State v. Shaw

Citation322 N.C. 797,370 S.E.2d 546
Decision Date28 July 1988
Docket NumberNo. 244A86,244A86
PartiesSTATE of North Carolina v. Leonard Wayne SHAW.
CourtUnited States State Supreme Court of North Carolina

Lacy H. Thornburg, Atty. Gen. by Doris J. Holton, Asst. Atty. Gen., Raleigh, for State.

Laurence D. Colbert, Durham, for defendant-appellant.

FRYE, Justice.

Defendant was sentenced to life imprisonment for first degree burglary, ten years imprisonment for felonious larceny, and ten years imprisonment for assault with a deadly weapon inflicting serious injury. The ten year sentences are to run consecutively at the expiration of the sentence of life imprisonment. Defendant appeals his first degree burglary conviction and the resulting life sentence to this Court as a matter of right. His motion to bypass the Court of Appeals on the felonious larceny and assault with a deadly weapon inflicting serious injury convictions was allowed by this Court 26 June 1987.

Defendant contends he is entitled to a new trial on all charges because of alleged errors made by the trial court during his trial. Specifically, he alleges the trial court erred in (1) admitting evidence of voice identification without conducting a voir dire hearing; (2) failing to instruct the jury on identification of the defendant; (3) expressing an opinion on the guilt or innocence of the accused; (4) failing to interrupt the prosecutor's comments during closing argument; (5) denying defendant his right to effective assistance of counsel; and, (6) allowing an expert to express an opinion on matters outside his area of expertise. Having reviewed the record and the assignments of error brought forward by defendant, we find that defendant received a fair trial, free of prejudicial error.

The evidence produced by the State tended to show that on the evening of 24 July 1985, Marjorie Shepard, age eighty-one, was alone in her home. Shortly past midnight, after retiring upstairs for bed, she was awakened by the creaking of stairs as someone ascended to her bedroom. Ms. Shepard, upon spotting the intruder, asked him what he wanted. He replied that he did not want to hurt her but wanted only a pistol and $20.00. She told the intruder that she had neither. This response apparently angered the intruder as he then began to choke the elderly woman and, on at least one occasion, hit her in the face. Ms. Shepard testified that this assault lasted from ten to fifteen minutes.

The State's evidence further showed that Ms. Shepard later directed the intruder to the location of a pickle jar containing quarters which was located in a dresser drawer in the bedroom. While the intruder was looking for the quarters, she managed to escape down the stairs. Apparently, neighbors heard her screams and called the police.

Officer C.M. Bullock of the Durham County Police Department arrived at approximately 12:30 a.m. Officer Bullock began looking behind the victim's home and adjacent houses. Upon seeing Ms. Shepard at the front of her home, Officer Bullock approached her to offer his assistance. At that point neighbors called his attention to a person running toward the rear of the house but the officer was unable to apprehend or identify the suspect.

Detective Andrew Harris, also of the Durham County Police Department, was assigned to investigate the case. Not being able to speak with Ms. Shepard until her release from the hospital, Detective Harris began his investigation which included talking to her neighbors. One neighbor informed him that a young man, the defendant, had earlier worked for Ms. Shepard. The evidence revealed that several days prior to 25 July 1985, a young male had worked in Ms. Shepard's yard for several days, and on two occasions during that time had been in her home. Ms. Shepard had contracted to have yard work and painting done and defendant was selected by his employer to do this work.

Defendant's employer, Linwood Howard, testified for the State. He stated that on the morning of 25 July 1985 he arrived at the home of defendant to take him to work. Defendant stated that he could not work because he had left his shoes in his girlfriend's car the previous evening. Defendant then was given money by Howard to buy another pair. Howard testified that upon returning from work that day, he and defendant stopped to purchase soft drinks. Howard had no change, so defendant furnished sufficient change to purchase cigarettes and a soft drink from a vending machine. Howard testified that the change appeared to be all silver and was in a bag or wrapped in something white. Howard further stated at trial that defendant had not been paid yet, and that he thought it strange that defendant had money because he had frequently loaned defendant money.

