Summary
holding that identification not inherently incredible where victim did not see attacker's face, but identified him based on the sound of the attacker's voice, his size, and his shape
Summary of this case from State v. MillerOpinion
No. 8117SC1067
Filed 20 April 1982
1. Robbery 4.3 — use of deadly weapon — sufficiency of evidence The State's evidence was sufficient to show that defendant committed a robbery with a deadly weapon where one victim testified that she saw a weapon in defendant's right hand; the second victim on several occasions referred to the use of "a gun" by defendant; and there was evidence that defendant was seen walking toward the victim's home carrying a rifle.
2. Criminal Law 66.1 — identity of defendant by sight — acquaintance with defendant — opportunity for observation A robbery victim was sufficiently acquainted with defendant and sufficiently observed her assailant to permit her to identify defendant as her assailant based on "the sound of his voice and the size and shape of him."
3. Criminal Law 102.6 — prosecutor's jury argument — comment on defendant's objection to confession In an armed robbery case in which defense counsel argued to the jury that "the State has not introduced any statement or confession of the crime . . .," the district attorney's jury argument that "you don't have the statement to consider, ladies and gentlemen of the jury, because the defendant objected to it" did not constitute a gross impropriety which would require the trial court to intervene ex mero motu.
APPEAL by defendant from Washington, Judge. Judgments entered 7 May 1981 in Superior Court, CASWELL County. Heard in the Court of Appeals 9 March 1982.
Attorney General Edmisten, by Assistant Attorney General Fred R. Gamin, for the State.
Ronald M. Price for defendant appellant.
Judge WHICHARD dissenting.
Defendant appeals his conviction on two counts of armed robbery. At trial the evidence tended to show that on 19 December 1980, between 7:00 and 7:30 p.m., James Sherrill and his wife were at home watching television when they heard a knock at their door. Mr. Sherrill went to the door, and because he did not see anyone immediately, he stepped about a foot outside. At that time, an individual put a gun to his stomach and told him to back into the house and turn off the light. The robber demanded guns and money and left with a small amount of money ($1.45) from Mrs. Sherrill's purse, and Mr. Sherrill's wallet containing only his food stamps.
Neither of the victims saw the robber's face because it was covered with something plastic. Mrs. Sherrill testified that he was wearing "a waist Army jacket that comes down about halfway of your legs" and that a "long thing covered up with a white slip . . . was pointed straight at my husband's stomach." The robber had another weapon in his right hand that "was a sawed-off looking like gun but it was short." After the robber left, Mrs. Sherrill told her husband that she believed the robber was the defendant, Freddy Murphy.
James Price and Philmore Gillespie testified that on the evening of 19 December 1980, they had seen the defendant in the vicinity of the Sherrill home carrying what seemed like a rifle under his arm. Defendant was wearing an Army jacket.
James Price's son testified that on the evening in question he was outside shooting basketball and spoke with defendant, who was at that time carrying a .22 rifle.
Defendant's witnesses also placed defendant in the vicinity of the Sherrill home on the evening of 19 December. William Murphy, defendant's brother, testified that sometime after 7:30 p.m. he arrived at his mother's house, located close to the Sherrill home, where he saw defendant. The two left for Danville.
Defendant contends there was insufficient evidence that the crime was committed with a deadly weapon. Mrs. Sherrill testified that she saw a weapon in defendant's right hand. Defendant was seen walking toward the Sherrill home carrying a rifle. Mr. Sherrill testified, without objection, "that is when he [the defendant] pointed a gun in my stomach and told me to back up and I did. He told me to cut the light off and I did because the gun was on me at the time. He told me to sit down and I did because the gun was still on me." (Emphasis ours.) Defendant's contention is without merit. See State v. Thompson, 297 N.C. 285, 254 S.E.2d 526 (1979); State v. Evans, 25 N.C. App. 459, 213 S.E.2d 389 (1975).
Defendant further contends there was insufficient evidence that he was the person who committed the crime. We disagree. Mrs. Sherrill testified that she had seen or spoken with the defendant "every day or two" from August to December and that defendant had worked for the Sherrills as a day laborer and had helped them with their tobacco. The witness observed her assailant sufficiently to permit subsequent identification based on "the sound of his voice and the size and shape of him." Her credibility and the weight given to her identification testimony was properly for the jury. Defendant fails to show that the evidence of identification was inherently incredible. State v. Wilson, 293 N.C. 47, 235 S.E.2d 219 (1977).
During his final argument to the jury, defendant's counsel stated: "I argue and contend, ladies and gentlemen of the jury, that the State has not introduced any statement or confession of the crime there to bring before you for you to consider and say this is some other evidence. I have here where the defendant admitted to doing this. . . . You don't have that evidence before you to consider."
The district attorney, in his closing argument, responded: "Okay, and you don't have the statement to consider, ladies and gentlemen of the jury, because the defendant objected to it." It is defendant's contention that the trial court erred in allowing the district attorney to argue improper matters relating to suppressed evidence and defendant's failure to testify. Defendant did not object to the state's argument, and as a general rule, such failure constitutes waiver. State v. Coffey, 289 N.C. 431, 222 S.E.2d 217 (1976). Moreover, defendant's counsel himself argued the matter of the suppressed evidence and, by implication, defendant's failure to testify; and it appears from the record that the trial court had apprised the jury of the matter of suppressed evidence prior to closing arguments. We find no evidence of gross impropriety upon the record before us that would require the trial court to intervene ex mero motu. State v. Britt, 288 N.C. 699, 220 S.E.2d 283 (1975); State v. Brown, 39 N.C. App. 548, 251 S.E.2d 706, cert. denied, 297 N.C. 302 (1979). The record does not support a finding of prejudicial error.
Defendant next contends that the trial court erred in commenting on defendant's failure to testify. The court's instructions were proper and in compliance with State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974). Moreover, there is nothing in the record before us to suggest that the trial court erred in stating the applicable law or in its summary of the facts.
No error.
Judge MARTIN (Robert M.) concurs.
Judge WHICHARD dissents.