{ "id": 8564153, "name": "STATE OF NORTH CAROLINA v. HAROLD DANIEL McCRAW", "name_abbreviation": "State v. McCraw", "decision_date": "1980-07-15", "docket_number": "No. 47", "first_page": "610", "last_page": "620", "citations": [ { "type": "official", "cite": "300 N.C. 610" } ], "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": "32 L.Ed. 2d 130", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "92 S.Ct. 1805", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "406 U.S. 928", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6230624, 6227109, 6228139, 6227471, 6229457, 6230354, 6229140, 6228788, 6228470, 6230873, 6230043, 6227836, 6229790 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/406/0928-12", "/us/406/0928-01", "/us/406/0928-04", "/us/406/0928-02", "/us/406/0928-08", "/us/406/0928-11", "/us/406/0928-07", "/us/406/0928-06", "/us/406/0928-05", "/us/406/0928-13", "/us/406/0928-10", "/us/406/0928-03", "/us/406/0928-09" ] }, { "cite": "185 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572032 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0689-01" ] }, { "cite": "80 S.E. 2d 243", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "239 N.C. 446", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627279 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/239/0446-01" ] }, { "cite": "148 S.E. 2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "267 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559766 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/267/0513-01" ] }, { "cite": "189 S.E. 2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575301 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0447-01" ] }, { "cite": "95 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274807 ], "year": 1886, "opinion_index": 0, "case_paths": [ "/nc/95/0528-01" ] }, { "cite": "200 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561910 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0366-01" ] }, { "cite": "164 S.E. 2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 498", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560773 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0498-01" ] }, { "cite": "226 S.E. 2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 383", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561569 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0383-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "in criminal cases, \"[e]very circumstance that is calculated to throw any light upon the supposed crime is admissible;\" the weight of such evidence is for the jury" } ], "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "pin_cites": [ { "parenthetical": "in criminal cases, \"[e]very circumstance that is calculated to throw any light upon the supposed crime is admissible;\" the weight of such evidence is for the jury" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "112 S.E. 2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 40", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617275 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0040-01" ] }, { "cite": "259 S.E. 2d 496", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572844 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0502-01" ] }, { "cite": "48 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2086747 ], "year": 1856, "opinion_index": 0, "case_paths": [ "/nc/48/0320-01" ] }, { "cite": "21 L.Ed. 2d 780", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "89 S.Ct. 876", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1969, "opinion_index": 0 }, { "cite": "393 U.S. 1087", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11427041, 11427083, 11427182, 11427218, 11426998, 11427255, 11427127 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/393/1087-02", "/us/393/1087-03", "/us/393/1087-05", "/us/393/1087-06", "/us/393/1087-01", "/us/393/1087-07", "/us/393/1087-04" ] }, { "cite": "163 S.E. 2d 376", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560020 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0295-01" ] }, { "cite": "160 S.E. 2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 306", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575144 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0306-01" ] }, { "cite": "237 S.E. 2d 728", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563894 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0286-01" ] }, { "cite": "250 S.E. 2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 183", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565376 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0183-01" ] }, { "cite": "260 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "649" } ], "opinion_index": 