{ "id": 8558898, "name": "STATE OF NORTH CAROLINA v. TOMMY LEE YANCEY", "name_abbreviation": "State v. Yancey", "decision_date": "1977-01-31", "docket_number": "No. 149", "first_page": "656", "last_page": "666", "citations": [ { "type": "official", "cite": "291 N.C. 656" } ], "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": "160 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "273 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575701 ], "opinion_index": 0, "case_paths": [ "/nc/273/0509-01" ] }, { "cite": "157 S.E. 2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "271 N.C. 579", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565591 ], "opinion_index": 0, "case_paths": [ "/nc/271/0579-01" ] }, { "cite": "164 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "274 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560773 ], "opinion_index": 0, "case_paths": [ "/nc/274/0498-01" ] }, { "cite": "194 S.E. 482", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619002 ], "opinion_index": 0, "case_paths": [ "/nc/212/0725-01" ] }, { "cite": "189 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "281 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575699 ], "opinion_index": 0, "case_paths": [ "/nc/281/0592-01" ] }, { "cite": "40 S.E. 2d 620", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "227 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620243 ], "opinion_index": 0, "case_paths": [ "/nc/227/0019-01" ] }, { "cite": "165 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557779 ], "opinion_index": 0, "case_paths": [ "/nc/275/0061-01" ] }, { "cite": "211 S.E. 2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "286 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566835 ], "opinion_index": 0, "case_paths": [ "/nc/286/0377-01" ] }, { "cite": "212 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "287 N.C. 60", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561014 ], "opinion_index": 0, "case_paths": [ "/nc/287/0060-01" ] }, { "cite": "165 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "275 N.C. 77", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557806 ], "opinion_index": 0, "case_paths": [ "/nc/275/0077-01" ] }, { "cite": "208 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "285 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569924 ], "opinion_index": 0, "case_paths": [ "/nc/285/0746-01" ] }, { "cite": "185 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570252 ], "opinion_index": 0, "case_paths": [ "/nc/280/0159-01" ] }, { "cite": "201 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "284 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562970 ], "opinion_index": 0, "case_paths": [ "/nc/284/0515-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "406 U.S. 682", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173132 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/406/0682-01" ] }, { "cite": "178 S.E. 2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559625 ], "opinion_index": 0, "case_paths": [ "/nc/278/0052-01" ] }, { "cite": "388 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "weight": 4, "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, "opinion_index": 0, "case_paths": [ "/us/394/0440-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "204 S.E. 2d 682", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "285 N.C. 328", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564140 ], "opinion_index": 0, "case_paths": [ "/nc/285/0328-01" ] }, { "cite": "203 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "285 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561608 ], "opinion_index": 0, "case_paths": [ "/nc/285/0001-01" ] }, { "cite": "371 U.S. 471", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 450611 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/371/0471-01" ] }, { "cite": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] } ], "analysis": { "cardinality": 963, "char_count": 23250, "ocr_confidence": 0.688, "pagerank": { "raw": 6.173716619844743e-07, "percentile": 0.9566100185763726 }, "sha256": "a8946da3d2cfac93e91aec555259c0491f86e1b973e19f86a75ab38784e823e8", "simhash": "1:2667662a0c9c2586", "word_count": 3926 }, "last_updated": "2023-07-14T20:35:26.216351+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. TOMMY LEE YANCEY" ], "opinions": [ { "text": "BRANCH, Justice.