{ "id": 11241611, "name": "STATE OF NORTH CAROLINA v. TYDIS JOHNSON", "name_abbreviation": "State v. Johnson", "decision_date": "2000-03-07", "docket_number": "No. COA98-359", "first_page": "683", "last_page": "695", "citations": [ { "type": "official", "cite": "136 N.C. App. 683" } ], "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": "12 L. Ed. 2d 302", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1964, "opinion_index": 0 }, { "cite": "377 U.S. 939", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6210050, 6211203, 6211398, 6210506, 6210285, 6210990, 6209810, 6210747 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/us/377/0939-02", "/us/377/0939-07", "/us/377/0939-08", "/us/377/0939-04", "/us/377/0939-03", "/us/377/0939-06", "/us/377/0939-01", "/us/377/0939-05" ] }, { "cite": "133 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1963, "pin_cites": [ { "page": "655" } ], "opinion_index": 0 }, { "cite": "260 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576295 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0749-01" ] }, { "cite": "392 S.E.2d 609", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "326 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306539 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc/326/0662-01" ] }, { "cite": "453 S.E.2d 185", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "338 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2520644, 2521382, 2520494, 2517361, 2518303 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/338/0671-03", "/nc/338/0671-02", "/nc/338/0671-04", "/nc/338/0671-05", "/nc/338/0671-01" ] }, { "cite": "449 S.E.2d 24", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "116 N.C. App. 534", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524822 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc-app/116/0534-01" ] }, { "cite": "467 S.E.2d 12", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "21" } ], "opinion_index": 0 }, { "cite": "342 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 795977 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/342/0523-01" ] }, { "cite": "477 S.E.2d 915", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867671 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0658-01" ] }, { "cite": "367 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "322 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2517737 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/322/0152-01" ] }, { "cite": "340 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "315 N.C. 649", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4717786 ], "year": 1986, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0649-01" ] }, { "cite": "405 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "329 N.C 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553626 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0149-01" ] }, { "cite": "462 U.S. 1039", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196866 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "1043", "parenthetical": "an accused in custody is not subject to further interrogation after requesting counsel until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the authorities" }, { "page": "411", "parenthetical": "an accused in custody is not subject to further interrogation after requesting counsel until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the authorities" } ], "opinion_index": 0, "case_paths": [ "/us/462/1039-01" ] }, { "cite": "353 S.E.2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "319 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4740066, 4742246, 4746951, 4741192, 4744373 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/319/0106-01", "/nc/319/0106-05", "/nc/319/0106-03", "/nc/319/0106-02", "/nc/319/0106-04" ] }, { "cite": "349 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "302" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 135", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358160 ], "year": 1986, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0135-01" ] }, { "cite": "314 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "1" } ], "opinion_index": 0 }, { "cite": "67 N.C. App. 759", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527280 ], "year": 1984, "pin_cites": [ { "page": "760" } ], "opinion_index": 0, "case_paths": [ "/nc-app/67/0759-01" ] }, { "cite": "477 S.E.2d 172", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "344 N.C. 702", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867658 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/344/0702-01" ] }, { "cite": "468 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798816 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0120-01" ] }, { "cite": "308 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765436 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0512-01" ] } ], "analysis": { "cardinality": 1040, "char_count": 28266, "ocr_confidence": 0.739, "pagerank": { "raw": 9.238496765783824e-08, "percentile": 0.5108801710061088 }, "sha256": "720b758a60f3e18557d1820d4c2d8f3e994b3577f4fbbd72212223fafed20266", "simhash": "1:abf15425d6ff8c70", "word_count": 4653 }, "last_updated": "2023-07-14T19:33:36.366510+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TYDIS JOHNSON" ], "opinions": [ { "text": "HUNTER, Judge.