{ "id": 8563873, "name": "STATE OF NORTH CAROLINA v. TIMOTHY RAY TANN", "name_abbreviation": "State v. Tann", "decision_date": "1981-01-27", "docket_number": "No. 141", "first_page": "89", "last_page": "100", "citations": [ { "type": "official", "cite": "302 N.C. 89" } ], "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": "182 S.E.2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 307", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566862 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0307-01" ] }, { "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": "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": "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": "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": "87 S.Ct. 860", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "17 L.Ed.2d 784", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "386 U.S. 911", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6194816, 6194625, 6195241, 6194352, 6195000, 6194137 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/386/0911-04", "/us/386/0911-03", "/us/386/0911-06", "/us/386/0911-02", "/us/386/0911-05", "/us/386/0911-01" ] }, { "cite": "150 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "8" } ], "opinion_index": 0 }, { "cite": "268 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560152 ], "year": 1966, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0069-01" ] }, { "cite": "91 S.Ct. 85", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "27 L.Ed.2d 78", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "400 U.S. 842", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12076961, 12076611, 12077253, 12076326, 12076684, 12077168, 12076752, 12076818, 12076464, 12076886, 12076407, 12076538, 12077053 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0842-10", "/us/400/0842-05", "/us/400/0842-13", "/us/400/0842-01", "/us/400/0842-06", "/us/400/0842-12", "/us/400/0842-07", "/us/400/0842-08", "/us/400/0842-03", "/us/400/0842-09", "/us/400/0842-02", "/us/400/0842-04", "/us/400/0842-11" ] }, { "cite": "172 S.E.2d 507", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 391", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561509 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0391-01" ] }, { "cite": "172 S.E.2d 50", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561802 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0482-01" ] }, { "cite": "90 S.Ct. 599", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "24 L. Ed. 2d 518", "category": "reporters:federal", "reporter": "L. Ed. 2d", "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": "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": "388 U.S. 263", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168184 ], "weight": 4, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0263-01" ] }, { "cite": "388 U.S. 218", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168076 ], "weight": 4, "year": 1967, "opinion_index": 0, "case_paths": [ "/us/388/0218-01" ] }, { "cite": "187 S.E.2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573959 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0121-01" ] }, { "cite": "180 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560801 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0506-01" ] }, { "cite": "167 S.E.2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558536 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0264-01" ] }, { "cite": "96 S.Ct. 3206", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "49 L.Ed.2d 1207", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6182756, 6181252, 6183146, 6182571, 6181805, 6181423, 6182223, 6181585, 6182388, 6182964, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-10", "/us/428/0903-01", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-02", "/us/428/0903-07", "/us/428/0903-03", "/us/428/0903-08", "/us/428/0903-11", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "213 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 118", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561138 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0118-01" ] }, { "cite": "214 S.E.2d 67", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 207", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561346 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0207-01" ] }, { "cite": "407 U.S. 514", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9139028 ], "weight": 5, "year": 1972, "opinion_index": 0, "case_paths": [ "/us/407/0514-01" ] } ], "analysis": { "cardinality": 960, "char_count": 27163, "ocr_confidence": 0.776, "pagerank": { "raw": 1.7106803484231074e-07, "percentile": 0.7023577436367912 }, "sha256": "a011798cb29261e291406c579c8a3efed2c6e545f91b3d44105a03dd264589b7", "simhash": "1:a566b4249b6c3d8a", "word_count": 4640 }, "last_updated": "2023-07-14T17:25:15.704346+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice Meyer took no part in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. TIMOTHY RAY TANN" ], "opinions": [ { "text": "HUSKINS, Justice.\nDefendant moved to dismiss the charges against him on the ground that his constitutional right to a speedy trial had been denied. Denial of the motion constitutes his first assignment of error.\nDefendant filed no affidavits or other evidentiary matter to support the conclusory assertions contained in his motion to dismiss. An examination of the record reveals the following chronology of events:\n1. The crime was committed and defendant was arrested on 2 September 1979.