\nDefendant assigns as error the action of the trial judge in denying his motion to suppress the in-court identification of defendant by the prosecuting witness, Rebecca Karen Toney Pleasant. On 5 April 1976, defendant filed a pretrial motion to suppress statements made to police officers by defendant and to suppress identification testimony from the prosecuting witness or any other persons participating in identification procedures conducted by the Alamance County Sheriff's Department on 27 February 1976. The motion was supported by defendant's affidavit to the effect that he was exhibited to the prosecuting witness singly. He averred that there was no lineup and that he was the only black person in the room, the other occupants of the room being the prosecuting witness and a white detective. He further stated that he was without counsel and did not participate in this identification procedure with knowledge of its legal consequences.\nAt the pretrial hearing on defendant\u2019s motion to suppress, the sole witness was Rebecca Karen Toney Pleasant who testified that on the night of 26 February 1976 her name was then Rebecca Karen Toney. Since that time she had obtained a divorce and had married a Mr. Pleasant. She testified that on 26 February 1976, she was living in a two-bedroom trailer with her two-year-old daughter Leann. On that night she retired at about 11:15 and was later awakened by a \u201cnudge.\u201d She observed two black men standing over her. She thereafter left the trailer with the two men and went to a well-lighted service station where defendant obtained some gas. They returned to her home where the two men remained for about thirty minutes. She was in the presence of the two men for about 45 minutes. Later that night she told Detective McPherson what had happened to her and specifically told him \u201cthat she had seen this person (defendant) somewhere before.\u201d She was taken to a hospital and upon returning home, she looked through her high school annuals and recognized defendant Tommy Lee Yancey in two of them.\nOn 28 February 1976, she went to the police station where Detective McPherson told her to go to a certain room \u201cto look at someone.\u201d She stated that she knew the officers wanted her to look at a person that they thought was in her home in the early morning hours of 27 February 1976. When she went to the indicated room the only person there was defendant and a white detective. She recognized and identified defendant as one of her assailants within five or six seconds. At the hearing, she positively identified defendant as the man who raped her. On cross-examination the witness stated that she gave the police a description of defendant for the purpose of making a composite drawing. She stated that at that time she was not absolutely sure \u201cthat defendant was the man who entered her home.\u201d She said, \u201cI was sure but I was not really sure in my mind. I did not want to blame somebody else for something.\u201d On redirect examination she said that the lights were not on in her trailer but that the utility lights on the outside furnished ample light to permit her to walk around without using the inside lights.\nAfter finding facts consistent with the evidence above stated, the trial judge found and concluded:\nThat there is clear and convincing evidence that the witness\u2019s identification of the defendant in the courtroom this day is based on her observation of the alleged person in and out of the trailer on the night of February 25 and the early morning of February 26, 1976; that she had adequate opportunity to observe the defendant for a period of at least forty-five minutes, and her in-court identification is not tainted by any suggestion when she saw him at the Sheriff\u2019s Office at a later hour on the same day.\nNow therefore the motion to suppress the testimony and in-court identification of the defendant by this witness is denied.\nAt trial the State did not offer any evidence of a confession or as to the pretrial identification proceedings. We, therefore, are only concerned with the admissibility of the in-court identification testimony.\nThe overwhelming weight of authority is that the in-court identification of a witness who took part in an illegal pretrial confrontation must be excluded unless it is first determined by the trial judge on clear and convincing evidence that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. United States v. Wade, 388 U.S. 218, 18 L.Ed. 2d 1149, 87 S.Ct. 1926; Gilbert v. California, 388 U.S. 263, 18 L.Ed. 2d 1178, 87 S.Ct. 1951; Wong Sun v. United States, 371 U.S. 471, 9 L.Ed. 2d 441, 83 S.Ct. 407; State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10; State v. Shore, 285 N.C. 328, 204 S.E. 2d 682; State v. Bass, 280 N.C. 435, 186 S.E. 2d 384.