{ "id": 8564078, "name": "STATE OF NORTH CAROLINA v. ROBERT LEE KNIGHT", "name_abbreviation": "State v. Knight", "decision_date": "1972-11-15", "docket_number": "No. 12", "first_page": "220", "last_page": "230", "citations": [ { "type": "official", "cite": "282 N.C. 220" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "188 S.E. 2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 261", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574773 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0261-01" ] }, { "cite": "84 N.C. 737", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8698711 ], "year": 1881, "opinion_index": 0, "case_paths": [ "/nc/84/0737-01" ] }, { "cite": "93 S.E. 2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "244 N.C. 212", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219465 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/244/0212-01" ] }, { "cite": "178 S.E. 2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "277 N.C. 602", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566982 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/277/0602-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "405 U.S. 427", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11722669 ], "weight": 3, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0427-01" ] }, { "cite": "180 S.E. 2d 7", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560709 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0476-01" ] }, { "cite": "185 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 273", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571097 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0273-01" ] }, { "cite": "375 U.S. 85", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11717703 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/375/0085-01" ] }, { "cite": "177 S.E. 2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564719 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0286-01" ] }, { "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": "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": "456 F. 2d 638", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 738268 ], "pin_cites": [ { "page": "641-42" } ], "opinion_index": 0, "case_paths": [ "/f2d/456/0638-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "pin_cites": [ { "page": "488" } ], "opinion_index": 0, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "150 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560152 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0069-01" ] }, { "cite": "183 S.E. 2d 634", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 477", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569832 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0477-01" ] }, { "cite": "336 F. Supp. 1192", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3586974 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f-supp/336/1192-01" ] }, { "cite": "175 S.E. 2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 65", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561810 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0065-01" ] }, { "cite": "176 S.E. 2d 744", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563477 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0151-01" ] }, { "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": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "447 F. 2d 993", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 808507 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/447/0993-01" ] }, { "cite": "390 U.S. 377", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6170914 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/390/0377-01" ] } ], "analysis": { "cardinality": 1008, "char_count": 22672, "ocr_confidence": 0.537, "pagerank": { "raw": 7.688061036922315e-07, "percentile": 0.9714421574385225 }, "sha256": "74b8e690d0863be6cb5bcd6357878b173772ffed59a1ff22a11649423cf1a735", "simhash": "1:77a1262a5736dc66", "word_count": 3745 }, "last_updated": "2023-07-14T21:08:27.476898+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ROBERT LEE KNIGHT" ], "opinions": [ { "text": "HUSKINS, Justice.\nAppellant\u2019s first assignment of error is based on his contention that the photographic identification procedure was so impermissibly suggestive that admission of the in-court identification violated due process of law. This contention questions the admissibility of testimony concerning the photographic identification at the hospital as well as the admissibility of Mr. Garner\u2019s in-court identification of defendant himself.\nIn Simmons v. United States, 390 U.S. 377, 19 L.Ed. 2d 1247, 88 S.Ct. 967 (1968), the Court refused to prohibit absolutely the use of identification by photograph and instead held that \u201ceach case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.\u201d\nFactors to consider in applying the Simmons test are: \u201c(1) The manner in which the pretrial identification was conducted; (2) the witness\u2019s prior opportunity to observe the alleged criminal act; (3) the existence of any discrepancies between the defendant\u2019s actual description and any description given by the witness before the photographic identification; .(4) any previous identification by the witness of some other person; (5) any previous identification of the defendant himself; (6) failure to identify the defendant on a prior occasion; and (7) the lapse of time between the alleged act and the out-of-court identification.