\nTydis Johnson (\u201cdefendant\u201d) appeals his conviction for the offenses of first degree murder and robbery with a dangerous weapon of Danny Ray Pack (\u201cPack\u201d) which occurred on 23 August 1996 in Shelby, North Carolina. We affirm.\nThe State presented evidence at trial which showed that Michael Page (\u201cPage\u201d) was working as the dispatcher for United Cab in Shelby, North Carolina during the early morning hours of Friday, 23 August 1996. At 4:31 a.m., Page received a telephone call in which a male voice asked for a taxi cab to come to Apartment D, the Meadows Apartments, 1501 Eaves Road in Shelby. Taxi driver Pack was dispatched to this address at 4:36 a.m. and eight to ten minutes later called on his car radio and asked the dispatcher to call the requesting party as he was waiting outside. Page\u2019s return telephone call was answered by a woman who said she lived at Apartment J-5, Holly Oak Apartments. While Page was speaking to the woman, Pack called by radio and said \u201c[g]ive me a ten thirteen out here. I think I\u2019ve been shot.\u201d Page asked the woman to hang up and then called 911, informing the operator that a cabdriver had been shot at 1501 Eaves Road, Apartment D. Pack radioed again, and in a gurgling voice said that he had been shot. In less than a minute, Pack called in a third time.\nResponding to the 911 call, Shelby police officer T. L. Green arrived at the parking lot of the 1501 building at the Meadows Apartments at 4:46 a.m. Officer Green observed that Pack, who was still breathing, was lying partially in the taxi with his head on the carpeted area by the driver\u2019s seat. A large pool of blood was underneath Pack. When the emergency medical personnel moved Pack to the emergency vehicle, Officer Green observed an empty holster on Pack\u2019s left side. It was subsequently discovered that he had been carrying a Lorcin nine-millimeter pistol that night.\nPack subsequently died. At trial, Dr. Steve Tracy testified that Pack had incurred two gunshot wounds to the head on the morning of 23 August 1996. His cause of death was the wound that caused a depressed skull fracture and bruising of the brain.\nShelby Police Detective Jim Glover talked to suspects Eric Wright (\u201cWright\u201d) and Keith Hamilton (\u201cHamilton\u201d) within two days following the murder of Pack. Both indicated that defendant was involved in the robbery and murder of Pack. On 26 August 1996, Shelby Police Officer Wacaster saw defendant sitting in the front passenger seat of a car that was stopped at a gasoline pump at Super Dave\u2019s Convenience Store, located several blocks from the Meadows Apartments. After obtaining the driver\u2019s consent, Officer Wacaster searched the glove box and seized a silver .32 caliber pistol and eight cartridges wrapped inside a plastic bag. Detective Glover approached defendant in the presence of other police officers at Super Dave\u2019s and informed defendant that the police were investigating a shooting incident and asked defendant to go the police department. Defendant stated that he did not wish to do so, and Detective Glover placed defendant under arrest for the homicide of Pack. Defendant was 15 years of age at the time of his arrest.\nDefendant was then driven to the police department, where, in his mother\u2019s presence, defendant was advised of his Miranda rights, which defendant said he understood. Defendant then said that he did not want to answer questions. At that point, defendant\u2019s mother interjected and told the defendant that \u201cwe need to get this straightened out today and we\u2019ll talk with him anyway.\u201d Defendant then nodded affirmatively to Detective Glover, who then asked if defendant wanted to answer questions without a lawyer or parent being present. Defendant answered \u201cyes\u201d and signed a waiver of rights form, which was also signed by defendant\u2019s mother, Detective Glover and Detective Jeff Ledford.\nDefendant was then questioned about the incident. Defendant first indicated that he did not know anything about the murder of Pack; however, defendant became emotional after being told that other persons had been interviewed, and the reasons why he was being interviewed. Defendant indicated that he wanted to talk without his mother being present, and she and Detective Ledford then left the room. Defendant then said he was involved and wanted to talk about the incident. Approximately five minutes later, defendant\u2019s mother returned, and defendant told her what he had just said to Detective Glover. In his mother\u2019s presence, defendant made a statement to Detective Glover describing the circumstances surrounding the shooting of Pack on 23 August 1996.