{ "id": 8547171, "name": "STATE OF NORTH CAROLINA v. DONALD LEE ARMSTRONG", "name_abbreviation": "State v. Armstrong", "decision_date": "1980-02-05", "docket_number": "No. 7918SC703", "first_page": "40", "last_page": "45", "citations": [ { "type": "official", "cite": "45 N.C. App. 40" } ], "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": "223 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 120", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554418 ], "year": 1976, "pin_cites": [ { "page": "123-24" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0120-01" ] }, { "cite": "217 S.E. 2d 88", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 N.C. App. 716", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555108 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/26/0716-01" ] }, { "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, "pin_cites": [ { "page": "361" } ], "opinion_index": 0, "case_paths": [ "/nc/282/0357-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "weight": 2, "year": 1954, "pin_cites": [ { "page": "173" }, { "page": "176" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] }, { "cite": "162 S.E. 764", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1932, "opinion_index": 0 }, { "cite": "202 N.C. 351", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626291 ], "year": 1932, "opinion_index": 0, "case_paths": [ "/nc/202/0351-01" ] } ], "analysis": { "cardinality": 610, "char_count": 12611, "ocr_confidence": 0.832, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20583709706627684 }, "sha256": "0e54f55a85e2e20ab3e3ac6fe1d3cfbb6346ff65faeae62054b20b1b12c6b620", "simhash": "1:8e53406e756a7beb", "word_count": 2085 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge PARKER concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD LEE ARMSTRONG" ], "opinions": [ { "text": "HILL, Judge.\nDefendant first assigns as error the trial court\u2019s refusal of its motion to suppress the introduction into evidence of the television set seized in the search of defendant\u2019s home. We hold the television was properly seized and introduced into evidence.\nThe search was pursuant to a validly issued warrant. G.S. 15A-253 provides that the scope of a search pursuant to a warrant \u201c. . . may be only such as is authorized by the warrant . . . .\u201d Defendant correctly points out that the warrant was for the purpose of obtaining specific property that would connect defendant with the attempted break-in at Elizabeth Franklin\u2019s home. No mention was made of the television. However, G.S. 15A-253 also provides that,\nIf in the course of the search the officer inadvertently discovers items not specified in the warrant which are subject to seizure under G.S. 15A-242, he may also take possession of the items so discovered.\nG.S. 15A-242 allows seizure of an item if there is probable cause to believe that it, \u201c(1) Is stolen or embezzled;\u201d.\nDetective Belvin was on defendant\u2019s premises pursuant to a valid warrant. When he saw the back of the television set, Belvin had already spoken to Gail and Tammy Lanier and knew that a man they had identified as the defendant had stolen their television. Detective Belvin also knew that Mrs. Lanier\u2019s driver\u2019s license number had been engraved on the set, and he had a description of the set. With this knowledge, Belvin had probable cause to seize the television set. The trial court\u2019s dismissal of defendant\u2019s motion was proper.\nDefendant next assigns as error the court\u2019s refusal to suppress statements made by him to police officers after he was taken into custody. After the search on the evening of 13 October, defendant was taken to the Greensboro Police Department where he was advised of his constitutional rights but was not immediately placed under arrest. Defendant waived his rights.\nPolice knew defendant \u201c. . . would deny anything about driving a car because he didn\u2019t have any driving license\u201d; and advised him they weren\u2019t interested in his driving activities. Defendant was asked if he had a girlfriend in Greenfield Homes, the area where both break-ins occurred. Police told defendant that they would not inform his wife, and defendant stated that he did have a girlfriend who lived on the same street as Elizabeth Franklin. The police told defendant they knew he had tried to break into Mrs. Franklin\u2019s house because they had obtained his fingerprints from the front window and, finally, showed him the Lanier television. They further told him that he had been identified as the man who had stolen it.