{ "id": 8522759, "name": "STATE OF NORTH CAROLINA v. JOHNNNY JORDAN", "name_abbreviation": "State v. Jordan", "decision_date": "1980-12-02", "docket_number": "No. 8012SC356", "first_page": "561", "last_page": "571", "citations": [ { "type": "official", "cite": "49 N.C. App. 561" } ], "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": "201 S.E. 2d 867", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563527 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0606-01" ] }, { "cite": "179 S.E. 2d 315", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560147 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0277-01" ] }, { "cite": "65 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955276 ], "year": 1871, "pin_cites": [ { "page": "564-65" } ], "opinion_index": 0, "case_paths": [ "/nc/65/0563-01" ] }, { "cite": "241 S.E. 2d 65", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1978, "pin_cites": [ { "page": "68" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "294 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572384 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "214-15" }, { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0210-01" ] }, { "cite": "83 S.E. 2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607834 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0631-01" ] }, { "cite": "242 S.E. 2d 244", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551653 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0670-01" ] }, { "cite": "231 S.E.2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558753 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0505-01" ] }, { "cite": "196 S.E. 2d 532", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "18 N.C. App. 217", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548226 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/18/0217-01" ] }, { "cite": "206 S.E. 2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "22 N.C. App. 465", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11307211 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/22/0465-01" ] }, { "cite": "93 S.Ct. 198", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "34 L.Ed. 2d 121", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "409 U.S. 870", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6309058, 6309571, 6308068, 6308806, 6306950, 6307212, 6307887, 6309330, 6307442, 6308598, 6306713, 6307647 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/0870-10", "/us/409/0870-12", "/us/409/0870-07", "/us/409/0870-09", "/us/409/0870-02", "/us/409/0870-03", "/us/409/0870-06", "/us/409/0870-11", "/us/409/0870-04", "/us/409/0870-08", "/us/409/0870-01", "/us/409/0870-05" ] }, { "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": "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": "192 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564078 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0220-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "388 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] }, { "cite": "394 U.S. 440", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173399 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/394/0440-01" ] }, { "cite": "215 S.E. 2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 N.C. App. 328", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552072 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/26/0328-01" ] }, { "cite": "237 S.E. 2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563208, 8563308, 8563181, 8563245, 8563278 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0257-02", "/nc/293/0257-05", "/nc/293/0257-01", "/nc/293/0257-03", "/nc/293/0257-04" ] }, { "cite": "235 S.E. 2d 94", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C. App. 284", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549311 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0284-01" ] }, { "cite": "203 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561608 ], "weight": 2, "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0001-01" ] }, { "cite": "234 S.E. 2d 615", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 527", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571329 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0527-01" ] }, { "cite": "163 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560069 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0328-01" ] }, { "cite": "91 S.Ct. 253", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "27 L.Ed. 2d 252", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "400 U.S. 946", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12104866, 12105030, 12104936, 12105002, 12105261, 12105230, 12104976, 12105170, 12105043, 12104916, 12105202, 12104889, 12104954 