{ "id": 8553250, "name": "STATE OF NORTH CAROLINA v. STEVE ANTHONY PUCKETT", "name_abbreviation": "State v. Puckett", "decision_date": "1980-05-20", "docket_number": "No. 7922SC1135", "first_page": "719", "last_page": "725", "citations": [ { "type": "official", "cite": "46 N.C. App. 719" } ], "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": "167 S.E. 2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558536 ], "year": 1969, "pin_cites": [ { "page": "269" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0264-01" ] }, { "cite": "154 S.E. 2d 902", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 726", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570501 ], "year": 1967, "pin_cites": [ { "page": "730" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0726-01" ] }, { "cite": "259 S.E. 2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "44 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550733 ], "year": 1979, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc-app/44/0072-01" ] }, { "cite": "82 S.E. 2d 373", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600446 ], "year": 1954, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0373-01" ] }, { "cite": "386 U.S. 987", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6319834, 6319426, 6320070, 6319598 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0987-03", "/us/386/0987-01", "/us/386/0987-04", "/us/386/0987-02" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "247 S.E. 2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 651", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554487 ], "year": 1978, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/37/0651-01" ] }, { "cite": "231 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "year": 1977, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "185 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571097 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "279" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0273-01" ] }, { "cite": "406 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173132 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/406/0682-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "255 S.E. 2d 282", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "41 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549804 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/41/0451-01" ] }, { "cite": "257 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568503 ], "year": 1979, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0086-01" ] } ], "analysis": { "cardinality": 644, "char_count": 13224, "ocr_confidence": 0.816, "pagerank": { "raw": 3.0862147705610945e-07, "percentile": 0.8583330533942326 }, "sha256": "8a7098ded5086aefef6ec7b698351ed115f13381ff8b3600caeeed8a33553ae5", "simhash": "1:0d63963fed247bae", "word_count": 2243 }, "last_updated": "2023-07-14T21:32:37.131990+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and WEBB concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STEVE ANTHONY PUCKETT" ], "opinions": [ { "text": "HILL, Judge.\nDefendant first argues that a particular juror was prejudiced and unqualified, and that thereby he was denied a fair trial and not given due process of law. We find no error.\nAfter the verdict was returned, defendant moved for mistrial and for a new trial. Evidence was offered on both motions. One of defendant\u2019s friends testified that after the trial was over, he heard a juror state, \u201c|I]f he [defendant] wasn\u2019t guilty, the Judge would have dismissed it.\u201d The witness then went up to the jury box and identified the juror he believed had made the statement.\nWe agree with defendant that jurors should not deliberate under the misapprehension the juror in this case allegedly did. We do not believe, however, that the statement by itself indicates that the juror was unqualified to serve. The statement could indicate the juror\u2019s rationalization of what appears from the evidence to be a hard decision the jury had to make. The trial judge, in his discretion, felt the trial was fair, and we will not disturb that judgment. Furthermore, we do not believe the witnesses\u2019 testimony in seeking to impeach the verdict was competent. See G.S. 15A-1240(a). Also see State v. Cherry, 298 N.C. 86, 100, 257 S.E. 2d 551 (1979).\nDefendant next argues that the trial court erred in failing to suppress the pre-trial and in-court identification of defendant by Mrs. Plemmons. Defendant was first identified in a lineup at which he was not represented by counsel. Defendant contends this lack of representation rendered the lineup illegal per se. We find no error.\nAlthough defendant was in custody at the time of the lineup on another charge, adversary judicial proceedings had not begun on the charge from which arose the conviction he is now appealing. In these respects, defendant\u2019s situation is similar to the defendant\u2019s in State v. Simms, 41 N.C. App. 451, 255 S.E. 2d 282 (1979). In Simms, the defendant was confined in one county on charges and brought to another county for a lineup relating to a robbery charge. Defendant Simms had not been charged with the robbery at the time of the lineup. This Court said in Simms, at p. 455, that, \u201c[a] person has a right to counsel at a pre-trial lineup when it is a critical stage of the criminal prosecution against [him]. Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178 (1967).\u201d However, under Kirby v. Illinois, 406 U.S. 682, 32 L.Ed. 2d 411, 92 S.Ct. 1877 (1972), \u201c. . . this right only attaches at or after the commencement of adversary judicial proceedings against defendant.