{
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  "name": "STATE OF NORTH CAROLINA v. STEVE ALLEN MARTIN",
  "name_abbreviation": "State v. Martin",
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    "judges": [
      "Judges Mabtin (Robert M.) and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. STEVE ALLEN MARTIN"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nIn his first argument, defendant contends that the trial court erred in failing to instruct the jury ex mero motu that:\n(A) It must find that the identification testimony of prosecuting witnesses Holley and Watson was entirely the product of their recollection of the offender at the time of the offense and did not result from photos shown them by investigating officer Charles; and\n(B) In considering the credibility of Holley, the jury should take into account a prior incorrect identification by Holley.\nState\u2019s evidence at trial indicated that James Holley and Phyllis Watson rented a motel room in Winston-Salem at approximately 10:00 p.m. on 5 June 1980. As the couple unlocked the door to their room, they were pushed into the room from behind and knocked to the floor by two men. The men pulled a gun, tied up the couple and took cash and personal objects from Holley and Watson.\nHolley was called to testify at trial and was asked if he saw either of the men in the courtroom. Defense counsel objected to the identification testimony, and a voir dire was conducted.\nHolley testified on voir dire that inside the room a light above a big mirror provided sufficient light to see. Holley estimated that the two men were in the room for five to ten minutes and stated that during that time he looked at defendant\u2019s face five or six times. Holley further stated that defendant was not wearing anything over his face and then gave a description of defendant as he appeared the night of the robbery.\nHolley testified that on 23 June 1980 a policeman, Officer Charles, brought a stack of twenty-five to fifty photographs to Holley\u2019s parents\u2019 home for Holley to view. Holley testified that when he came to defendant\u2019s photograph he stopped and told Charles that defendant was one of the robbers. Holley did not look through any more photographs. Holley further stated that Charles did not indicate to him who he should choose.\nOn cross-examination, Holley stated that he had previously viewed some photographs at the police station about a week after the robbery. At that time, Holley chose a photograph which \u201csort of described\u201d one of the robbers, but did not make a positive identification. Subsequent investigation of Holley\u2019s choice eliminated the chosen man as a suspect.\nWatson testified on voir dire that there was sufficient light in the room for her to see Martin\u2019s face in profile while he was gagging her. Watson further testified that she viewed photographs on three occasions and picked out Martin\u2019s photograph on both the second and third occasions. At no time did Officer Charles suggest which photograph she should choose.\nThe trial judge instructed the jury in pertinent part as follows:\nI instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged in each of the cases beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged in each of the two cases before you may return a verdict of guilty in that case, or those cases.\nThe main aspect of identification is the observation of the offender by the witness at the time of the offense. In examining the testimony of the witness as to the witness\u2019s observation of the perpetrator at the time of the crime, you should consider the capacity the witness had to make an observation through his or her senses, the opportunity the witness had to make an observation, and such details as the lighting at the scene of the crime at the time, the mental and physical condition of the witness, the length of time of the observation and any other condition or circumstance which might have aided or hindered the witness in making the observation.\nThe identification witness is a witness just like any other witness, that is, you should assess the credibility of the identification witness in the same way you would any other witness in determining the adequacy of the witness\u2019s observation and the witness\u2019s capacity to observe.\nAs I instructed you earlier, the State must prove beyond a reasonable doubt that the defendant was the perpetrator of the crime charged in each of the cases. If, after weighing all of the testimony, you are not satisfied beyond a reasonable doubt that the defendant was the perepetrator of the crime charged, it would be your duty to return a verdict of not guilty in that case, or those cases.