{ "id": 8527443, "name": "STATE OF NORTH CAROLINA v. TIMOTHY JOE BURGE", "name_abbreviation": "State v. Burge", "decision_date": "1990-11-20", "docket_number": "No. 908SC11", "first_page": "671", "last_page": "675", "citations": [ { "type": "official", "cite": "100 N.C. App. 671" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "79 ALR3d 14", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "94 ALR3d 15", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "388 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 712", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491524, 2490757, 2487690, 2488241, 2492148 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0712-05", "/nc/325/0712-04", "/nc/325/0712-03", "/nc/325/0712-02", "/nc/325/0712-01" ] }, { "cite": "383 S.E.2d 409", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "412" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 494", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521620 ], "year": 1989, "pin_cites": [ { "page": "498" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0494-01" ] } ], "analysis": { "cardinality": 436, "char_count": 6860, "ocr_confidence": 0.738, "pagerank": { "raw": 2.1077193646190259e-07, "percentile": 0.7627257419254945 }, "sha256": "e811251010f1daca5d2ef3b34fab6233d397bda7e86751a22c9f651913e96487", "simhash": "1:cfe1a16fd23f0949", "word_count": 1137 }, "last_updated": "2023-07-14T14:37:10.855162+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge ARNOLD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TIMOTHY JOE BURGE" ], "opinions": [ { "text": "PHILLIPS, Judge.\nThe first error defendant cites is the court\u2019s refusal to permit Marcus Jerome Edwards to testify that based upon his personal knowledge of Roy Lee Clark, the State\u2019s only eyewitness, he would not believe him under oath. Immediately before that evidence was offered, Edwards testified without objection that in his opinion Roy Lee Clark was a liar and that Clark had told him he would take a bribe to change his testimony. Thus, even if admissible, and we do not hold that it was, the refused evidence was cumulative and its rejection was not prejudicial.\nDefendant\u2019s next contention \u2014 that the State\u2019s exclusion of six black panelists from the jury that tried the case was racially motivated and a violation of various constitutional provisions \u2014 has no support in the record. To prevail on such a contention it must be shown, among other things, that the circumstances of the exclusions raise an \u201cinference of racist motivation,\u201d State v. Sanders, 95 N.C. App. 494, 498, 383 S.E.2d 409, 412, disc. rev. denied, 325 N.C. 712, 388 S.E.2d 470 (1989), and this showing was not made. Instead, the record indicates that the State had sound grounds for excusing all six panelists:' Two had had brothers who had been charged with cocaine offenses; one knew two of defendant\u2019s witnesses; two others knew defendant\u2019s parents and one of his attorneys; and the last one knew defendant\u2019s family and both of his attorneys.\nThe next error defendant cites is the court\u2019s refusal to permit him to cross-examine Detective Flowers about the Kinston Police Department having used defendant as an informant. His purpose was to show by the evidence that defendant had credibility with the police department. But at that time only the State had presented evidence, defendant\u2019s credibility had not been attacked, and he was not entitled to bolster it in advance.\nDefendant\u2019s contention that the evidence does not support his conviction of second-degree murder is refuted by the testimony of the eyewitness that after Coston begged him not to kill him, defendant said, \u201cI\u2019m going to kill you anyway\u201d and proceeded to do so by deliberately firing a bullet through Coston\u2019s skull.\nNor was it error to refuse to charge the jury on the lesser included offenses of voluntary and involuntary manslaughter, as there is no evidence that defendant was guilty of manslaughter. The State\u2019s evidence indicates only a deliberate, intentional homicide, while defendant\u2019s evidence was that he fled the scene before Coston was shot and killed by somebody else.\nDefendant\u2019s other contentions \u2014 that the court erred in refusing to permit him to cross-examine the State\u2019s witnesses as to their knowledge that another person had been indicted for the murder; in refusing to permit both of his lawyers to cross-examine the same witnesses; and in charging the jury on the alleged untruthfulness of the State\u2019s eyewitness \u2014 likewise devoid of legal basis are also overruled.