{ "id": 8527502, "name": "STATE OF NORTH CAROLINA v. JAMES GALLAGHER", "name_abbreviation": "State v. Gallagher", "decision_date": "1990-12-18", "docket_number": "No. 9011SC315", "first_page": "208", "last_page": "212", "citations": [ { "type": "official", "cite": "101 N.C. App. 208" } ], "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": "341 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "316 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4703937, 4698590, 4694247, 4696411, 4701246 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/316/0200-03", "/nc/316/0200-05", "/nc/316/0200-04", "/nc/316/0200-02", "/nc/316/0200-01" ] }, { "cite": "336 S.E.2d 702", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "705", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "78 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519519 ], "year": 1985, "pin_cites": [ { "page": "64", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/78/0058-01" ] }, { "cite": "235 S.E.2d 819", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561668 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0132-01" ] }, { "cite": "340 S.E.2d 701", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 444", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717320 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0444-01" ] } ], "analysis": { "cardinality": 550, "char_count": 9297, "ocr_confidence": 0.749, "pagerank": { "raw": 7.028493695003496e-08, "percentile": 0.4240359186964182 }, "sha256": "65eb5d1ebb21f8f7bce4008756e36eb8c3ddd46cf358add6f77e1760c9c2a7f5", "simhash": "1:978bf54d3d6a48f6", "word_count": 1560 }, "last_updated": "2023-07-14T19:54:53.681770+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and GREENE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES GALLAGHER" ], "opinions": [ { "text": "DUNCAN, Judge.\nFrom judgments imposing a life sentence plus a consecutive term of two years following his conviction of first degree rape and felonious breaking or entering, defendant appeals. For the reasons that follow, we find error.\nI\nThe evidence for the State tended to show that in the afternoon of 3 July 1989, Patricia Allen was sleeping in the bedroom of her home. She was wakened by the presence of a man. When Ms. Allen screamed, the man slapped her and broke a drinking glass on a nearby table. When Ms. Allen tried to get up, the man slapped her again, held the broken glass up to her in a menacing fashion causing her to fear that he was going to kill her. The man then dropped the glass, got on top of her and forced her to have sex with him. He then left after saying, \u201cThank you.\u201d Ms. Allen testified that the intruder had bad teeth, smelled bad, and was wearing a baseball cap during the rape.\nMs. Allen testified that she picked defendant\u2019s picture out of a photographic lineup. She also identified the defendant in court as the man in the lineup and the perpetrator of the crimes.\nGary Dwight Lee testified that he saw the defendant sitting on the porch of a \u201cmigrant house\u201d at about 12:45 p.m. on the day in question. He testified that the migrant house is about a mile from Ms. Allen\u2019s house.\nLily Sullivan testified that she and defendant worked together in Mr. Weaver\u2019s fields and that on the day in question she and defendant came back from the fields at about 2 or 3 p.m. She testified that the defendant left the migrant house about twenty minutes after they got back and that he did not return until 5:30 or 6:00 p.m. She left Mr. Weaver\u2019s employment the next day due to an argument with him.\nDetective Bernice Oates testified that she took a statement from Ms. Allen, including her description of the perpetrator. According to Detective Oates, Ms. Allen\u2019s description of the perpetrator was that he had crooked teeth, wore a baseball cap and smelled bad. Detective Oates further testified that Ms. Allen picked defendant out of a photographic lineup. No physical evidence linked the defendant to the crimes.\nDefendant presented evidence which tended to show James Weaver, defendant\u2019s boss, testified that defendant was in the field all day, from about 8:00 a.m. until 4:45 p.m. He testified that Lily Sullivan was mistaken about defendant having left the field early that day; that he had checked on his workers, including defendant, every half hour or so all day long. Mr. Weaver denied telling Detective Oates that he did not see defendant that day.\nRobert Hall, one of defendant\u2019s co-workers, also testified that defendant was in the field all day that day, until 4:00 or 5:00 p.m.\nDefendant testified on his own behalf. He denied committing the crimes, insisting that he was in the field working all day long.\nBrenda Bissette, a forensic serologist, testified that semen was found in the vagina of Ms. Allen, but no conclusions could be drawn as to the blood type of the perpetrator, nor could she conclude that defendant was or was not the perpetrator.\nOn rebuttal, Detective Oates was allowed to testify that Mr. Weaver had said that he had not seen defendant after lunch that day.\nII\nDefendant admitted on direct examination that he pled not guilty to possession of marijuana, but that he understood that the case was dismissed; that he was convicted of trespass, of carrying a concealed weapon and burglary. He first assigns error to the trial judge overruling his objections to the State\u2019s questions of defendant regarding the facts and circumstances surrounding crimes with which defendant was charged and convicted. He contends that the prosecutor conducted cross-examination of him which was beyond the scope of proper cross-examination and which unfairly prejudiced him. We agree.