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Criminal Practice – Armed Robbery – Judge’s Colloquy – Defendant’s Choice to Testify – Photographs – Illustrative Evidence

State v. Little (Lawyers Weekly No. 011-121-17, 17 pp.) (Valerie Zachary, J.) (Wanda Bryant, J., concurring in the result only without separate opinion) Appealed from Guilford County Superior Court (L. Todd Burke, J.) N.C. App.

Holding: When defendant was trying to decide whether to testify, the trial court told him that the prosecutor would be able to cross-examine him about “all of your prior criminal convictions.” Since this statement was made in the context of the trial court’s determination that all of defendant’s prior convictions occurred within the past-10 years, the court was not suggesting that defendant could be cross-examined about convictions that were more than 10 years old.

We find no error in defendant’s conviction of robbery with a dangerous weapon.

The trial court also told defendant, “I instruct the jury about persons who have prior criminal convictions on their record, and if they feel like that conviction impacts the witness credibility, they can consider it for that purpose. They’re not – they’re instructed they’re not necessarily to convict you for something now just because you’ve been charged with something previously, but, as you can imagine, when they hear that you have criminal convictions, they’re going to – you take the witness stand, the State is going to ask you about it and they’re going to hear that you have a criminal record, and do you understand that?”

The court’s use of the word “necessarily,” even if technically erroneous, was insignificant in the context of the court’s entire discussion with defendant. Moreover, defendant was represented by counsel with whom he was able to consult.

The trial court did not err in its warning to defendant that if he chose to testify he would be exposed to impeachment on cross-examination by evidence of his prior convictions.

Photographs downloaded from Facebook and Instagram were used to illustrate witnesses’ testimony. Since the photos were used for illustrative purposes, they did not need to be authenticated in the way substantive evidence must be. Moreover, defendant has failed to cite any authority or offer a legal argument for the proposition that the requirements for admission of a photograph from a website as illustrative evidence should be any different from the use of a photograph from another source.

No error.


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