{ "id": 11433446, "name": "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY NOLEN", "name_abbreviation": "State v. Nolen", "decision_date": "2001-06-19", "docket_number": "No. COA00-855", "first_page": "172", "last_page": "186", "citations": [ { "type": "official", "cite": "144 N.C. App. 172" } ], "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": "148 L. Ed. 2d 797", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1130", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9725312, 9726080, 9725538, 9725636, 9725125, 9726440, 9726185, 9725963, 9725742, 9726553, 9726323, 9725849, 9725435, 9725213 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1130-03", "/us/531/1130-10", "/us/531/1130-05", "/us/531/1130-06", "/us/531/1130-01", "/us/531/1130-13", "/us/531/1130-11", "/us/531/1130-09", "/us/531/1130-07", "/us/531/1130-14", "/us/531/1130-12", "/us/531/1130-08", "/us/531/1130-04", "/us/531/1130-02" ] }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "436-38" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "173-75" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "148 L. Ed. 2d 784", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2001, "opinion_index": 0 }, { "cite": "531 U.S. 1120", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9716648, 9716724 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/us/531/1120-01", "/us/531/1120-02" ] }, { "cite": "148 L. Ed. 2d 498", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2000, "opinion_index": 0 }, { "cite": "531 U.S. 1018", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9679042, 9678662, 9678761, 9678795, 9678864, 9678834, 9678739, 9678962, 9678903, 9678645, 9678999, 9678940, 9678686, 9678719 ], "year": 2000, "opinion_index": 0, "case_paths": [ "/us/531/1018-14", "/us/531/1018-02", "/us/531/1018-06", "/us/531/1018-07", "/us/531/1018-09", "/us/531/1018-08", "/us/531/1018-05", "/us/531/1018-12", "/us/531/1018-10", "/us/531/1018-01", "/us/531/1018-13", "/us/531/1018-11", "/us/531/1018-03", "/us/531/1018-04" ] }, { "cite": "528 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "341-43" } ], "opinion_index": 0 }, { "cite": "351 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155877 ], "year": 2000, "pin_cites": [ { "page": "504-08" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0481-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "526 U.S. 227", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11133049 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "232" }, { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/us/526/0227-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 15-144", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "209 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "536", "parenthetical": "explaining that \"[w]hile a cross-examiner has wide latitude in his examination, the court does have discretion to limit argumentative questioning - particularly about matters of which the witness can have only a speculative opinion\"" } ], "opinion_index": 0 }, { "cite": "23 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553613 ], "year": 1974, "pin_cites": [ { "page": "685", "parenthetical": "explaining that \"[w]hile a cross-examiner has wide latitude in his examination, the court does have discretion to limit argumentative questioning - particularly about matters of which the witness can have only a speculative opinion\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0683-01" ] }, { "cite": "345 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "317 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4771715 ], "year": 1986, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0230-01" ] }, { "cite": "117 L. Ed. 2d 450", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "502 U.S. 1110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6574881, 6575106, 6575044, 6575142, 6574918, 6575018, 6575181, 6574991, 6575248, 6574864, 6574964, 6575220, 6574900, 6574937, 6575291, 6575071 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/502/1110-02", "/us/502/1110-11", "/us/502/1110-09", "/us/502/1110-12", "/us/502/1110-04", "/us/502/1110-08", "/us/502/1110-13", "/us/502/1110-07", "/us/502/1110-15", "/us/502/1110-01", "/us/502/1110-06", "/us/502/1110-14", "/us/502/1110-03", "/us/502/1110-05", "/us/502/1110-16", "/us/502/1110-10" ] }, { "cite": "83 L. Ed. 2d 299", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "469 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12034269, 12034334 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/469/0963-01", "/us/469/0963-02" ] }, { "cite": "316 S.E.2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "202-03" } ], "opinion_index": 0 }, { "cite": "311 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4679881 ], "year": 1984, "pin_cites": [ { "page": "10" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0001-01" ] }, { "cite": "467 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6202648 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "485" }, { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/us/467/0479-01" ] }, { "cite": "476 U.S. 683", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12764 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "690", "parenthetical": "quoting California v. Trombetta, 467 U.S. 479, 485, 81 L. Ed. 2d 413, 419 (1984)" }, { "page": "645", "parenthetical": "quoting California v. Trombetta, 467 U.S. 479, 485, 81 L. Ed. 2d 413, 419 (1984)" } ], "opinion_index": 0, "case_paths": [ "/us/476/0683-01" ] }, { "cite": "340 S.E.2d 41", "category": "reporters:state_regional", "reporter": "S.E.2d", "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": "370 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "404", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "322 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518221 ], "year": 1988, "pin_cites": [ { "page": "761", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0753-01" ] }, { "cite": "220 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "530" } ], "opinion_index": 0 }, { "cite": "288 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570429 ], "year": 1975, "pin_cites": [ { "page": "622-23" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0608-01" ] }, { "cite": "291 S.E.2d 618", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "619" } ], "opinion_index": 0 }, { "cite": "306 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567694 ], "year": 1982, "pin_cites": [ { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0132-01" ] }, { "cite": "200 S.E.2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "587" } ], "opinion_index": 0 }, { "cite": "284 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561910 ], "year": 1973, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/nc/284/0366-01" ] }, { "cite": "293 S.E.2d 298", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "pin_cites": [ { "page": "303" } ], "opinion_index": 0 }, { "cite": "58 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523127 ], "year": 1982, "pin_cites": [ { "page": "60" } ], "opinion_index": 0, "case_paths": [ "/nc-app/58/0052-01" ] }, { "cite": "484 S.E.2d 382", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "386" } ], "opinion_index": 0 }, { "cite": "346 N.C. 95", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139503 ], "year": 1997, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0095-01" ] }, { "cite": "94 N.C. 865", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652305 ], "year": 1886, "pin_cites": [ { "page": "873" } ], "opinion_index": 0, "case_paths": [ "/nc/94/0865-01" ] }, { "cite": "2 S.E.2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1939, "pin_cites": [ { "page": "372", "parenthetical": "quoting State v. Speaks, 94 N.C. 865, 873 (1886)" } ], "opinion_index": 0 }, { "cite": "215 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630091 ], "year": 1939, "pin_cites": [ { "page": "440", "parenthetical": "quoting State v. Speaks, 94 N.C. 865, 873 (1886)" } ], "opinion_index": 0, "case_paths": [ "/nc/215/0438-01" ] }, { "cite": "169 S.E.2d 895", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1969, "pin_cites": [ { "page": "897", "parenthetical": "quoting 50 C.J.S., Juries, \u00a7 186 p. 921" }, { "page": "897" }, { "page": "897" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 425", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548511 ], "weight": 3, "year": 1969, "pin_cites": [ { "page": "428", "parenthetical": "quoting 50 C.J.S., Juries, \u00a7 186 p. 921" }, { "page": "428" }, { "page": "428" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0425-01" ] }, { "cite": "366 U.S. 717", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1285471 ], "weight": 2, "year": 1961, "opinion_index": 0, "case_paths": [ "/us/366/0717-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 9", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "395 S.E.2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "123" } ], "opinion_index": 0 }, { "cite": "327 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493012 ], "year": 1990, "pin_cites": [ { "page": "376" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0364-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "152", "parenthetical": "quoting State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990)" } ], "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "year": 1991, "pin_cites": [ { "page": "73", "parenthetical": "quoting State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990)" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] }, { "cite": "444 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "explaining that an accomplice who invokes his Fifth Amendment privilege cannot testify about part of a criminal transaction and remain silent about the other events" } ], "opinion_index": 0 }, { "cite": "336 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535307 ], "year": 1994, "pin_cites": [ { "parenthetical": "explaining that an accomplice who invokes his Fifth Amendment privilege cannot testify about part of a criminal transaction and remain silent about the other events" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0463-01" ] }, { "cite": "402 S.E.2d 809", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "813" } ], "opinion_index": 0 }, { "cite": "328 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541401 ], "year": 1991, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0409-01" ] }, { "cite": "488 S.E.2d 162", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1997, "pin_cites": [ { "page": "167" }, { "page": "167" }, { "page": "168-69" } ], "opinion_index": 0 }, { "cite": "346 