\nDefendant contends that the trial judge erred in omitting from his instructions certain portions of the North Carolina Pattern Instructions \u2014Criminal, \u00a7 104.90, on identification. As authority for his position, defendant primarily relies on United States v. Holley, 502 F. 2d 273 (4th Cir. 1974), and United States v. Telfaire, 469 F. 2d 552 (D.C. Cir. 1972). This Court considered the application of the rules established for the federal trial courts in Holley and Telfaire to a situation similar to the one at issue here in State v. Lang, 46 N.C. App. 138, 143-146, 264 S.E. 2d 821, rev\u2019d on other grounds, 301 N.C. 508 (1980). As in Lang, supra, we find this case \u201cexhibits none of the special difficulties often presented by identification testimony that would require additional information be given to the jury in order for us to repose confidence in their ability to evaluate the reliability of the identification.\u201d Lang, supra, at 145.\nFirst, we note that the trial court gave instructions which dealt with the question of identification, the State\u2019s burden of proving the identity of defendant, the factors to be considered in determining the reliability of the witness\u2019s identification testimony, and reasonable doubt. The attention of the jury, therefore, was sufficiently focused on the issue of identity without the omitted instructions. Second, the pattern instruction or its substantial equivalent was not requested by defendant. See State v. Lang, supra. Third, although Holley had made a prior tentative identification of a person other than defendant as one of the perpetrators of the robbery, Holley subsequently made a positive identification of defendant from another photographic array. Defendant\u2019s photograph was not among the photographs first shown to Holley when he made the tentative identification, and, more importantly, Holley indicated that the person picked in the tentative identification only looked somewhat similar to the robber. Fourth, there was more than just a one-on-one identification here to implicate defendant in the robbery. Watson also positively identified defendant as one of the robbers, thereby corroborating the identification of Holley. As with Holley, Watson had the opportunity to observe defendant under favorable circumstances; she picked defendant from a pretrial photographic lineup; and she made no misidentification. Even though the trial court omitted two portions of N.C.P.I. \u2014 Crim. 104.90, we find that the charge, when viewed contextually, was sufficient on the issue of identification under the evidence in this case. The assignments of error brought forth in defendant\u2019s first argument are overruled.\nIn his second argument, defendant contends the trial court erred in failing to exclude testimony regarding the out-of-court identifications of defendant where the court failed to make a finding of fact that the testimony was admissible.\nWhile the finding and conclusions of the trial court did not include a specific finding that the out-of-court identification procedures \u201cwere not impermissibly suggestive,\u201d Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 1253, 88 S.Ct. 967 (1968); State v. Miller, 281 N.C. 70, 77, 187 S.E. 2d 729 (1972), the court\u2019s findings were in sufficient detail to clearly establish the circumstances out of which the victims were able to identify defendant and the judge concluded that the victim\u2019s identification testimony was admissible. The evidence on voir dire clearly supports these findings and conclusion and they are therefore binding on us. State v. McGuire, 49 N.C. App. 70, 73, 270 S.E. 2d 526, appeal dismissed, 301 N.C. 529 (1980). This assignment is overruled.\nIn his third argument, defendant contends the trial court erred by admitting into evidence, over objection, the photograph of defendant chosen by the prosecuting witnesses from a photographic array. As the initial basis for his argument, defendant points to the trial court\u2019s failure to find as fact that evidence of the out-of-court identifications was admissible. For the reasons stated above in Argument II, defendant\u2019s initial argument is without merit. Defendant also argues that the trial court erred because there was no showing by the State that the photograph admitted into evidence was legally obtained, citing State v. Accor and Moore, 277 N.C. 65, 175 S.E. 2d 583 (1970). The State concedes that the record is silent on this matter. Both of the victims, Mr. Holley and Ms. Watson, testified at length and in detail as to transactions between them and Officer Charles relating to police file photos shown to them by Officer Charles and as to how they each picked defendant\u2019s photograph from those shown them. Officer Charles testified at length and in detail as to those transactions, describing how the victims selected defendant\u2019s photograph from those shown to them. Defendant did not enter an objection to any of that testimony. Officer Charles identified the photograph of defendant picked by the victims without objection by defendant. It was not until the State offered defendant\u2019s photograph that defendant objected. At this point the trial court overruled the objection and instructed the jury that they might consider the photograph only for the purpose of illustrating the testimony of Officer