\u201d Defendant had no constitutional right to legal representation at the lineup.\nDefendant contends the pre-trial lineup was so suggestive that he was denied due process of law, thus rendering inadmissible, evidence of Mrs. Plemmons\u2019 lineup identification. We find no error.\nThe trial judge conducted a voir dire examination of a Davie County deputy sheriff concerning the lineup. Six white males were in the lineup. All were close in age to the defendant, and like the defendant had long hair and facial hair. Three of the men wore gray twill trousers and white T-shirts. Defendant was the only man viewed who had on shorts.\nJust as in State v. Taylor, 280 N.C. 273, 279, 185 S.E. 2d 677 (1972), there is no evidence that defendant Puckett\u2019s mode of dress was not chosen by Puckett himself. The trial judge found no error in the lineup procedure. \u201c \u2018Such findings of fact, . . . are conclusive if they are supported by competent evidence in the record.\u2019 \u201d (Citations omitted.) Taylor, supra, at p. 279. We find that the trial judge was correct in his finding.\nDefendant finally contends in regard to the lineup procedure that it was conducted in violation of Article 14 of Chapter 15A, particularly G.S. 15A-274 and G.S. 15A-279. Our Supreme Court has held in State v. Irick, 291 N.C. 480, 490, 231 S.E. 2d 833 (1977), that Article 14 \u201c. . . was not aimed at [protecting] in custody defendants.\u201d The Court went on to state in Irick, at p. 490, that \u201c[t]he statute does not apply to an in custody accused.\u201d This Court has held that the restrictive interpretation set forth in Irick applies even to a defendant in custody on other charges at the time of the lineup. See State v. Thompson, 37 N.C. App. 651, 657, 247 S.E. 2d 235 (1978).\nDefendant finally contends in relation to the identification procedures that the State failed to show the in-court identification of defendant was of an independent origin and not the result of the illegal pre-trial lineup. We disagree.\nDefendant\u2019s contention is moot in light of our holding that the pre-trial procedures were proper, but assuming arguendo that they were not, we find that the State showed Mrs. Plemmons\u2019 identification at trial was independent of her pre-trial viewing of defendant. Mrs. Plemmons stated on voir dire that, \u201cI didn\u2019t hear [defendant] speak until I was in this courtroom, and I was more sure than ever after I heard the voice, because I listened to it [during the robbery] for one hour.\u201d Mrs. Plemmons then stated at trial that, \u201cI didn\u2019t have any doubt whatsoever when I first saw MR. PUCKETT but that if I did have a doubt it was removed after I heard him speak in the courtroom that morning.\u201d\nWe hold that the in-court identification was independent in origin, thus making any constitutional error that may have arisen in the pre-trial lineup harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967), rehearing denied, 386 U.S. 987 (1967). Also see State v. Taylor, 280 N.C. 273, 280, 185 S.E. 2d 677 (1972).\nDefendant argues next that the trial court abused its discretion by denying defendant\u2019s motion to set aside the verdict as being contrary to the greater weight of the evidence. No motion to dismiss for insufficiency of the evidence was made.\nThe motion to dismiss the verdict as being against the greater weight of the evidence necessarily invokes the exercise of the trial court\u2019s discretion. Roberts v. Hill, 240 N.C. 373, 380, 82 S.E. 2d 373 (1954). No question of law is raised. Although defendant\u2019s evidence clearly leads to the conclusion that it would have been virtually impossible for him to have robbed Mrs. Plemmons, in light of the victim\u2019s unshakable identification of defendant, we cannot say that the trial judge abused his discretion in failing to set aside the verdict.\nDefendant made no motion to dismiss for insufficiency of the evidence. Pursuant to G.S. 15A-1227(d) and G.S. 15A-1446(d)(5), defendant could have requested on appeal a review of the sufficiency of the evidence, so on our own motion, we have made such a review. State v. Alston, 44 N.C. App. 72, 73, 259 S.E. 2d 767 (1979).\nDespite the fact that defendant presented unimpeachable alibi witnesses, which if believed, would have precluded a conviction, we must conclude that the evidence was sufficient to go to the jury. \u201c[T]he evidence must be interpreted in the light most favorable to the State . . . .\u201d (Citations omitted.) State v. Miller, 270 N.C. 726, 730, 154 S.E. 2d 902 (1967). \u201c[T]he credibility of witnesses and the proper weight to be given their testimony is to be determined by the jury, not by the court upon a motion for judgment of nonsuit.\u201d (Citations omitted.) Miller, supra, at p. 730. The State\u2019s evidence in the case sub judice was clearly sufficient to take the case to the jury.\nIn his last argument, defendant argues that he did not receive a speedy trial in violation of his rights under the Sixth Amendment to the United States Constitution. Defendant was arrested on 24 July 1978, but not tried until one year later on 9 July 1979.\n\u201cThe burden is on an accused who asserts the denial of his right to a speedy trial to show that the delay was due to the neglect or wilfulness of the prosecution.\u201d State v. Johnson, 275 N.C. 264, 269, 167 S.E. 2d 274 (1969). Four interrelated factors must be considered: the length of the delay; the cause of the delay; prejudice to the defendant; and waiver of his right to a speedy trial by the defendant. See Johnson, supra.