0 }, { "cite": "298 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573777 ], "year": 1979, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0573-01" ] }, { "cite": "432 U.S. 98", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6177400 ], "weight": 5, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0098-01" ] }, { "cite": "409 U.S. 188", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173155 ], "weight": 4, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/0188-01" ] }, { "cite": "394 U.S. 440", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173399 ], "weight": 6, "year": 1969, "pin_cites": [ { "page": "443" }, { "page": "1129" }, { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/us/394/0440-01" ] }, { "cite": "388 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168284 ], "weight": 4, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0293-01" ] }, { "cite": "24 L.Ed. 2d 518", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "90 S.Ct. 599", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "396 U.S. 1024", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11422113, 11421961, 11421868, 11422063, 11422229, 11422166, 11422008, 11421917 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/396/1024-06", "/us/396/1024-03", "/us/396/1024-01", "/us/396/1024-05", "/us/396/1024-08", "/us/396/1024-07", "/us/396/1024-04", "/us/396/1024-02" ] }, { "cite": "168 S.E. 2d 345", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 411", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558852 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0411-01" ] }, { "cite": "245 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563440 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0437-01" ] }, { "cite": "367 U.S. 643", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1785580 ], "weight": 3, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/367/0643-01" ] }, { "cite": "49 L.Ed. 2d 1205", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "96 S.Ct. 3202", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 902", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6180680, 6180844, 6180492, 6180302, 6181071, 6180146 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0902-04", "/us/428/0902-05", "/us/428/0902-03", "/us/428/0902-02", "/us/428/0902-06", "/us/428/0902-01" ] }, { "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" ] } ], "analysis": { "cardinality": 1082, "char_count": 24656, "ocr_confidence": 0.802, "pagerank": { "raw": 3.549035035709786e-07, "percentile": 0.8852249687143923 }, "sha256": "c4773dfdd328f3fbf9e02c28561c5d2ce2b0036c7c64fec2e6e13b0b33e8db1f", "simhash": "1:b7a95e4a975ed87e", "word_count": 3905 }, "last_updated": "2023-07-14T20:04:36.297481+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. HAROLD DANIEL McCRAW" ], "opinions": [ { "text": "CARLTON, Justice.\nDefendant groups several assignments of error into six arguments. We find no prejudicial error and affirm.\nI.\nDefendant first asserts that the trial court erred in failing to suppress the victim\u2019s in-court identification. Defendant argues this in-court identification was tainted by impermissibly suggestive out-of-court identification procedures. He argues this taint was not removed by any showing that the in-court identification was based on a recollection independent of those improper out-of-court procedures. Defendant cites State v. Henderson, 285 N.C. 1, 203 S.E. 2d 10 (1974), death sentence vacated, 428 U.S. 902, 96 S.Ct. 3202, 49 L.Ed. 2d 1205 (1976), in contending that such tainted in-court identification is inadmissible.\nThe record reveals that the victim in this case, Donald Steven Plummer, made a misidentification prior to his initial out-of-court identification of this defendant. Soon after the robbery, on 17 July 1978, Plummer was shown several mug books. At this time he identified the photo of one man he was \u201c99% sure\u201d was the robber. Investigation by the Fayetteville police department, however, revealed that the pictured individual had been incarcerated on the date of the robbery and could not have participated in it. Plummer was told his choice was wrong.\nThereafter, in early September, he saw a picture of Norris Taylor in a Fayetteville paper and called police to tell them that Taylor \u201clooked very similar to the man . . . picked out in the mug book.\u201d\nSubsequently, on 27 October 1978, Plummer was shown another photographic lineup and again picked out a picture, this time of the defendant. However, he stated then that he was only 80% sure of his identification and wanted to see the pictured individual in person before making conclusive identification.