\nNo error.\nChief Judge HEDRICK and Judge ARNOLD concur.", "type": "majority", "author": "PHILLIPS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Special Deputy Attorney General George W. Boylan, for the State.", "William D. Spence for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TIMOTHY JOE BURGE\nNo. 908SC11\n(Filed 20 November 1990)\n1. Criminal Law \u00a7 169.3 (NCI3d)\u2014 exclusion of testimony\u2014 admission of similar testimony \u2014absence of prejudice\nDefendant was not prejudiced by the court\u2019s refusal to permit a witness to testify that, based upon his personal knowledge of the State\u2019s eyewitness, he would not believe him under oath where the witness had previously testified that in his opinion the eyewitness was a liar and had told him that he would take a bribe to change his testimony.\nAm Jur 2d, Evidence \u00a7 256; Witnesses \u00a7\u00a7 563, 566.\n2. Jury \u00a7 7.14 (NCI3d)\u2014 State\u2019s exclusion of black jurors \u2014 no racial motivation\nThe State\u2019s exclusion of six black panelists from the jury that tried defendant for a murder arising out of a purported cocaine transaction was not racially motivated and did not violate defendant\u2019s constitutional rights where two of the panelists had brothers who had been charged with cocaine offenses; two others knew defendant\u2019s parents and one of his attorneys; one knew two of defendant\u2019s witnesses; and the remaining panelist knew defendant\u2019s family and both of his attorneys.\nAm Jur 2d, Jury \u00a7\u00a7 235, 284.\nRacial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case. 94 ALR3d 15.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n3. Criminal Law \u00a7 86 (NCI3d)\u2014 police use of defendant as informant \u2014exclusion of cross-examination of detective\nThe trial court did not err in refusing to permit defendant to cross-examine a detective about the police department\u2019s use of defendant as an informant to show that defendant had credibility with the police department where defendant\u2019s credibility had not been attacked, since defendant was not entitled to bolster his credibility in advance.\nAm Jur 2d, Witnesses \u00a7\u00a7 523, 646.\n4. Homicide \u00a7 21.7 (NCI3d)\u2014 second degree murder \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to support defendant\u2019s conviction of second degree murder where an eyewitness testified that, after the.victim begged defendant not to kill him, defendant said, \u201cI\u2019m going to kill you anyway\u201d and proceeded to do so by deliberately firing a bullet through the victim\u2019s skull.\nAm Jur 2d, Homicide \u00a7\u00a7 425, 437-439.\nAPPEAL by defendant from judgment entered 27 October 1989 by Judge James D. Llewellyn in LENOIR County Superior Court. Heard in the Court of Appeals 24 September 1990.\nDefendant was convicted of the second-degree murder of Joseph Wayne Coston and sentenced to forty years imprisonment. The State\u2019s evidence indicated that on the night of 2 January 1989 a crowd of about 30-40 people was gathered at the corner of Thompson and Quinerly Streets in Kinston. Joseph Wayne Coston drove his van into the neighborhood in order to buy crack cocaine and gave defendant $10 for a bag of what he thought was cocaine but was in reality ground brazil nuts. As Coston started to leave he snatched the $10 from defendant and began to drive away. Defendant grabbed the steering wheel of the van and hung on until he turned the wheel to make the van wreck. He and two others beat and threatened Coston and defendant shot him in the head with a pistol. Before the fatal shot, defendant pulled the trigger once and it did not fire; the second time the pistol fired into Coston\u2019s left temple and he died a half an hour later.\nDefendant denied firing the gun at all. He admitted pointing the loaded pistol at Coston\u2019s chest earlier, but claimed he ran away when someone said the police were coming. He heard three shots and believed that Coston had the gun and was trying to shoot someone.\nAttorney General Lacy H. Thornburg, by Special Deputy Attorney General George W. Boylan, for the State.\nWilliam D. Spence for defendant appellant." }, "file_name": "0671-01", "first_page_order": 703, "last_page_order": 707 }