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0946-01", "/us/400/0946-08", "/us/400/0946-04", "/us/400/0946-07", "/us/400/0946-13", "/us/400/0946-12", "/us/400/0946-06", "/us/400/0946-10", "/us/400/0946-09", "/us/400/0946-03", "/us/400/0946-11", "/us/400/0946-02", "/us/400/0946-05" ] }, { "cite": "174 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563418 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0714-01" ] }, { "cite": "185 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571880 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0306-01" ] } ], "analysis": { "cardinality": 895, "char_count": 21926, "ocr_confidence": 0.745, "pagerank": { "raw": 2.476324760187122e-07, "percentile": 0.8070661648613491 }, "sha256": "be8cc56b0fa23f911f98ecc38d8c70a7fa946890e58ba8b803cd66224e1fad1f", "simhash": "1:0cf1923b83be89d7", "word_count": 3618 }, "last_updated": "2023-07-14T18:45:37.060516+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HEDRICK and Whichard concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHNNNY JORDAN" ], "opinions": [ { "text": "MORRIS, Chief Judge.\nIn his brief defendant specifically abandons his assignments of error numbered one and three, and we, therefore, do not consider them here. Rule 28, N.C. Rules of Appellate Procedure.\nBy his second assignment of error defendant argues that the trial court erred by overruling his general objections to the in-court identifications of defendant by State\u2019s witnesses Hilda Gray and Emma Jones, and by denying his motion to strike the testimony of witness Gray. In conjunction with this argument, he contends that the trial court erred by failing to hold a voir dire examination of these witnesses concerning their identifications before they were allowed to testify.\nThe record shows that State\u2019s witness Gray testified that on the morning the larcenies occurred she was at work. She was notified by her mother, who lived nearby, that someone was attempting to break into her home. Mrs. Gray\u2019s mother gave her a description of defendant\u2019s car as the one being used by the individuals entering her home. Mrs. Gray left work on the alert for a car fitting that description. On her way home she observed a red and white Cadillac pulling a U-Haul trailer. She slowed the speed of her own vehicle and was able to get a good view of the defendant who was driving the Cadillac and looking directly at her. Mrs. Gray testified that she was \u201capproximately a hundred feet\u201d from' defendant\u2019s vehicle when she observed him.\nMrs. Gray later saw the defendant at the sheriff\u2019s department. As to the events of this encounter she testified:\nI saw the defendant shortly after this incident down at the sheriff\u2019s department. There were detectives there at the time. I gave the detectives a description of the automobile that I had seen. At that time, I did not identify the defendant as being the driver of the car. I did tell the officers that the defendant looked like the driver of the car, but I would not swear that he was. This was within an hour after I had seen the car.\nThis is the only evidence of Mrs. Gray\u2019s confrontation with the defendant after the break-ins.\nAt the trial Mrs. Gray was allowed to make an in-court identification of the defendant over his objection. When asked if she could identify anyone in the courtroom as the driver of the red and white Cadillac she saw the day of the robbery she responded, \u201c[w]ell, the defendant looks very much like him.\u201d\nState\u2019s witness Emma Jones testified at trial that she lived across the street from one of the residences that was broken into on the morning of 7 March 1972. Early that morning she was at home when a man came to her door inquiring about the location of a certain mill. Mrs. Jones told this man that she did not know where the mill was located and she observed him return to the road where he had a red car parked. When Mrs. Jones was asked by the prosecutor if she had ever before seen the man who came to her door the morning of the break-in, she replied:\nA. Well, he looked like him; I couldn\u2019t say it is.\nQ. Looked like him?\nA. The one I seen.\nQ. Who looks like him?\nA. This one over here (indicating the defendant).\nOn cross-examination Mrs. Jones stated \u201cI can\u2019t positively say that the defendant is the man who came to my house on that date.\u201d She also testified that she did not come to the sheriff\u2019s office in connection with these events nor did she see the defendant from the time of her encounter with him on the morning of the break-ins until trial.