\nDefendant asserts that the combination of these statements subtly intimidated him and rendered his statement involuntary. We disagree. The officer\u2019s statement concerning defendant\u2019s driving violations served to narrow the questioning and inform defendant that the police were interested in a more serious offense. The statement about defendant\u2019s girlfriend could have relieved defendant, giving him a strong alibi for his presence in the area without his wife\u2019s finding out. The officer\u2019s statements concerning the television and the two identifications were admissible. In the absence of evidence that the officer did anything to put defendant in fear or in hope of reward, the confession given after confrontation with incriminating evidence is competent. State v. Myers, 202 N.C. 351 162 S.E. 764 (1932), 4 Strong\u2019s N.C. Index 3d, Criminal Law \u00a7 75.3, p. 307.\nDefendant further assigns as error the trial court\u2019s allowance of the State\u2019s motion to introduce evidence of another crime allegedly committed by defendant. Armstrong was indicted for burglarizing Gail Lanier\u2019s home. Mrs. Franklin testified and identified defendant as the man who attempted to break into her home on 9 October 1978.\nIn State v. McClain, 240 N.C. 171, 173, 81 S.E. 2d 364 (1954), our Supreme Court stated that,\nThe general rule is that in a prosecution for a particular crime, the State cannot offer evidence tending to show that the accused has committed another distinct, independent, or separate offense. (Citations omitted.)\nThe Court then set forth exceptions to the general rule, such exceptions being \u201c. . . as well recognized as the rule itself . . . .\u201d State v. McClain, 282 N.C. 357, 361, 193 S.E. 2d 108 (1972).\nThe fourth exception states that,\nWhere the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged. (Citations omitted.)\nThe sixth exception states that,\nEvidence of other crimes is admissible when it tends to establish a common plan or scheme embracing the commission of a series of crimes so related to each other that proof of one or more tends to prove the crime charged and to connect the accused with its commission. (Citations omitted.) State v. McClain, 240 N.C. 171, 176, 81 S.E. 2d 364 (1954).\nStansbury succinctly summarizes the exceptions by stating that evidence will be admitted,\n... if it tends to prove any other relevant fact [and] it will not be excluded merely because it also shows him to have been guilty of an independent crime. 1 Stansbury\u2019s N.C. Evidence \u00a7 91, p. 289 (Brandis rev. 1973).\nIn the case at hand, defendant was identified by Tammy Lanier as the man who broke into her house. Identification by just one witness, particularly such a young one, is not the kind of definite identification on which the prosecutor would want to rely. Both Tammy and Elizabeth Franklin identified defendant and described him as wearing a hooded top or jacket. Entry into the Lanier home was through a window as was the attempted entry into the Franklin home. In both cases, fingerprint evidence linked defendant to the scene. We hold that the testimony of Elizabeth Franklin was properly admitted.\nDefendant\u2019s final assignment of error questions the trial court\u2019s failure to instruct the jury regarding the evidence of the similar act of attempted breaking and entering that was alleged to have occurred on 9 October 1978.\nAs we have indicated above, evidence of the separate and distinct crime was relevant and competent.\nWhere there is evidence that the offense charged and another offense were committed by the same person, evidence of the accused\u2019s connection with the other offense is admissible as tending to show his guilt of the one for which he is being tried. 1 Stansbury\u2019s N.C. Evidence \u00a7 92, p. 297 (Brandis rev. 1973).\nIt is our opinion that when evidence of another offense is admitted as it was here, to show identity, the trial court should give a limiting instruction. N.C.P.I. \u2014 Crim. 104.15 contains such an instruction.\nIt was not error, however, for the trial court to fail to give the limiting instruction in this case. In State v. Harvey, 26 N.C. App. 716, 217 S.E. 2d 88 (1975), evidence that defendants had committed another crime than the one they were indicted for was used for purposes of identification. As in our case, no limiting instruction was requested by defense counsel, and our Court stated that,\nUnder the well-recognized rule, if evidence is competent for one purpose only and not for another, it is incumbent upon the objecting party to request the court to restrict the consideration of the jury to that aspect of the evidence which is competent. (Citations omitted.) Harvey, at p. 719.\nThe rule in Harvey was restated in State v. Collins, 29 N.C. App. 120, 123-24, 223 S.E. 2d 575 (1976).\nFailure to include instructions as to the purposes for which the evidence was received is not ground for exception unless counsel has requested such an instruction. This is true even though the trial court did not explain the difference between substantive and corroborative evidence. (Citation omitted.)