\nOn 28 November 1978, Plummer went to the Cumberland County Courthouse in answer to two subpoenas. Although defendant\u2019s name was on one of the subpoenas, Plummer testified on voir dire that he thought that both subpoenas concerned an unrelated break-in at the convenience store which did not involve this robbery. While waiting in the courtroom, he heard defendant\u2019s name called. He knew the name was on one of the subpoenas, so he looked around the courtroom and eventually saw a man he recognized as the robber in this case. When called by court officials to a conference room, he informed them that he had seen the individual who had robbed him at gunpoint in July. Defendant contests this sequence of events as being imper-missibly suggestive.\nAs a general rule, evidence unconstitutionally obtained is excluded from testimony in both state and federal courts. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed. 2d 1081 (1961); State v. Headen, 295 N.C. 437, 245 S.E. 2d 706 (1978); State v. Rogers, 275 N.C. 411, 168 S.E. 2d 345 (1969), cert. denied, 396 U.S. 1024, 90 S.Ct. 599, 24 L.Ed. 2d 518 (1970).\nWhat constitutes unconstitutionally suggestive identification evidence, however, has been subjected to changing standards of admissibility. In Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967), the United States Supreme Court held that if, considering the totality of circumstances, a pretrial identification procedure is found to be unnecessarily suggestive and conducive to irreparable mistaken identification, submission of the identification at trial violates due process. The Court held that a two-step process had to be used in applying this standard:\n(1) First, a reviewing court had to determine whether the out-of-court procedure was unnecessarily suggestive. If so, testimony regarding the out-of-court procedure was inadmissible.\n(2) Second, in-court identification was still permissible, only if the out-of-court suggestiveness was not \u201cconducive to irreparable mistaken identity.\u201d In this jurisdiction, this often meant that the in-court identification was admissible if the State could show that the in-court identification' was of independent origin from the suggestive pre-trial procedures. See, e.g., State v. Headen, supra; State v. Henderson, supra.\nApplying this analysis, the Supreme Court in Stovall held that in-court identification was permissible where a critically injured witness had been shown defendant alone and handcuffed at her hospital bedside. In Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed. 2d 402 (1969), however, the Supreme Court held that an in-court identification procedure was inadmissible where it was preceded by repeated pre-trial confrontations which eventually elicited a positive identification of the defendant. Such pretrial suggestiveness was \u201cso arranged to make the resulting identification inevitable,\u201d 394 U.S. at 443, 89 S.Ct. at 1129, 22 L.Ed. 2d at 407, and the identification testimony was inadmissible.\nAnd in State v. Headen, supra, this Court held an in-court identification inadmissible where twenty months after a crime, a Cumberland County deputy sheriff identified the defendant to an eyewitness, indicated the defendant was implicated in the crime and apparently repeatedly assured the eyewitness of the defendant\u2019s complicity. Considering this unnecessary suggestiveness along with the fact that the witness had viewed the crime on a dark night, was not at the time particularly concerned with getting a clear visual sighting of the criminal, could not identify a photograph without prompting and could provide only, a general description, this Court concluded that the impermissible pre-trial procedure gave rise to a substantial likelihood of irreparable misidentification at trial.\nThe per se approach to identification evidence, however, is no longer the law of the land. In Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed. 2d 401 (1972), the United States Supreme Court first cast doubt on the analysis by holding that testimony about even suggestive pre-trial identification procedures was admissible if, considering the totality of the circumstances, the identification procedure was reliable. It thus moved the focus of the inquiry away from the pre-trial procedures used and toward the totality of the circumstances surrounding the actual crime. If identification was reliable, it was admissible despite the suggestiveness of out-of-court procedures.