\nDefendant\u2019s statement indicated that on the evening of 22 August 1996, defendant had been in the company of Wright and Hamilton at defendant\u2019s brother\u2019s apartment at Holly Oak Apartments, number J-l. Wright called the taxi from Nancy Dawkins\u2019 apartment, number J-5 at Holly Oak Apartments, and then the boys walked to the Meadows Apartments. As they saw the cab approaching the Meadows Apartments, the boys ran towards it and Hamilton pointed a .22 rifle at the cab driver, who tried to pull the rifle away. When the cab driver reached for his own pistol, defendant shot him in the jaw on the right side of the head. Defendant reached in the passenger side door and tried to take the radio scanner which would not come loose. Hamilton picked up Pack\u2019s fallen pistol and defendant dropped his gun and began to run. Defendant left Wright at the car and heard another shot as he turned to run. Several minutes later at defendant\u2019s brother\u2019s apartment in Holly Oak Apartments, Wright came in holding a bloody towel, and said, \u201cI blasted that fool.\u201d Defendant said that Wright later sold Pack\u2019s nine-millimeter pistol for one hundred dollars.\nThe State\u2019s evidence regarding weapons showed that police officers subsequently executed a search warrant and seized a .22 rifle from under a couch in apartment J-l of the Holly Oak Apartments and also two .38 caliber bullets and an amplifier. Melvin Jamerson purchased a nine-millimeter pistol from defendant after 23 August 1996 for one hundred dollars. The transaction occurred in the Holly Oak Apartments and Jamerson asked defendant if the gun was hot or had any bodies on it. Defendant answered \u201cno.\u201d The silver .32 caliber pistol and cartridges obtained from the vehicle in which defendant was a passenger on 26 August 1996 and two fired bullets from the murder scene were submitted to the North Carolina State Bureau of Investigation (\u201cSBI\u201d) for comparison. SBI Special Agent Ronald Marrs compared the fired bullets found at the murder scene and those taken from Pack\u2019s scalp and determined that both were fired from the .32 caliber pistol to the exclusion of all other firearms.\nDefendant, Hamilton, and Wright all had conflicting accounts of the shooting. Hamilton stated that he inflicted Pack\u2019s first wound. Wright admitted calling the cab company and walking with Hamilton and defendant to meet the cab, but denied seeing who actually shot Pack. Hamilton pleaded guilty to second degree murder for the killing of Pack. Wright pleaded guilty to robbery with a dangerous weapon and accessory to the murder of Pack. Defendant was tried and found guilty of first degree murder and robbery with a dangerous weapon, and was sentenced to a term of life imprisonment without parole.\nFirst, defendant contends that the trial court erred in its denial of his motion to suppress his statement to the Shelby Police in which he confessed to shooting Pack. Defendant argues his statement should have been suppressed because the evidence shows that after his interrogation had begun, defendant indicated to the police that he did not wish to answer any questions and at this point, questioning should have ceased.\nN.C. Gen. Stat. \u00a7 7A-595 regarding interrogation procedures for juveniles, provides in pertinent part:\n(a) Any juvenile in custody must be advised prior to questioning:\n(1) That he has a right to remain silent; and\n(2) That any statement he does make can be and may be used against him; and\n(3) That he has a right to have a parent, guardian or custodian present during questioning; and\n(4) That he has a right to consult with an attorney and that one will be appointed for him if he is not represented and wants representation.\n(c) If the juvenile indicates in any manner and at any stage of questioning pursuant to this section that he does not wish to be questioned further, the officer shall cease questioning.\nN.C. Gen. Stat. \u00a7 7A-595 (1989).\nAs is required, the trial court in the present case issued an order stating how it resolved the conflicts in evidence presented by the State and defendant as to whether the defendant wished to be interrogated. See State v. Lang, 309 N.C. 512, 308 S.E.2d 317 (1983); State v. Braxton, 343 N.C. 120, 468 S.E.2d 59, opinion after remand, 344 N.C. 702, 477 S.E.2d 172 (1996). The trial court made the following findings of fact, in pertinent part:\n5. The interrogation of the defendant took place in the law library. . . . Present during most of the interrogation were the defendant, his mother, Detective Glover and [Detective] Ledford who was there to serve as a witness;\n7. After the [Miranda] rights were read, Glover asked the defendant the questions that appear in the waiver section of the rights form. He first asked the defendant, \u201cDo you understand each of these rights I have explained to you?