{ "id": 8521917, "name": "STATE OF NORTH CAROLINA v. CLARENCE LEONARD MARTIN", "name_abbreviation": "State v. Martin", "decision_date": "1992-01-21", "docket_number": "No. 9018SC1255", "first_page": "182", "last_page": "191", "citations": [ { "type": "official", "cite": "105 N.C. App. 182" } ], "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": "26 ALR4th 9", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "79 ALR3d 14", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "7 ALR3d 8", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "372 S.E.2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "730", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "91 N.C. App. 577", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526260 ], "year": 1988, "pin_cites": [ { "page": "579", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/91/0577-01" ] }, { "cite": "303 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "808" } ], "opinion_index": 0 }, { "cite": "308 N.C. 736", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710863 ], "year": 1983, "pin_cites": [ { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0736-01" ] }, { "cite": "226 S.E.2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "page": "496" } ], "opinion_index": 0 }, { "cite": "290 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561659 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "446" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0431-01" ] }, { "cite": "223 S.E.2d 334", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 570", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571208 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0570-01" ] }, { "cite": "241 S.E.2d 877", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550324 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0531-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 6, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] } ], "analysis": { "cardinality": 805, "char_count": 20066, "ocr_confidence": 0.768, "pagerank": { "raw": 2.1282904316782092e-07, "percentile": 0.7654869067656068 }, "sha256": "b32cd725e0ac12dad7c4c28a2f30ad64e02127631d40c8ca1565a618f46838fe", "simhash": "1:af79946614cb7cd3", "word_count": 3284 }, "last_updated": "2023-07-14T19:24:40.355340+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge HEDRICK and Judge GREENE concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CLARENCE LEONARD MARTIN" ], "opinions": [ { "text": "EAGLES, Judge.\nDefendant contends that the trial court erred by (1) ruling that the State was not required to turn over to the defense items that belonged to defendant that were in the possession of the State, the F.B.I. or any other state or federal agency; (2) denying defendant\u2019s motion to dismiss the jury panel for an alleged violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); (3) admitting evidence concerning checks returned for insufficient funds; (4) excluding the testimony of T.O. Stokes; (5) granting the State\u2019s motion in limine regarding defendant\u2019s closing argument and overruling defendant\u2019s objections to the State\u2019s closing argument; (6) giving advice to the prosecutor in the presence of the jury; and (7) denying defendant\u2019s motion to dismiss due to the insufficiency of the evidence. We agree in part and grant defendant a new trial in 88 CRS 68627, 68628, 68630 and 89 CRS 20528. We find no prejudicial error in 88 CRS 20527 and 89 CRS 20529.\nDefendant first contends that the trial court erred in \u201creversing its ruling ordering the state to turn over for inspection to the defendant all items belonging to the defendant in possession of the State, the F.B.I. agent, or any other federal or state agency assisting the state.\u201d We find this argument without merit. The record indicates that the prosecutor had an open file policy and gave the defense access to all materials in the State\u2019s possession. Some of the defendant\u2019s own business records had been seized by federal authorities pursuant to a federal grand jury subpoena and were subject to Federal Rule of Criminal Procedure 6(e), which governs disclosure of grand jury proceedings. The federal court found that defendant had not shown a particularized need for the records as required by Rule 6. Here, the superior court ruled that the defense had had ample time to specify which documents it needed. The superior court also adopted the findings of the federal court that defendant had failed to specify which documents it needed. There is no indication in the record that defendant attempted to appeal from the federal court\u2019s ruling. On the record before us, we cannot conclude that defendant was prejudiced by the denial of access to these records. G.S. 15A-1443. Accordingly, this assignment of error is overruled.