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139473 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "637" }, { "page": "637" }, { "page": "640" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0628-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 9-11", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 11, "year": 1999, "opinion_index": 0 } ], "analysis": { "cardinality": 1439, "char_count": 33915, "ocr_confidence": 0.762, "pagerank": { "raw": 2.4462628691926735e-07, "percentile": 0.8036003257332763 }, "sha256": "dd79087c2b076da868ccbfd42993af6f014dc2628dfb74606feae5d3f4777e40", "simhash": "1:c9281922d7425e70", "word_count": 5533 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WALKER and THOMAS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY NOLEN" ], "opinions": [ { "text": "McCullough, Judge.\nDefendant Michael Nolen was tried before a jury at the August 1999 Session of Bladen County Superior Court. Evidence for the State showed that on 24 July 1998, defendant went to a party in Dublin, North Carolina, arriving between 5:30 p.m. and 6:00 p.m. Soon thereafter, defendant began drinking hard liquor with some of the partygo-ers. Defendant went to the party with his friend David Wilkins and a woman; once there, he met Jeffrey Hunt for the first time. The party was at the home of Hunt\u2019s grandmother, Juanita Jones.\nDefendant, Wilkins, and Hunt decided to go to a nightclub later that evening. Wilkins first drove the three men to Tar Heel, North Carolina, to collect $50.00 a man owed him. When they discovered that the individual was not at home, Hunt drove the Toyota truck to the Scotchman convenience store to buy gasoline. By this time, it was almost 7:00 p.m. and getting dark.\nDefendant pumped gasoline and talked to Wilkins. According to Hunt, defendant told Wilkins to \u201c[g]o ahead now, while there\u2019s nobody around.\u201d Hunt testified that he asked, \u201cDo what?\u201d but neither Wilkins nor defendant would answer him. At that point, Hunt noticed that Wilkins had a handgun. Hunt offered to pay for the gasoline, so defendant and Wilkins would not go into the convenience store, but Wilkins handed defendant the gun and forced Hunt into the truck at defendant\u2019s request. Wilkins drove the truck around to the front of the store while defendant went inside; Hunt sat on the front seat next to him. Wilkins and Hunt heard a shot while defendant was inside the store; defendant then emerged, got into the passenger side of the truck, and said, \u201cGo, go, go!\u201d The three men drove away toward Bladenboro on Highway 301.\nHunt testified that defendant was yelling, vomiting, and shooting the gun outside the truck\u2019s window while Wilkins drove. Defendant also punched the windshield with his fist. According to Hunt, Wilkins asked defendant if he had gotten any money; defendant told him to \u201cLj]ust keep driving.\u201d Soon thereafter, the three men noticed a police car following them, with its blue lights flashing. Defendant took the money he had stolen from the Scotchman, threw some at Wilkins and stuffed some bills into Hunt\u2019s pants pocket because he believed the police would not be able to trace the money if people other than himself had possession of it. Wilkins drove on, and the police continued to follow the truck for several miles. Hunt stated that defendant threw his Chicago Bulls t-shirt, the gun, and a Jim Beam bourbon bottle out of the truck window while the police car followed closely.\nBladen County Sheriff\u2019s Deputy Rodney Hester testified that he saw objects being thrown from the vehicle before it was stopped. As soon as the police stopped the truck, Wilkins emerged with his hands up. Deputy Hester patted him down and placed him in the patrol car. By that time, two other law enforcement officers arrived on the scene and Hunt and defendant got out of the truck on their own. Hunt immediately told the officers he would give a complete statement.\nHunt recounted the day\u2019s events and told the police that he had been drinking and smoking marijuana at his grandmother\u2019s party. He also stated that defendant and Wilkins consumed a large quantity of Jim Beam liquor from a half-gallon bottle, and that he saw Wilkins with the gun at the party earlier that evening; however, he did not become concerned because he had known Wilkins since childhood.\nHunt then related what happened after he, Wilkins and defendant arrived at the Scotchman convenience store. Hunt told police that other customers were around the gas pumps, but that he did not try to get away or ask for help after he realized that defendant and Wilkins intended to rob the store. He told the police that while defendant was in the store, he heard a gunshot, and further explained that he later asked defendant if anyone had been shot, to which defendant replied, \u201cNobody.\u201d When defendant took the witness stand at trial, he maintained that the gun simply went off. However, the store\u2019s surveillance camera revealed that defendant shot the cashier, Ms. Dorothy Jordan, once in the shoulder. He also got away with a quantity of paper money from the register. Though a customer soon found Ms. Jordan and called an ambulance, Ms. Jordan ultimately died of the gunshot wound inflicted by defendant.