\nDefendant made general objections to the admission of each of these in-court identifications as they were made. However, he failed specifically to request a voir dire examination of either of the State\u2019s witnesses. A general objection has been held sufficient to cause .the trial court itself to invoke the voir dire procedure in this situation. State v. Stepney, 280 N.C. 306, 185 S.E. 2d 844 (1972); State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970), cert. denied, 400 U.S. 946, 27 L.Ed. 2d 252, 91 S.Ct. 253 (1970). The courts are not, however, in every instance required to conduct a voir dire examination to determine the admissibility of an in-court identification. The general rule in this State is that the failure of the trial court to hold a voir dire examination and make findings of fact upon objection by a defendant to an in-court identification, while not approved, will be deemed harmless error where the record shows that the pretrial identification was proper or that the in-court identification of defendant had an origin independent from the pretrial identification. State v. Stepney, supra; State v. Williams, 274 N.C. 328, 163 S.E. 2d 353 (1968).\nState\u2019s witness Gray\u2019s identification meets both of the criteria set forth in this general rule. Substantially, all of the evidence in the record concerning Mrs. Gray\u2019s pretrial confrontation with the defendant is set out above. There is nothing to suggest that her encounter with defendant at the sheriff\u2019s department was improper or unnecessarily suggestive in any way. Our courts have held on numerous occasions that confrontations between a victim or witness and a suspect following the crime are not automatically so suggestive as to violate a defendant\u2019s constitutional rights. State v. Thomas, 292 N.C. 527, 234 S.E. 2d 615 (1977); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974); State v. Saunders, 33 N.C. App. 284, 235 S.E. 2d 94, cert. denied, 293 N.C. 257, 237 S.E. 2d 539 (1977); State v. Ervin, 26 N.C. App. 328, 215 S.E. 2d 845 (1975). The degree of suggestiveness of the pretrial confrontation must be judged by this Court from the circumstances surrounding the incident.\nWe must determine whether these circumstances were so unnecessarily suggestive and conducive to irreparable misidentifi-cation as to offend fundamental standards of decency, fairness and justice. Foster v. California, 394 U.S. 440, 22 L.Ed. 2d 402, 89 S.Ct. 1127 (1969); Stovall v. Denno, 388 U.S. 293, 18 L.Ed. 2d 1199, 87 S.Ct. 1967 (1967); State v. Henderson, supra.\nThe only facts in evidence concerning the witness\u2019s pretrial confrontation with the defendant are those quoted above from her testimony. These facts do not show that any impermissibly suggestive procedures were used by the authorities during the confrontation. There is no evidence which would indicate that the confrontation was planned. The only possible suggestive element is the fact that the confrontation occurred in the sheriffs office. We conclude that this pretrial confrontation was not impermissibly suggestive.\nEven had the facts of this particular case indicated that the pretrial confrontation was impermissibly suggestive, they would still pass the second criterion of the general test of admissibility. An in-court identification is competent even if the pretrial confrontation was improper, if the State\u2019s witness\u2019s in-court identification is independent in origin from the pretrial confrontation. Neil v. Biggers, 409 U.S. 188, 34 L.Ed. 2d 401, 93 S.Ct. 375 (1972); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974); State v. Knight, 282 N.C. 220, 192 S.E.2d 283 (1972); State v. Bass, 280 N.C. 435, 186 S.E.2d 384 (1972). We think the \u201ctotality of the circumstances\u201d requires the conclusion that witness Gray\u2019s in-court identification was independent in origin from her confrontation-of the defendant at the sheriff\u2019s department. Her in-court identification of defendant was based upon her observation of the defendant as their automobiles met on the highway. The facts show that at the time Mrs. Gray initially saw the defendant she had been alerted to the breaking and entering of her home, and she was on the lookout for a car fitting the distinctive description of the defendant\u2019s. Upon seeing defendant\u2019s car, she slowed her own car, and the defendant looked directly at her. On cross-examination she explained the uncertainty of her identification of the defendant upon direct examination by stating \u201cI did not state on direct that the defendant was driving the car because, at that time, his hair looked a little bit lighter than it does now.\u201d We think that all of these factors taken together provide ample evidence that Mrs. Gray\u2019s in-court identification of defendant was independent in origin from their pretrial confrontation, and the failure of the trial court to order a voir dire examination was, therefore, harmless error.