\n2. A probable cause hearing was set for 20 September 1979, but on that date defendant, through counsel, moved for a mental examination to determine his competency to proceed. In consequence thereof, the probable cause hearing was not held, and defendant was sent to Dorothea Dix Hospital for a mental examination.\n3. The mental examination was completed on 5 October 1979. Defendant was found competent to proceed, and the psychiatric report to that effect was filed with the court on 10 October 1979.\n4. On 18 October 1979, Quentin T. Sumner, defendant\u2019s original counsel, was allowed to withdraw due to irreconcilable differences between him and defendant. Attorney William A. Pully was thereupon appointed to represent defendant.\n5. On 13 December 1979, a probable cause hearing calendared for that date was continued on motion of the State to 17 December 1979 due to the absence of an officer. Defendant\u2019s motion to dismiss at the close of the hearing was denied.\n6. On 17 December 1979, a probable cause hearing was conducted, and defendant was bound over to superior court for trial.\n7. On 7 January 1980, defendant\u2019s counsel, William A. Pully, moved for the appointment of an additional lawyer to assist him. The motion was allowed on 11 January 1980, and H. Vinson Bridgers was appointed as additional counsel.\n8. On 11 January 1980, defendant moved to dismiss on the ground that his constitutional right to a speedy trial had been denied.\n9. On 14 January 1980, the Grand Jury returned a true bill of indictment against defendant.\n10. On 15 January 1980, defendant appeared for arraignment and entered a plea of not guilty. His motion to dismiss for want of a speedy trial was denied and the case was calendared for trial on 19 February 1980 but not reached at the February session of superior court.\n11. On 7 April 1980, defendant was tried, convicted and sentenced.\n12. On 9 April 1980, defendant filed his second motion to dismiss for failure to grant a speedy trial. He asserts in that motion, with no evidence to support it, that his probable cause hearing was calendared no less than four times in district court and continued three times by the State; that the case against him had been calendared three times in superior court before it was finally brought to trial on 7 April 1980. The record shows none of these things, but we shall assume arguendo that they are true.\n13. On 16 April 1980, defendant\u2019s motion to dismiss because he was denied a speedy trial was denied by the court, and defendant excepted.\nOn the basis of the record before us, we think defendant\u2019s motion to dismiss on speedy trial grounds was properly denied.\nInterrelated factors to be considered in determining whether an accused has been denied his constitutional right to a speedy trial are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant\u2019s assertion of his right to a speedy trial; and (4) prejudice to defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972); State v. Hill, 287 N.C. 207, 214 S.E.2d 67 (1975); State v. Gordon, 287 N.C. 118, 213 S.E.2d 708 (1975), death sentence vacated, 428 U.S. 903, 49 L.Ed.2d 1207, 96 S.Ct. 3206 (1976); State v. Johnson, 275 N.C. 264, 167 S.E.2d 274 (1969).\nWhether an accused has been denied a speedy trial must be answered in light of the facts in each particular case. The instant case involves a delay of less than eight months from time of defendant\u2019s arrest to commencement of his trial. The length of the delay is not per se determinative, and there is no showing that the delay was purposeful or oppressive or by reasonable effort could have been avoided by the State. Inherent in every criminal prosecution is the probability of some delay, State v. Johnson, supra, and for that reason the right to a speedy trial is necessarily relative. State v. Neas, 278 N.C. 506, 180 S.E.2d 12 (1971). Delays in violation of the constitutional right to a speedy trial are those undue delays which are arbitrary and oppressive or the result of deliberate prosecution efforts \u201cto hamper the defense.\u201d Barker v. Wingo, supra; State v. Spencer, 281 N.C. 121, 187 S.E.2d 779 (1972).\nThe burden is on an accused who asserts denial of his constitutional right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution. State v. Hill, supra; State v. Gordon, supra; State v. Johnson, supra. In the case before us, defendant has failed to carry the burden. To the contrary, the record indicates that a portion of the delay in the prosecution of this case was due to defendant\u2019s motion for a mental examination to determine his competency to proceed. Further delay was occasioned when his counsel withdrew due to irreconcilable differences between counsel and defendant. A short delay on another occasion was caused by the inability of an officer to be present. Finally, the case was calendared one or more times for trial but not reached, apparently due to the length of the calendar. All such reasons have been recognized consistently as valid justification for delay. See Barker v. Wingo, supra; State v. Hill, supra; State v. Gordon, supra. We therefore conclude that the length of the delay was not unreasonable. He has shown no prejudice resulting from the delay of which he now complains. Defendant\u2019s first assignment of error is overruled.