission of irrelevant portions of Mrs. Faulkner\u2019s testimony was prejudicial error requiring that defendant be given a new trial.\nNew trial.\nJudges Martin and Clark concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Parks H. Icenhour and Associate Attorney Isaac T. Avery III, for the State.", "Richard M. Mitchell for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ARTHUR WHITNEY\nNo. 7526SC182\n(Filed 2 July 1975)\n1. Criminal Law \u00a7 66\u2014 in-court identification \u2014 pretrial showup\nBurglary victim\u2019s in-court identification of defendant was of independent origin and not tainted by a showup at which defendant was exhibited to the victim while sitting alone in a police car.\n2. Criminal Law \u00a7 48\u2014 no admission by silence\nAn officer\u2019s testimony concerning a statement, made in defendant\u2019s presence, that defendant had been caught as a \u201cPeeping Tom\u201d was hearsay and not competent as an implied admission- where the statement was not made to defendant but to an officer and the statement did not call for a reply. .\n3. Criminal Law \u00a7 34\u2014 evidence of other offenses .\nIn a prosecution for burglary, the trial court erred in permitting a witness to testify that defendant broke into her house and committed the offenses of rape and crime against nature ten days befo.re the alleged burglary in question since the evidence went beyond the scope necessary for the limited purpose for which it was offered of showing identity and modus operandi.\nAppeal by defendant from Falls, Judge. Judgment entered 13 November 1974 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 May 1975.\n\u25a0 Defendant was indicted on a charge of first degree burglary. He pleaded not guilty and was tried before a jury.\nPrior to trial defendant moved to suppress in-court identification. The court conducted a voir dire hearing, made findings of fact, and concluded that the identification testimony was admissible. On voir dire and again at trial Patricia Bailey, of 1932 Pegram Street, Charlotte, testified that on 10 June 1974, around 3:00 a.m., she had been asleep in her bedroom when she awakened and saw a young man with her pocketbook in his possession. He put his hand to his lips and approached the bed. There was a light on in the room, and Miss Bailey looked into the man\u2019s face. Then he touched her and she screamed. The man fled with the pocketbook. He apparently had entered through a torn window screen.\nApproximately 24 hours later Officer A. L. McCoy brought Arthur Whitney to Miss Bailey\u2019s home and told her he had a suspect. She identified Whitney sitting alone in the police car. She w\u00e1s later shown six to eight photographs from which she selected that of defendant.\nOfficer McCoy testified that he investigated Miss Bailey\u2019s complaint on the night of June 10, and she gave the following description of the man whom she had seen in her room: young Negro male, age 16 to 20 years, 5\u20196\u201d to 5\u20197\u201d in height, medium complexion, medium bush, wearing blue jeans and tennis shoes. The next night, about 2:00 a.m., two Negro males brought Arthur Whitney to Officer McCoy and reported that they had caught him trying to peep in their porch window. Whitney told McCoy .his name and address, the 1900 block of Pegram Street. Since he fitted the description given by Miss Bailey, the officer immediately took him to the witness\u2019s home.\nDorothea Faulkner, of 1621 Pegram Street, testified that on 31 May 1974, at approximately 2:00 a.m., she had been sleeping on her sofa when she awoke and saw Arthur Whitney bending over her with a razor. He raped her and forced her to to perform an act of fellatio. He then fled with money from her pocketbook. It was discovered that a screen was missing from a bedroom window. The court instructed the jury to consider Mrs. Faulkner\u2019s testimony only as it tended to show intent, design, guilty knowledge or the identity of defendant.\nThe jury returned a verdict of guilty as charged and the court \u25a0 sentenced defendant to life imprisonment. He appealed to this \u00a1'Court.\nAttorney General Edmisten, by Assistant Attorney General Parks H. Icenhour and Associate Attorney Isaac T. Avery III, for the State.\nRichard M. Mitchell for defendant appellant." }, "file_name": "0460-01", "first_page_order": 488, "last_page_order": 491 }