\nThe Court set out five indicia of reliability: (1) the opportunity of the witness to view the criminal, (2) the witness\u2019s degree of attentiveness, (3) the accuracy of the witness\u2019s principal description, (4) the level of certainty at confrontation, and (5) the length of time between the crime and the confrontation. In Neil v. Biggers, however, the Supreme Court observed that the challenged procedure had occurred before the facts involved in Denno v. Stovall, supra. The implication was that the Denno v. Stovall per se rule still controlled cases arising after the Supreme Court handed down that earlier decision.\nManson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed. 2d 140 (1977) negated the implication and removed any doubt whether to apply the per se standard or the totality of circumstances standard. In Manson v. Brathwaite, the Supreme Court conclusively held that due process did not compel exclusion of pre-trial identification evidence obtained by suggestive and unnecessary police identification procedures so long as, under the totality of circumstances, the identification was reliable.\nThere, the defendant in a drug case claimed that a one-photograph \u201clineup\u201d was impermissibly suggestive. Explicitly applying the totality of circumstances analysis, the Supreme Court held that the five reliability factors had all been met adequately and the suggestive pre-trial identification procedure was admissible.\nThus, after Manson v. Brathwaite, supra, \u201c[i]t is the strong probability of misidentification which violates a defendant\u2019s right to due process. Unnecessarily suggestive circumstances alone do not require the exclusion of identification evidence.\u201d State v. Nelson and Jolly, 298 N.C. 573, 601, 260 S.E. 2d 629, 649 (1979). See also, State v. Green, 296 N.C. 183, 250 S.E. 2d 197 (1978).\nLike the defendant in Manson v. Brathwaite, defendant here cannot successfully protest the in-court identification of him in this case. There is sufficient evidence of the reliability of the victim\u2019s in-court identification here to withstand any attempt by defendant to show that any alleged impermissible pre-trial procedure raised the strong likelihood of misidentification.\nViewing the totality of the circumstances here, it is unmistakable that:\n(1) The witness Plummer had ample opportunity to view the robber in a well-lighted store at 8:30 a.m. on a sunny summer morning.\n(2) The witness had attentively viewed the robber both before and during the robbery and had in fact had the foresight to visually measure the robber\u2019s height against items in the store.\n(3) The witness\u2019s description, while not ideal nor particularly detailed, did include the essential identifying characteristics of height, slender build and some degree of facial hair. Furthermore, the photographs this witness initially picked out resembled the defendant in facial shape, hair style and bone structure. While this is admittedly the least sure of the several factors, considered along with others, it is an indication of the reliability of this witness\u2019 identification.\n(4) The witness unhesitatingly and with certainty identified the defendant once he confronted the defendant in person. There was nothing impermissibly suggestive in the unarranged pre-trial courtroom procedure. See State v. Long, 293 N.C. 286, 237 S.E. 2d 728 (1977).\n(6) There were only four months between the crime and the confrontation with the defendant.\nGiven these factors, we do not believe that the out-of-court procedures used here resulted in an unrealiable in-court identification. Neil v. Biggers, supra. Short of that, it is for a jury to determine the credibility of this witness\u2019s identification of the defendant. Manson v. Brathwaite, supra. We find nothing prejudicial in the identification procedures used and this assignment of error is overruled.\nII.\nDefendant next contends that the trial judge twice unfairly interjected his opinion into the defendant\u2019s trial by interposing and sustaining an objection and by questioning the defendant about an irrelevant matter. Both of these actions, he contends, were in violation of G.S. 15A-1222.\nG.S. 15A-1222 provides, \u201cThe judge may not express during any stage of the trial any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d\nDefendant argues that the judge made such an impermissible opinion statement during the following exchange which occurred while defense counsel cross-examined the victim Plummer about his previous misidentification of the robber:\nQ. And I believe that you have testified that at the time that you picked that photograph out on July 17, 1978 you were 99\u00b0/o sure that . . .\nCOURT: Objection is sustained, he did not say 99%, if you are going to quote him, quote him correctly.\nMR. WILLIAMS: Thank you, Your Honor.\nQ. Do you recall what statement you made to police officers as to your certainty concerning the individual you had picked out?