\nWe note first that defendant assigned error to the trial judge allowing six questions/exchanges on cross-examination of the defendant. However, only four of them were objected to, thus the remaining two questions are waived as they were not properly preserved on appeal. N.C. R. App. P. 10(b)(1) (1990); State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986).\nDefendant assigns error to the trial judge overruling his objections to the following questions:\nQ. Now let\u2019s talk about criminal history. You have had a lot of experience with the criminal justice system haven\u2019t you, and you have learned all the ways you can . . . play the system to your advantage?\n[objection overruled]\nQ. Now, isn\u2019t it true that Sergeant McDonald, Miami Police Department, made this arrest at a bus stop?\nA. Yes.\nQ. And when Sergeant McDonald approached you, you ran from him?\nA. Yes. Sergeant McDonald and Sergeant [inaudible]\nQ. And you didn\u2019t tell those two officers, I\u2019m sorry, I\u2019m just using this knife for my work. I didn\u2019t understand the law. You ran from them, because that wasn\u2019t the knife you had for work.\n[objection overruled]\nQ. Until I brought it up you didn\u2019t bother to tell these 13 folks about the second concealed weapon you had on you, did you?\n[objection overruled]\nQ. Now, going to the marijuana case that you told the jury about that you said was dismissed, you said that was dismissed because the seller wasn\u2019t in court?\nA. I\u2019m going by what Judge Robert Klein\u2014\nQ. Isn\u2019t it true that the way the marijuana case arose, the officer observed you hanging out in a hotel doorway and you had marijuana and you threw it down\n[objection overruled]\nFor the purposes of impeachment, a witness, including the defendant, may be cross-examined with respect to prior convictions. N.C. Gen. Stat. \u00a7 8C-1, Rule 609(a); State v. Finch, 293 N.C. 132, 235 S.E.2d 819 (1977). In State v. Rathbone, this court reiterated the rule that \u201cinquiry into prior convictions which exceeds the limitations established in Finch is reversible error.\u201d 78 N.C. App. 58, 64, 336 S.E.2d 702, 705 (1985) (citations omitted), disc. review denied, 316 N.C. 200, 341 S.E.2d 582 (1986). In Rathbone this court held that defendant Rathbone had not met the test of prejudicial error contained in N.C. Gen. Stat. \u00a7 15A-1443(a) (1988). That is not the situation in the case at bar.\nSection 15A-1443(a) provides,\nA defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.\nIn the case at bar, defendant points to the fact that the testimony of the serologist was inconclusive; there is conflicting testimony about defendant\u2019s whereabouts around the time of the crime; there is no physical evidence linking the defendant to the crime and no witness other than Ms. Allen who placed the defendant at the scene of the crime. Those facts in addition to the fact that Ms. Allen\u2019s identification of the defendant may be suspect in that the defendant was the only person pictured wearing a baseball cap, make this case turn on the question of credibility. As we have determined that the questions objected to were inquiries which went beyond the time and place of defendant\u2019s convictions and the punishment imposed, we also find that in this case, which turned on credibility, the defendant was prejudiced by the trial judge\u2019s overruling defendant\u2019s objections to those questions.\nHaving determined that the trial court committed prejudicial error in overruling defendant\u2019s objections to improper questions as to his prior convictions, we need not address defendant\u2019s other assignments of error.\nIll\nFor the foregoing reasons, the judgments of the trial judge are reversed and defendant is entitled to a\nNew trial.\nJudges ORR and GREENE concur.", "type": "majority", "author": "DUNCAN, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Mary Jill Ledford, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES GALLAGHER\nNo. 9011SC315\n(Filed 18 December 1990)\nCriminal Law \u00a7 88.2 |NCI3d)\u2014 prior convictions \u2014improper cross-examination \u2014 defendant prejudiced\nCross-examination of defendant in a rape case with regard to prior crimes which went beyond the time and place of defendant\u2019s convictions and the punishment imposed was improper and unfairly prejudiced defendant where the testimony of the serologist was inconclusive; there was conflicting testimony about defendant\u2019s whereabouts around the time of the crime; there was no physical evidence linking defendant to the crime and no witness other than the victim who placed defendant at the scene of the crime; and those facts in addition to the fact that the victim\u2019s identification of defendant may have been suspect in that defendant was the only person pictured wearing a baseball cap made the case turn on the question of credibility.\nAm Jur 2d, Witnesses \u00a7 582.\nAPPEAL by defendant from judgments entered 29 September 1989 in HARNETT County Superior Court by Judge Orlando F. Hudson. Heard in the Court of Appeals 24 October 1990.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Mary Jill Ledford, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Mark D. Montgomery, for defendant-appellant." }, "file_name": "0208-01", "first_page_order": 236, "last_page_order": 240 }