{ "id": 11915583, "name": "STATE OF NORTH CAROLINA v. NEHEMIAH POPE, JR.", "name_abbreviation": "State v. Pope", "decision_date": "1996-03-19", "docket_number": "No. COA95-265", "first_page": "89", "last_page": "95", "citations": [ { "type": "official", "cite": "122 N.C. App. 89" } ], "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": "64 ALR4th 755", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "425 S.E.2d 688", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "693", "parenthetical": "refusing to address objection on a ground not specifically asserted at trial" } ], "opinion_index": 0 }, { "cite": "333 N.C. 296", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2544335 ], "year": 1993, "pin_cites": [ { "page": "303-04", "parenthetical": "refusing to address objection on a ground not specifically asserted at trial" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0296-01" ] }, { "cite": "347 S.E.2d 403", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "409", "parenthetical": "stating that judge may ask clarifying questions if done in a manner that does not prejudice the defendant" } ], "opinion_index": 0 }, { "cite": "318 N.C. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4731888 ], "year": 1986, "pin_cites": [ { "page": "125", "parenthetical": "stating that judge may ask clarifying questions if done in a manner that does not prejudice the defendant" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0114-01" ] }, { "cite": "22 S.E.2d 907", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "pin_cites": [ { "page": "911" } ], "opinion_index": 0 }, { "cite": "222 N.C. 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629934 ], "year": 1942, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc/222/0283-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 4-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "123 L. Ed. 2d 486", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "507 U.S. 1038", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6500514, 6500451, 6501288, 6501433, 6500272, 6500371, 6501525, 6501013, 6500183, 6500697, 6500605, 6500062, 6500895 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/us/507/1038-06", "/us/507/1038-05", "/us/507/1038-11", "/us/507/1038-12", "/us/507/1038-03", "/us/507/1038-04", "/us/507/1038-13", "/us/507/1038-10", "/us/507/1038-02", "/us/507/1038-08", "/us/507/1038-07", "/us/507/1038-01", "/us/507/1038-09" ] }, { "cite": "421 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "570" }, { "page": "573" } ], "opinion_index": 0 }, { "cite": "332 N.C. 461", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2504044 ], "year": 1992, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0461-01" ] } ], "analysis": { "cardinality": 685, "char_count": 14491, "ocr_confidence": 0.707, "pagerank": { "raw": 2.0749924238754402e-07, "percentile": 0.7582774130847011 }, "sha256": "e7d421609677290eeb799198d49e982fea1ff95d9db56b368779a5dc7bafaf04", "simhash": "1:ad2da8ea7d3618e3", "word_count": 2404 }, "last_updated": "2023-07-14T15:39:52.508825+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. NEHEMIAH POPE, JR." ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant appeals his second degree murder conviction and fifty year sentence.\nAt 9:38 a.m. on 15 September 1992, a person identifying himself as \u201cBoss Man Pope\u201d called the Hertford County Sheriffs Department. When the dispatcher answered, the caller said \u201cy\u2019all better come and get this girl out of my house before I kill her.\u201d The caller gave his phone number and address. He then told the dispatcher that \u201cTonette\u201d came to his house \u201cto get the child\u201d and that \u201che was not going to let her take him.\u201d The dispatcher told the caller that she would send a deputy to the house to take care of his complaint. The dispatcher later called the number he had given her and recognized the voice as the man who had called previously. At trial, defendant\u2019s wife confirmed that this number was that of the house where she and defendant lived.\n\u201cTonette Watford\u201d is the daughter of defendant\u2019s wife, Mrs. Pope, and the mother of a child who had been living with the Popes since he was two months old. Deputy Paul Futrell drove Ms. Watford to defendant\u2019s home about 1:00 p.m. on 16 September 1992. He had been dispatched by the sheriff\u2019s office at Ms. Watford\u2019s request with the concurrence of DSS to take the child away from the Pope residence.