\nDefendant next contends that the trial court erred by denying defendant\u2019s motion to dismiss the jury panel for an alleged violation of the rules announced in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Here, the prosecution used peremptory challenges to dismiss two black jurors. The trial court ruled that defendant had established a prima facie case of discrimination in the selection of the jury and required the prosecutor to disclose the reasons for excusing these jurors. The chief investigator in the case, who was black, testified that he recommended that the State dismiss one juror because he had never held a professional position. He testified that he recommended that the State dismiss the second juror because he had a somewhat unstable work history. He also testified that he recommended the removal of this juror because he did not like his demeanor and body language. We note also that the defendant excused two black jurors and that the jury as finally impaneled included three blacks. In this case, the defendant was black and all of the victims were black. On this record we conclude that the State showed neutral reasons for exercise of the peremptory challenges and the trial court correctly concluded that circumstances indicating insidious and purposeful racial discrimination were absent. Accordingly, this assignment of error is overruled.\nDefendant also contends that the trial court erred in admitting testimony concerning certain of his checks being returned for insufficient funds and defendant\u2019s purchase of automobiles using a bad check. We find defendant\u2019s arguments unpersuasive. First, the testimony regarding the return of checks for insufficient funds is relevant to show defendant\u2019s knowledge regarding the financial condition of WCC and his inability to meet the promises he made to investors regarding the guaranteed return on investment. Additionally, as to defendant\u2019s purchase of automobiles with bad checks, the trial court instructed the jury to disregard the question and answer about the bad check. Defendant has failed to show any prejudice as required under G.S. 15A-1443. Accordingly, this assignment of error is overruled.\nDefendant next argues that the trial court erred by excluding the testimony of defendant\u2019s attorney, T. 0. Stokes, regarding a security agreement between WCC and Vaillencourt Corporation. This evidence was relevant as to those indictments which allege that defendant pledged the inventory of World Car Corporation as collateral (88 CRS 68627, 88 CRS 68628, 88 CRS 68630, 89 CRS 20528). The defense made an offer of proof that attorney Stokes had advised the defendant that the security agreement between Vaillencourt and defendant was null and void and ineffective to create a valid security interest in the vehicles. We agree with defendant that this evidence was relevant to show defendant\u2019s intent. \u201cWhen intention is considered relevant it may . . . like other facts, be proved by circumstantial evidence.\u201d 1 H. Brandis, North Carolina Evidence \u00a7 83 (1988). We disagree with the State\u2019s contention at trial that this testimony was irrelevant and \u201cwould only become relevant if in fact the defendant took the stand and said that he relied upon the advice of his counsel, and if he says that, then it would be relevant to corroborate him.\u201d We note that \u201cadmissibility is governed by the general rules applicable to substantive evidence, and the \u2018corroboration\u2019 label neither adds to nor detracts from its competency.\u201d 1 H. Brandis, North Carolina Evidence \u00a7 49 (1988). We hold that the exclusion of this testimony constitutes prejudicial error and accordingly grant defendant a new trial in 88 CRS 68627, 88 CRS 68628, 88 CRS 68630, and 89 CRS 20528.\nWe are not persuaded by defendant\u2019s arguments that the trial court erred in excluding Stokes\u2019 testimony that defendant attempted to improve the financial condition of WCC. Because we fail to see the relevance of this testimony, we overrule this assignment of error.\nNext, we address defendant\u2019s contentions regarding the closing arguments. First, defendant contends that the trial court erred in precluding him from arguing that he intended to repay the victims. This contention is without merit in that this Court has said that intent to repay is no defense to a charge of obtaining property by false pretenses. State v. Tesenair, 35 N.C. App. 531, 241 S.E.2d 877 (1978).