\nDefendant moved to suppress his in-court identification by Mrs. Brooks because (1) it was based on an illegal pretrial one-man lineup and (2) the one-man lineup was conducted at a time when defendant was without counsel and had not knowingly and intelligently waived his right to counsel. Defendant argues he was thus identified at the home of Mrs. Brooks in the absence of counsel and under suggestive circumstances amounting to a denial of due process which renders the evidence incompetent. The motion to suppress was denied and this constitutes his next assignment of error.\nAn in-custody confrontation for identification purposes requires that: (1) the accused be warned of his constitutional right to the presence of counsel during the confrontation; (2) when counsel is not knowingly waived and is not present, the testimony of witnesses that they identified the accused at the confrontation must be excluded, and (3) the in-court identification of the accused by a witness who participated in the pretrial out-of-court confrontation must likewise be excluded unless it is first determined on voir dire that the in-court identification is of independent origin and thus not tainted by the illegal pretrial identification procedure. Failure to observe these requirements is a denial of due process. United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926(1967); Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (1967); State v. Smith, 278 N.C. 476, 180 S.E.2d 7 (1971); State v. Rogers, 275 N.C. 411, 168 S.E.2d 345 (1969), cert. den., 396 U.S. 1024, 24 L. Ed. 2d 518, 90 S.Ct. 599 (1970).\nFurthermore, it is established law that lineup and confrontation procedures so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification violate due process and are constitutionally unacceptable. State v. McPherson, 276 N.C. 482, 172 S.E.2d 50 (1970); State v. Austin, 276 N.C. 391, 172 S.E.2d 507, cert. denied, 400 U.S. 842, 27 L.Ed.2d 78, 91 S.Ct. 85 (1970).\nThe trial judge conducted a voir dire on defendant\u2019s motion to suppress. The State examined Mrs. Brooks and Officer Jack Parks. Mrs. Brooks testified in pertinent part that when she awoke on the night in question the man was standing over her with his cold hand on her naked thigh; that she could not see his face at that time; that he whirled around and left through the window; that she watched him crawl on his knees to the corner of her house where he stood up and then ran; that she was able to see his face when he stood up because there was a street light located in the back yard; that the person who stood up at the corner of her house was Rayboy; that she had no doubt about her identification of the man as Rayboy; that she recognized him and told Officer Parks later that night it was Ray-boy; that when the officers later brought defendant back to her home that night it was the same person she knew and recognized as Rayboy; that he was wearing real light clothing and had a bush or Afro hairdo; that when the officers brought defendant to her house within less than an hour after the burglary, defendant was dressed the same way and was the same individual she had seen standing at the corner of her house earlier.\nOfficer Jack Parks testified voir dire that he arrived at the Brooks home at approximately 2:52 a.m. on the night of 2 September 1979; that Mrs. Brooks advised him a black man had entered her bedroom window and when she awakened he was standing over her with her nightgown around her waist and one of his hands on her thigh; that the black man was dressed in light colored clothing, limped, and was called Rayboy; that she stated she knew it was Rayboy because she had seen him in the neighborhood; that he knew defendant Timothy Tann was known as Rayboy; that he thereupon went to the home of defendant\u2019s mother who admitted him; that defendant was lying on the couch fully clothed except for his shoes and agreed voluntarily to accompany the officers to the Brooks residence after they told him they were investigating a burglary; that Mrs. Brooks was in her bedroom when they brought defendant into the house and took him into the bedroom; that after she looked at Timothy Tann, they took him into the living room and at that point Mrs. Brooks indicated that he was Rayboy. Officer Parks further testified that defendant was dressed in a light colored shirt and off-white pants and that the pants were wet below the knees with grass stains on the knees. Officer Parks said defendant had not been arrested and was not in custody at the time and consequently had not been warned of his constitutional rights.\nDefendant offered no evidence on voir dire.\nThe trial court made findings of fact substantially in accord with the testimony of the State\u2019s witnesses. They include the following pertinent findings:\n5. The area of the yard of said dwelling house is lit by a street light located behind the house and a street light located in front of the house.\n6. Annie Pearl Brooks observed the person standing by the corner of her house to have been wearing a pea green light colored shirt, light colored pants and an Afro hairdo and that the person was a person known to her as \u201cRay-boy.\u201d\n7. The Rocky Mount police . . . within one hour . . . picked up Timothy Ray Tann and brought him to the home of the witness Annie Pearl Brooks.