\nHaving entered the home without a breach of the peace and having returned to his patrol car with the child and Ms. Watford, Deputy Futrell was confronted by defendant who pointed a gun at him. Defendant then shot Deputy Futrell who died at the scene. Testimony conflicted but the jury found defendant guilty of second degree murder. Judge Griffin found as the one aggravating factor, that the offense was against a law enforcement officer, in uniform, while in the performance of his employment. This factor he found outweighed the six mitigating factors.\nIn his brief, defendant presents arguments only on assignments of error numbers 6, 28, 34, and 36. His other assignments of error are deemed abandoned. N.C.R. App. P. 28(a) (1996). In assignments of error numbers 34 and 36, defendant asserts, inter alia, that the trial court violated defendant\u2019s constitutional rights in sentencing defendant based on its finding of an aggravating factor. Since defendant presents no argument on this issue in his brief, we deem it abandoned. N.C.R. App. P. 28(a) (1996).\nIn assignments of error numbers 34 and 36, defendant also asserts that the evidence does not support the trial court\u2019s finding, as an aggravating factor at sentencing, that the \u201coffense was committed against a law enforcement officer who was in uniform while in the performance of his employment.\u201d Defendant contends that Deputy Futrell was not on an authorized mission and that he was acting beyond his statutory authority. We conclude that he was carrying out his duty as a peace officer and therefore well within his common law authority.\nN.C. Gen. Stat. section 15A-1340.4(a)(l) (1988) sets out aggravating factors that must be considered, in certain circumstances, by the trial court at sentencing. Factor (l)(e) may be found based on a preponderance of the evidence when\nthe offense was committed against a present or former law enforcement officer, employee of the Department of Correction, jailer, fireman, emergency medical technician, ambulance attendant, justice or judge, clerk or assistant or deputy clerk of court, magistrate, prosecutor, juror, or witness against the defendant, while engaged in the performance of his official duties or because of the exercise of his official duties.\nN.C.G.S. \u00a7 15A-1340.4(a)(1)(e) (1988) (emphasis added). A nearly identical aggravating factor is available in N.C. Gen. Stat. section 15A-2000(e)(8) for determining whether a defendant may or may not be tried capitally. See N.C.G.S. \u00a7 15A-2000(e)(8) (1988).\nOur Supreme Court\u2019s construction of the aggravating factor set out in N.C.G.S. section 15A-2000(e)(8) is instructive here. In State v. Gaines, the Court held that this aggravating factor may be applied to the murder of a law enforcement officer who was engaged in secondary employment at the time of the murder. State v. Gaines, 332 N.C. 461, 465, 421 S.E.2d 569, 570 (1992), cert. denied, 507 U.S. 1038, 123 L. Ed. 2d 486 (1993). Citing previous holdings, the Gaines court stated that the aggravating factor in N.C.G.S. section 15A-2000(e)(8) may be found when an \u201con-duty\u201d or on-shift law enforcement officer in uniform is murdered during the performance of his employment. Id. at 470, 421 S.E.2d at 573.\nHere, the trial court tracked this statement by the Gaines court in finding, under N.C.G.S. section 15A-1340.4, that \u201cthe offense was committed on a law enforcement officer, who was in uniform, while in the performance of his employment.\u201d In tracking the Gaines language, the court used the phrase \u201cperformance of his employment\u201d rather than the statutory phrase \u201cin the performance of his official duties.\u201d Neither the State nor defendant contends that the court\u2019s re-wording of this statutory aggravating factor changed the essence of its finding. Thus, for purposes of this appeal only, we analyze the finding made by the court as a finding, under N.C.G.S. section 15A-1340.4(a)(l)(e), that the \u201coffense was committed against a . . . law enforcement officer . . . while engaged in the performance of his official duties or because of the exercise of his official duties.\u201d\nDefendant asserts that Deputy Futrell was not engaged in the performance of his official duties when he was shot. We disagree.