\nIt is clear from the record that after instructing the jury, the trial court asked defendant\u2019s counsel if there were \u201cAny further requests for instructions . . . .\u201d Defense counsel made no request; thus, his final assignment of error is without merit.\nFor the reasons stated above, we find in the trial of the case\nNo error.\nChief Judge MORRIS and Judge PARKER concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney J. Chris Prather, for the State.", "Deno Economou for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD LEE ARMSTRONG\nNo. 7918SC703\n(Filed 5 February 1980)\n1. Searches and Seizures \u00a7 40\u2014 search under warrant \u2014seizure of item not within purview of warrant\nAn officer lawfully seized a stolen television set during a search of defendant\u2019s home pursuant to a warrant to search for evidence of another crime where the officer knew that defendant had been identified as the person who had stolen such a television set, the officer discovered that a number engraved on the back of the set matched the driver\u2019s license number of the owner, and the officer thus had probable cause to seize the set. G.S. 15A-253.\n2. Criminal Law \u00a7 75.3\u2014 in-custody statements \u2014effect of officers\u2019 statements to defendant\nDefendant\u2019s in-custody statements to police officers about two break-ins were not rendered involuntary by the fact that officers advised defendant that they weren't interested in his driving violations, asked defendant whether he had a girlfriend in the area where the break-in occurred and stated that they would not tell his wife, told defendant they had obtained his fingerprints from the front window of one of the houses broken into, and showed defendant a stolen television set found in his home and told him that he had been identified as the man who had stolen it.\n3. Criminal Law \u00a7 34.5\u2014 evidence of another crime \u2014 admissibility to show identity\nEvidence that defendant attempted to burglarize another home in the same area on the night following the burglary in question was properly admitted for the purpose of identifying defendant as the perpetrator of the crime charged where the evidence tended to show that both crimes were committed in the same manner and by the same person.\n4. Criminal Law \u00a7 95.1\u2014 evidence admitted for limited purpose \u2014 necessity for request for limiting instruction\nThe trial court did not err in failing to give a limiting instruction concerning evidence of another crime admitted to show identity where defendant made no request for such an instruction.\nAPPEAL by defendant from Davis, Judge. Judgment entered 18 January 1979 in Superior Court, GUILFORD County. Heard in the Court of Appeals 9 January 1980.\nOn 8 September 1978, Tammy, Tonya and Chequetha Lanier were asleep in their bedroom. Their mother, Gail Lanier, was working the third shift at Cone Mills. Around 1:00 o\u2019clock that morning, Tammy, age 11, heard a noise, awoke, and saw a man remove the television set from her room and walk out the back door of the house. The burglary was not reported to the police.\nOn 9 October 1978, Mrs. Elizabeth Franklin was awakened by a noise from the back and side of her home. Mrs. Franklin tried to turn on the lights, but they would not work. She became frightened and tried to use the telephone, but it was out of order. Finally, she looked out the window and saw a man dressed in dark pants and a hooded jacket. The man asked Mrs. Franklin to let him in, but she refused. The man left, but not before tearing off the window screen in Mrs. Franklin\u2019s daughter\u2019s room.\nGreensboro police responded to Mrs. Franklin\u2019s call that same night. Two torn window screens were discovered, the electricity had been cut off, and the telephone junction box had been disrupted. One fingerprint was obtained and later identified to be that of the defendant. At trial, Mrs. Franklin identified defendant as the man who had tried to break into her home.\nOn 11 October 1978, Detective Belvin of the Greensboro police talked to Gail Lanier and learned that a television had been removed from her home. The next day Belvin exhibited a set of six photographs to Tammy, who picked defendant\u2019s picture and stated that he was the man who had broken into her room.\nGreensboro police went to defendant\u2019s home on 13 October. During a search authorized by a valid warrant, Detective Belvin found the back of a television set. The driver\u2019s license number engraved on the part matched that of Mrs. Lanier. Subsequently, Belvin entered defendant\u2019s home, saw Mrs. Lanier\u2019s television in the living room, and seized it.\nDefendant was convicted of second degree burglary, and is appealing from the verdict.\nAttorney General Edmisten, by Associate Attorney J. Chris Prather, for the State.\nDeno Economou for defendant appellant." }, "file_name": "0040-01", "first_page_order": 68, "last_page_order": 73 }