{ "id": 8550750, "name": "STATE OF NORTH CAROLINA v. TERRY STEVEN LANKFORD & JOSEPH BENJAMIN BOUDREAU", "name_abbreviation": "State v. Lankford", "decision_date": "1976-02-18", "docket_number": "No. 755SC757", "first_page": "521", "last_page": "526", "citations": [ { "type": "official", "cite": "28 N.C. App. 521" } ], "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": "187 S.E. 2d 85", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572985 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0588-01" ] }, { "cite": "189 S.E. 2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 1", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547355 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0001-01" ] }, { "cite": "168 S.E. 2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 492", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551181 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0492-01" ] }, { "cite": "144 S.E. 2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576067 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0528-01" ] }, { "cite": "169 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 565", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559236 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0565-01" ] }, { "cite": "201 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562970 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0515-01" ] }, { "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": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 4, "year": 1974, "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "180 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560709 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0476-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "203 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561608 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0001-01" ] } ], "analysis": { "cardinality": 645, "char_count": 12570, "ocr_confidence": 0.534, "pagerank": { "raw": 1.1985649507622143e-07, "percentile": 0.5930903693613025 }, "sha256": "58482c54815945382075604f1fe87f835da037eaac7a659a8aa3178deabf276e", "simhash": "1:3b6da4167e2a1f7f", "word_count": 2126 }, "last_updated": "2023-07-14T22:58:46.500479+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY STEVEN LANKFORD & JOSEPH BENJAMIN BOUDREAU" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendants contend their in-court identification by Carolyn D. Cat\u00f3n was based on unnecessarily suggestive pretrial identification procedures which violated due process.\nOur Court has generally held that an in-court identification of the accused by a witness who took part in such pretrial confrontation must be excluded unless it is first determined by the trial judge on voir dire that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974) ; State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972) ; State v. Smith, 278 N.C. 476, 180 S.E. 2d 7 (1971).\nAlthough the practice of showing suspects singly for identification purposes has been recognized as suggestive and widely condemned, whether such a confrontation violates due process depends on the totality of the circumstances. Neil v. Biggers, 409 U.S. 188, 34 L.Ed. 2d 401, 93 S.Ct. 375; State v. Shore, 285 N.C. 328, 204 S.E. 2d 682 (1974). State v. Henderson, supra.\nIn Neil v. Biggers, supra, the United States Supreme Court considered the scope of due process protection against the admission of evidence derived from suggestive identification procedures and held that even if a pretrial confrontation procedure was suggestive, there is no violation of due process if examination of the \u201ctotality of the circumstances\u201d indicates the identification was reliable. The factors set out by the Court \u201c ... to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the witness\u2019 prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.\u201d\nIn the present case, the record discloses that the robbery took place in a well lighted store. The defendants were unmasked. Mrs. Cat\u00f3n had seen the defendants ten minutes prior to the robbery and had a casual conversation with one of the defendants concerning purchases. The defendants ordered Mrs. Cat\u00f3n not to tell the police, and if she did, they would come back. She had ample opportunity to observe the defendants prior to and during the robbery. The witness\u2019 curiosity had been aroused by the defendant Lankford\u2019s return to the store after a short interval and by the defendant Boudreau\u2019s honking of the horn. After seeing the pistol and being told it was not a joke, the victim realized that she was being robbed and from that point on would obviously be paying close attention to the events that were taking place. Mrs. Caton\u2019s description of the defendants was not placed in the record on appeal, and its accuracy cannot be determined. There was no equivocation by the witness when she identified the defendants. She testified as follows: \u201cI just walked to the door and identified them,\u201d and \u201c[w]hen I walked out I nodded my head and I told Walt Moser it was the two boys.