\u201d[] The defendant initially responded by nodding his head affirmatively as he had done previously. Detective Glover instructed the defendant that he had to respond verbally by answering either \u201cyes\u201d or \u201cno\u201d. The defendant said \u201cyeah\u201d. Detective Glover then asked the defendant the next question \u2014 \u201cHaving these rights in mind, do you wish to answer questions?\u201d The defendant answered \u201cNo\u201d. Immediately after the defendant gave that response, his mother turned to him and said \u201cNo, we need to get this straightened out today. We\u2019ll talk with him anyway.\u201d The defendant looked at his mother. He lowered his head and appeared to be considering what his mother had said. He then turned to Detective Glover and nodded his head affirmatively. Detective Glover then asked the defendant the third question, \u201cDo you now wish to answer questions without a lawyer present?\u201d[] The defendant responded, \u201cYes.\u201d Detective Glover next asked him the fourth and last question, \u201cDo you wish to answer the questions without a parent, guardian or custodian present?\u201d The Defendant answered, \u201cYes.\u201d At that point, Detective Glover handed the waiver form to the defendant\u2019s mother who read the form then signed it. The form was then passed to the defendant who simply signed the form without reading it;\n8. After the defendant had been advised of his rights, Glover proceeded to interrogate the defendant. Initially Glover engaged the defendant in casual conversation that was unrelated to the events that led to the defendant\u2019s arrest. Detective Glover then asked the defendant if he wanted to talk about the robbery and murder of Danny Pack. The defendant indicated a willingness to talk to Glover about the murder. Glover handed the defendant a pen and paper and asked him to write down what had occurred. The defendant made a few marks on the paper, appeared to become frustrated, pushed the paper across the table to Glover and asked Glover to record his statement. . . .\nWhile defendant initially stated that he did not want to answer any questions, within a few moments, he rescinded this decision by nodding his head affirmatively to Detective Glover. When asked, defendant stated that he would answer questions without an attorney present.\nThis Court has stated: \u201c[W]hen a person in custody indicates he does not wish to make a statement, the officers may not take an incul-patory statement from him unless the defendant initiates the conversation in which he waives his rights.\u201d State v. Bragg, 67 N.C. App. 759, 760, 314 S.E.2d 1, 1 (1984). When a defendant indicates he does not wish to answer questions but later responds to further questioning, \u201cthe crucial issue is who initiated the conversation in which the defendant made the incriminating statement.\u201d State v. Crawford, 83 N.C. App. 135, 137, 349 S.E.2d 301, 302 (1986), cert. denied, 319 N.C. 106, 353 S.E.2d 115 (1987); see also Oregon v. Bradshaw, 462 U.S. 1039, 1043, 77 L. Ed. 2d 405, 411 (1983) (an accused in custody is not subject to further interrogation after requesting counsel until counsel has been made available to him unless the accused himself initiates further communication, exchanges, or conversations with the authorities).\nIn the present case, defendant stated that he did not wish to answer any questions, but then, upon considering his mother\u2019s statement, he turned to the police officer and nodded his head affirmatively. In response to defendant\u2019s nod indicating \u201cyes,\u201d Detective Glover asked defendant if he then wished to answer questions without a lawyer present and defendant answered \u201cyes.\u201d By turning to the detective and nodding his head affirmatively to him, defendant communicated with him and thus initiated further conversation. If defendant had not made this gesture to the detective, the detective could not have continued questioning him. Because defendant initiated communication, we hold that defendant\u2019s subsequent statement was admissible. Accordingly, this assignment of error is overruled.\nDefendant next contends that the trial court committed reversible error by denying defendant\u2019s objection to testimony of Detective Glover elicited from the juvenile rights form on the basis that it was a statement of the defendant and had not been provided to defendant by the district attorney in response to defendant\u2019s request prior to trial. N.C. Gen. Stat. \u00a7 15A-903(a) provides, in pertinent part:\n(a) Statement of Defendant. \u2014 Upon motion of a defendant, the Court must order the prosecutor:\n(2) To divulge, in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, within the possession, custody or control of the State, the existence of which is known to the prosecutor or becomes known to him prior to or during the course of trial....