\n8. Upon leaving Mrs. Brooks\u2019 house after getting the description Officer Parks went to the home of a person he knew as \u201cRayboy,\u201d also known as Timothy Ray Tann, and found the defendant lying upon a couch with light colored pants wet below the knees, and with grass stains on the knees, a light colored shirt and no shoes.\n10. Timothy Ray Tann agreed to accompany the police and was not formally placed under arrest.\n12. Timothy Ray Tann was thereupon taken into the residence and into the bedroom of the witness Brooks and the witness Brooks was given an opportunity to observe Timothy Ray Tann with the light off.\n13. The witness, Annie Pearl Brooks identified Timothy Ray Tann as being the person in her house earlier.\n14. Subsequent to the said identification Timothy Ray Tann was placed under arrest.\nBased on the findings of fact, the trial judge concluded as a matter of law: (1) that Timothy Ray Tann was not under arrest or in any way detained by the police against his will when he was taken to the Brooks residence; (2) that defendant voluntarily accompanied Officer Parks to the Brooks residence; (3) that the officers were conducting an on-the-scene investigation at the time Timothy Ray Tann was taken to the Brooks residence to determine whether the \u201cRayboy\u201d described by Mrs. Brooks was in fact Timothy Ray Tann, a person known by Officer Parks to be called \u201cRayboy\u201d; (4) that the one-man show-up was conducted by Officer Parks during his investigation and was not so unnecessarily suggestive as to be conducive to an irreparable mistaken identification of defendant or in a manner which violated defendant\u2019s constitutional rights; (5) that defendant\u2019s right to counsel had not yet attached because defendant had not been placed under arrest; (6) that defendant\u2019s in-court identification by Mrs. Brooks is based upon her observation of him at the time or shortly after the alleged offense when the person she knew as \u201cRayboy\u201d crawled to and stood up at the corner of her house; and (7) the in-court identification of defendant and evidence of his identification at the show-up are admissible into evidence.\nThere is plenary competent evidence in the record to support the findings of the trial judge. Such findings are conclusive when supported by competent evidence and no reviewing court \u201cmay properly set aside or modify those findings if so supported by competent evidence in the record.\u201d State v. Gray, 268 N.C. 69, 79, 150 S.E.2d 1, 8 (1966), cert. den., 386 U.S. 911, 17 L.Ed.2d 784, 87 S.Ct. 860 (1967).\nSince defendant was not in custody, the rules gleaned from United States v. Wade, supra, and Gilbert v. California, supra, governing in-custody confrontations for identification purposes do not apply in this case. Nevertheless, if it is conceded arguendo that defendant was in custody, no denial of due process has been shown and the evidence defendant moved to suppress was properly admitted.\nIt is quite evident that the in-court identification of defendant by Mrs. Brooks was independent in origin, stemming from her recognition of him when he stood up at the corner of her home immediately after the burglary, and was not influenced by the show-up. Mrs. Brooks knew the intruder as \u201cRayboy.\u201d The officers merely supplied Timothy Ray Tann while Mrs. Brooks independently identified the man bearing that name as the man she knew as \u201cRayboy.\u201d There is ample evidence to support the finding that the in-court identification was independent in origin. She knew the man long before the officers produced him. In all events, admission of evidence concerning the one-man show-up was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed. 2d 705, 87 S.Ct. 824 (1967); Gilbert v. California, supra; State v. Taylor, 280 N.C. 273, 185 S.E.2d 677 (1972). Unless there is a reasonable possibility that the evidence complained of might have contributed to the conviction, its admission is harmless. Fahy v. Connecticut, 375 U.S. 85, 11 L.Ed.2d 171, 84 S.Ct. 229 (1963). We see no reasonable possibility that the one-man show-up here could have led to a mistaken identification or contributed to defendant\u2019s conviction. After all, the victim had recognized defendant and told the officers that Rayboy was the culprit. This assignment of error has no merit and is overruled.\nAfter Mrs. Brooks had informed the officers that defendant was the burglar in her bedroom on the night in question, Officer Parks took defendant to the police station and advised him of his Miranda rights. Following the reading of defendant\u2019s constitutional rights, defendant said he understood them and stated he would sign a waiver, which he did..Defendant was then interrogated for about five minutes at the police station and, in response to questions, stated that on the night in question he had been to a cousin\u2019s house located on Goldleaf Street and thereafter had gone to a place known as \u201cBrown\u2019s.\u201d Questioning by the officers then ceased and defendant was taken by automobile to a magistrate\u2019s office located some distance from the police station and was not further questioned by the officers. After a warrant was issued by the magistrate and served on defendant, he was taken by car back to the police station. No questions were put to him in the automobile during the trip from the magistrate\u2019s office to the police station. During the course of the trip, however, defendant volunteered the following statement: \u201cMan, you can\u2019t do this to me. That lady don\u2019t know what time I broke into her house.