{ "id": 8524534, "name": "STATE OF NORTH CAROLINA v. PHILLIP D. PARKER", "name_abbreviation": "State v. Parker", "decision_date": "1984-02-07", "docket_number": "No. 8314SC647", "first_page": "293", "last_page": "298", "citations": [ { "type": "official", "cite": "66 N.C. App. 293" } ], "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": "302 S.E. 2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 387", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4705412, 4707654, 4705971, 4705464, 4708059 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0387-05", "/nc/308/0387-01", "/nc/308/0387-02", "/nc/308/0387-03", "/nc/308/0387-04" ] }, { "cite": "298 S.E. 2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 257", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520459 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0257-01" ] }, { "cite": "165 S.E. 2d 328", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557876 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0108-01" ] }, { "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" ] }, { "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": "287 S.E. 2d 832", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "305 N.C. 213", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567260 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0213-01" ] }, { "cite": "301 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562858, 8562795, 8562839, 8562808, 8562778 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0097-05", "/nc/301/0097-02", "/nc/301/0097-04", "/nc/301/0097-03", "/nc/301/0097-01" ] }, { "cite": "266 S.E. 2d 20", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "46 N.C. App. 778", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553626 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0778-01" ] } ], "analysis": { "cardinality": 569, "char_count": 10613, "ocr_confidence": 0.782, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20553572814476828 }, "sha256": "88252a52392e1d8f25312993b5b8c729f76ee12a094de001a2733a19ba481fbb", "simhash": "1:1b2234306e4ebcf7", "word_count": 1776 }, "last_updated": "2023-07-14T17:15:19.573584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Johnson concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PHILLIP D. PARKER" ], "opinions": [ { "text": "VAUGHN, Chief Judge.\nDefendant first contends that the trial judge erred by denying his pre-trial motion to dismiss in violation of Article I, \u00a7 23 of the North Carolina Constitution and G.S. 15A-954(a)(3) and (4). We find no merit in this contention.\nArticle I, \u00a7 23 of our Constitution provides:\nIn all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.\nG.S. 15A-954(a)(3) and (4) provide:\n(a) The court on motion of the defendant must dismiss the charges stated in a criminal pleading if it determines that:\n(3) The defendant has been denied a speedy trial as required by the Constitution of the United States and the Constitution of North Carolina.\n(4) The defendant\u2019s constitutional rights have been flagrantly violated and there is such irreparable prejudice to the defendant\u2019s preparation of his case that there is no remedy but to dismiss the prosecution.\nThe robbery with which defendant was charged occurred on 20 March 1982. The police had no leads or information as to possible suspects until two months later, in May 1982. Defendant was arrested on 12 September 1982. Defendant contends that the delay of over 207 days from the date of the offense to the date of arrest denied him of his rights under Article I, \u00a7 23 and that, therefore, his motion to dismiss should have been granted.\nDefendant has been denied neither a speedy trial nor any other constitutional right. To grant a motion to dismiss for pre-indictment delay, defendant must show both intentional delay on the part of the State in order to impair defendant\u2019s ability to defend himself and actual and substantial prejudice from the pre-indictment delay. State v. Davis, 46 N.C. App. 778, 266 S.E. 2d 20, review denied, 301 N.C. 97 (1980).\nDefendant next contends that the trial court erred in denying defendant\u2019s pre-trial motion to suppress identification of defendant, based on an impermissibly suggestive and unreliable pre-trial identification of defendant. This contention is without merit.\nIt is well established that an in-court identification based on an impermissibly suggestive out-of-court identification will be inadmissible as well. State v. Leggett, 305 N.C. 213, 287 S.E. 2d 832 (1982). The legality of a pre-trial identification is determined by the totality of the circumstances in the particular case. Factors to consider in evaluating the suggestiveness and likelihood of mistaken identification include:\n(1) the opportunity of the witness to view the criminal at the time of the crime,\n(2) the witness\u2019 degree of attention,\n(3) the accuracy of the witness\u2019 prior description of the criminal,\n(4) the level of certainty demonstrated by the witness at the confrontation,\n(5) the length of time between the crime and the confrontation.\nNeil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972); State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974).\nMrs. Streib testified that she was at a cemetery, putting some flowers at her mother\u2019s gravesite when she first saw defendant. She watched defendant walk over to her car and try the door. He then started walking toward her and she began running. Defendant caught up to her, grabbed her, pinned her down and beat her. He grabbed her keys, returned to her car and attempted to open the door. Unsuccessful, he left. Mrs. Streib testified that \u201ca good ten minutes\u201d transpired from the time she saw defendant to the time he left. In mid-May, when the detective showed her a group of photographs, she was able to positively identify defendant. Mrs. Streib recognized defendant at the probable cause hearing. There was no question in her mind that defendant was the same person who attacked her and took her keys. The evidence leaves no question but that applying the Biggers standards, Mrs. Streib\u2019s pre-trial identification of defendant was reliable and admissible.\nDefendant next cites prejudicial error in the trial judge\u2019s opening remarks to the jury. Defendant contends that the trial judge inserted his opinion as to the guilt of defendant and the place where the alleged robbery occurred.