\nN.C. Gen. Stat. \u00a7 15A-903(a)(2) (1999). The State contends that it properly \u201cresponded to defendant\u2019s request for voluntary discovery by providing copies of the completed [j]uvenile rights and waiver of rights form and the four-page written statement of defendant,\u201d to defendant during discovery and that the substance of defendant\u2019s statements were shown on this form.\nThe completed juvenile rights and waiver of rights form, which was provided to defendant, provides, in pertinent part:\n[I]t [is] clear to me that I have the following rights:\n(1) You have the right to remain silent.\n(2) Anything you say can be and may be used against you.\n(3) You have the right to have a parent, guardian or custodian present during questioning.\n(4) You have the right to talk with a lawyer for advice before questioning and to have that lawyer with you during questioning. If you do not have a lawyer and want one, a lawyer will be appointed for you.\n(5) If you consent to answer questions now, without a lawyer, parent or guardian present, you still have the right to stop answering at any time.\nWAIVER\n(1) Do you understand each of these rights I have explained to you?\nAnswer \u201cveah\u201d (handwritten)\n(2) Having these rights in mind do you now wish to answer questions?\nAnswer \u201cno\u201d (handwritten)\n(3) Do you now wish to answer questions without a lawyer present?\nAnswer \u201cves\u201d (handwritten)\n(4) Do you now wish to answer questions without a parent, guardian or a custodian present?\nAnswer \u201cves\u201d (handwritten)\nThe form was signed by defendant, his mother, Detective Ledford and Detective Glover.\nThe trial transcript reveals that during trial, Detective Glover testified as to answers the defendant gave in response to questions about locating his mother and his Miranda and juvenile rights under N.C. Gen. Stat. \u00a7 7A-595, which are combined together and listed (l)-(5) on the form. A \u201ccheck\u201d mark is handwritten beside each number from (1) to (5). Detective Glover testified that the check by each number was written by him after he read the corresponding right to defendant and after each was read, defendant either indicated non-orally that he understood the right or did nothing to indicate that he did not understand. He testified that after he read right number one, \u201c[defendant] indicated that it was all right, and I made a check on the one or the number beside it, that he indicated that he understood that right.\u201d Detective Glover testified that defendant made no statement in response to any of the Miranda rights read to him, and indicated that defendant did not make a non-oral assertion for any right except the first one. Thus, Detective Glover did not testify as to any oral statement defendant made in response to the reading of defendant\u2019s rights. Our review indicates that the bottom of the form clearly provides handwritten notation of the answers given.by the defendant in response to questions as to waiving his juvenile and Miranda rights.\nThe sanctions for failure to comply with statutory discovery requirements are permissive and a trial court\u2019s decision may be disturbed only upon a showing of abuse of discretion. State v. Bearthes, 329 N.C 149, 405 S.E.2d 170 (1991). The ruling on defendant\u2019s motion will not be disturbed on appeal \u201cabsent a showing of bad faith by the state in its noncompliance with the discovery requirements.\u201d State v. McClintick, 315 N.C. 649, 662, 340 S.E.2d 41, 49 (1986). Additionally, defendant must demonstrate he was prejudiced by the State\u2019s noncompliance and that, if the substance of the oral statements had been provided earlier, the outcome of the trial would have differed. Id. Our Supreme Court has held that delivery of a synopsis of a defendant\u2019s oral statements in response to discovery requests complies with the \u201csubstance\u201d requirement of N.C. Gen. Stat. \u00a7 15A-903(a)(2). State v. Weeks, 322 N.C. 152, 367 S.E.2d 895 (1988). Because Detective Glover did not testify that defendant made a statement in response to the reading of his rights at the top of the juvenile rights and waiver of rights form, the State could not have provided a recorded statement by the defendant in response to the reading of these rights. Thus, the State did not fail to comply with discovery under N.C. Gen. Stat. \u00a7 15A-903(a)(2). Likewise, defendant has failed to show an abuse of discretion through bad faith by the State during discovery. Accordingly, this assignment of error is overruled.