\nA. Right. Well, I believe at the time I did say something like 99%, but I was reasonably certain that it was him.\nWe fail to see how the quoted proceeding constituted an opinion by the court in violation of G.S. 15A-1222. It does appear from the record that the trial court misunderstood or misremembered previous testimony. The witness had testified that he was 99% sure of the particular photograph. However, this misapprehension was corrected by the witness without prompting from defense counsel. We do not believe the trial judge\u2019s mistake here amounted to prejudicial error.\nDefendant secondly argues that the trial court\u2019s questioning of him as to the location of the George Washington Bridge in New York City amounted to an opinion casting doubt on his credibility. While it is true that a judge is not allowed to question a witness\u2019s credibility, State v. Kirby, 273 N.C. 306, 160 S.E. 2d 24 (1968), it is also true that it is proper and occasionally necessary for a trial court to examine a witness. State v. Colson, 274 N.C. 295, 163 S.E. 2d 376 (1968), cert. denied, 393 U.S. 1087, 89 S.Ct. 876, 21 L.Ed. 2d 780 (1969). Here the defendant testified during cross-examination that while on a trip to Philadelphia, he fell asleep in a car driven by a man named Charles Butler and was awakened 25 or 30 miles outside of New York City on the George Washington Bridge. The judge broke in to ask, \u201cDoesn\u2019t the George Washington Bridge go right out on Riverside Avenue in New York, in New York City?\u201d The defendant answered, \u201cNo. That\u2019s as far as I know. My understanding is in the outside of New York in New Jersey, so I figured it\u2019s twenty-five miles, thirty miles away from New York.\u201d Again, in this colloquy, we see nothing prejudicial. Apparently the judge and defendant did not have a common understanding of the location of the George Washington Bridge. The defendant adequately explained his answer. Furthermore, the understanding of the location of the bridge was not of any importance in this case. Thus, we find no prejudicial error in this assignment of error.\nIII.\nDefendant thirdly argues that in admitting testimony about another alleged suspect in this case, the trial court committed prejudicial error.\nThe record reveals that immediately after the robbery, the victim Plummer observed a man he knew as Charles Butler lurking in the area. Butler was accosted and questioned on the street by police at the time but was never arrested. The defendant was subsequently stopped by police in the company of this same Charles Butler while crossing the George Washington Bridge in New York. Defendant contends that the evidence linking Butler to the scene of the crime and to friendship with defendant was irrelevant and prejudicial.\nThe standard of admissibility of evidence based on relevancy and materiality is so elastic and the variety of possible fact situations so numerous that an exact rule of admissibility is impossible to precisely formulate. 1 Stansbury\u2019s North Carolina Evidence \u00a7 78 (Brandis rev. ed. 1973) citing Bell v. Walker & Herrington, 48 N.C. 320 (1856). See also State v. Perry, 298 N.C. 502, 259 S.E. 2d 496 (1979). Generally, however, no fact or circumstance in any way connected with the matter in issue or from which any inference of the disputed fact can reasonably be drawn ought to be excluded from the jury. Abbitt v. Bartlett, 252 N.C. 40, 112 S.E. 2d 751 (1960). Evidence of Charles Butler\u2019s presence near the scene of the crime is thus relevant to explain details and events surrounding that occurrence particularly since the eyewitness Plummer testified the robber resembled Butler but was not Butler. Cf. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976) (in criminal cases, \u201c[e]very circumstance that is calculated to throw any light upon the supposed crime is admissible;\u201d the weight of such evidence is for the jury). Accord, State v. Swift, 290 N.C. 383, 226 S.E. 2d 652 (1976); State v. Sneeden, 274 N.C. 498, 164 S.E. 2d 190 (1968).\nEvidence of defendant\u2019s presence with Butler later in New York City, however, is not so \u201cconnected with the matter in issue,\u201d as to be necessarily relevant. Ordinarily the admission of irrelevant evidence is considered harmless error. State v. Shaw, 284 N.C. 366, 200 S.E. 2d 585 (1973); Deming v. Gainey, 95 N.C. 528 (1886); 1 Stansbury\u2019s North Carolina Evidence \u00a7\u00a7 77, 80 (Bran-dis rev. ed. 1973). Here defendant argues that because of the weakness of the State\u2019s case against him, this evidence must have substantially contributed to defendant\u2019s conviction. Defendant apparently forgets, however, that earlier in his testimony, he had admitted knowing Charles Butler as the brother-in-law of defendant\u2019s girl friend. Thus the connection between Butler and defendant was already established before this testimony was admitted. Defendant also apparently forgets that the State\u2019s case in main depended upon the identification of the eyewitness Plummer. In view of these facts, we do not find there is a reasonable possibility that the evidence complained of might have contributed to defendant\u2019s conviction. State v. Thacker, 281 N.C. 447, 189 S.E. 2d 145 (1972). Accordingly, we overrule this assignment of error.