\nUnconstitutionally obtained evidence is excluded by our courts as an essential to due process and the recognized test as to the admissibility of evidence concerning pretrial identification procedures is whether the totality of the circumstances reveals pretrial procedures so unnecessarily suggestive and conducive to irreparable mistaken identification 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; Stovall v. Denno, 388 U.S. 293, 18 L.Ed. 2d 1199, 87 S.Ct. 1967; State v. Haskins, 278 N.C. 52, 178 S.E. 2d 610.\nWe noted in State v. Henderson, supra, that these due process requirements have been enlarged by court decisions which require the presence of counsel at lineups or showups conducted after the initiation of adversary, judicial proceedings. Kirby v. Illinois, 406 U.S. 682, 32 L.Ed. 2d 411, 92 S.Ct. 1877. In Henderson we held that the confrontation had not reached this critical stage, noting, inter aim, that the only showing of adversary procedures was that a warrant was served on the defendant on the same day of the confrontation. We there concluded that it was reasonable to infer that the warrant was served after the confrontation between the witness and the defendant. Instant case differs in that here defendant was in custody upon a warrant which was issued on the day preceding the single exhibition of defendant to the witness.\nOur courts have widely condemned the practice of showing suspects singly to persons for the purpose of identification. Stovall v. Denno, supra; State v. Shore, supra; State v. Henderson, supra. However, the total circumstances surrounding each case must be considered in determining whether such a confrontation denies an accused his due process rights. We observe parenthetically that in State v. Henderson, supra, at page 11, we noted cases in which the courts have held that due process rights were not violated by the single exhibition of a suspect for purposes of identification.\nIn our opinion, the totality of the circumstances surrounding the pretrial single exhibition of defendant in this case were unnecessarily suggestive. We, therefore, consider whether the trial judge correctly found and concluded that the prosecuting witness\u2019 in-court identification was not tainted by the pretrial confrontation.\nThe United States Supreme Court case of Neil v. Biggers, 409 U.S. 188, 34 L.Ed. 2d 401, 93 S.Ct. 375, reconfirmed earlier holdings that even if a pretrial confrontation is suggestive, due process is not violated by the admission of identification evidence when the total circumstances show the identification to be reliable. In so holding the court enumerated some of the factors to be considered in determining the reliability of the identification, to wit:\n. . . [T]he opportunity of the witness to view the criminal at the time of the crime, the witness\u2019 degree of attention, the accuracy of the witness\u2019 prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.\nIn instant case the prosecuting witness had opportunity to closely observe defendant in her partially lighted dwelling for a period of about thirty minutes. She sat beside him in an automobile for a period of from two to five minutes and observed him as he obtained gas at a brightly lighted self-service gasoline station. The evidence tends to show that she had previously seen defendant while in high school and had located two of his pictures in two of her high school annuals on the same night that she was attacked. The witness had also seen defendant on the Saturday before the 26th of February 1976 when he came to her trailer, asked for a ride and inquired if there were any dogs nearby. He also asked to use her phone and she directed him to her mother\u2019s house. On direct examination the prosecuting witness unequivocally identified defendant as the man who raped her. The witness\u2019 answers on cross-examination, which indicated some uncertainty, obviously grew out of her concern that she correctly identify the person who committed the crime.\nThe trial judge\u2019s finding that \"there is clear and convincing evidence that the witness\u2019 identification of defendant in the courtroom ... is based on her observation of the alleged person in her trailer on . . . the early morning of 26 February 1976 . . . and her in-court identification is not tainted by any suggestion when she saw him in the Sheriff\u2019s Office\u201d is supported by competent evidence. The findings of the trial court, when supported by competent evidence, are conclusive upon this Court. State v. Shore, supra; State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884; State v. Haskins, supra. The defendant\u2019s motion to suppress the in-court identification testimony of the prosecuting witness was properly denied.\nDefendant next argues that the trial judge improperly denied his motion for judgment as of nonsuit.