\u201d United States v. Zeiler, 447 F. 2d 993 (3d Cir. 1971). Cf. United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926 (1967); State v. Blackwell, 276 N.C. 714, 174 S.E. 2d 534 (1970). The first of these factors focuses upon the magnitude of the suggestiveness inherent in the photographic identification procedures employed. The facts relevant to the remaining six factors are then balanced against that suggestiveness in order to determine whether, in the particular factual context under consideration, the suggestiveness gives rise \u201cto a very substantial likelihood of irreparable mis-identification.\u201d If these facts do not give rise to such likelihood, then Simmons does not require reversal despite the presence of \u201cimpermissible suggestiveness\u201d in the photographic identification procedure.\nWith reference to the enumerated relevant factors, the evidence adduced on voir dire discloses that the pretrial photographic identification procedure used here was impermissibly suggestive since the photographic showing was of only one picture and was accompanied by the statement \u201cwe\u2019ve got a man, is this the one?\u201d If defendant\u2019s in-court identification and resulting conviction rested on that identification, it could not stand. But such is not the case. Mr. Garner had ample prior opportunity in his home to observe defendant. During the confrontation in the bedroom, he was within three feet of defendant and facing him. Light from a 50-watt bulb in the bathroom, located behind the witness, was shining into defendant\u2019s face. In addition, there was a full moon that night and there were bright yellow curtains over the bedroom windows. Also, Mr. Garner observed the defendant as he chased him through the house and out the rear door. Mr. Garner told the officers the intruder was wearing black boots above the ankles and a dark turtleneck sweater, and defendant was dressed in that fashion when first seen by Officer Poe at the Pay-Lo Service Station about 2:25 a.m. following defendant\u2019s report by telephone that he \u201chad been rolled.\u201d Furthermore, Mr. Garner never at any time identified anyone else and promptly identified defendant by photograph and in person at the first opportunity. In light of all these circumstances, the trial judge found on voir dire \u201cthat the identification of the defendant in the courtroom was not based upon the photograph shown him at the hospital. . . .\u201d This finding is sufficient to satisfy the Simmons test, even though it is not worded in the precise language used therein. See State v. Jacobs, 277 N.C. 151, 176 S.E. 2d 744 (1970); State v. Accor and Moore, 277 N.C. 65, 175 S.E. 2d 588 (1970). Compare United States ex rel Schartner v. Pizzo, 336 F. Supp. 1192 (M.D. Pa. 1972). The conclusion that the in-court identification was not based upon the photograph is tantamount to a conclusion that the in-court identification had an independent origin. It is this independent origin that, despite the impermissible suggestiveness of the photographic identification procedure, establishes the lack of a \u201cvery substantial likelihood of irreparable misidentification\u201d required by Simmons for reversal. Therefore, the finding, being supported by competent evidence, is conclusive and must be upheld. State v. Morris, 279 N.C. 477, 183 S.E. 2d 634 (1971); State v. Gray, 268 N.C. 69, 150 S.E. 2d 1 (1966).\nThe competency of the testimony concerning Mr. Garner\u2019s photographic identification of defendant is another matter. \u201cQuite different considerations are involved as to the admission of the testimony of the . . . witnesses . . . that they identified Gilbert at the lineup. That testimony is a direct result of the illegal lineup, \u2018come at by exploitation of [the primary] illegality,\u2019 Wong Sun v. United States, 371 U.S. 471, 488. The State is therefore not entitled to an opportunity to show that that testimony had an independent source. Only a per se exclusionary rule as to such testimony can be an effective sanction to assure that law enforcement authorities will respect the accused\u2019s constitutional right to the presence of counsel at the critical lineup.\u201d Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951 (1967).\nBy analogy, the introduction of testimony concerning an out-of-court photographic identification must be excluded where, as here, the procedure used is impermissibly suggestive, even though that suggestiveness does not require exclusion of the in-court identification itself under the Simmons test. See United States v. Fernandez, 456 F. 2d 638, 641-42 (2d Cir.1972). Compare Foster v. California, 394 U.S. 440, 22 L.Ed. 2d 402, 89 S.Ct. 1127 (1969).\nIn the factual context of this case, although the showing of only one photograph to the victim accompanied by the statement \u201cwe\u2019ve got a man, is this the one\u201d was impermissibly suggestive and evidence thereof incompetent, we hold its admission was \u201charmless beyond a reasonable doubt.