\nDefendant also contends that the trial court erred in allowing the State to comment on defendant\u2019s wife\u2019s failure to take the stand. We agree that the court erred in allowing the comment; however, the comment did not constitute prejudicial error. Defense counsel argued:\nAll we can say, put one employee up to say there never was a fleet. And you notice that hasn\u2019t been contradicted in any way. There\u2019s never been any other employee take the stand. Mrs. Martin didn\u2019t take the stand.\nMr. HAYES: Objection, Your Honor.\nTHE COURT: Sustained.\nMr. PANOSH: Your Honor, I said Mrs. Martin.\nThe COURT: You may comment upon Mrs. Martin not testifying.\nMR. PANOSH: No other employee of that corporation, including Mrs. Martin, took the stand and testified that there was a rental fleet, because there was none.\nG.S. 8-57(a) provides in part: \u201cThe spouse of the defendant shall be a competent witness for the defendant in all criminal actions, but the failure of the defendant to call such spouse as a witness shall not be used against him.\u201d Defendant relies on State v. McCall, 289 N.C. 570, 223 S.E.2d 334 (1976) and State v. Thompson, 290 N.C. 431, 226 S.E.2d 487 (1976), to argue that the admission of this testimony constitutes prejudicial error. McCall and Thompson are distinguishable from the instant case. In McCall the prosecutor cross-examined the defendant about his wife\u2019s failure to testify and emphasized that point in closing argument. In Thompson, 290 N.C. at 446, 226 S.E.2d at 496, the solicitor argued: \u201cHave you heard from his wife? I can\u2019t use a man\u2019s wife against him, but he can use his wife for himself. Wouldn\u2019t she be a good person to tell you when he came in and how he got in the house? Have you heard from her?\u201d Here, the prosecutor recounted that defendant\u2019s employees had failed to testify, including Mrs. Martin, who was identified as the assistant manager of the company. The argument emphasized Mrs. Martin\u2019s status as an employee of WCC and not her status as defendant\u2019s spouse. While we agree that the admission of this argument violates the letter of G.S. 8-57(a) and was error, we hold that its admission does not rise to the level of reversible error. Accordingly, this assignment of error is overruled.\nNext defendant contends that the trial court erred by overruling defendant\u2019s objection to the following comment in the prosecutor\u2019s closing argument: \u201cAnd I didn\u2019t do that, ladies and gentlemen of the jury, because I felt that there was sufficient evidence before this jury.\u201d In State v. Black, 308 N.C. 736, 744, 303 S.E.2d 804, 808 (1983), the Supreme Court said: \u201cWe see nothing improper in a prosecutor stating in his opening remarks to the jury that the State will, or he thinks it will, carry [its] burden.\u201d In our view, the prosecutor\u2019s comment here was of a similar character, and we overrule this assignment of error.\nDefendant also argues that the trial court erred by giving advice to the prosecutor in the presence of the jury and \u201cconveying] to the jury the opinion that the judge was favoring the prosecution.\u201d While the prosecutor was attempting to lay a foundation for the introduction of bank records, the defendant objected based on the witness\u2019 purported lack of personal knowledge of the documents or the checks. The trial court said, \u201cWould you indicate the inquiry of the witness\u2019 familiarity with the system itself. And his position, please.\u201d This Court has noted:\nUnder G.S. 15A-1222, the judge \u201cmay not express during any stage of the trial, any opinion in the presence of the jury on any question of fact to be decided by the jury.\u201d It is the right and duty, however, of the trial judge to control examination and cross-examination of witnesses. The trial judge may also ask a witness questions for the purpose of clarifying testimony.\nState v. Alverson, 91 N.C. App. 577, 579, 372 S.E.2d 729, 730 (1988) (citations omitted). As in Alverson, we find here that the trial judge\u2019s comments did not express an opinion about the defendant\u2019s guilt and were permissible.\nFinally, defendant contends that the trial court erred by denying his motion to dismiss due to the insufficiency of the evidence. We note that because defendant offered evidence, he is precluded from arguing the trial court\u2019s denial of that motion as grounds for appeal under the Rules of Appellate Procedure. \u201cIf a defendant makes [a motion to dismiss the action] after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of the State\u2019s evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.