\nA number of individuals testified during trial. The State\u2019s witnesses included gun experts, law enforcement officers who assisted at the crime scene and took defendant into custody, and medical experts. Defendant presented evidence from witnesses who testified that he had consumed a large amount of alcohol, cocaine, Valium, and marijuana during the day in question. Defendant also presented medical experts, psychologists, and gun experts. Defendant testified on his own behalf and stated that he did not recall any of the events leading to the robbery of the Scotchman convenience store or Ms. Jordan\u2019s death, though he conceded that he was the man caught on the store\u2019s surveillance videotape.\nThe jury considered a charge of first-degree murder and superseding charges of robbery with a dangerous weapon and conspiracy to commit robbery with a dangerous weapon. The jury found defendant guilty of all three offenses. Upon the jury\u2019s recommendation, the trial court sentenced defendant to life in prison without parole for the first-degree murder conviction and to a consecutive term of 34 to 50 months\u2019 imprisonment for conspiracy to commit robbery with a dangerous weapon. The trial court arrested judgment for the robbery with a dangerous weapon charge. Defendant appealed.\nDefendant asserts that the trial court erred by (I) allowing code-fendant David Wilkins\u2019 blanket assertion of his Fifth Amendment privilege and denying defendant\u2019s motion for a mistrial; (II) overruling defendant\u2019s objection to juror selection under N.C. Gen. Stat. \u00a7 9-11 (1999); (III) allowing testimony from S.B.I. Agent Tom Trochum regarding results of \u201ctrigger pull\u201d tests conducted on the alleged murder weapon; (IV) sustaining the State\u2019s objection to questions tending to elicit evidence of defendant\u2019s degree of intoxication; and (V) entering judgment against defendant for first-degree murder using the short-form murder indictment. For the reasons stated below, we disagree with defendant\u2019s assertions and affirm the trial court\u2019s actions in all respects.\nCodefendant\u2019s Assertion of Fifth Amendment Privilege\nDefendant argues that the trial court erred in allowing David Wilkins to assert a blanket Fifth Amendment privilege to all questions asked by defense counsel. At trial, defendant called Wilkins to the witness stand in hopes of uncovering exculpatory information. Wilkins took the stand, accompanied by his attorney, where the following colloquy took place:\nQ. Good morning, Mr. Wilkins.\nSir, I\u2019d like you to begin by stating for His Honor and the members of the jury your full name.\nA. David Earl Wilkins.\nQ. How old are you, sir?\nMR. WILLIS [Wilkins\u2019 attorney]: Your Honor, at this time, pursuant to the provisions of the Fifth Amendment of the United States Constitution and Article 1, Section 23 of North Carolina Constitution, my client desires to invoke his right against self-incrimination by not testifying any further and I would advise him not to answer any further questions that may be propounded to him by counsel for the Defendant.\nBoth attorneys approached the bench and defendant\u2019s counsel asked the trial court to order Wilkins to answer all questions which the trial court deemed non-incriminating, in effect challenging Wilkins\u2019 previous assertion of his Fifth Amendment privilege. Defendant\u2019s attorney also asked the trial court to consider each question\u2019s potential for incrimination on a question-by-question basis. After considering the matter, the trial court stated:\nTHE COURT: I\u2019m going to decline to do that. I don\u2019t think that I have the authority to order him to answer something that I may not think would be incriminating, but he and his attorney think are incriminating. The Fifth Amendment gives him the right to refuse to answer.\nAnd I note your exception to that.\nThe trial court allowed a continuing objection throughout every question and allowed defendant\u2019s attorney to ask several of his questions, though Wilkins\u2019 attorney invoked Wilkins\u2019 Fifth Amendment privilege for each question. Defendant moved for a mistrial and, in the alternative, asked the trial court to reopen the evidence so that he could elicit non-incriminating evidence. The trial court denied both of defendant\u2019s proposals and allowed the case to continue.\nWhen a witness invokes his Fifth Amendment privilege, the trial court must decide whether one can reasonably infer from the question that the answer may incriminate the witness. State v. Pickens, 346 N.C. 628, 637, 488 S.E.2d 162, 167 (1997). If the trial court determines that the witness\u2019 answer will not be self-incriminating, \u201cthe trial court may compel the individual to answer the question.\u201d State v. Eason, 328 N.C. 409, 419, 402 S.E.2d 809, 813 (1991). A witness may invoke his Fifth Amendment privilege if the evidence can be used against him in a criminal prosecution, or if the evidence can furnish a \u201clink in the chain\u201d of evidence needed to prosecute that witness. Pickens, 346 N.C. at 637, 488 S.E.2d at 167. Invocations of one\u2019s Fifth Amendment privilege are to be liberally construed. Id.