\nNext, defendant contends that the trial court erred in refusing to sustain defendant\u2019s objection to the State\u2019s questioning of Detective Glover and Detective Ledford as to their opinion of the defendant\u2019s understanding of the juvenile rights form. Defendant argues that the question asked for more than the officers\u2019 perception of him and that the officers did not have sufficient expertise to form an opinion.\nFirst, we note that juvenile is defined as a \u201cperson who has not reached his eighteenth birthday and is not married, emancipated, or a member of the armed services of the United States.\u201d N.C. Gen. Stat. \u00a7 7A-517(20) (1989). It is uncontroverted that defendant was a juvenile at the time of his interrogation. The trial court must find that the juvenile knowingly, willingly, and understandingly waived his rights before admitting into evidence any statement resulting from custodial interrogation. N.C. Gen. Stat. \u00a7 7A-595(d) (1989). The determination of whether a waiver is knowingly and intelligently made is dependent on the specific facts and circumstances of each case, including background, experience, and conduct of the accused. State v. Miller, 344 N.C. 658, 477 S.E.2d 915 (1996). The burden rests on the State to show the juvenile defendant made a knowing and intelligent waiver of his rights. Id.\nOpinion testimony by a lay witness is allowed if \u201c(a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.\u201d N.C.R. Evid. 701. The State contends that the detectives\u2019 opinions that defendant understood his Miranda rights were based upon their personal perception of defendant and was helpful to the trial court in determining the ultimate fact at issue \u2014 whether defendant understandingly, knowingly, and willingly waived his rights.\nInState v. Jones, 342 N.C. 523, 467 S.E.2d 12 (1996), a police officer\u2019s opinion of the defendant\u2019s mental capacities at the time of the confession was properly admitted because his opinion\nwas rationally based on his perception of defendant at the time of the confession. Furthermore, it was necessary that he give his opinion as to defendant\u2019s mental state at the time of the confession to help determine a crucial fact in issue, that is, that defendant voluntarily gave the statement to police.\nId. at 538, 467 S.E.2d at 21.\nIn the case at bar, Detective Glover read the juvenile rights and waiver form to defendant and noted defendant\u2019s responses on the form. Detective Glover expressed his opinion at trial that defendant understood his rights and the waiver of those rights. Detective Ledford was present while the juvenile rights and waiver of rights were read to defendant and testified that his opinion was that defendant understood his rights and the waiver. If a police officer\u2019s opinion is not based upon his own perception, then it would not qualify as lay opinion under N.C. Gen. Stat. \u00a7 8C-1, Rule 701. However, as was the case in Jones, the opinions of Detective Glover and Detective Ledford were based upon their personal perception of defendant at the time of the confession and helped the trial court determine the issue of the voluntariness of the defendant\u2019s statement. See also State v. Westall, 116 N.C. App. 534, 449 S.E.2d 24, disc. review denied, 338 N.C. 671, 453 S.E.2d 185 (1994). Accordingly, their testimony on this issue was properly admitted.\nDefendant\u2019s next assignment of error concerns the trial court\u2019s disallowance of testimony by Jo Bralley, a certified school psychologist, and Dr. Ben J. Williams, a child psychologist.\nDuring trial, defendant asked Bralley her opinion as to whether \u201csomeone with [attention deficit disorder] would you expect them to be able to sit in a room at a table for well over an hour and maintain full attention?\u201d Defendant contends \u201cthis is a question within the purview of Ms. Bralley\u2019s experience and expertise and she should have been allowed to answer.\u201d However, once the State objected, defendant did not place in the record the testimony which was propounded. Likewise, defendant did not place in the record testimony elicited from Dr. Williams by the question \u201c[d]o you have an idea at what reading level that statement was written on?\u201d A reviewing court cannot determine whether the exclusion of the evidence sought to be presented is prejudicial error without knowing what the evidence would have been. State v. King, 326 N.C. 662, 392 S.E.2d 609 (1990). We cannot determine what the evidence defendant propounded would have indicated. Therefore, we cannot determine if prejudicial error occurred. Defendant has failed to show that a different result would probably have occurred at trial if the school psychologist and child psychologist had been permitted to answer the above-mentioned questions, and has failed to carry his burden of showing prejudicial error under N.C. Gen. Stat. \u00a7 15A-1443(a). Accordingly, this assignment of error is overruled.