\u201d N.C.R. App. P. 10(b)(3).\nFor the reasons stated, we find no prejudicial error in 89 CRS 20527 and 89 CRS 20529 and grant defendant a new trial in 88 CRS 68627, 88 CRS 68628, 88 CRS 68630 and 89 CRS 20528, those cases in which the State alleges that the vehicles pledged by defendant to secure the investments were subject to a prior valid security interest held by Vaillencourt Corporation.\nNo error as to 89 CRS 20527 and 89 CRS 20529.\nNew trial as to 88 CRS 68627, 88 CRS 68628, 88 CRS 68630 and 89 CRS 20528.\nChief Judge HEDRICK and Judge GREENE concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Associate Attorney General Patsy Smith Morgan, for the State.", "Assistant Public Defender Frederick G. Lind for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CLARENCE LEONARD MARTIN\nNo. 9018SC1255\n(Filed 21 January 1992)\n1. Constitutional Law \u00a7 247 (NCI4th)\u2014 access to evidence in prosecutor\u2019s files denied \u2014no error\nThere was no merit to defendant\u2019s contention that the trial court erred in reversing its ruling ordering the State to turn over for inspection to defendant all items belonging to defendant in possession of the State or the FBI, since the prosecutor had an open file policy and gave the defense access to all materials in the State\u2019s possession; some of defendant\u2019s business records were seized by federal authorities pursuant to a federal grand jury subpoena; the federal court found that defendant had not shown a particularized need for the records as required by Federal Rule of Criminal Procedure 6; the superior court ruled that the defense had had ample time to specify which documents it needed; and the superior court adopted the findings of the federal court that defendant had failed to specify which documents it needed. N.C.G.S. \u00a7 15A-1443.\nAm Jur 2d, Depositions and Discovery \u00a7 430.\nRight of accused in state courts to inspection or disclosure of evidence in possession of prosecution. 7 ALR3d 8.\n2. Jury \u00a7 7.14 (NCI3d)\u2014 peremptory challenges \u2014no racial discrimination shown\nThe State showed neutral reasons for the exercise of peremptory challenges, and the trial court correctly concluded that circumstances indicating insidious and purposeful racial discrimination were absent where the prosecution used peremptory challenges to dismiss two black jurors on the basis of recommendations by the chief investigator, who was black; the investigator made such recommendations because one juror had never held a professional position and the second juror had an unstable work history and demeanor and body language which the investigator did not like; defendant excused two black jurors; the jury as finally empanelled included three blacks; and the defendant and all the victims were black.\nAm Jur 2d, Jury \u00a7 235.\nUse of peremptory challenge to exclude from jury persons belonging to a class or race. 79 ALR3d 14.\n3. Evidence and Witnesses \u00a7 322 (NCI4th)\u2014 evidence of prior offense \u2014 admissibility to show knowledge\nIn a prosecution of defendant for obtaining property by false pretenses where defendant allegedly solicited various people to invest in a bogus car dealership network, the trial court did not err in admitting testimony concerning certain of defendant\u2019s checks being returned for insufficient funds since the evidence was relevant to show defendant\u2019s knowledge regarding the financial condition of the car dealership and his inability to meet the promises he made to investors regarding the guaranteed return on investment; moreover, defendant was not prejudiced by evidence of his purchase of automobiles using a bad check where the trial court instructed the jury to disregard the question and answer about the bad check.\nAm Jur 2d, Evidence \u00a7 323.\n4. False Pretense \u00a7 3 (NCI3d| \u2014 evidence of intent \u2014 exclusion error\nIn a prosecution of defendant for obtaining property by false pretenses where defendant allegedly solicited various people to invest in a bogus car dealership network, the trial court erred in excluding the testimony of defendant\u2019s attorney that he had advised defendant that a security agreement between the dealership network and a third corporation was void, since that evidence was relevant as to those indictments alleging that defendant pledged the inventory of the dealership network as collateral, and the evidence was relevant to show defendant\u2019s intent.\nAm Jur 2d, False Pretenses \u00a7 72.