\nIn this case, defendant\u2019s questions would have placed Wilkins at the crime scene and would have allowed Wilkins to be cross-examined regarding conversations he had with defendant. It is also likely that defendant\u2019s counsel would have uncovered the fact that Wilkins gave defendant the gun used in the robbery of the Scotchman convenience store and in the subsequent murder of Ms. Jordan. The defense\u2019s questions could have been \u201clinks in the chain\u201d of evidence against Wilkins and could have harmed Wilkins at a subsequent trial. See State v. Ray, 336 N.C. 463, 444 S.E.2d 918 (1994) (explaining that an accomplice who invokes his Fifth Amendment privilege cannot testify about part of a criminal transaction and remain silent about the other events).\nDefendant argues that the trial court\u2019s failure to grant his motion for a mistrial constitutes reversible error. Defendant points to N.C. Gen. Stat. \u00a7 15A-1061 (1999), which states that\n[u]pon motion of a defendant or with his concurrence the judge may declare a mistrial at any time during the trial. The judge must declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s case. If there are two or more defendants, the mistrial may not be declared as to a defendant who does not make or join in the motion.\nOur standard of review is dictated by N.C. Gen. Stat. \u00a7 15A-1443(b) (1999), which explains that\n[a] violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\n\u201c \u2018[A] mistrial should be granted only when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant\u2019s case and make it impossible for the defendant to receive a fair and impartial verdict.\u2019 \u201d State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991) (quoting State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990)); see also N.C. Gen. Stat. \u00a7 15A-1061. Thus, even if the trial court errs, the error must be harmful beyond a reasonable doubt for a mistrial to be properly granted. Pickens, 346 N.C. at 640, 488 S.E.2d at 168-69. In defendant\u2019s case, any error regarding Wilkins\u2019 Fifth Amendment privilege was harmless beyond a reasonable doubt, given the overwhelming evidence of defendant\u2019s guilt. Defendant hoped to elicit from Wilkins\u2019 testimony to bolster his defense that he was in an alcohol and drug induced blackout when the robbery and murder took place. However, defendant\u2019s argument overlooks the point that he successfully presented a great deal of evidence of his alcohol and drug consumption, corroborated by several witnesses. Wilkins\u2019 testimony added no new information, and was corroborative and cumulative at best. Even if Wilkins answered all the questions in the manner defendant wanted, there would still have been ample evidence to support the jury\u2019s guilty verdict.\nThe trial court has sole discretion to decide whether to grant a mistrial in a particular case. As defendant cannot show an abuse of discretion by the trial court, its ruling cannot be disturbed on appeal. Defendant\u2019s first assignment of error is overruled.\nSummoning of Additional Jurors\nDefendant next argues that the trial court erred in ordering the sheriff to summon additional jurors pursuant to N.C. Gen. Stat. \u00a7 9-ll(a) (1999). The statute provides that\n[i]f necessary, the court may . . . order the sheriff to summon from day to day additional jurors to supplement the original venire.... If the presiding judge finds that service of summons by the sheriff is not suitable because of his direct or indirect interest in the action to be tried, the judge may appoint some suitable person in place of the sheriff to summon supplemental jurors.\nThe shortage of eligible jurors in defendant\u2019s case was partly due to the fact that the case was highly publicized. The robbery and murder occurred in the small town of Tar Heel, where many people knew the victim, and the crime generated a great deal of news coverage. These factors significantly reduced the number of eligible jurors, thereby creating a situation in which N.C. Gen. Stat. \u00a7 9-11 was needed. When it became evident that the jury pool was too small to supply a sufficient venire, the trial court told the Sheriff to \u201cgo out and bring in 15 more people for in the morning.\u201d Defendant objected at that time, and also filed a written objection to the trial court\u2019s use of N.C. Gen. Stat. \u00a7 9-11. The trial court heard arguments from both sides, then determined that the statute was constitutional and denied defendant\u2019s motion to dismiss the eleven supplemental jurors who were summoned by the Sheriff of Bladen County.\nAll defendants are entitled to an impartial jury under both the United States and the North Carolina Constitutions. U.S. Const. Amends. V, VI, XIV; N.C. Const., Article I, \u00a7\u00a7 19, 23, 24, and 35. See also Irvin v. Dowd, 366 U.S. 717, 6 L. Ed. 2d 751 (1961). A sheriff acting pursuant to N.C. Gen. Stat. \u00a7 9-11 has \u201c \u2018[a] right and duty to use his best judgment in securing men of intelligence, courage, and good moral character, but he must act with entire impartiality.\u2019 \u201d State v. White, 6 N.C. App. 425, 428, 169 S.E.2d 895, 897 (1969) (quoting 50 C.J.S., Juries, \u00a7 186 p. 921)). A challenge to jury selection under N.C. Gen. Stat. \u00a7 9-11 is sustainable when \u201c \u2018there is a partiality or misconduct in the sheriff, or some irregularity in making out the list.