\nThe trial court\u2019s admission of State\u2019s witness Jones\u2019s in-court identification of the defendant without a voir dire examination was not erroneous for the same reasons. There is no evidence that Mrs. Jones ever saw the defendant after their encounter at her home on the morning of the robbery until the time of trial. Her testimony is based upon a face to face conversation she had with .the defendant when he stopped at her door to ask directions. Without any evidence of a pretrial identification procedure that would impermissibly taint the witness\u2019s in-court identification we find that the trial court\u2019s failure to hold a voir dire examination of the State\u2019s witness was not in error.\nOne of the bases for defendant\u2019s argument that the admission of the identifications of State\u2019s witnesses Gray and Jones into evidence was prejudicial error is that their identification testimony was uncertain. A witness may give his opinion as to the identity of a person whom he saw sometime in the past. The witness\u2019s lack of positiveness in his identification affects only the weight to be given the testimony by the jury and not its admissibility. State v. Brown, 280 N.C. 588, 187 S.E. 2d 85, cert. denied, 409 U.S. 870, 34 L.Ed. 2d 121, 93 S.Ct. 198 (1972); State v. Willis, 22 N.C. App. 465, 206 S.E. 2d 729 (1974); State v. Stitt, 18 N.C. App. 217, 196 S.E. 2d 532 (1973). Defendant\u2019s argument is without merit.\nBy his fourth assignment of error defendant complains that the prosecutor committed prejudicial error by improperly questioning defendant\u2019s witness, Norris Wayne Horne. First, he objects to the prosecutor\u2019s assertion of his opinion on two occasions during his cross-examination that the defense witness was telling a lie. Second, he complains about questions repeatedly put to the same defense witness by the prosecutor concerning his and the defendant\u2019s involvement in prior unrelated offenses. The improper question was repeated despite the court\u2019s sustaining defendant\u2019s objection thereto.\nAs to defendant\u2019s complaint that the prosecutor should not have been allowed to give his opinion as to the witness\u2019s truthfulness, we note that defendant failed to object to these statements during the trial.\nThe general rule is that where no objection or exception is made at trial to the allegedly improperly admitted evidence, the appellant may not challenge the item for the first time on appeal. State v. Smith, 291 N.C. 505, 231 S.E.2d 663 (1977); Sutton v. Sutton, 35 N.C. App. 670, 242 S.E. 2d 244 (1978). Failure to object at trial is normally held to constitute a waiver of the error.\nDefendant claims that the errors he cites in this instance come under an exception to this rule. He contends that the prosecutor\u2019s statements were so grossly improper that it was erroneous for the trial court not to have corrected them ex mero motu. As authority for this argument he cites State v. Smith, 240 N.C. 631, 83 S.E. 2d 656 (1954); and State v. Locklear, 294 N.C. 210, 241 S.E. 2d 65 (1978). Both of these cases are easily distinguishable from the case under consideration.\nIn the case before us the prosecutor\u2019s comments as to defendant\u2019s witness\u2019s answers to his questions consisted of the following:\nI ask you if you didn\u2019t say you took the diamond ring and over two hundred dollars from Mrs. Gray? You know that is a lie. You did not get the two hundred dollars from the Gray house that you got when you got the pistol? ... You know that is a lie don\u2019t you?\nIn State v. Smith, supra, the statements were clearly grossly unfair and made by the State solicitor in his argument to the jury, not in cross-examination where the witness had an opportunity to deny them vigorously, as defendant did here.\nIn State v. Locklear, 294 N.C. 210, 241 S.E. 2d 65 (1978), the prejudicial statement occurred in the district attorney\u2019s cross-examination of the defendant, Clarence Leonard. The district attorney stated, \u201cClarence, you are lying through your teeth and you know you are playing with a perjury count; don\u2019t you? ... Now, think fast, Leonard. Think up a good story while you are up there.\u201d 294 N.C. at 214-15; 241 S.E. 2d at 68. The Court held that the trial court erred in allowing the statement to remain for jury consideration and that defendant\u2019s failure to object to these comments did not constitute a waiver of the error on appeal. The Court stated:\nYet, even absent an objection, \u201cit may be laid down as law, and not merely discretionary, that where the counsel grossly abuses his privelege, to the manifest prejudice of the opposite party, it is the duty of the judge to stop him then and there. And if he fails to do so and the impropriety is gross, it is good ground for a new trial.