The investigation of the crime scene conducted by the Durham Police Department revealed that there was a forcible entry through the furnace room door located at the rear of the victim's home. Pry marks were found on the outside of the door around the lock. The investigation also revealed a break in a pane of glass in the door and a tear was also discovered in the screen of the door near the latch. Behind the residence, Officer Bullock discovered a pair of Nike tennis shoes. The shoes were located beside the steps to the porch and had splotches of off-white paint on them.

The State presented additional evidence which tended to show that the Nike tennis shoes found near the point of entry and a red and black cap found on Ms. Shepard's bed belonged to the defendant. Moreover, a forensic chemist with the SBI testified that the paint on the tennis shoes found near the victim's home was the same with respect to color, texture, solvent characteristics, and inorganic composition as the off-white paint used by defendant in previous painting assignments during his employment with Mr. Howard.

Defendant presented no evidence during the trial.

The jury returned verdicts of guilty of first-degree burglary, felonious larceny, and assault with a deadly weapon inflicting serious injury. The trial court found as an aggravating factor that the defendant had a prior conviction or convictions for criminal offenses punishable by more than sixty days confinement. It found no mitigating factors and imposed sentences as previously indicated.

By his first assignment of error, defendant contends that the trial court erred in overruling his objection to voice identification questions without conducting a voir dire hearing. Specifically, defendant argues that when the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged, the trial court errs if it fails to make sufficient findings of fact that this in-court identification of the defendant was of independent origin and not tainted by an illegal pre-trial identification. We find this argument specious.

Defendant relies on this Court's decision in State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E.2d 583 (1970). This reliance is misplaced. That case involved a pre-trial identification of the defendant by the victim, thus properly presenting the question of whether the in-court identification was tainted by a pre- trial identification. Here, there was no evidence of any pre-trial identification of the defendant by the victim. Therefore, the question of pre-trial taint does not arise.

Defendant argues that during the course of the investigation of this case, Detective Harris queried the victim about a particular person who had worked in her yard. Later during direct examination, when asked if she could identify the voice of the perpetrator of the assault and theft, Ms. Shepard stated that "it must have been the same person who came there and painted my bricks at the house because he knew how to come in the door and come upstairs." Defendant apparently characterizes as a "pre-trial identification" the questioning of Ms. Shepard by Detective Harris.

We find this characterization of the interview between the victim and the investigating officer as a pre-trial identification to be fallacious. Detective Harris neither mentioned nor suggested that the voice of the perpetrator of the crimes was similar to defendant's voice. We can find in the record no indication of any discussion regarding the defendant's voice that transpired prior to trial. The investigator merely asked the victim if she recently had hired anyone to work in her yard. To this, she answered in the affirmative. It was not until the trial itself, when asked had she heard the voice before, that she stated for the first time that the voice must have been that of the person who had worked in her yard.

In State v. Green, 296 N.C. 183, 250 S.E.2d 197 (1978), this Court stated:

where ... there has been no pretrial identification procedure at all, there can be no requirement of a judicial determination of the independence and reliability of the in-court identification, for there has been no pretrial procedure upon which the in-court identification should depend. It further follows that, in the absence of pretrial identification procedures, formal findings of fact and conclusions of law regarding the independence and reliability of the identification are not required, for there are no relevant facts upon which to base a finding of the identification's independent origins.

Id. at 187, 250 S.E.2d at 200.

Since there was no pre-trial identification of the defendant by the victim, it was not error for the trial judge to deny defendant's request for a voir dire examination. The accuracy of in-court identification testimony, in the absence of pre-trial identification procedures, is a proper subject for cross-examination and resolution by the jury. State v. Cox and State v. Ward and State v. Gary, 281 N.C. 275, 188 S.E.2d 356 (1972). Accord Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654, 66 L.Ed.2d 549 (1981).

Defendant brings forward as his second assignment of error the failure of the trial court to instruct the jury on...

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