\u2019 \u201d State v. Dixon, 215 N.C. 438, 440, 2 S.E.2d 371, 372 (1939) (quoting State v. Speaks, 94 N.C. 865, 873 (1886)).\nDefendant maintains that the actions of the Bladen County Sheriff and his deputies were improper under N.C. Gen. Stat. \u00a7 9-11. When Bladen County Sheriff Bunn was asked how he found eligible jurors, he explained that\n[t]wo members of my senior staff and I sat down and just started a list of names of people that we knew that it wouldn\u2019t cause a financial hardship for and from various parts of the county, and we provided that list to them as potentials, you know, to check with these people and see if they are able to serve or not, and if they haven\u2019t served in the past two years, and so on, all the various qualifications of jurors.\nWe gave them that list and said, you know, \u201cCheck with these people. If they\u2019re available, do them. If you can\u2019t find them and you see someone else that meets these criteria, then summons those also.\u201d\nDefendant strongly urges this Court to find that the sheriff\u2019s practices pursuant to N.C. Gen. Stat. \u00a7 9-11 constitute prejudice per se. He argues that such prejudice manifested itself in several respects. First, the lead detective on the case, Detective Rodney Warwick, works for the Bladen County Sheriff; defendant maintains that this fact created an appearance of impropriety. Further, defendant points out that the Sheriff and the deputies who served the eleven summonses for additional jurors personally knew some of the potential jurors, again creating an appearance of impropriety. Defendant also raises concerns about the potential for abuse and argues that N.C. Gen. Stat. \u00a7 9-11 gives very little guidance about how sheriffs are to find potential jurors.\nWe do not find defendant\u2019s arguments persuasive. Our Supreme Court has stated that \u201c[a] sheriff is not disqualified from summoning supplemental jurors because he or a member of the sheriff\u2019s office is testifying in the case.\u201d State v. Barnard, 346 N.C. 95, 102, 484 S.E.2d 382, 386 (1997). Absent proof that a sheriff \u201cviolated the discretionary trust placed in him [by N.C. Gen. Stat. \u00a7 9-11], he should remain free to use his best judgment in carrying out the orders of the court.\u201d State v. White, 6 N.C. App. 425, 428, 169 S.E.2d 895, 897 (1969). Furthermore, this Court has stated that\n[d]eputy sheriffs testify in many cases. We do not believe the legislature intended to disqualify sheriffs from summoning extra jurors in all of them. If this were so, we believe the legislature would have designated some other official to summon extra jurors.\nState v. Yancey, 58 N.C. App. 52, 60, 293 S.E.2d 298, 303 (1982). While we agree with defendant that there is a possibility for abuse in the jury selection process, we also recognize the importance of giving a sheriff discretion so that he may carry out his duties pursuant to N.C. Gen. Stat. \u00a7 9-11. Our Court has stated that\n[n]owhere in the statute is there a provision delineating discretionary restrictions to be placed on an officer in fulfilling the court\u2019s order. The statutory recognition that tales jurors may be needed and the statutory language used contemplates a system easily and expeditiously administered. To place procedural restrictions unnecessarily on their selection would defeat the purpose of the system, which is to facilitate the dispatch of the business of the court. Tales jurors are selected infrequently and only to provide a source from which to fill the unexpected needs of the court. They must still possess the statutory qualifications and are still subject to the same challenges as are regular jurors and may be examined by both parties on voir dire. In order to retain the flexibility needed in the administration of such a system, the summoning official must be permitted some discretion, whether he be located in a relatively small community or a more heavily populated area, and to restrict the discretion placed in the summoning official, without proven cause, is to presume he is not worthy of the office he holds. Such should not be the case.\nWhite, 6 N.C. App. at 428, 169 S.E.2d at 897. See also State v. Shaw, 284 N.C. 366, 369, 200 S.E.2d 585, 587 (1973).\nThe trial court made detailed findings of fact and conclusions of law before denying defendant\u2019s motions. We will not disturb the actions of the trial court on appeal unless there was an abuse of discretion. \u201c[T]he scope of appellate review ... is strictly limited to determining whether the trial judge\u2019s underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge\u2019s ultimate conclusions of law.\u201d State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982). The eleven supplemental jurors were called to serve only as alternate jurors; alternate jurors are not members of the jury until one of the jurors dies or is discharged and the trial court substitutes the alternate in his place. See State v. Bindyke, 288 N.C. 608, 622-23, 220 S.E.2d 521, 530 (1975). Defendant\u2019s objection became moot when none of the supplemental jurors were seated as alternate jurors for defendant\u2019s trial. All eleven supplemental jurors were excused, and the two alternate jurors ultimately were selected from the original jury pool. Since the jurors who ultimately sat for defendant\u2019s trial were chosen in the ordinary course, there was no error. Even if jurors selected under N.C. Gen. Stat. \u00a7 9-11 ultimately had been seated for defendant\u2019s trial, we find that the statute is constitutional on its face. We expressly decline to adopt defendant\u2019s prejudice per se argument, and overrule this assignment of error.