\nA deputy sheriff acts in the performance of his official duties when he exercises his common law duty to be a peace officer. Contrary to defendant\u2019s assertions, the duties of sheriffs and their deputies are not limited to those duties expressly set out by statute. N.C. Gen. Stat. \u00a7 4-1 provides as follows:\nAll such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.\nN.C.G.S. \u00a7 4-1 (1986) (emphasis added). Under the common law, sheriffs are recognized as peace officers. Wilson v. Mooresville, 222 N.C. 283, 287, 22 S.E.2d 907, 911 (1942). As a peace officer, a sheriff or deputy sheriff has a duty to conserve the peace in his county and to use whatever force is necessary to preserve and prevent breaches of the peace. 80 C.J.S. Sheriffs and Constables \u00a7 42(a) (1953).\nThe record shows that defendant called the sheriffs department on the day preceding the offense and threatened to kill Ms. Watford if someone did not come and get her. In accompanying Ms. Watford the next day, Deputy Futrell was acting as a peace officer to protect her and the child. He was certainly acting as a peace officer when, after defendant .aimed his rifle towards him, Deputy Futrell pointed his gun at defendant and asked defendant to put the gun down. By finding defendant guilty of second degree murder under the instructions given, the jury either rejected the theory that defendant acted in self-defense or concluded that defendant was the aggressor with intent to kill or to inflict serious bodily injury. The record evidence and the jury\u2019s verdict support the finding that Deputy Futrell was acting in the performance of his official duties at the time he was shot.\nThe trial judge\u2019s comments to the contrary at the charge conference are immaterial. At this conference, the trial judge stated that he would review Gaines on this issue. Obviously, by the time of sentencing, the trial judge concluded that the aggravating factor was appropriate under Gaines. The trial judge neither erred nor abused his discretion in finding this factor in aggravation.\nIn assignment of error number 6, defendant asserts that the trial court violated his rights to a fair trial and to due process by questioning a witness in a manner that suggested an opinion on the evidence. After examining the record, we conclude that the court\u2019s questioning was proper under N.C.R. Evid. 614(b) and did not prejudice defendant.\nThe court questioned Chief Deputy Sharpe following direct and redirect examination by the State and cross and recross examination by defendant. The questioning went as follows:\nThe Court: Mr. Sharpe, is the sheriffs practice to \u2014 you used the word mediator earlier \u2014 mediator when there appears to be trouble brewing. Is that\u2014\nThe Witness: Yes, sir.\nThe Court: When you say the usual practice, is that what you mean?\nThe Witness: Yes, sir.\nThe Court: Okay, All right. You may step down.\nDefendant argues that this questioning was an attempt to \u201crehabilitate\u201d the witness after a successful cross-examination by his attorney and, as such, was an improper expression of opinion. We disagree. See State v. Whittington, 318 N.C. 114, 125, 347 S.E.2d 403, 409 (1986) (stating that judge may ask clarifying questions if done in a manner that does not prejudice the defendant).\nThe court\u2019s questioning simply clarified that it was the usual practice of the sheriff\u2019s department to mediate when trouble was brewing. These questions did not suggest that the court had an opinion about the legitimacy of such a practice and did not aid the prosecution. If anything, they reinforced testimony previously elicited by defendant. The court's questions here were proper under N.C.R. Evid 614(b) and did not violate defendant\u2019s rights to a fair trial and to due process of law.\nIn assignment of error number 28, defendant asserts that the court committed reversible error by permitting the State to impeach defendant with extrinsic evidence of a collateral matter.\nIn order to preserve a question for appellate review, an objecting party must state the specific grounds for the ruling he requests if these grounds are not apparent from the context. N.C.R. App. R 10(b)(1) (1996); see State v. Glenn, 333 N.C. 296, 303-04, 425 S.E.2d 688, 693 (1993) (refusing to address objection on a ground not specifically asserted at trial).