\u201d There was approximately a one hour period between the crime and the identification.\nFurther, the trial court found and concluded that \u201c . . . the witness can and does identify each of them independently of having seen them at the sheriff\u2019s office or at any place thereafter and can identify them based solely on observations of each defendant while in the store operated by her on the evening of March 13th and as to such identification of them while in her store the objection is overruled.\u201d Since this finding is supported by competent evidence, it alone renders the in-court identification competent even if it be conceded arguendo that the lineup or showup procedure was improper. State v. Shore, swpra. The finding, supported by competent evidence, is conclusive on appeal and must be upheld. State v. Shore, supra; State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974).\nWeighing all the factors, we find no substantial likelihood of misidentification. The totality of the circumstances indicates that the identification was reliable and hence no violation of due process was committed.\nThe defendants next assign as error the court\u2019s denial of their motion for a directed verdict of not guilty at the con-elusion of the State\u2019s evidence. Both defendants contend there was no evidence to support the elements of the offense of armed robbery and that only the lesser offense of common law robbery should have been submitted to the jury.\nThe State\u2019s evidence tended to show that both defendants were standing at the counter. When the door opened to the cash register, Boudreau told Mrs. Cat\u00f3n to give him the money. He pulled a pistol and pointed it toward the cash register. She put the money from both cash registers on the counter and both defendants picked it up. Lankford handed the money to Boudreau who was putting it in his pockets. Both defendants told her to go in the back room where Lankford told her to put her hands on the top shelf and turn her back to them. Boudreau threw the gun to Lankford and told him to hit her. Lankford told her to tell the police that two black men robbed her or they would return. They then locked the door and left.\nThe evidence thus adduced by the State tended to establish that Boudreau was armed with a pistol, that he took the money in question from Cat\u00f3n by the use and threatened use of such pistol, and that he thereby threatened, if he did not in fact, actually endanger the life of Cat\u00f3n, and that Lankford was present, actively participating and assisting Boudreau to do such acts. Consequently, the evidence is amply sufficient to support a finding that Boudreau actually committed the crime of robbery with firearm upon Cat\u00f3n within the meaning of the statute and that Lankford was present, aiding and abetting him in its perpetration.\nIn his next assignment of error the defendant Lankford argues that it was error for the State\u2019s witness to testify that the substance silver nitrate turns black or gray upon coming in contact with moisture since there was no express finding that the witness was an expert.\nDefendant made no request for a finding that the witness was qualified to give opinion testimony as an expert witness, and \u201c [i] n the absence of a request by the appellant for a finding by the trial court as to the qualification of a witness as an expert, it is not essential that the record show an express finding on this matter, the finding, one way or the other, being deemed implicit in the ruling admitting or rejecting the opinion testimony of the witness.\u201d State v. Perry, 275 N.C. 565, 169 S.E. 2d 889 (1969). This assignment of error is overruled.\nWe find no merit in defendant Lankford\u2019s assignment of error relating to the charge on aiding and abetting. Defendant contends that the judge did not \u201cinstruct the jury that a principal in the second degree must share the same criminal intent as the principal perpetrator of the crime.\u201d\nThe instructions clearly conveyed the concept of a shared felonious intent although those exact words were not used. There is no requirement that those words must be used. \u201cNo exact forms or words are required to properly instruct a jury upon \u2018aiding and abetting\u2019 or \u2018felonious intent\u2019. See State v. Mundy, 265 N.C. 528, 144 S.E. 2d 572 (1965) ; State v. Anderson, 5 N.C. App. 492, 168 S.E. 2d 444 (1969). When the entire \u2018Charge of the Court\u2019 as it appears in the record on appeal is considered as a contextual whole, we hold that it is free from prejudicial error.\u201d State v. Westry, 15 N.C. App. 1, 189 S.E. 2d 618 (1972).\nDefendant Boudreau contends that the trial court erred in its charge to the jury when it stated that both defendants contended that they were in the store when in fact, the defendant Boudreau did not testify. We find this contention to be without merit.