\u201d Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967); State v. Brinson, 277 N.C. 286, 177 S.E. 2d 398 (1970). The unequivocal in-court identification of defendant by Mr. Garner, the presence of defendant\u2019s jacket in Mr. Garner\u2019s bedroom containing a letter addressed to the defendant, a certified birth certificate of defendant, and a Selective Service notice of classification bearing defendant\u2019s name, and the fact that the description of defendant\u2019s clothing given by Mr. Garner to the police was substantially similar to the actual clothing defendant was wearing when seen by Officer Poe about one hour after the burglary, constitutes evidence of guilt so overwhelming that, in our opinion, the impact of the photographic identification on the minds of the jurors was insignificant. Unless there is a reasonable possibility that the erroneously admitted evidence might have contributed to the conviction, its admission constitutes harmless error. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed. 2d 171, 84 S.Ct. 229 (1963); State v. Taylor, 280 N.C. 273, 185 S.E. 2d 677 (1972); State v. Smith, 278 N.C. 476, 180 S.E. 2d 7 (1971). No such possibility arises on the evidence here. \u201cIn some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of [the improperly admitted evidence] is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the [incompetent evidence] was harmless error.\u201d Schneble v. Florida, 405 U.S. 427, 31 L.Ed. 2d 340, 92 S.Ct. 1056 (1972). See also, Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284, 89 S.Ct. 1726 (1969); State v. Swaney, 277 N.C. 602, 178 S.E. 2d 399 (1971).\nDefendant\u2019s first assignment of error is overruled.\nFollowing defendant\u2019s testimony, the State was permitted, over defendant\u2019s objection, to examine Officer Mason as a rebuttal witness. This officer testified that he and Detective Boyce examined the area surrounding the Garner residence and observed footprints leading from the house. \u201c[T]hey were a narrow pigeon-toed shoe. They came from the back of the house around the west side and to the north in the direction of Austin down to Third, we found them again on Third Street, we lost them some few feet and picked them up again. We tracked those tracks on Third Street in two or three different areas in the direction of Sanford Tobacco Company Storage Warehouses, we picked up a similar track and it proceeded to a creek, across the creek on an iron pipe, picked it up on the other side of the creek and proceeded to the railroad tracks and lost them again. The railroad tracks lead to Jonesboro. . . . From the point where we last saw the pointed foot tracks from the Pay-Lo Station in Jonesboro is between a quarter and a half a mile.\u201d Officer Mason said these footprints were \u201csimilar\u201d to Defendant\u2019s Exhibit 1, the boots defendant had on when Officer Poe saw him at the Pay-Lo Service Station about one hour after the burglary was committed. They were muddy at that time. Defendant contends this evidence should have been offered by the State, if at all, while making out its case in chief and should not have been admitted as rebuttal evidence. This is the basis for defendant\u2019s second assignment of error.\nIn our opinion Officer Mason\u2019s testimony may properly be considered as rebuttal evidence. Defendant\u2019s testimony makes it so. He said he was elsewhere when the crime was committed and had never been in Mr. Garner\u2019s residence. Yet the footprints leading from the Gamer residence were \u201csimilar\u201d to the boots defendant was wearing one hour after the burglary, and the boots were muddy. The tracks traversed muddy ground and were followed to a point at the railroad near the Pay-Lo Service Station where defendant made his telephone call. Obviously this tends to rebut defendant\u2019s evidence.\nBut if it be conceded arguendo that Officer Mason\u2019s testimony would have been properly admissible on the State\u2019s case in chief, it was not error to admit it on rebuttal. The order of proof is a rule of practice resting in the sound discretion of the trial court. State v. Thomas, 244 N.C. 212, 93 S.E. 2d 63 (1956). \u201cThe court, to attain the ends of justice, may in its discretion allow the examination of witnesses at any stage of the trial.\u201d State v. King, 84 N.C. 737 (1881). The following quotation from American Jurisprudence accurately states the majority rule: \u201cWhile as a general proposition evidence offered by the prosecution in rebuttal in a criminal case must relate directly to the subject matter of the defense and ought not to consist of new matter unconnected with the defense and not tending to controvert or dispute it, this principle is intended to promote and not to defeat justice, and it is accordingly held by the great weight of authority that the admission in a criminal prosecution of evidence as a part of the rebuttal, when such evidence would have been properly admissible in chief, rests in the sound discretion of the trial judge and will not be interfered with in the absence of gross abuse of that discretion.\u201d 53 Am. Jur., Trial, \u00a7 129. Accord, 88 C.J.S., Trial, \u00a7 102. Compare State v. Anderson, 281 N.C. 261, 188 S.E. 2d 336 (1972).\nDefendant\u2019s second assignment has no merit and is overruled.\nDefendant\u2019s remaining assignments relate to inconsequential matters in the charge of the court, e.g., referring to the occupancy of the house \u201cby the Garners\u201d instead of by \u201cErvin Garner\u201d as alleged in the bill of indictment, and one isolated instance when the court failed to repeat the expression \u201cbeyond a reasonable doubt,\u201d although the jury had been fully instructed on the quantum of proof. A review of these assignments impels the conclusion that the matters complained of were not prejudicial. Discussion of them is not warranted.