\nRape is the carnal knowledge of a female person by force and against her will. G.S. 14-21. It is defendant\u2019s contention that there was insufficient evidence to show that the alleged carnal knowledge of the prosecuting witness was consummated \u201cby force.\u201d\nOn a motion for judgment as of nonsuit the evidence must be considered in the light most favorable to the State and every reasonable inference drawn in favor of the State. State v. McNeil, 280 N.C. 159, 185 S.E. 2d 156; 4 N. C. Index 3d, Criminal Law \u00a7 104, p. 541. When so viewed, if there is any competent evidence of each essential element of the offense charged, then the trial judge must deny the motion and submit the case to the jury. State v. Bell, 285 N.C. 746, 208 S.E. 2d 506; 4 N. C. Index 3d, Criminal Law \u00a7 106, p. 547.\nIn instant case the testimony of Rebecca Toney Pleasant revealed that when she was awakened by a \u201cnudge\u201d at about 2:00 a.m. on 26 February 1976, she observed two black males standing only one or two feet from the bed in which she and her two-year-old daughter were sleeping. She described one of the men as being about 5 feet 8 inches tall and weighing 150-160 pounds. The other man appeared to be about 5 feet 6 inches tall and to weigh about 145 pounds. Defendant told her that they were not going to hurt her, but that they had given out of gas and wanted her to take them to a service station. After obtaining gas at a nearby service station, the prosecuting witness, her daughter, and the two men returned to her mobile home. Mrs. Pleasant, with her daughter in her arms, was taken into the bedroom by the two men. There defendant began to fondle her and remove her clothes. She began to cry and begged the men not to harm her. She testified that at this point \u201c [d] efend-ant placed his hand over her mouth and told her to shut up or I would get hurt. I just kept saying, \u2018Please don\u2019t do this.\u2019 The defendant threw my blue jeans on the floor and took out my Tampax.\u201d Defendant then consummated the intercourse with the prosecuting witness. The other assailant forced her to simultaneously have oral sex with him. She testified that at no time did she consent to have sexual relations with defendant and further stated, \u201cI was afraid for my daughter\u2019s life and my life.\u201d\nThe only reasonable inference which may be drawn from this evidence is that Mrs. Pleasant did not voluntarily engage in sexual intercourse with defendant, but \u201csubmitted at a time and place when she was helpless to protect herself and her submission was induced by fear of death or serious bodily harm if she resisted.\u201d State v. Williams, 275 N.C. 77, 165 S.E. 2d 481. It is well established that the force necessary to constitute rape need not amount to actual physical force. Fear, fright or coercion may take the place of actual force. State v. Armstrong, 287 N.C. 60, 212 S.E. 2d 894; State v. Hines, 286 N.C. 377, 211 S.E. 2d 201; State v. Primes, 275 N.C. 61, 165 S.E. 2d 225; State v. Thompson, 227 N.C. 19, 40 S.E. 2d 620.\nHere, there is plenary evidence to show that fear for her own safety and life and for the safety and life of her infant daughter overcame the prosecuting witness\u2019 resistance and caused her to submit to the desires of her assailants. The trial judge properly overruled defendant\u2019s motion for judgment as of nonsuit.\nDefendant assigns as error the denial of his motion for mistrial.\nA motion for mistrial in a case less than capital is addressed to the trial judge\u2019s sound discretion and his ruling thereon is not reviewable without a showing of gross abuse. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481.\nDuring the direct examination of the prosecuting witness, the District Attorney asked her: \u201cWhere were you taken after that?\u201d She replied, \u201cTo the bedroom.\u201d Defense counsel objected and moved to strike and Judge Preston allowed the motion to strike and instructed the jury not to consider the answer. Immediately thereafter the District Attorney asked the witness what occurred and the witness replied, \u201cI was raped.\u201d Again defense counsel's'motion to strike was allowed and an instruction given to the jury not to consider the answer. Shortly thereafter the witness, without objection, described in detail the physical acts done by the defendant which met the legal definition of rape.\nIn response to the District Attorney\u2019s questions as to what the defendant did to her the witness replied \u201che made me have sexual intercourse with him.\u201d The trial judge allowed counsel\u2019s motion to strike and instructed the jury not to consider the answer. This evidence appears to be relevant as to the question of consent.