Charles and not for substantive purposes. Had defendant objected to the testimony about the photograph as it was given [State v. Edwards, 274 N.C. 431, 434, 163 S.E. 2d 767, 769 (1968)], the limiting instruction would not have removed the prejudice to defendant without a finding by the trial court that the photograph was legally obtained, as required under State v. Accor and Moore, supra. We hold, however, that defendant\u2019s general objection to in-court identification testimony did not raise the issue before the trial court of the admissibility of the photograph itself and that by allowing the witnesses to give testimony about the photograph without objection, defendant waived his right to object to the admissibility of the photograph itself. It is well established that the admission of testimony or other evidence over objection is harmless when testimony or other evidence of the same import has previously been admitted without objection. State v. Silhan, 302 N.C. 223, 247, 275 S.E. 2d 450, 469 (1981). In order for defendant to be entitled to the findings required under Accor, it was necessary for him to separately object to or move to suppress testimony as to the photograph itself, as was the case in Accor.\nDefendant next argues that the trial court erred by admitting his photograph into evidence because the photo was a mug shot which indicated to the jury that defendant had a prior record. On somewhat similar facts, our Supreme Court held in State v. Fulcher, 294 N.C. 503, 512-13, 243 S.E. 2d 338 (1978), that defendant in that case was not prejudiced by the introduction of mug shots. The Court stated that defendant, by his previous cross-examination of the State\u2019s witnesses, had brought into question, before the jury, the propriety of the pre-arrest identification procedures; thus, there was no prejudicial error in permitting the State to show the jury the photographs used in that process. As we noted earlier, defendant waived his right to object to the use of the photograph. The three assignments of error upon which defendant\u2019s third argument is based are overruled.\nDefendant brings forth several assignments of error in his fourth argument. Defendant contends that the prosecutor\u2019s cross-examination of defendant denied him a fair trial by a) implying that defendant\u2019s prior record should be considered as substantive evidence of guilt; b) calling upon defendant to comment on the credibility of the State\u2019s witnesses; c) implying that because defendant had little income he was guilty of the robbery; and d) improperly calling attention to defendant\u2019s failure to call a witness. An examination of the record shows that at none of the relevant points during cross-examination did defendant\u2019s counsel object. Defendant\u2019s failure to object waived his right to assert these matters on appeal. State v. Silhan, supra. None of the statements constituted so gross an impropriety that we need detail them here or correct the alleged abuse ex mero motu. See State v. Locklear, 294 N.C. 210, 215, 241 S.E. 2d 65 (1978). The assignments are overruled.\nIn his fifth argument, defendant contends the trial court erred in sentencing him without first affording him an opportunity to make a statement. Under G.S. 15A-1334(b), a defendant \u201cmay make a statement in his own behalf\u201d at his sentencing hearing. In the case sub judice, after the jury returned its verdict, the trial judge asked if there was \u201canything else you want to say.\u201d Although it is not clear to whom the question was directed, defendant\u2019s counsel replied, \u201cYour Honor, I don\u2019t know what I could add that has not come out in the trial. The defendant says to me he was not involved in this.\u201d Defendant contends on appeal that it is mandatory under G.S. 15A-1334(b) that defendant be allowed to speak, that it is not sufficient that his counsel spoke, and that the case must be remanded for re-sentencing.\nAs authority for his position, defendant cites 18 U.S.C., Rule 32(a)(1) and United States v. Bebik, 302 F. 2d 335 (4th Cir. 1962). Under Rule 32(a),\nBefore imposing sentence the court shall afford counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf .... (Emphasis added.)\nIn Bibik, the defendants were represented by counsel. Before he sentenced the defendants, the trial judge asked \u201cDo you gentlemen have anything to say on the matter of punishment?\u201d, in reply to which counsel responded for their respective clients. Sentence was then imposed. The Bebik court, at p. 337, found that Rule 32(a) had not been complied with because \u201cthe right of allocution was not accorded to the defendant as the statute requires.\u201d The federal statute and G.S. 15A-1334(b) are not so similar as to require the same finding in the case sub judice. The federal statute clearly requires the trial judge to address both defendant\u2019s counsel and the defendant before imposing sentence. G.S. 15A-1334(b) imposes no such requirement, and we hold that it was sufficient that defendant\u2019s counsel spoke for him. Defendant\u2019s final assignment is overruled.