\nThe evidence that defendant claims was collateral is an operations log that documents defendant\u2019s phone call to the sheriffs office the day before Deputy Futrell was shot. At trial, defendant\u2019s attorney objected on the ground that he did not know what the State was attempting to rebut by using the log, but he did not state why this rebuttal was objectionable. He also objected on the ground that he wanted to know the origin of the log. The court dismissed the jury, at defendant\u2019s attorney\u2019s request, to address these objections, specifically asked defendant\u2019s attorney to state the grounds for his objections, and admitted the log as a business record under N.C.R. Evid. 803(6). In spite of these opportunities, defendant failed to specifically object on the ground he now asserts on appeal. It also was not apparent from the context that defendant was objecting on the ground he now asserts. He has not preserved this issue for our review.\nTo the extent that assignment of error number 28 also raises constitutional issues, defendant has abandoned these issues by failing to argue them in his brief. N.C.R. App. P. 28(a) (1996).\nNo error.\nJudges WYNN and JOHN concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Associate Attorney General C. Norman Young, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender, Charlesena Elliott Walker, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. NEHEMIAH POPE, JR.\nNo. COA95-265\n(Filed 19 March 1996)\n1. Criminal Law \u00a7 1143 (NCI4th)\u2014 offense against law officer performing duties \u2014 deputy sheriff keeping the peace \u2014 sufficiency of evidence of aggravating factor\nThe evidence was sufficient to support the trial court\u2019s finding as an aggravating factor for a second-degree murder that the \u201coffense was committed against a law enforcement officer who was in uniform while in the performance of his employment\u201d where the evidence tended to show that defendant called the sheriff\u2019s department on the day preceding the offense and threatened to kill his wife\u2019s daughter if someone did not come and get her; in accompanying the daughter the next day so that she could take her child from defendant\u2019s residence, the deputy was acting as a peace officer to protect her and her child; and he was certainly acting within his common law authority as a peace officer when, after defendant aimed his rifle toward him, the deputy pointed his gun at defendant and asked defendant to put the gun down, and defendant shot and killed the deputy. N.C.G.S. \u00a7 15A-1340.4(a)(l)(e).\nAm Jur 2d, Sheriffs, Police and Constables \u00a7 16.\nSufficiency of evidence, for purposes of death penalty, to establish statutory aggravating circumstance that murder was committed to avoid arrest or prosecution, to effect escape from custody, to hinder governmental function or enforcement of law, and the like \u2014 post-Gregg cases. 64 ALR4th 755.\n2. Criminal Law \u00a7 382 (NCI4th)\u2014 court\u2019s questioning of witness \u2014 no expression of opinion\nThe trial court\u2019s questioning of a witness was not an attempt to \u201crehabilitate\u201d the witness after a successful cross-examination by defendant\u2019s attorney and was thus not an improper expression of opinion, since the court\u2019s questioning simply clarified that it was the usual practice of the sheriff\u2019s department to mediate when trouble was brewing, and these questions did not suggest that the court had an opinion about the legitimacy of such practice and did not aid the prosecution.\nAm Jur 2d, New Trial \u00a7 157; Trial \u00a7\u00a7 98, 274; Witnesses \u00a7\u00a7 53, 727, 729.\n3. Appeal and Error \u00a7 147 (NCX4th)\u2014 failure to state grounds for objection \u2014 issue not preserved for appellate review\nDefendant failed to preserve for appellate review his assertion that the trial court committed reversible error by permitting the State to impeach him with extrinsic evidence of a collateral matter, since defendant failed to specifically object on the ground he asserted on appeal, in spite of several opportunities to do so, and it was not apparent from the context that defendant was objecting on the ground he asserted on appeal. N.C.R. App. R 10(b)(1).\nAm Jur 2d, THal \u00a7\u00a7 428, 429, 705.\nAppeal by defendant from judgment and commitment entered 11 August 1994 by Judge William C. Griffin in Hertford County Superior Court. Heard in the Court of Appeals 25 October 1995.\nAttorney General Michael F. Easley, by Associate Attorney General C. Norman Young, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender, Charlesena Elliott Walker, for defendant-appellant." }, "file_name": "0089-01", "first_page_order": 125, "last_page_order": 131 }