\nIn the case sub judice there was a long delay. Furthermore, it is evident from letters written by defendant and statements made by his counsel, Mr. Davis, that defendant was anxious to stand trial and be through with the ordeal. We find, however, no breach of defendant\u2019s Sixth Amendment rights.\nThe negligible prejudice to the defendant caused by the long delay is insignificant in light of the reason. Defendant\u2019s first counsel withdrew for medical reasons. The case was continued at the request of defendant\u2019s new counsel, but he, too, eventually withdrew because of illness. Defendant\u2019s present counsel brought the case to trial on 18 April 1979; but due to the court reporter\u2019s failure to record the voir dire of the jury, the trial court, in an abundance of regard for defendant\u2019s rights continued the case. At no point did the State drag its heels in prosecuting the case. We find no violation of defendant\u2019s Sixth Amendment rights.\nFor the reasons stated above, in the trial of the case we find\nNo error.\nJudges MARTIN (Robert M.) and WEBB concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State.", "Gilbert T. Davis, Jr. for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEVE ANTHONY PUCKETT\nNo. 7922SC1135\n(Filed 20 May 1980)\n1. Criminal Law \u00a7 126.3\u2014 defendant\u2019s guilt \u2014 juror\u2019s statement after trial \u2014 no showing of juror\u2019s disqualification to serve\nTestimony by one of defendant\u2019s friends that, after the trial was over, he heard a juror state, \u201cIf he [defendant] wasn\u2019t guilty, the judge would have dismissed it,\u201d was insufficient by itself to indicate that the juror was unqualified to serve; furthermore, the witness\u2019s testimony seeking to impeach the verdict was incompetent.\n2. Criminal Law \u00a7 66.5\u2014 pretrial lineup \u2014 no right to counsel\nDefendant was not entitled to legal representation at a pretrial lineup since adversary judicial proceedings had not begun on the charge of which he was subsequently convicted.\n3. Criminal Law \u00a7 66.6\u2014 pretrial lineup \u2014 no suggestiveness\nThere was no merit to defendant\u2019s contention that a pretrial lineup was so suggestive that he was denied due process of law where the evidence tended to show that six white males were in the lineup; all had long hair and facial hair; all were close in age to defendant; and defendant was the only man viewed who had on shorts, but there was no evidence that defendant\u2019s mode of dress was not chosen by defendant himself.\n4. Criminal Law \u00a7 66.15\u2014 pretrial lineup \u2014 in-court identification of independent origin\nThere was no merit to defendant\u2019s contention that the State failed to show an in-court identification of defendant was of independent origin and not the result of an allegedly illegal pretrial lineup, since defendant\u2019s contention was moot in light of the court\u2019s holding that the lineup procedures were proper, and since the identifying witness testified that she had not heard defendant speak before trial but was sure of her identification when she heard him speak in the courtroom because she had listened to the robber speak for one hour during commission of the crime.\n5. Criminal Law \u00a7 132\u2014 motion to set aside verdict as contrary to weight of evidence \u2014 denial proper\nIn a prosecution for armed robbery where defendant presented unimpeachable alibi evidence which, if believed, would have precluded a conviction, the trial court nevertheless did not abuse its discretion in denying defendant\u2019s motion to set aside the verdict as being contrary to the greater weight of the evidence, since the victim\u2019s identification of defendant was unshakable, and since the jury could determine the credibility of defendant\u2019s witnesses.\n6. Constitutional Law \u00a7 54\u2014 one year between arrest and trial \u2014 illness of counsel \u2014 no denial of speedy trial\nDefendant was not denied his right to a speedy trial by a one year lapse between his arrest and his trial, since defendant was not prejudiced; the delay resulted because of illness of counsel and failure of the court reporter to record the voir dire of the jury; and at no point did the State drag its heels in prosecuting the case.\nAPPEAL by defendant from Washington, Judge. Judgment entered 12 July 1979 in Superior Court, DAVIE County. Heard in the Court of Appeals 18 April 1980.\nDefendant is charged with the 19 April 1978 robbery of Mrs. Thelma Plemmons. At trial, during the presentation of the State\u2019s evidence, Mrs. Plemmons testified that at approximately 1:15 p.m. on 19 April 1978 a young woman and man entered her home, ostensibly to use the telephone in order to call for help to fix a flat tire. The man pointed a gun in Mrs. Plemmons\u2019 face and threatened to kill her if she did not give him money. The man took money from Mrs. Plemmons\u2019 purse and kitchen cabinet, bound Mrs. Plemmons and left. After a few minutes\u2019 delay, Mrs. Plemmons escaped, went to her neighbor\u2019s house and called the sheriff\u2019s department.\nOn 24 July 1978, defendant was ordered to appear in a lineup. Mrs. Plemmons identified defendant as the man who robbed her, whereupon he was charged with violation of G.S. 14-87. Defendant was convicted of robbery with a firearm and now appeals that conviction.\nAttorney General Edmisten, by Assistant Attorney General David Roy Blackwell, for the State.\nGilbert T. Davis, Jr. for defendant appellant." }, "file_name": "0719-01", "first_page_order": 747, "last_page_order": 753 }