State v. Lassiter

193 S.E.2d 265 (1972) 17 N.C. App. 35

STATE of North Carolina
v.
Allen LASSITER.

No. 7214SC766.

Court of Appeals of North Carolina.

December 20, 1972. Certiorari Denied February 6, 1973.

Atty. Gen. Robert Morgan and Associate Atty. Gen. Ralf F. Haskell for the State.

Felix B. Clayton, Durham, for defendant appellant.

Certiorari Denied by Supreme Court February 6, 1973.

MALLARD, Chief Judge.

Defendant's assignment of error numbered 1 is directed to the court's denial of his motion for nonsuit at the close of all the evidence. Defendant contends that "the evidence is insufficient to place him at the scene on the date in question." We hold that viewed in the light most favorable to the State, there was sufficient evidence to identify the defendant as the perpetrator of the robbery in issue and sufficient evidence of all the material elements constituting armed robbery to require submission of the case to the jury. State v. Hoffman, 281 N.C. 727, 190 S.E.2d 842 (1972); State v. Morris, 279 N.C. 477, 183 S.E.2d 634 (1971); State v. Primes, 275 N. C. 61, 165 S.E.2d 225 (1969). "It is noted that all admitted evidence is for consideration when passing upon a motion to dismiss as in case of nonsuit. State v. Walker, 266 N.C. 269, 272, 145 S.E.2d 833, 835." State v. Crump, 277 N.C. 573, 178 S.E.2d 366 (1971). See also, State v. Blackwell, 276 N.C. 714, 174 S.E.2d 534 (1970), cert. denied, 400 U.S. 946, 91 S. Ct. 253, 27 L. Ed. 2d 252. Questions raised by defendant as to the competency of portions of the State's evidence are hereinafter discussed.

Defendant's assignment of error numbered 3 is directed to certain questions asked by the solicitor upon cross-examination of the defendant's witness, David H. Gilliard. Gilliard was permitted to testify, over defendant's objection, that he had committed four or five robberies prior to the one at bar, and that the defendant was involved in a robbery with Gilliard of Elvira's Blue Dinette on 21 January 1972, eight days subsequent to the robbery for which defendant was being tried. For purposes of impeachment, a witness is subject to cross-examination as to his convictions for crime, as well as other antecedent acts of misconduct. State v. Mack, N.C., 193 S.E.2d 71 (Filed December 13, 1972); State v. Gainey, 280 N.C. 366, 185 S.E.2d 874 (1972); State v. Williams, 279 N.C. 663, 185 S.E.2d 174 (1971); State v. Dawson, 278 N.C. 351, 180 S.E.2d 140 (1971); State v. Bell, 249 N.C. 379, 106 S.E.2d 495 (1959); State v. Poolos, 241 N.C. 382, 85 S.E.2d 342 (1955); State v. Hicks, 233 N.C. 511, 64 S.E.2d 871 (1951), cert. denied, 342 U.S. 831, 72 S. Ct. 56, 96 L. Ed. 629; State v. King, 224 N.C. 329, 30 S.E.2d 230 (1944). We hold that it was proper for the solicitor to question the defendant's witness Gilliard as to whether he had "been involved in" armed robberies in the City of Durham at certain times in order to impeach Gilliard's credibility.

We are also of the opinion that it was proper for the solicitor to inquire of Gilliard whether the defendant was involved in a robbery with Gilliard eight days after the crime defendant was charged with had been committed. "While it is undoubtedly the rule of law that evidence of a distinct substantive offense is inadmissible to prove another independent crime, this rule is subject to well-established exceptions where the two crimes are disconnected and not related to each other. Proof of the commission of other like offenses to show . . . the identity of the person charged is competent." State v. Williams, 276 N.C. 703, 174 S.E.2d 503 (1970), rev'd. on other grounds, 403 U.S. 948, 91 S. Ct. 2290, 29 L. Ed. 2d 860; see also, State v. Perry, 275 N.C. 565, 169 S.E.2d 839 (1969); State v. McClain, 240 N.C. 171, 81 S.E.2d 364 (1954); Stansbury, N.C. Evidence 2d, §§ 91, 92. We hold that the testimony that defendant had committed a robbery with Gilliard subsequent to the one with which he was charged was competent as proof of the identity of defendant and properly admitted. See State v. Biggs, 224 N.C. 722, 32 S.E.2d 352 (1944); State v. Ferrell, 205 N.C. 640, 172 S.E. 186 (1934).

Defendant's assignment of error numbered 7 is directed to the following questions asked of the defendant's witness George Husketh on cross-examination:

"Q. When did you first know that your friend Allen Lassiter had been charged with robbing the Goodwin Grocery?

OBJECTION.

OVERRULED.

EXCEPTION NO. 26.

I found out about three or four days later.

Q. Three or four days after Elvira's was robbed on January 21, or what?

OBJECTION.

OVERRULED.

EXCEPTION NO. 27.

I don't keep up with the calendar."

Defendant contends that the solicitor's question concerning the robbery of Elvira's Blue Dinette was irrelevant and the court's failure to sustain his objection to the question was prejudicial error. We do not agree. In this instance, the question of the solicitor was for the purpose of clarifying the previous testimony of the witness. Assuming arguendo that the question was improper, there was no prejudicial error. The witness's answer to the question, that he did not "keep up with the calendar," was harmless to the defendant's cause. This assignment of error is without merit and is overruled.

We have examined all of the defendant's assignments of error properly presented and find no prejudicial error.

No Error.

MORRIS, and HEDRICK, JJ., concur.