\nDefendant having failed to show prejudicial error, the verdict and judgment must be upheld.\nNo error.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "J. W. Hoyle, Attorney for defendant appellant.", "Robert Morgan, Attorney General, and Sidney S. Eagles, Jr., Assistant Attorney General, for the State of North Carolina." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROBERT LEE KNIGHT\nNo. 12\n(Filed 15 November 1972)\n1. Criminal Law \u00a7 66\u2014 pretrial identification \u2014 suggestiveness \u2014 likelihood of irreparable misidentification\nConviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.\n2. Criminal Law \u00a7 66\u2014 pretrial photographic identification \u2014 in-court identification \u2014 independent origin\nThough the pretrial photographic identification procedure used in a first degree burglary case was impermissibly suggestive since the photographic showing was of only one picture and was accompanied by the statement of police, \u201cwe\u2019ve got a man, is this the one,\u201d the victim\u2019s in-court identification of defendant was based on observation at the time of the offense and was of independent origin; this independent origin established the lack of a very substantial likelihood of irreparable misidentification, despite the impermissible suggestiveness of the photographic identification procedure.\n3. Criminal Law \u00a7 66\u2014 suggestive pretrial identificaton procedure \u2014 inadmissibility\nThe introduction of testimony concerning an out-of-court photographic identification must be excluded where the procedure used is impermissibly suggestive, even though that suggestiveness does not require exclusion of the in-court identification itself.\n4. Criminal Law \u00a7 169\u2014 admission of incompetent evidence \u2014 harmless error\nThough evidence of an impermissibly suggestive pretrial identification procedure was incompetent, its admission was harmless error beyond a reasonable doubt where other competent evidence in the case overwhelmingly showed defendant guilty of first degree burglary.\n5. Criminal Law \u00a7 93\u2014 order of proof\nDefendant cannot complain that testimony of a police officer should have been admitted, if at all, while the State was making out its case in chief, rather than as rebuttal evidence since the order of proof is a rule of practice resting in the sound discretion of the trial court, and defendant has shown no abuse of that discretion in this case.\nAppeal by defendant from Judgment of Brewer, J., 1 January 1972 Session, Lee Superior Court.\nDefendant was tried on a bill of indictment, sufficient in form, charging that on 6 February 1971, about the hour of 1:20 a.m. in the night of the same day, defendant broke into and entered the dwelling house of Ervin Garner, actually occupied by him, with intent to steal and carry away the goods and chattels of Ervin Garner.\nThe State\u2019s evidence tends to show that a little after 1 a.m. on 6 February 1971 Ervin Garner, who resided with his wife, three children and his father, at 110 Austin Street in Sanford, was awakened by his wife and told that someone was in their bedroom. It was dim in his bedroom as the drapes were drawn and no lights were on, but there was a light burning in the bathroom which shone into the hall between the bedroom and the kitchen and reflected light into the bedroom. Mr. Garner arose and was cut with a knife by the intruder. He saw his attacker at a distance of three feet. The bathroom light was shining in his assailant\u2019s face. He chased his attacker through the house and out the rear door. About four minutes elapsed between the time he was awakened until he reentered his house. Officers were called and the rescue squad carried Mr. Garner to the hospital where, the same day about 7 p.m., he was shown a color photograph of the defendant by the chief of police and was asked if \u201che was the one.\u201d He immediately, \u201cin a split second,\u201d identified his attacker as the man shown in the photograph. He was then told that defendant was in jail. This was the only photograph shown him.\nImmediately after the attack, a jacket belonging to defendant with various letters addressed to defendant and other documents bearing his name was found in the Garner\u2019s bedroom and turned over to the officers. With such information in hand, the officers had arrested defendant and placed him in jail before the photograph was ever shown to Mr. Garner.