\nA misstatement of the contentions of the parties must be brought to the court\u2019s attention in apt time to afford opportunity for correction in order for an exception thereto to be considered on appeal, unless the misstatement was so gross that no objection at the trial was necessary. State v. Brown, 280 N.C. 588, 187 S.E. 2d 85 (1972). Since the defendant did not object at the time of the charge, and since the remainder of the court\u2019s charge made it clear that the trial judge was referring to the contentions of the defendant Lankford and not to both of the defendants, any possible error committed by the court was harmless.\nWe have carefully considered defendant Boudreau\u2019s remaining assignment of error and conclude that if error was committed, it was not sufficiently prejudicial to warrant a new trial.\nAs to each defendant, we find\nNo error.\nJudges Vaughn and Clark concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Edmisten by Assistant Attorney General Charles J. Murray, for the State.", "Prickett & Scott, by Carlton S. Prickett, Jr., for defendant Lankford.", "James A. MacDonald, for defendant Boudreau." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY STEVEN LANKFORD & JOSEPH BENJAMIN BOUDREAU\nNo. 755SC757\n(Filed 18 February 1976)\n1. Criminal Law \u00a7 66\u2014 in-court identification of defendants \u2014 observation at crime scene as basis\nA witness\u2019s in-eourt identification of defendants as the men who robbed her at gunpoint was not tainted by any out of court confrontation where the evidence tended to show that the witness observed defendants about ten minutes before the robbery when they came into the store to make a purchase, the store was well lighted at the time of the robbery, and the defendants were unmasked.\n2. Robbery \u00a7 4 \u2014 armed robbery \u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a prosecution for armed robbery where such evidence tended to show that both defendants were at the crime scene, both took money from the cashier, and both handled a gun which was used in perpetration of the crime.\n3. Criminal Law \u00a7 50\u2014 expert testimony \u2014 no finding of expertise \u2014 testimony proper\nThe trial court did not err in allowing a State\u2019s witness to testify that silver nitrate turns black or gray upon coming in contact with moisture, though there was no express finding that the witness was an expert, since defendant made no request for such a finding.\n4. Criminal Law \u00a7 113\u2014 aiding and abetting \u2014 jury instructions proper\nThe trial court\u2019s instructions on aiding and abetting were proper, though the court did not specifically instruct that the principal in the second degree and the principal perpetrator of the crime must have a \u201cshared felonious intent.\u201d\n5. Criminal Law \u00a7 118\u2014 charge on contentions of parties \u2014 misstatement \u2014 consideration on appeal\nA misstatement of the contentions of the parties must be brought to the court\u2019s attention in apt time to afford opportunity for correction in order for an exception thereto to be considered on appeal, unless the misstatement was so gross that no objection at the trial was necessary.\nAppeal by defendants from Fountain, Judge. Judgment entered 18 April 1975 in Superior Court, New Hanoveb County. Heard in the Court of Appeals 19 January 1976.\nDefendants were charged with armed robbery and entered a plea of not guilty.\nEvidence for the State tended to show the following facts: Carolyn Cat\u00f3n was working at the 7-11 Store, located on South College Road. She was the only employee working at the store on the night of 13 March 1975. Defendants entered the store when she was working about 10:00 p.m. on 13 March 1975, purchased an item and left. They returned in a few minutes and with the use of a pistol robbed her of $200.99 and locked her in a back room. A customer saw defendants leave, described their car to police and they were apprehended shortly after 10:30 p.m. When defendants were taken into custody, a pistol and knife were observed on the front seat of their car and rolls of money were observed in the open glove compartment and were seized by the police. Some of the bills had theretofore been covered with silver nitrate, a powder which turns dark upon exposure to moisture. These bills had been given to Cat\u00f3n in November 1974 and were the same bills that were found in defendant\u2019s car. The defendant Boudreau had a black substance on his hands when arrested.\nLankford presented evidence which tended to show that he knew nothing of the robbery before Boudreau demanded money from Cat\u00f3n; that he did not participate in the robbery; that he had borrowed the pistol from a friend earlier in the evening for protection at his apartment.\nBoudreau offered no evidence.\nThe jury found defendants guilty of armed robbery and from judgments imposing prison sentences, defendants appealed.\nAttorney General Edmisten by Assistant Attorney General Charles J. Murray, for the State.\nPrickett & Scott, by Carlton S. Prickett, Jr., for defendant Lankford.\nJames A. MacDonald, for defendant Boudreau." }, "file_name": "0521-01", "first_page_order": 549, "last_page_order": 554 }