\u201d Jenkins v. Ore. Co., 65 N.C. 563, 564-65 (1871); .. .\n294 N.C. at 218, 241 S.E. 2d at 70. The Court emphasizes the fact that counsel must make grossly improper statements in order for the exception to the rule to apply.\nThe evidence presented by the State in the instant case strongly suggests that defendant was guilty of the crimes charged. The prosecutor was trying to impeach the defense witness on cross-examination when he made these allegedly improper statements. He was endeavoring to point out inconsistencies in the statements made by the witness on direct examination and those he made on cross-examination. The prosecutor\u2019s reasoning was warranted by discrepancies in the evidence.\nWe have considered the totality of the facts and the nature of the wording of the prosecutor\u2019s statements in the present case. We do not think that these statements reach the level of the grossly improper statement which would require us to find sufficiently prejudicial error in the trial court\u2019s failure to correct them ex mero motu. We hold that since the defendant failed to object to these statements at trial, any error was waived.\nWe certainly discourage the making of statements similar to those which the prosecutor made in this case. However, in view of the overwhelming evidence of defendant\u2019s guilt presented by the State in this case, the prosecutor\u2019s remarks could not have contributed to conviction. See State v. Thompson, 278 N.C. 277, 179 S.E. 2d 315 (1971).\nIn the same assignment of error defendant asserts that the following cross-examination of defense witness, Norris Wayne Horne, by the prosecutor was improper:\nQ. What were you and Mr. Johnny Jordan going to do with the jewelry?\nATTORNEY NIMOCKS: OBJECTION.\nCOURT: SUSTAINED. Do not consider the question, Members of the Jury; the Court rules it is not competent in any way.\nQuestions continued by Attorney Grannis:\nQ. I ask you if the defendant, Johnny Jordan was not arrested on the same break-ins in Kinston that you were arrested on?\nATTORNEY NIMOCKS: OBJECTION.\nCOURT: SUSTAINED.\nATTORNEY NIMOCKS: I would like to argue in front of the jury, if this line of questioning is going to continue. I am perfectly willing to bring out the whole thing in front of the jury.\nCOURT: Both of you sit down. OBJECTION SUSTAINED.\nThe reason for his complaint is that the prosecutor\u2019s questions dealt with unrelated offenses committed by the defense witness and the alleged involvement of the defendant with the witness in those offenses.\nThe record shows that the prosecutor asked only two improper questions concerning this matter, to both of which the defendant promptly objected. Both of defendant\u2019s objections were sustained, and the jury was told by the court not to consider the questions. Any error in these questions was amply remedied by the actions of the trial court.\nFinally, defendant contends that because he was denied his constitutional right to the effective assistance of counsel he is entitled to a new trial.\nThe general rule is that the caliber of an attorney\u2019s representation in a criminal prosecution is a denial of the constitutional rights of his client only when it is so lacking that the trial becomes a farce and mockery of justice. State v. Sneed, 284 N.C. 606, 201 S.E. 2d 867 (1974), and cases cited therein. The record discloses that defendant\u2019s trial counsel presented evidence on the defendant\u2019s behalf, entered objections to the State\u2019s evidence, and conducted effective cross-examination of the State\u2019s witnesses. It is quite clear that defendant\u2019s representation at trial was not so lacking that his trial became a farce and mockery of justice. His constit\u00fational rights were not violated.\nThe defendant has had a fair and impartial trial free from prejudicial error.\nNo error.\nJudges HEDRICK and Whichard concur.", "type": "majority", "author": "MORRIS, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General T. Buie Costen, for the State.", "Assistant Public Defender Gregory A. Weeks for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHNNNY JORDAN\nNo. 8012SC356\n(Filed 2 December 1980)\n1. Criminal Law \u00a7 66.18\u2014 in-court identification \u2014 objection by defendant \u2014 failure to hold voir dire \u2014 harmless error\nThe failure of the trial court to hold a voir dire examination and make findings of fact upon objection by a defendant to an in-court identification, while not approved, will be deemed harmless error where the record shows that the pretrial identification was proper or that the in-court identification of defendant had origin independent from the pretrial identification.