\nSpecifically, defendant objects to parts of the following statements to the jury:\n[T]his is a criminal action. The defendant has entered a plea of not guilty to the charge against him. I wish to inform you at this time that upon his plea of not guilty there arises in his behalf a presumption of innocence. He is presumed to be innocent at this stage of the proceedings and the burden is cast upon the state to satisfy you of his guilty [sic] beyond a reasonable doubt. In a criminal action such as this there is no duty, or burden on behalf of the defendant to prove anything to you. . . .\nMembers of the jury, by way of background, and, of course, you will base your verdict on the evidence given during the trial by the witnesses sworn and called to testify before you, and by the exhibits that are introduced into evidence, by way of background in order that you may respond to the questions that will be asked of you, I have told you that this offense is alleged to have occurred back on the twentieth day of March of 1982, and I think that the state will show that it occurred at the Maplewood Cemetery. It is alleged to have occurred at the Maplewood Cemetery here in the city of Durham.\nDefendant finds prejudice in the italicized portions of the judge\u2019s remarks. We find no such prejudice. The judge\u2019s remarks, viewed as a whole, were fair and impartial.\nDefendant next contends that the trial court erred by admitting into evidence photographs of the victim, Mrs. Streib, after the robbery. Defendant\u2019s contention is without merit. Mrs. Streib used photographs to illustrate to the jury the injuries she received when defendant hit her in the face. She testified that the photographs fairly and accurately portrayed the way she had looked. Generally, if a photograph is relevant and material, the fact that it is gory or gruesome and, thus, may tend to arouse prejudice, does not, alone, render it inadmissible. State v. Mercer, 275 N.C. 108, 165 S.E. 2d 328 (1969); 1 Brandis on North Carolina Evidence, \u00a7 34 (1982). The photographs in this case were properly admitted into evidence.\nDuring trial, defense counsel attempted to impeach State\u2019s witness, Officer Robert Franklin, using a supplementary police report made by the officer. The prosecutor objected and the following exchange occurred:\nMr. NlFONG: Your Honor, I am going to object to his reading it, unless he introduces it into evidence. If he wishes to do that, I have no objection to it being read. If he wants him to read a document that is not in evidence, I object to that as long as it is not in evidence.\nCOURT: I think he would be right, sir.\nMr. Fisher: If your Honor please, then, I believe the appropriate foundation has been laid, and I would move the defendant\u2019s exhibit one into evidence.\nMr. NlFONG: No objection.\nDefendant contends that the trial court committed reversible error by requiring him to offer the police report into evidence and, thereby, depriving him of his right to final jury argument. Defendant\u2019s contention is without merit. We note, first, that defendant voluntarily introduced the exhibit. Second, defendant was not prejudiced by such admission. The trial judge decides the order of final jury arguments and his decision is final. Rule 10, General Rules of Practice for the Superior and District Courts; Pinner v. Southern Bell, 60 N.C. App. 257, 298 S.E. 2d 749, review denied, 308 N.C. 387, 302 S.E. 2d 253 (1983).\nDefendant lastly contends that the trial court erred in denying his motion to dismiss at the close of the State\u2019s evidence. The State produced plenary evidence that the crime was committed and that defendant was the perpetrator. The case was properly submitted to the jury.\nNo error.\nJudges Webb and Johnson concur.", "type": "majority", "author": "VAUGHN, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by John R. B. Matthis, Special Deputy Attorney General, for the State.", "C. Douglas Fisher, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP D. PARKER\nNo. 8314SC647\n(Filed 7 February 1984)\n1. Constitutional Law \u00a7 51\u2014 delay between offense and arrest \u2014 no denial of speedy trial rights\nDefendant was not entitled to have a robbery charge against him dismissed because of a delay of 207 days from the date of the offense to the date of his arrest. Art. I, \u00a7 28 of the N.C. Constitution; G.S. 15A-954(a)(3) and (4).\n2. Criminal Law \u00a7 66.9\u2014 photographic identification not unnecessarily suggestive\nA robbery victim\u2019s pretrial photographic identification of defendant was not unnecessarily suggestive where the victim was in defendant\u2019s presence for over 10 minutes; the victim was able positively to identify defendant when a detective showed her a group of photographs; the victim recognized defendant at the probable cause hearing; and there was no question in the victim\u2019s mind that defendant was the person who had robbed her.\n3. Criminal Law 8 99.1\u2014 remarks by trial court \u2014 no expression of opinion\nThe trial judge did not express an opinion as to defendant\u2019s guilt when, during his opening remarks to the jury, he stated that defendant is presumed to be innocent \u201cat this stage of the proceedings\u201d and that \u201cI think that the State will show that it occurred at the Maplewood Cemetery.\u201d\n4. Criminal Law 8 43\u2014 photographs of robbery victim\nPhotographs of a robbery victim were properly admitted to illustrate to the jury the injuries the victim received when defendant hit her in the face.\n5. Criminal Law 8 102\u2014 last jury argument \u2014 requiring defendant to introduce exhibit-absence of prejudice\nThere is no merit in defendant\u2019s contention that the trial court erred in requiring defendant to offer a supplemental police report into evidence in order to use the report in cross-examining an officer, thereby depriving defendant of his right to the final jury argument, since (1) defendant voluntarily introduced the exhibit, and (2) defendant was not prejudiced by such admission since the trial judge decides the order of final jury arguments and his decision is final. Rule 10, General Rules of Practice for the Superior and District Courts.\nAppeal by defendant from Clark, Giles R., Judge. Judgment entered 14 February 1983 in Superior Court, DURHAM County. Heard in the Court of Appeals 16 January 1984.\nDefendant appeals from a jury verdict finding him guilty of common law robbery.\nAttorney General Edmisten, by John R. B. Matthis, Special Deputy Attorney General, for the State.\nC. Douglas Fisher, for the defendant-appellant." }, "file_name": "0293-01", "first_page_order": 325, "last_page_order": 330 }