# State v. Samuel > Court of Appeals of North Carolina · May 4, 2010 · 203 N.C. App. 610 URL: https://www.frixlaw.com/law-library/cases/9621897 ## Case - **Full name:** State of North Carolina v. Demontre Anthony Samuel - **Court:** Court of Appeals of North Carolina - **Decided:** May 4, 2010 - **Citations:** 203 N.C. App. 610; 693 S.E.2d 662; 2010 N.C. App. LEXIS 726 - **Precedential status:** Published - **Opinion:** Concurrence by Wynn - **Judges:** Martin, Stephens, Wynn - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9621897 ## How later opinions describe it (automated extraction) - concluding the trial court plainly erred in admitting irrelevant evidence of two guns found in the defendant’s home because of “the weakness in the State’s evidence that [the d]efendant was the assailant[,] [] the substantial evidence tending to show that [the d]efendant was n… ## Opinion text WYNN, Judge, concurring. In North Carolina, it is error in a trial for armed robbery to admit evidence of a gun that is in no way linked to the crime charged. Additionally, such error warrants a new trial where there is conflicting evidence of the identity of the perpetrator. 12 While I would hold in this case that the semi-automatic pistol was properly admitted as evidence, I agree with the majority that admitting the revolver was prejudicial error. Thus, I concur in awarding Defendant a new trial. On 23 February 2008, while waiting at a bus stop at the mall, Larry Johnson and Archie Poteat were robbed of their neck chains, and Larry Johnson was struck in the face, by a heavyset man with a gun. The assailant, later identified as Defendant, was described by both young men as brandishing a gray semi-automatic pistol. *625 The same evening, Larry Johnson described his assailant to a friend, Lynnette Paul. She testified that the clothes she saw Defendant wearing on that day were consistent with the description Larry Johnson provided. She testified that she observed Defendant and his companions on the bus playing with a chain that she recognized as belonging to Larry Johnson. Larry Johnson subsequently picked Defendant out of a photo lineup assembled by the detective investigating the robbery. Based on Larry Johnson’s identification of Defendant, Detective Clayton obtained a search warrant for Defendant’s residence. Upon execution of the warrant, detectives retrieved two handguns: a revolver and a semi-automatic pistol from the home. Defendant was placed in custody. Defendant waived his Miranda rights, and told police that he was indeed at the mall on the date of the incident, and that he was later on the bus with Lynnette Paul. Later, detectives recovered Archie Poteat’s neck chain from Defendant’s brother, Teshaun, and recovered Larry Johnson’s neck chain from Marcus Jackson who testified at trial that he got the chain from Defendant two or three days after the robbery. On appeal from convictions of two counts of robbery with a dangerous weapon and one count of simple assault, Defendant contends the trial court erred by, among other things, admitting evidence of guns found in Defendant’s home that were not tied to the robbery. The majority reverses Defendant’s conviction on the grounds that the evidence of the guns seized from Defendant’s residence was irrelevant to the charge of armed robbery. I agree that the evidence regarding the revolver was irrelevant; consequently, I concur with the majority that Defendant is entitled to a new trial. Defendant relies on State v. Patterson, 59 N.C. App. 650 , 297 S.E.2d 628 (1982), to argue that the trial court’s admission of evidence regarding guns not tied to the robbery was error. The victim in Patterson was robbed of her wallet and car keys by a man with a gun. Id. at 651 , 297 S.E.2d at 629 . “During cross-examination of the defendant the assistant district attorney brought out testimony to the effect that there was a sawed-off shotgun in the car in addition to the pistol identified by the robbery victim.” Id. at 652 , 297 S.E.2d at 630 . Upon review, this Court held in Patterson that “[t]he shotgun was not connected to the robbery and it was clearly not relevant to any issues in the case. Therefore, the shotgun was erroneously admitted *626 into evidence.” Id. at 653 , 297 S.E.2d at 630 . No error was found (or alleged) in the fact that “[a] small caliber pistol which the State contended] was the weapon used in the commission of the robbery was introduced and the victim identified this pistol as being very similar to the one used in the robbery.” Id. We held further “that there [was] a reasonable possibility that the erroneous admission of the shotgun evidence contributed to the defendant’s conviction, particularly in light of the conflicting evidence regarding the identity of the defendant as the man who robbed [the victim].” Id. at 653-54 , 297 S.E.2d at 630 . In the present case, the witnesses described the weapon used during the robbery and assault as a large gray semi-automatic pistol. Detective Clayton identified the guns seized from Defendant’s home as being (1) a silver semi-automatic pistol, and (2) a small gray revolver. The State introduced both guns seized from Defendant’s home into evidence over Defendant’s objection. A photograph of the revolver was introduced without objection and published to the jury. I agree with the majority that admitting the revolver was prejudicial error; however, I disagree that admitting the semi-automatic pistol was error. Regarding the semi-automatic pistol, the victims in this case were robbed by a man with a gray semi-automatic pistol. A silver semiautomatic pistol was seized from Defendant’s home. I believe this makes evidence of the semi-automatic relevant to the State’s case against Defendant, whether or not the semi-automatic seized was the same gun used in the robbery. See State v. See, 301 N.C. 388, 391 , 271 S.E.2d 282, 284 (1980) (holding no error in State’s exhibiting to the jury a pistol similar to that used during an armed robbery); State v. Bush, 78 N.C. App. 686, 689, 338 S.E.2d 590, 592 (1986) (holding that a hatchet was relevant in defendant’s trial for armed robbery and assault when defendant “had access to the particular hatchet, and it was at least the same as or similar to the one used in perpetrating the crimes.”). Insofar as the majority holds evidence of the semi-automatic was not relevant, I respectfully disagree. However, regarding the revolver, this case involved conflicting evidence regarding the identity of the man who robbed Larry Johnson and Archie Poteat. The risk of prejudice to Defendant by the admission of improper evidence was correspondingly high. Both victims testified that their assailant wielded a semi-automatic pistol. Notwithstanding, the trial court admitted evidence of a gun seized from De *627 fendant’s residence — the revolver — that was obviously not involved in the commission of the robbery. Patterson addressed these precise circumstances. Applying Patterson strictly, I concur in the result that awards Defendant a new trial. . State v. Patterson, 59 N.C. App. 650, 653 , 297 S.E.2d 628, 630 (1982). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9621897. Public record. Not legal advice.