\nThe Trigger Pull Test\nDefendant next maintains that the trial court erred in admitting the State\u2019s evidence of a trigger pull test conducted on the murder weapon by a firearms expert. At trial, S.B.I. Agent Tom Trochum was qualified as an expert in toolmark and firearm identification. Agent Trochum is trained to compare toolmarks and to determine from what weapon certain rounds of ammunition were fired. Agent Trochum testified that the murder weapon was the same one that defendant had thrown from the truck window before he was arrested. The State then asked Agent Trochum about the results of trigger pull tests conducted on the murder weapon. Such tests determine the amount of pressure needed to discharge a gun in both single action and double action mode. This information in turn helps determine whether a gun could accidentally misfire, or if the person handling the gun had to actually go through the motions of firing before the gun could go off.\nWhen the State began questioning Agent Trochum about the results of the trigger pull tests, defendant objected, stating he was not notified Agent Trochum would testify about trigger pull tests. Defendant further asserted that the State\u2019s disclosure document indicated that Agent Trochum would only testify about toolmark identification and firearms identification. The trial court heard arguments from both attorneys as follows:\nMR. POPE [Defendant\u2019s Attorney]: I have a copy of his report, but it doesn\u2019t indicate any testing or results of any trigger pull. We object to testimony regarding that.\nMR. BOLLINGER [Prosecutor]: He\u2019s had notes that the witness was going to testify, he\u2019s had access to talk to him. It\u2019s a test they always perform and they never put in their reports.\nMR. POPE [Defendant\u2019s Attorney]: We got results of an examination; doesn\u2019t mention anything about such tests.\nTHE COURT: Well, I\u2019ll permit him to testify. I\u2019ll note your exception.\nDefendant contends this testimony shows that the prosecutor knew that the trigger pull tests were routinely done, and failed to make it clear to defendant that those results were routinely left out of the reports. Defendant argues that such behavior is misleading and constitutes a violation of statutory discovery requirements.\nDefendant states that none of the State\u2019s five \u201cDiscovery Disclosure Certificates\u201d mentioned the trigger pull tests. The Discovery Disclosure Certificates signed by the prosecutor\ncertified] that [the prosecutor] provided discovery in the following manner to the defendant of matters required under N.C.G.S. 15A-903 et. seq:\nA. By providing the attorney for the defendant with a copy of the State\u2019s investigative file, reports of evidence examinations and the criminal history of the Defendant as received by this office.\nWhile defendant is correct that the prosecutor has both an ethical and a statutory duty to disclose information, we do not find that the prosecutor breached those duties here. The trial court found that the trigger pull test was \u201cjust standard procedure to see that the gun is operating properly.\u201d Agent Trochum\u2019s report was made available to defendant by the prosecutor. Though the report did not contain the trigger pull information, the prosecutor fulfilled his duty by providing defendant with a copy of that report in its entirety.\nEven if the prosecutor\u2019s actions constituted a discovery violation, the trial judge still retained broad discretion to determine if sanctions were appropriate under N.C. Gen. Stat. \u00a7 15A-910 (1999). Unless the trial court abused that discretion, the decision will not be reversed. \u201cThe choice of which sanction, if any, to impose is left to the sound discretion of the trial court. A trial court will not be reversed on appeal absent a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Banks, 322 N.C. 753, 761, 370 S.E.2d 398, 404 (1988) (citation omitted). Additionally, \u201cdiscretionary rulings of the trial court will not be disturbed on the issue of failure to make discovery absent 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).\nThe State correctly points out that defendant never made a motion under N.C. Gen. Stat. \u00a7 15A-903(e) for discovery of test results; instead, defendant relied on the State\u2019s \u201copen file\u201d discovery policy. Defendant knew that Agent Trochum examined the murder weapon, prepared a report and was scheduled to testify at trial. Defendant had ample opportunity to examine the report and inquire as to whether any trigger pull tests were conducted.\nMoreover, the trial court\u2019s ruling was not arbitrary. The trial court noted that the trigger pull test was a routine part of the firearms testing procedure for any weapon undergoing ballistics study. Indeed, defendant\u2019s own firearms expert, Mr. Forrest Bell, indicated that trigger pull tests were routinely done whenever a gun was cleaned and inspected. Keeping in mind that the purpose of discovery under N.C. Gen. Stat. \u00a7 15A-903 is to avoid unfair surprise at trial, we find there was no unfair surprise or bad faith on the part of the State. The trial court\u2019s ruling was not arbitrary, and defendant\u2019s assignment of error is overruled.