\nPrior to Mr. Garner\u2019s in-court identification of defendant, a voir dire was conducted in the absence of the jury, at which only the State offered evidence. Mr. Garner testified on this voir dire that when his wife awakened him he got out of bed; that it was a moonlit night and in addition there was a light burning in the bathroom which reflected into the bedroom; that for a distance of about eight or nine feet he could get \u201ca real good view\u201d of an object or a face in the bedroom; that when he first awoke there was a person within three feet standing over the bed; that he had never seen that person before; that the intruder was wearing black boots above the ankles and a dark turtleneck sweater pulled up about the chin; that the intruder was facing the light coming from the bathroom and he could see his face; that he was stabbed in the neck by the intruder and later taken to,the hospital where, about 7 p.m. the same day, he was shown a photograph by Chief Thomas; that he recognized defendant from the picture; that on seeing the picture, \u201cI just noticed his face. The picture had nothing to do with my identification or description of the clothing he was wearing that night\u201d; that when he looked at the picture he recognized the man as his assailant and he learned later that identification papers in the jacket found in the bedroom had defendant\u2019s name on them; that when he was shown the picture the officers said \u201cwe\u2019ve got a man, is this the one,\u201d and \u201cI looked at it and said yes, sir, he is the one.\u201d\nThe court found facts substantially in accord with Mr. Garner\u2019s testimony, there being no evidence offered to the contrary, including a finding that Mr. Garner\u2019s in-court identification of defendant was not based upon the photograph shown him at the hospital by Chief Thomas. Defendant\u2019s motion to suppress was thereupon denied, the jury returned, and Mr. Garner testified substantially to the same facts before the jury.\nMr. Garner further testified that when he went to bed on the night of the assault his pocketbook was in his pants pocket and that the pocketbook was missing the next morning and he had not seen it since.\nThe State offered in evidence defendant\u2019s jacket found in the bedroom, (S-5), together with the items removed from the jacket pocket which included, inter alia, (1) a letter addressed to Bobby Knight, Route 2, Box 325, Sanford, (2) a certified birth certificate of Robert Lee Knight and (3) a Selective Service notice of classification bearing the name of Robert Lee Knight. These items were identified as State\u2019s Exhibit 6.\nWhen defendant was arrested about ten o\u2019clock on the morning following the assault on Mr. Garner, he was wearing a green turtleneck sweater and a pair of dark trousers. He did not have on any shoes when the officers arrived at his residence but later put on a regular pair of lace-up shoes. The turtleneck sweater had a red stain, like blood, on the upper portion of the neck part. The sweater (S-7) and trousers (S-8) were offered in evidence.\nDefendant testified as a witness in his own behalf. He stated that about 7 p.m. on 5 February 1971 he was at the home of one Jimmy Walston on Chatham Avenue in Sanford; that he and others present there drank two pints of whiskey and then purchased more from a man named Cottcamp and drank it; that he was wearing a green flight jacket, a pair of bell bottoms, a turtleneck sweater with short sleeves, a hat and a pair of western style boots; that the green sweater offered in evidence was the one he was wearing that evening and the flight jacket offered in evidence \u201cappears to be my flight jacket\u201d; that the papers offered in evidence by the State were in the inside jacket pocket and the birth certificate was his; that he left Jimmy Walston\u2019s home \u201cthat night or morning\u201d in a car driven by a boy whose name he did not know; that he didn\u2019t know where he went in the automobile due to the pills he had been taking and the whiskey he had consumed; that when he eventually realized where he was, \u201cI was in Jones-boro on Main Street at the railroad crossing\u201d; that he went from there to the Pay-Lo Service Station, called the police department and told them he had been rolled \u2014 \u201cSomebody had taken my jacket and some money that I had in my pocket. . . . I last saw my jacket at Jimmy Walston\u2019s house, they had the heat up pretty high and I pulled my jacket and my hat off. I haven\u2019t ever seen my hat since.\u201d\nAfter calling the police, defendant testified he then got with some friends and had some more drinks and went home that morning. He was then arrested and taken to the police station. He testified that he did not enter Mr. Garner\u2019s home, did not assault him and did not steal his wallet.\nDefendant admitted on cross-examination that he had been convicted of driving without a license, robbery, common-law robbery, disorderly conduct, larceny, assault with a deadly weapon, carrying a concealed weapon, forcible trespass, resisting arrest, and destruction of personal property.\nOfficer A. W. Poe, a defense witness, testified that on 6 February 1971 at 2:20 a.m. he received a call from defendant and went to the Pay-Lo Service Station where he found defendant standing at the phone booth dressed in a green turtleneck sweater, a dark pair of trousers and a pair of boots. He was not wearing a jacket at that time. He had been drinking and had the odor of alcohol about him. The officer said he transported defendant approximately two to two and one-half miles and let him off at the city limits; that in his opinion defendant was not under the influence of whiskey at that time.\nThe defendant was convicted of burglary in the first degree and sentenced to life imprisonment pursuant to the jury\u2019s recommendation. Errors assigned on appeal therefrom will be noted in the opinion.\nJ. W. Hoyle, Attorney for defendant appellant.\nRobert Morgan, Attorney General, and Sidney S. Eagles, Jr., Assistant Attorney General, for the State of North Carolina." }, "file_name": "0220-01", "first_page_order": 240, "last_page_order": 250 }