State v. Phelps

Court of Appeals of North Carolina

State v. Phelps

197 S.E.2d 558, 18 N.C. App. 603, 1973 N.C. App. LEXIS 1953

CourtCourt of Appeals of North Carolina

DecidedJuly 11, 1973

DocketNo. 731SC251

StatusPublished

Cited by3 cases

This text of 197 S.E.2d 558 (State v. Phelps) 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. Phelps, 197 S.E.2d 558, 18 N.C. App. 603, 1973 N.C. App. LEXIS 1953 (N.C. Ct. App. 1973).

Pincite

Opinion

BROCK, Judge.

Defendant assigns as error the allowance of the in-court identification of defendant by the prosecution witness, William Z. Burrus. Witness Burrus first identified defendant at a lineup prior to trial. Defendant contends, on appeal, for the first time, that the lineup as conducted was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. He argues that the record is void of any evidence that defendant was advised of his right to have an attorney present at the lineup or that he had waived this right to counsel at the lineup. Defendant also argues that the in-court identification by Burrus was tainted by the improprieties of the lineup and should not have been allowed.

“When the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged in the indictment, and the defendant interposes timely objection and requests a voir dire or asks for an opportunity to ‘qualify’ the witness, such voir dire should be conducted in the absence of the jury and the competency of the evidence evaluated.” State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E. 2d 583. The record does not support defendant’s contention that the pretrial lineup was conducted in an impermissibly suggestive manner. In the present case, there was no objection to the in-court identification of the defendant and there was no request for a voir dire. Defendant cannot for the first time raise this challenge on appeal. State v. Cook, 280 N.C. 642, 187 S.E. 2d 104. This assignment of error has no merit.

Defendant excepts to the admission of testimony by Deputy Sheriff Pledger as to the presence of certain articles in the trunk of defendant’s automobile. The witness testified, over objection, that he saw a small pry bar and a leather satchel similar to State’s Exhibits 6 and 7 in the trunk of defendant’s automobile. The witness observed these items when Officer Pilgreen opened the trunk of defendant’s automobile to secure for defendant a coat which was located in that portion of the car. After being stopped at the roadblock and while the police waited for a search warrant, defendant stated that he was cold and wanted his coat which was in the trunk of his car. Defendant gave his permission to open the trunk and gave his car keys to Officer Pilgreen for that purpose. Witness Pledger testified only to what he observed in plain view when Officer Pilgreen opened the trunk. This assignment of error is without merit.

[606]*606Defendant excepts to the introduction into evidence of State’s Exhibits 6-16, consisting of articles obtained from the trunk of defendant’s automobile. Defendant contends for the first time on appeal that these exhibits were obtained through an illegal search and seizure and should be excluded. No objection was made at trial to the introduction of these exhibits into evidence. When exhibits are received in evidence without objection, any violation of constitutional rights involved is waived. Stansbury, N. C. Evidence (Brandis Revision) § 121a, p. 376; State v. Mitchell, 276 N. C. 404, 172 S.E. 2d 527. This assignment of error is overruled.

No error.

Judges Britt and Parker concur.

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BROCK, Judge.

Defendant assigns as error the allowance of the in-court identification of defendant by the prosecution witness, William Z. Burrus. Witness Burrus first identified defendant at a lineup prior to trial. Defendant contends, on appeal, for the first time, that the lineup as conducted was so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. He argues that the record is void of any evidence that defendant was advised of his right to have an attorney present at the lineup or that he had waived this right to counsel at the lineup. Defendant also argues that the in-court identification by Burrus was tainted by the improprieties of the lineup and should not have been allowed.

“When the State offers a witness whose testimony tends to identify the defendant as the person who committed the crime charged in the indictment, and the defendant interposes timely objection and requests a voir dire or asks for an opportunity to ‘qualify’ the witness, such voir dire should be conducted in the absence of the jury and the competency of the evidence evaluated.” State v. Accor and State v. Moore, 277 N.C. 65, 175 S.E. 2d 583. The record does not support defendant’s contention that the pretrial lineup was conducted in an impermissibly suggestive manner. In the present case, there was no objection to the in-court identification of the defendant and there was no request for a voir dire. Defendant cannot for the first time raise this challenge on appeal. State v. Cook, 280 N.C. 642, 187 S.E. 2d 104. This assignment of error has no merit.

Defendant excepts to the admission of testimony by Deputy Sheriff Pledger as to the presence of certain articles in the trunk of defendant’s automobile. The witness testified, over objection, that he saw a small pry bar and a leather satchel similar to State’s Exhibits 6 and 7 in the trunk of defendant’s automobile. The witness observed these items when Officer Pilgreen opened the trunk of defendant’s automobile to secure for defendant a coat which was located in that portion of the car. After being stopped at the roadblock and while the police waited for a search warrant, defendant stated that he was cold and wanted his coat which was in the trunk of his car. Defendant gave his permission to open the trunk and gave his car keys to Officer Pilgreen for that purpose. Witness Pledger testified only to what he observed in plain view when Officer Pilgreen opened the trunk. This assignment of error is without merit.

[606]*606Defendant excepts to the introduction into evidence of State’s Exhibits 6-16, consisting of articles obtained from the trunk of defendant’s automobile. Defendant contends for the first time on appeal that these exhibits were obtained through an illegal search and seizure and should be excluded. No objection was made at trial to the introduction of these exhibits into evidence. When exhibits are received in evidence without objection, any violation of constitutional rights involved is waived. Stansbury, N. C. Evidence (Brandis Revision) § 121a, p. 376; State v. Mitchell, 276 N. C. 404, 172 S.E. 2d 527. This assignment of error is overruled.

No error.

Judges Britt and Parker concur.

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Bluebook (online)

197 S.E.2d 558, 18 N.C. App. 603, 1973 N.C. App. LEXIS 1953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-phelps-ncctapp-1973.

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