State v. Lassiter

321 S.E.2d 175, 70 N.C. App. 731, 1984 N.C. App. LEXIS 4023
CourtCourt of Appeals of North Carolina
DecidedOctober 16, 1984
DocketNo. 8422SC118
StatusPublished

This text of 321 S.E.2d 175 (State v. Lassiter) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lassiter, 321 S.E.2d 175, 70 N.C. App. 731, 1984 N.C. App. LEXIS 4023 (N.C. Ct. App. 1984).

Opinion

BRASWELL, Judge.

Shortly before 6:00 p.m. on 9 September 1984 as Charlene Penny was preparing to close Moore’s One-Hour Martinizing in Statesville, a bearded man wearing clip-on sunglasses entered the store and asked for the manager. When Penny told him that the manager wasn’t there, he ordered Penny to get a bag and put all the store’s money in it. After Penny had put $50 in the bag, the man ordered her to go into the back of the store and remove her clothes. When she attempted to escape, the man grabbed her, [732]*732pushed her into the back of the store, struck and kicked her, and ripped her blouse. The man then fled the store.

Ms. Penny telephoned Jimmy and Tim Shumaker who were working a few hundred yards away at Shumaker’s Gulf. They arrived a few minutes later along with the police. As Ms. Penny was describing her assailant, the defendant, his wife, and child drove up to the store and asked what had happened. Ms. Penny was describing her assailant at that time and told the police that he “looked kind of like” the man in the car.

The next day defendant came by the store and asked Ms. Penny how she was doing. Because Ms. Penny was very busy, she thanked him for his concern, but didn’t pay much attention to his looks. About a month later, Ms. Penny again observed defendant, who lived near the store, walk past the store. He no longer had a beard. The following day she observed the defendant walk by the cleaners several times. She became scared and telephoned the police and told them that she had seen a person who she thought might have robbed her. The police talked with the defendant about the robbery and obtained his driver’s license photograph, in which he was pictured with a beard, for use in a photographic lineup. They ordered him not to go near the One-Hour Martiniz-ing. Defendant then went to the store, showed Ms. Penny his picture, denied robbing her, and asked her not to pick his picture out of a lineup. Ms. Penny selected the defendant’s picture from the photographic lineup.

At trial, the only evidence linking defendant to the crime was Ms. Penny’s identification. The defendant presented detailed alibi and reputation evidence. Defendant was convicted of assault on a female and robbery with a dangerous weapon. From a judgment sentencing him to the mandatory minimum term of 14 years imprisonment, defendant appealed.

Defendant brings forth two questions on appeal. Believing that one of his arguments has merit, we award defendant a new trial. Defendant testified in his own defense. During his testimony the following exchange occurred:

Q. Mr. Lassiter, I’ll ask you, did you rob the One-Hour Mar-tinizing on September 9, 1982?
[733]*733A. No, I did not.
Mr. Morris: Objection.
Court: Sustained.
Mr. Morris: Move to strike the answer.
Court: Members of the Jury, disregard his answer.

It is obvious, and the State in its brief concedes, that these actions of the trial court were erroneous. The State contends, however, that the actions were not prejudicial since later in the examination defendant was able to testify that he did not take any money from the business. We are constrained to disagree.

In support of its contention, the State cites State v. Colvin, 297 N.C. 691, 256 S.E. 2d 689 (1979), which states that no prejudice arises when the same or similar testimony to that erroneously excluded is later admitted. Defendant was convicted of robbery with a dangerous weapon under N.C.G.S. 14-87. G.S. 14-87 provides that the offense of robbery with a dangerous weapon is completed if there is an attempt to take personal property by the use of a firearm or other deadly weapon. Thus, defendant’s testimony that he took no money is not substantially the same as the excluded testimony. We believe that had the court not erroneously stricken the defendant’s denial of guilt, there is a reasonable possibility that a different result would have been reached. See G.S. 15A-1443(a). Defendant is, therefore, entitled to a new trial.

Having determined that the defendant is entitled to a new trial, we now consider whether the trial court erred in allowing Ms. Penny to make an in-court identification of the defendant, as the question will likely arise during defendant’s new trial. At trial, the defendant objected to Ms. Penny’s in-court identification. The trial court conducted a voir dire hearing in which he made the following findings of fact:

1) That the defendant, Richard Wayne Lassiter, was present in court, represented by his attorney, William Crosswhite;
2) That the State of North Carolina was present in court and represented by Assistant District Attorney, Gene Morris;
[734]*7343) That on September 9, 1983, Charlene Penny was working alone as a cashier at the One Hour Martinizing location, Statesville, Iredell County, North Carolina;
4) That her working area was enclosed on three sides by glass walls;
5) That at approximately 5:55 p.m. she observed a bearded man walking in front of her work station;
6) That the bearded man entered through a side door and approached her at the cash register;
7) That the bearded man was wearing sunglasses;
8) That the bearded man was in her presence for approximately five minutes;
9) That during this time the bearded man demanded money from the cash register and subsequently assaulted her in the back room of the One Hour Martinizing;
10) That she was in his presence for some five minutes;
11) That she was in his presence in a well lighted area;
12) That she paid close attention to his face and facial features;
13) That only his sunglasses obstructed her view of his face;
14) That some 20 minutes later while she was being interviewed by the Statesville Police, a bearded man who looked like her assailant drove up to the cleaners in a green LTD automobile and inquired as to what had taken place and as to her safety;
15) That on the following day, the same man in the LTD came back to the cleaners and spoke to her;
16) That a photographic lineup presented to Charlene Penny on September 9 did not result in the identification of an assailant;
17) That approximately one month later, Charlene Penny observed a non-bearded man who resembled her assailant walk in front of the dry cleaners and wave to her;
[735]*73518) That on the following day she saw the same non-bearded man walk by in front of the dry cleaners and called the police;
19) That she gave Detective Zimmerman of the States-ville Police Department a description of the non-bearded man whom she had observed on the last two days;
20) That on the following day she observed a photographic lineup of eight photographs of bearded men;

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Related

Neil v. Biggers
409 U.S. 188 (Supreme Court, 1972)
State v. Tate
265 S.E.2d 223 (Supreme Court of North Carolina, 1980)
State v. Harris
301 S.E.2d 91 (Supreme Court of North Carolina, 1983)
State v. Colvin
256 S.E.2d 689 (Supreme Court of North Carolina, 1979)

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Bluebook (online)
321 S.E.2d 175, 70 N.C. App. 731, 1984 N.C. App. LEXIS 4023, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lassiter-ncctapp-1984.