\n2. Criminal Law \u00a7 66.18\u2014 in-court identifications of defendant \u2014 voir dire not required\nThe trial court did not err in failing to hold a voir dire examination of two witnesses concerning their identifications of defendant before they were allowed to testify, since one of the witnesses saw defendant at the sheriffs department within approximately one hour of the crime, but this pretrial confrontation was not impermissibly suggestive; the witness\u2019s in-court identification of defendant was based upon her observation of defendant as their automobiles met on the highway and so the in-court identification was independent in origin from her confrontation of defendant at the sheriffs department; there was no evidence that the second witness ever saw defendant after their encounter at her home on the morning of the crime until the time of trial; and the second witness\u2019s identification was based upon a face to face conversation she had with defendant when he stopped at her door to ask directions.\n3. Criminal Law \u00a7 102.5\u2014 cross-examination of defense witness \u2014 comment on truthfulness \u2014 failure of defendant to object \u2014 no correction by court required\nThe prosecutor\u2019s comments as to the truthfulness of defendant\u2019s witness were not so grossly improper as to require the trial court to correct them in the absence of defendant\u2019s objection at trial.\n4. Criminal Law \u00a7 96\u2014 questions withdrawn from jury consideration \u2014 defendant not prejudiced\nDefendant was not prejudiced by the prosecutor\u2019s asking of two improper questions concerning a witness\u2019s and defendant\u2019s involvement in unrelated offenses, since the defendant objected, both objections were sustained, and the jury was told by the court not to consider the questions.\nAppeal by defendant from Braswell, Judge, 29 November 1973 Session of Superior Court held in CUMBERLAND County. Heard in the Court of Appeals 16 September 1980.\nDefendant was charged in cases numbered 72CR6611, 72CR-6613, 72CR6614 and 72CR6615 with felonious breaking, entering, larceny and receiving. He pleaded not guilty to all of these charges.\nThe evidence for the State tended to show the following: Defendant and his accomplice, Norris Wayne Horne (also known as Norris Wayne Benson), broke into four Cumberland County residences and took items of personal property therefrom without the authorization of the owners on the morning of 7 March 1972. The perpetrators of these crimes were driving a 1970 model red and white Cadillac with a U-Haul trailer attached.\nOn the day of the break-ins, defendant and Norris Wayne Horne were stopped and questioned by law enforcement officers at approximately noon. At that time, defendant was driving a red and white Cadillac with the U-Haul trailer attached. With defendant\u2019s permission, the officers searched the U-Haul trailer where they discovered many of the stolen items. Defendant and Norris Wayne Horne were placed under arrest for the offenses charged. In a search of defendant\u2019s vehicle pursuant to the arrest, the officers found a number of weapons which had been taken from the residences earlier that morning.\nDefendant\u2019s evidence consisted chiefly of the testimony of his alleged accomplice, Norris Wayne Horne. Horne testified that he had previously pleaded guilty to the same offenses with which defendant was charged. Although he admitted his own participation in these offenses, he claimed that the defendant had not been involved with him. Horne testified that he and a fellow prison escapee borrowed defendant\u2019s car to carry out the crimes on the morning of 7 March 1972, and when the law enforcement officers subsequently stopped him and the defendant for the search, defendant was unaware that the stolen items were in the trailer or the car.\nIn cases number 72CR6611,72CR6613 and 72CR6615 the jury returned verdicts of not guilty as to the felonious breaking, entering, and receiving charges and verdicts of guilty to the charges of felonious larceny. In case number 72CR6614 the jury found defendant guilty of the felonious breaking, entering and larceny charges, but not guilty of the charge of felonious receiving. Defendant was sentenced by the court to four consecutive ten-year terms of imprisonment. Defendant appealed from the entry of these judgments.\nAdditional facts necessary for this decision are set forth in the opinion.\nAttorney General Edmisten, by Special Deputy Attorney General T. Buie Costen, for the State.\nAssistant Public Defender Gregory A. Weeks for defendant appellant." }, "file_name": "0561-01", "first_page_order": 587, "last_page_order": 597 }