\nUpon cross-examination as to whether defendant used a weapon, the witness explained her answer by saying, \u201cI felt like my daughter was used as a weapon.\u201d The trial judge allowed defendant\u2019s motion to strike this answer and again instructed the jury not to consider it.\nStatements by police officers describing the window in the prosecuting witness\u2019 trailer as having been \u201cpried up, pulled up or raised up\u201d and the telephone cord as having \u201cbeen removed from the phone\u201d were admissible as shorthand statements of fact.\nInitially it is our opinion that the majority of this evidence was admissible. Even if it were not, the impact of the evidence was so minimal that we cannot perceive that the result of this case could have been changed by its admission. Further, the action of the trial judge in allowing defense counsel\u2019s motions to strike and instructing the jury to disregard the answers cured any possible prejudice to defendant. In State v. Ray, 212 N.C. 725, 194 S.E. 482, Justice Devin (later Chief Justice) stated:\n. . . [0]ur system for the administration of justice through trial by jury is based upon the assumption that the trial jurors are men of character and of sufficient intelligence to fully understand and comply with the instructions of the court, and are presumed to have done so.\nWe further observe that defendant did not move for a mistrial at the time that this evidence was admitted but elected to proceed and take his chances with the jury then impaneled.\nUnder these circumstances we hold that the trial judge did not abuse his discretion by denying defendant\u2019s motion for mistrial.\nThe prosecuting witness testified that after the two men left, she put on her pants, put her child\u2019s coat on her, walked about 75 steps to her parents\u2019 trailer and immediately told them \u201cthat two black men had broke in on me and raped me.\u201d Her testimony tended to show that she arrived at her parents\u2019 trailer about two minutes after the men had driven away. Defense counsel objected to the admission of this testimony and the trial judge allowed the defendant\u2019s motion to strike. Defendant argues that this evidence was incompetent because it was a legal conclusion and the judge\u2019s allowance of his motion to strike did not remove its prejudicial impact.\nWe are of the opinion that the trial judge erred, but to the benefit of defendant when he allowed defense counsel\u2019s motion to strike. This statement was admissible as a \u201cshorthand statement of fact\u201d about which the prosecuting witness had already positively and unequivocally testified. State v. Sneeden, 274 N.C. 498, 164 S.E. 2d 190. Further, statements of the victim of a sex crime made within a short time after the commission of the crime are admissible as part of the res gestae when there are no circumstances indicating lack of spontaneity. State v. Cox, 271 N.C. 579, 157 S.E. 2d 142. The statement here challenged was made within two or three minutes after the crime occurred and bore every indication of spontaneity.\nFurther, the testimony of Shirley Ballinger, mother of the prosecuting witness, that her daughter told her that \u201ctwo black men broke in and raped me\u201d was properly admitted for the purpose of corroborating the testimony of her daughter. 1 Stans-bury\u2019s N. C. Evidence (Brandis Rev. 1973), \u00a7 51, p. 146.\nThere is no merit in defendant\u2019s contention that the trial judge erred by permitting the prosecuting witness\u2019 statement that the defendant\u2019s companion \u201cmade me have oral sex with him\u201d while the defendant was committing the act of rape upon her. Defendant argues that this statement violated the opinion evidence rule and prejudiced defendant because it implied that \u201cdefendant made her have sexual relations with him.\u201d The inference from this shorthand statement of fact is so well understood that it would have been a waste of time and a needless imposition upon this witness to describe every sordid detail of the act of oral sex. 1 Stansbury\u2019s N. C. Evidence (Brandis Rev. 1973), \u00a7 125, p. 389; State v. Goines, 273 N.C. 509, 160 S.E. 2d 469. The very degrading nature of this act made it relevant and admissible to show that prosecuting witness did not consent to have sexual intercourse with defendant.\nOur careful examination of this entire record discloses that defendant was accorded a fair trial in which there was\nNo error.", "type": "majority", "author": "BRANCH, Justice." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney David S. Crump, for the State.", "James K. Roberson for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TOMMY LEE YANCEY\nNo. 149\n(Filed 31 January 1977)\n1. Criminal Law \u00a7 66 \u2014 illegal pretrial confrontation \u2014 in-court identification \u2014 when allowed\nThe in-court identification of a witness who took part in an illegal pretrial confrontation must be excluded unless it is first determined by the trial judge on clear and convincing evidence that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure.\n2. Criminal Law \u00a7 66\u2014 illegal pretrial confrontation \u2014 in-court identification not tainted\nThough the pretrial single exhibition of defendant to a rape victim was unnecessarily suggestive, the determination by the trial court that the victim\u2019s in-court identification of defendant was based on her observation of him at the crime scene and was not tainted by any suggestion during the pretrial exhibition was supported by competent evidence where such evidence tended to show that the victim observed defendant for 30 minutes in her partially lighted dwelling, for 2 to 5 minutes as she sat beside him in a car, and for a few minutes as he obtained gas at a brightly lighted gas station; the victim had previously seen defendant while in high school and had located two of his pictures in her high school annual on the same night she was attacked; and the victim had observed defendant several days before the rape when he came to her trailer, asked for a ride, and inquired if there were any dogs about.\n3. Rape \u00a7 5\u2014 second degree rape \u2014 force used \u2014 sufficiency of evidence\nEvidence in a second degree rape prosecution was sufficient to show that the alleged carnal knowledge of the prosecuting witness was consummated by force where it tended to show that defendant and another black man entered the victim\u2019s trailer while she was asleep, awakened her, went with her to a gas station, returned to her trailer and began to fondle her and remove her clothes; the victim began to cry and begged the men not to harm her; the defendant instructed the victim to be quiet or she would get hurt; defendant and his companion forced the victim to have intercourse with them; and the victim stated that she was afraid for her life and for that of her infant daughter who was in the same room at the time of the crime.\n4. Criminal Law \u00a7 128\u2014 mistrial \u2014 discretionary matter\nA motion for mistrial in a case less than capital is addressed to the trial judge\u2019s sound discretion and his ruling thereon is not reviewable without a showing of gross abuse.\n5. Criminal Law \u00a7\u00a7 128, 169\u2014 motion for mistrial \u2014 denial proper\nIn a first degree burglary and second degree rape case the trial court did not err in denying defendant\u2019s motion for mistrial since any possible prejudice to defendant resulting from various answers of witnesses was cured when the court allowed defense counsel\u2019s motions to strike and instructed the jury to disregard the answers.\n6. Criminal Law \u00a7 169\u2014 evidence improperly stricken \u2014 error beneficial to defendant\nError of the trial court in striking testimony of a rape victim that, immediately after the alleged rape, she went to her parents\u2019 home and told them \u201cthat two black men had broke in on me and raped me\u201d was beneficial to defendant, since the testimony was not a legal conclusion but was admissible both as a shorthand statement of fact and as part of the res gestae.\n7. Criminal Law \u00a7 71; Rape \u00a7 4\u2014 testimony as to oral sex \u2014 shorthand statement of fact\nTestimony by a rape victim that defendant\u2019s companion \u201cmade me have oral sex with him\u201d while defendant was committing the act of rape upon her was admissible as a shorthand statement of fact, and was relevant and admissible to show that the prosecuting witness did not consent to have sexual intercourse with defendant.\nAppeal from Preston, J., 10 May 1976 Session of Ala-mance Superior Court.\nDefendant was tried upon bills of indictment charging him with first-degree burglary and the second-degree rape of Rebecca Karen Toney. The charges were consolidated for trial.\nThe jury returned verdicts of guilty of second-degree rape and guilty of non-felonious breaking and entering. The trial judge consolidated the cases for judgment and imposed a sentence of life imprisonment.\nThe facts will be more fully set forth in our consideration of the questions presented by this appeal.\nAttorney General Edmisten, by Associate Attorney David S. Crump, for the State.\nJames K. Roberson for defendant." }, "file_name": "0656-01", "first_page_order": 680, "last_page_order": 690 }