\nIn the trial of defendant, we find\nNo error.\nJudges Mabtin (Robert M.) and Clark concur.\n. The omitted portions were:\nIn examining the testimony of the witness as to his observation after the crime you should consider (describe relevant factors). However, your consideration must go further. The identification of the defendant by the witness as the perpetrator of the offense must be purely the product of the witness\u2019 recollection of the offender and derived only from the observation made at the time of the offense. In making this determination you should consider the manner in which the witness was confronted with the defendant after the offense, the conduct and comment of the persons in charge of the (describe confrontation; e.g., line-up, show-up, etc.) and any circumstances or pressures which may have influenced the witness in making an identification, and which would cast doubt upon or reinforce the accuracy of the witness\u2019 identification of the defendant.\nYou may take into account, in your consideration of the credibility of the identification witness, any occasion upon which the witness failed to make an identification of the defendant and/or any occasion upon which the witness made an identification that was not consistent with his in-court identification.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Barry S. McNeill, for the State.",
      "Appellate Defender Project for N.C., by Assistant Appellate Defender Marc D. Towler, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. STEVE ALLEN MARTIN\nNo. 8121SC75\n(Filed 4 August 1981)\n1. Criminal Law \u00a7 66\u2014 identification testimony \u2014 instructions on credibility of witnesses\nThe trial court in a prosecution for armed robbery did not err in failing to \u2022 instruct the jury ex mero motu that (1) it must find that the identification testimony of two robbery victims was entirely the product of their recollection of the offender at the time of the offense and did not result from photographs shown them by an investigating officer, and (2) in considering the credibility of one victim, the jury should take into account a prior incorrect identification by such victim.\n2. Criminal Law \u00a7 66.9\u2014 photographic identification \u2014 no impermissible suggestiveness \u2014 absence of finding\nTestimony regarding photographic identifications of defendant was not improperly admitted because the court failed to make a specific finding or conclusion that the identification procedures were not impermissibly suggestive where the court\u2019s findings clearly established the circumstances enabling the victims to identify defendant, and the trial court concluded that the identification testimony by the victims was admissible.\n3. Criminal Law \u00a7 66.8\u2014 photograph chosen in pretrial procedure \u2014waiver of objection\nDefendant waived his right to object to the admissibility of a photograph of defendant chosen from a photographic array by two robbery victims by permitting the victims and a police officer to give testimony about the photograph without objection, and the photograph was properly admitted into evidence over defendant\u2019s objection without a showing by the State that the photograph had been legally obtained.\n4. Criminal Law \u00a7\u00a7 43.1, 66.8\u2014 mug shot used in photographic identification \u2014 admissibility\nWhere defendant waived his right to object to the use of a photograph of defendant chosen from a photographic array by two robbery victims, the trial court did not err in admitting the photograph into evidence because it was a mug shot which indicated to the jury that defendant had a prior record.\n5. Criminal Law \u00a7 102.5\u2014 cross-examination of witness \u2014no gross impropriety\nThe prosecutor\u2019s remarks to defendant during cross-examination did not constitute so gross an impropriety as to require correction ex mero motu.\n6. Criminal Law \u00a7 134.2\u2014 sentencing \u2014 right of allocution\nThe trial court did not violate G.S. 15A-1334(b) by sentencing defendant without first asking him if he wished personally to address the court, there having been sufficient compliance with the statute where defendant\u2019s counsel was given the opportunity to speak in defendant\u2019s behalf.\nAPPEAL by defendant from Collier, Judge. Judgment entered 4 November 1980 in Superior Court, FORSYTH County. Heard in the Court of Appeals 8 May 1981.\nOn 18 August 1980, the Forsyth County grand jury returned indictments charging defendant with two armed robberies. Defendant was convicted by the jury on both charges and sentenced to a prison term of fifteen to twenty-five years. Other facts pertinent to this decision are related below.\nAttorney General Edmisten, by Associate Attorney Barry S. McNeill, for the State.\nAppellate Defender Project for N.C., by Assistant Appellate Defender Marc D. Towler, for defendant appellant."
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