\nIV.\nDefendant fourthly asserts that the trial court erred in denying defendant\u2019s motion for a mistrial. During direct examination of the State\u2019s witness Nash, a police officer, the officer made reference to defendant\u2019s arrest on the George Washington Bridge. Defendant argues that evidence that he had been arrested placed his good character in issue and forced him to take the stand in his own behalf, rendering it impossible for him to receive a fair trial. Defense counsel objected and moved to strike, which objection was properly sustained. The judge instructed the jury to disregard the testimony. Thereupon defense counsel moved for a mistrial.\nRuling on a motion for mistrial in a criminal case less than capital rests largely in the discretion of the trial court. State v. Battle, 267 N.C. 513, 148 S.E. 2d 599 (1966). However, this discretionary power is not unlimited; a motion for mistrial must be granted if there occurs an incident of such a nature that it would render a fair and impartial trial impossible under the law. State v. Crocker, 239 N.C. 446, 80 S.E. 2d 243 (1954). We see the occurrence of no such incident here.\nWhen a jury is instructed to disregard improperly admitted testimony, the presumption is that it will disregard the testimony. Lacking other proof \u2014 of which there is none here \u2014 a jury is presumed to be rational. There is nothing in this record which leads us to believe the jury would have considered the stricken testimony and defendant\u2019s motion for mistrial was properly denied.\nV.\nDefendant next contends that the trial court erred in denying his request that a State\u2019s rebuttal witness be required to produce further evidence. This ignores well-settled law. It is clearly within the discretion of a trial judge to reopen a case to admit additional evidence. State v. Shutt, 279 N.C. 689, 185 S.E. 2d 206 (1971), cert. denied, 406 U.S. 928, 92 S.Ct. 1805, 32 L.Ed. 2d 130 (1972). There is nothing in this case to indicate an abuse of that discretion. Apparently the only thing this further evidence would have shown was that the O\u2019Jays concert \u2014 defendant\u2019s rebutted alibi \u2014 had taken place in Cumberland County some two weeks after the armed robbery. We do not believe this information would have been helpful in reestablishing defendant\u2019s alibi.\nWe have carefully considered all further errors assigned by defendant and have reviewed the entire record before us. We are convinced that defendant had a fair trial, free from prejudicial error.\nNo error.", "type": "majority", "author": "CARLTON, Justice." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Alan S. Hirsh and Special Deputy Attorney General John R. B. Matthis, for State appellee.", "John G. Britt, Jr., and Fred J. Williams, Assistant Public Defenders, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HAROLD DANIEL McCRAW\nNo. 47\n(Filed 15 July 1980)\n1. Criminal Law \u00a7 66.16\u2014 pretrial photographic identification procedure \u2014 confrontation in courtroom \u2014 totality of circumstances \u2014reliability of in-court identification\nA robbery victim\u2019s in-court identification of defendant as the robber was not tainted by out-of-court identification procedures, including the victim\u2019s misidentification of another person as the robber from mug books, the victim\u2019s statement that he was only 80% sure when he picked defendant\u2019s photograph from a photographic lineup, and his viewing of defendant in a courtroom through no arrangement of law officers, since, viewing the totality of circumstances, there was sufficient evidence of the reliability of the victim\u2019s in-court identification where the evidence tended to show that the victim had ample opportunity to view the robber in a well lighted store at 8:30 a.m. on a sunny summer morning; the victim attentively viewed the robber both before and during the robbery and had in fact visually measured the robber\u2019s height against items in the store; the victim\u2019s description included the essential identifying characteristics of height, slender build and some degree of facial hair; the photographs which the victim originally picked out resembled defendant in facial shape, hair style and bone structure; the victim unhesitatingly and with certainty identified defendant once he confronted him in person; and there were only four months between the crime and the confrontation with defendant.