\u201d\nDuring the course of the trial defendant moved to suppress the officer\u2019s testimony regarding the quoted statement by defendant. The jury was excused and the trial judge conducted a voir dire during which Officer Parks testified as a witness for the prosecution. Defendant offered no evidence on voir dire. At its conclusion, the trial judge made findings of fact substantially in accord with the foregoing narration. The court concluded that defendant\u2019s statement was volunteered after he had been warned of his constitutional rights, including the right to counsel, and had freely and understandingly waived the same. The incriminating statement was thereupon admitted into evidence over defendant\u2019s objection. This constitutes his next assignment of error.\nIt is settled law that where, as here, the tindings of the trial judge are supported by competent evidence, they are binding and conclusive on appellate courts in this jurisdiction. State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Harris, 279 N.C. 307, 182 S.E.2d 364 (1971); State v. Gray, supra. The challenged evidence was competent and therefore properly admitted. Seemingly, it has very little probative value but its weight is for the jury and does not affect its admissibility.\nEvidence of defendant\u2019s guilt is strong. Various circumstances, including grass stains on the knees of his pants and his positive identification by Mrs. Brooks who knew him before the crime was committed, plus the fact that he was apprehended within thirty minutes, point unerringly to defendant as the burglar. In any event, the jury believed the State\u2019s evidence. Defendant has failed to show prejudicial error in his trial. The verdict and judgment must therefore be upheld.\nNo error.\nJustice Meyer took no part in the consideration or decision of this case.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Fred R. Gamin, Associate Attorney, for the State.", "William A Pully, Attorney for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY RAY TANN\nNo. 141\n(Filed 27 January 1981)\n1. Constitutional Law \u00a7 50\u2014 speedy trial \u2014 factors considered\nInterrelated factors to be considered in determining whether an accused has been denied his constitutional right to a speedy trial are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant\u2019s assertion of his right to a speedy trial; and (4) prejudice to defendant resulting from the delay.\n2. Constitutional Law \u00a7 52\u2014 speedy trial \u2014 requirement that delay be arbitrary and oppressive\nDelays in violation of the constitutiohal right to a speedy trial are those undue delays which are arbitrary and oppressive or the result of deliberate prosecution efforts \u201cto hamper the defense.\u201d\n3. Constitutional Law \u00a7 52\u2014 speedy trial \u2014 burden of proof\nThe burden is on an accused who asserts denial of his constitutional right to a speedy trial to show that the delay was due to the neglect or willfulness of the prosecution.\n4. Constitutional Law \u00a7 51\u2014 eight month delay between arrest and trial \u2014 no denial of speedy trial\nA defendant charged with first degree burglary was not denied his constitutional right to a speedy trial by the delay of less than eight months from the time of his arrest to commencement of his trial where the record shows that a portion of the delay was due to defendant\u2019s motion for a mental examination to determine his competency to proceed; further delay was occasioned when defendant\u2019s counsel withdrew due to irreconcilable differences between counsel and defendant; a short delay on another occasion was caused by the inability of an officer to be present; and the case was calendared one or more times for trial but not reached due to the length of the calendar.\n5. Criminal Law \u00a7\u00a7 66.5, 66.10, 66.15\u2014 pretrial showup identification \u2014 absence of counsel \u2014 no likelihood of irreparable misidentification \u2014 in-\ncourt identification \u2014 independent origin\nThe trial court properly admitted a burglary victim\u2019s in-court identification of defendant and evidence of the victim\u2019s identification of defendant in a one-man showup conducted at the victim\u2019s home within an hour after the crime and at a time when defendant was without counsel and had not waived counsel where the evidence on voir dire tended to show that when the victim awoke on the night in question a man was standing over her with his hand on her thigh; the man left through a window and .the victim watched him crawl on his knees to the corner of her house where he stood up and then left; the victim was able to see the man\u2019s face when he stood up because there was a street light located in the back yard; the victim recognized the man as a person known to her as \u201cRayboy\u201d; the victim told officers the man was wearing a light colored shirt and light colored pants and had an Afro hairdo; officers knew that defendant was known as \u201cRayboy\u201d; officers then went to defendant\u2019s home and found him lying on a couch wearing a light colored shirt and light colored pants which were wet below the knees and had grass stains on the knees; defendantagreed voluntarily to accompany the officers to the victim\u2019s residence where he was identified by the victim; and defendant had not been arrested and was not in custody at the time he was identified at the victim\u2019s home, since (1) defendant was not entitled to counsel at the one-man showup because he was not in custody, (2) there is no reasonable possibility that the one-man showup could have led to a mistaken identification or contributed to defendant\u2019s conviction, and (3) the in-court identification of defendant by the victim was independent in origin and was not influenced by the showup.