\n5. False Pretense \u00a7 3 (NCI3d)\u2014 intent to repay no defense\u2014 evidence properly excluded\nSince intent to repay is no defense to a charge of obtaining property by false pretenses, the trial court did not err in precluding defendant from arguing intent to repay to the jury.\nAm Jur 2d, False Pretenses \u00a7 72.\n6. Criminal Law \u00a7 424 (NCI4th) \u2014 failure of spouse to testify\u2014 argument not prejudicial error\nWhile the State\u2019s comment on defendant\u2019s wife\u2019s failure to take the stand violated the letter of N.C.G.S. \u00a7 8-57(a) and was error, the admission of this argument did not rise to the level of reversible error where the prosecutor recounted that defendant\u2019s employees had failed to testify, including defendant\u2019s wife, and this argument emphasized the wife\u2019s status as an employee of the company and not her status as defendant\u2019s spouse.\nAm Jur 2d, Trial \u00a7 597.\nPropriety and prejudicial effect of prosecutor\u2019s argument commenting on failure of defendant\u2019s spouse to testify. 26 ALR4th 9.\n7. Criminal Law \u00a7 444 (NCI4th)\u2014 jury argument \u2014 belief that evidence sufficient\nThe prosecutor\u2019s jury argument, \u201cAnd I didn\u2019t do that . . . because I felt that there was sufficient evidence before the jury,\u201d was not improper.\nAm Jur 2d, Trial \u00a7 554.\n8. Criminal Law \u00a7 373 (NCI4th)\u2014 court\u2019s suggestion to prosecutor \u2014 no opinion on evidence\nThe trial court did not express an opinion on the evidence when defendant objected to the State\u2019s introduction of bank records on the ground that the witness lacked personal knowledge of the documents and checks, and the court stated, \u201cWould you indicate the inquiry of the witness\u2019 familiarity with the system itself. And his position, please.\u201d\nAm Jur 2d, Trial \u00a7 280.\nAPPEAL by defendant from judgment entered 27 April 1990 by Judge Melzer A. Morgan, Jr. in GUILFORD County Superior Court. Heard in the Court of Appeals 23 September 1991.\nThe State\u2019s evidence presented at trial tended to show the following: During December 1987 through July 1988, defendant solicited various people to invest in a floor plan financing arrangement called the High Interest Investment Program for World Car Corporation (WCC). Defendant sent out a written invitation that provided:\nWorld Cars [sic] Corporation signs an auto share agreement with you for your investment of between one thousand to one hundred thousand. Your money will be used to purchase cars for lease and rental fleets.\nWorld Cars will rent or lease these units to our thousands of customers through our Dealership Network in Greensboro, Charlotte, Winston-Salem, Raleigh, Durham, and surrounding areas within North Carolina. World Cars currently has a [backlog] of customers waiting for our automobiles.\nThe letter promised no risk of loss and interest payments of 5 percent monthly or 60 percent annually. The letter also said that the investment was secured by the automobiles and that \u201c[y]our investment is protected by a State of North Carolina UCC lien filing showing your name as a participating owner of the Cars in our fleet.\u201d\nThrough these representations, defendant induced the following persons to invest the sums listed: Prince Earl and Ruth Smith, $25,000; P.E. Smith, $10,000; Viola Morris, $2,000; Quincy H. Holt, $1,000; Thomas E. Brewington, $10,000; and Theodore and Gladys Plowden, $2,000. In fact, no network of World Car Corporation dealers existed; Martin did not have the means to pay the promised interest payments, the vehicles which were to be pledged to secure the investments did not belong to Martin or were not available to secure the interests of the investors, and Martin filed no documents to make the investors secured parties under the Uniform Commercial Code. None of the investors received the promised interest payments and none had status as secured investors as Martin had promised.\nDefendant was indicted on six counts of embezzlement and six counts of obtaining property by false pretenses. On 27 April 1990 defendant was convicted on all counts with the court allowing defendant\u2019s motion to arrest judgment on the embezzlement charges. He was sentenced to a term of 20 years active time with a 26-year suspended sentence commencing at the expiration of the active term. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Associate Attorney General Patsy Smith Morgan, for the State.\nAssistant Public Defender Frederick G. Lind for defendant-appellant." }, "file_name": "0182-01", "first_page_order": 210, "last_page_order": 219 }