\n2. Criminal Law \u00a7 99.3\u2014 court\u2019s questions concerning evidence \u2014 no expression of opinion\nThe trial court did not improperly express an opinion to defendant\u2019s prejudice (1) where the court either misunderstood or incorrectly remembered earlier testimony and on that basis improperly corrected defense counsel while he was cross-examining the robbery victim, since the witness corrected the misapprehension without prompting from defense counsel, and (2) where the court questioned defendant concerning the location of the George Washington bridge in N.Y., since the question did not challenge defendant\u2019s credibility, defendant adequately explained his testimony, and the judge\u2019s and defendant\u2019s understanding of the location of the bridge was not of any importance in the case.\n3. Robbery \u00a7 3\u2014 evidence concerning another alleged suspect \u2014 evidence admissible\nIn a prosecution for robbery with a dangerous weapon, defendant was not prejudiced by testimony concerning another alleged suspect in the case since evidence of the suspect\u2019s presence near the scene of the crime was relevant to explain details and events surrounding that occurrence, particularly since an eyewitness testified that the robber resembled the suspect but was not the suspect, and evidence that defendant was subsequently found in the suspect\u2019s presence in N.Y. was not prejudicial in light of earlier evidence which established the connection between defendant and the suspect.\n4. Criminal Law \u00a7 96\u2014 evidence withdrawn from jury\u2019s consideration \u2014 defendant not entitled to mistrial\nDefendant was not entitled to a mistrial where a witness made reference to defendant\u2019s arrest in N.Y., defendant objected and moved to strike, and the judge instructed the jury to disregard the testimony, since there was nothing in the record to suggest' that the jury would have considered the stricken testimony.\nDEFENDANT appeals from sentence imposed by Bailey, James H. Pou, Judge, at the 20 August 1979 Criminal Session of Superior Court, CUMBERLAND County.\nDefendant was charged in an indictment, proper in form, with the crime of robbery with a dangerous weapon, a violation of G.S. 14-87. He entered a plea of not guilty.\nPrior to trial, defendant made a motion to suppress the victim\u2019s identification of him. After a voir dire hearing, at which.the State presented two witnesses, the judge made findings of fact and conclusions of law and denied the motion.\nAt trial, State\u2019s evidence tended to show that on Saturday, 15 July 1978, at approximately 8:15 a.m., Donald Steven Plummer, then aged 32, was working in his father\u2019s convenience store in Fayetteville. A lone customer came into the store, walked to the back, picked up a carton of milk, then proceeded to the counter and robbed Mr. Plummer of some $430.00 at gunpoint. Mr. Plum-mer identified the defendant in court as the man who had robbed him and testified as to the pre-trial identification procedures in which he had participated.\nThe State also presented the corroborating testimony of several Fayetteville police officers.\nDefendant presented his own testimony and that of two friends. His testimony tended to show that he was a sergeant in the Army receiving a take home pay of some $600.00 per month. He also testified that at the time of the robbery on 15 July 1978, he was sleeping late at a friend\u2019s house after attending an O\u2019Jays concert in the Cumberland County Arena the night before. The testimony of his two friends corroborated this alibi.\nThe State rebutted the defendant\u2019s alibi with the testimony of the assistant manager of the Cumberland County Arena. The assistant manager testified that on 14 July 1978, the O\u2019Jays had not played at the Cumberland County Arena.\nThe jury returned a verdict of guilty of robbery with a dangerous weapon. Defendant was sentenced to a term of 16 years to life.\nOther pertinent facts will be discussed in the body of this opinion.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Alan S. Hirsh and Special Deputy Attorney General John R. B. Matthis, for State appellee.\nJohn G. Britt, Jr., and Fred J. Williams, Assistant Public Defenders, for defendant appellant." }, "file_name": "0610-01", "first_page_order": 642, "last_page_order": 652 }