\n6. Criminal Law \u00a7 75.9\u2014 volunteered in-custody statements\nIn-custody statements volunteered by defendant after he had waived his constitutional rights and while he was being taken by automobile from the magistrate\u2019s office to the police station, \u201cMan, you can\u2019t do this to me. That lady don\u2019t know what time I broke into her house,\u201d were properly admitted in defendant\u2019s trial for first degree burglary.\nJustice Meyer took no part in the consideration or decision of this case.\nDEPENDANT appeals from judgment of Bruce, J., 7 April 1980 Criminal Session, EDGECOMBE Superior Court.\nDefendant was tried and convicted upon a bill of indictment charging him with first degree burglary on the night of 2 September 1979, when he allegedly broke into and entered the occupied dwelling of Annie Brooks located at 1508 Springbrook Drive in Rocky Mount, N.C., with intent to commit rape.\nThe State offered evidence tending to show that on the night in question Annie Brooks was awakened at approximately 2 a.m. by a man standing over her bed with his hand on her thigh. She yelled \u201cWho are you!\u201d and the man \u201cturned around fast and went out the bedroom window.\u201d The window had been left open that night due to hot weather, but the screen was intact when Mrs. Brooks went to bed. It was later discovered that the screen had been torn or cut. Mrs. Brooks rushed to the window and saw the intruder fall on the wet grass. He crawled about twenty feet to the corner of the house and stood up. In the words of Mrs. Brooks:\nI saw his face. I could see the type of clothes he was wearing. I know who he was. I knew him to be Rayboy. I had seen him before. He lives down the street from me not far from my house. I have been down to the house where he lives. All I knew about him was his name was Rayboy. When he got to the corner of my house, he straightened up and ran around the house. He had to run because he knew I saw him.\nPolice officers v/ere called immediately. When they arrived, Mrs. Brooks told them the intruder was a man she knew as \u201cRay-boy.\u201d She said she had no doubt that it was Rayboy; that he lived in the community and she had seen him on other occasions; that his hair was bushed, and that he was wearing \u201creal light\u201d clothing. Mrs. Brooks had never heard the name \u201cTimothy Ray Tann,\u201d but the officers knew that Timothy Ray Tann was known as \u201cRayboy.\u201d Within less than an hour, they brought the defendant Timothy Ray Tann to the Brooks residence and Mrs. Brooks identified him as the individual who had been in her bedroom.\nOfficer Parks testified that he and Officer Moss immediately went to the home of defendant\u2019s mother and were admitted. They found defendant lying on the couch fully clothed except for his shoes. Defendant willingly accompanied the officers to the Brooks residence at 1508 Springbrook Drive. The officers wanted Mrs. Brooks to see defendant to make sure that \u201cwe were talking about one and the same person.\u201d Defendant was dressed in a light colored shirt and off-white pants. The pants were wet below the knees with grass stains on the knees.\nThe State\u2019s evidence further tends to show that defendant had been living about a year at the home of Catherine Davis, a friend of Mrs. Brooks, the third or fourth house from the Brooks residence on Springbrook Drive. Mrs. Brooks had seen defendant at least twice at the Davis home.\nDefendant testified he was twenty-five years old and had been living in a rented room in the home of Catherine Davis on Spring-brook Drive for about a year. He said he and Mrs. Brooks were friends; that he had seen her at the Catherine Davis house about every weekend; that she asked for liquor and beer on many occasions but he would not give her any; that she used to go with a man named Hiawatha who also lived at the Davis house.\nDefendant gave a detailed account of his whereabouts on 1 September until 11:15 p.m. when he went to his mother\u2019s home, kicked off his shoes and lay down on the couch. He remained there until the officers came sometime during the early morning hours and took him away. He denied that he had been to the home of Mrs. Brooks that night until the officers took him there. His testimony was corroborated by the testimony of his mother that she had asthma and sat up all night in the same room where defendant was lying on the couch. She testified defendant did not leave her home from 11:15 p.m. on the night in question until the officers came and took him away.\nDefendant admitted he had been convicted of manslaughter, felonious breaking and entering twice, and larceny.\nDefendant was convicted of burglary in the first degree and sentenced to life imprisonment. He appeals to this Court assigning errors discussed in the opinion.\nRufus L. Edmisten, Attorney General, by Fred R. Gamin, Associate Attorney, for the State.\nWilliam A Pully, Attorney for defendant appellant." }, "file_name": "0089-01", "first_page_order": 121, "last_page_order": 132 }