\nNext, defendant contends that the trial court committed reversible error by refusing to instruct the jury on the charge of accessory after the fact when there was ample evidence supporting such instruction. A defendant charged and tried as a principal may not be convicted of the crime of accessory after the fact. State v. McIntosh, 260 N.C. 749, 133 S.E.2d 652 (1963), cert. denied, 377 U.S. 939, 12 L. Ed. 2d 302 (1964). Accessory after the fact \u201cis a substantive crime \u2014 not a lesser degree of the principal crime.\u201d Id. at 753, 133 S.E.2d at 655. Based on the foregoing, this assignment of error is overruled. Defendant has abandoned all other assignments of error.\nNo error.\nJudges GREENE and JOHN concur.", "type": "majority", "author": "HUNTER, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Francis W. Crawley, for the State.", "Bridges & Gilbert, PA., by R. L. Gilbert, III and William C. Young, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TYDIS JOHNSON\nNo. COA98-359\n(Filed 7 March 2000)\n1. Confessions and Incriminating Statements\u2014 initiation of conversation \u2014 nodding of head\nIn a first-degree murder and robbery with a dangerous weapon case where defendant-juvenile stated he did not wish to answer any questions, his mother interjected that \u201cwe need to get this straightened out today and we\u2019ll talk with him anyway,\u201d defendant thereafter nodded affirmatively to the detective after considering his mother\u2019s statement, and then the detective asked if defendant wanted to answer questions without a lawyer or parent being present, the trial court did not err by denying defendant\u2019s motion to suppress his statement to the Shelby Police where he confessed to shooting the victim because defendant initiated the conversation in which he made the incriminating statement by nodding his head to the officer. N.C.G.S. \u00a7 7A-595.\n2. Discovery\u2014 statements of defendant \u2014 juvenile rights form \u2014 synopsis of oral statements\nThe trial court did not err in a first-degree murder and robbery with a dangerous weapon case by denying defendant\u2019s objection to a detective\u2019s testimony elicited from the juvenile rights form, on the basis that it was a statement of defendant and had not been provided to defendant by the district attorney in response to defendant\u2019s request prior to trial, because: (1) the State provided defendant with copies of the completed juvenile rights and waiver of rights form, and the bottom of the form provides handwritten notation of the answers given by defendant in response to questions as to waiving his juvenile and Miranda rights; and (2) the State provided defendant with copies of the four-page written statement of defendant, which complies with the \u201csubstance\u201d requirement of N.C.G.S. \u00a7 15A-903(a).\n3. Evidence\u2014 lay opinion \u2014 personal perception\nThe trial court did not err in a first-degree murder and robbery with a dangerous weapon case by refusing to sustain defendant\u2019s objection to the State\u2019s questioning of the detectives as to their opinions of defendant\u2019s understanding of the juvenile rights form because the opinions were based on the detectives\u2019 personal perceptions of defendant at the time of the confession and helped the trial court determine the issue of the voluntariness of defendant\u2019s statement. N.C.G.S. \u00a7 8C-1, Rule 701.\n4. Evidence\u2014 expert \u2014 exclusion of testimony \u2014 no prejudicial error\nThe trial court did not commit prejudicial error in a first-degree murder and robbery with a dangerous weapon case by refusing to allow the testimony of a certified school psychologist and a child psychologist, concerning whether someone with attention deficit disorder would be able to sit in a room at a table for over an hour with full attention and at what reading level a certain statement was written, because: (1) defendant did not place in the record the testimony which was propounded; and (2) defendant has failed to show that a different result would probably have occurred at trial if the answers to the two questions had been permitted.\n5. Accomplices and Accessories \u2014 jury instruction \u2014 accessory after the fact \u2014 tried as a principal\nThe trial court did not err in a first-degree murder and robbery with a dangerous weapon case by refusing to instruct the jury on the charge of accessory after the fact because a defendant tried as a principal may not be convicted of the crime of accessory after the fact since it is a substantive crime and not a lesser degree of the principal crime.\nAppeal by defendant from judgments entered 21 May 1997 by Judge Chase B. Saunders in Cleveland County Superior Court. Heard in the Court of Appeals 26 January 1999.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Francis W. Crawley, for the State.\nBridges & Gilbert, PA., by R. L. Gilbert, III and William C. Young, for defendant-appellant." }, "file_name": "0683-01", "first_page_order": 717, "last_page_order": 729 }