\nDefendant\u2019s Appearance on the Night of the Crimes\nDefendant next argues that the trial court erred in sustaining the State\u2019s objections to questions eliciting information about whether defendant appeared drunk and irrational on 24 July 1998, because the effect was to deprive him of \u201c \u2018a meaningful opportunity to present a complete defense.\u2019 \u201d Crane v. Kentucky, 476 U.S. 683, 690, 90 L. Ed. 2d 636, 645 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 81 L. Ed. 2d 413, 419 (1984)). During the trial, defendant maintained that he was too incapacitated by drugs and alcohol to form the requisite criminal intent to commit the crimes of robbery and first-degree murder. Defendant and two medical witnesses testified to that effect, explaining that defendant was in an alcohol and drug induced blackout when the crimes were committed. Despite this testimony, defendant sought further corroboration of the alcohol and drug induced blackout by asking the questions that the State objected to. Defendant\u2019s eyewitness, David Wilkins, was unavailable because he asserted his Fifth Amendment privilege. Defendant contends that the State\u2019s sustained objections caused him to lose three other corroborating witnesses as well.\nWe find that defendant successfully elicited testimony from other witnesses who saw him consume drugs and alcohol throughout the day, prior to the commission of the crimes. Even before the State\u2019s objections were sustained, defendant presented evidence that corroborated his testimony about his substance abuse. \u201c[T]he scope of cross examination rests largely within the discretion of the trial court. Absent a showing of an abuse of discretion or that prejudicial error has resulted, the trial court\u2019s ruling will not be disturbed on review.\u201d State v. Maynard, 311 N.C. 1, 10, 316 S.E.2d 197, 202-03, cert. denied, 469 U.S. 963, 83 L. Ed. 2d 299 (1984), cert. denied, 502 U.S. 1110, 117 L. Ed. 2d 450 (1992); and State v. Sams, 317 N.C. 230, 240, 345 S.E.2d 179, 185 (1986).\nThe State objected to the form of defendant\u2019s questions because they called for speculation by the individual witnesses as to defendant\u2019s state of mind. See State v. Richmond, 23 N.C. App. 683, 685, 209 S.E.2d 535, 536 (1974) (explaining that \u201c[w]hile a cross-examiner has wide latitude in his examination, the court does have discretion to limit argumentative questioning \u2014 particularly about matters of which the witness can have only a speculative opinion\u201d). Defendant, not the other witnesses, provided the best evidence as to his state of mind on 24 July 1998. Defendant cannot show that the trial court\u2019s rulings affected the outcome of the trial; therefore, this assignment of error is overruled.\nThe Short-Form Murder Indictment \u2014 N.C. Gen. Stat. \u00a7 15-144\nFinally, defendant argues that the trial court erred in entering judgment against him using the short-form murder indictment authorized by N.C. Gen. Stat. \u00a7 15-144 (1999) because the short-form indictment violates the constitutional requirements of first charging the elements of the offense in the indictment, submitting them to the jury, and then making the State prove the elements beyond a reasonable doubt. See Jones v. United States, 526 U.S. 227, 232, 143 L. Ed. 2d 311, 319 (1999). Defendant contends that the short-form indictment is constitutionally defective in three ways: (1) the indictment does not allege any of the elements of first-degree murder that distinguish it from second-degree murder; (2) the indictment does not indicate the theory of first-degree murder the grand jury found based on the evidence; and (3) the indictment violates the Equal Protection Clause of the Fourteenth Amendment because it fails to give defendant notice of the elements of the charge against him. Defendant also urges us to examine the short-form indictment using a strict scrutiny analysis because this is a fundamental right. We disagree with defendant\u2019s characterization of the short-form indictment, and find it constitutionally sound.\nThe indictment charged that defendant \u201cunlawfully, willfully and feloniously did of malice aforethought kill and murder Dorothy Jordan\u201d in violation of N.C. Gen. Stat. \u00a7 14-17 (1999). Defendant\u2019s constitutional arguments were expressly rejected in State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000), reh\u2019g denied, 531 U.S. 1120, 148 L. Ed. 2d 784 (2001); and State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 436-38 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). As we are bound by the decisions of the Supreme Court, we overrule this assignment of error.\nWe therefore find that defendant received a fair trial, free of prejudicial error. In that trial, we find\nNo error.\nJudges WALKER and THOMAS concur.", "type": "majority", "author": "McCullough, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas F. Moffitt, for the State.", "Lisa Miles for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL ANTHONY NOLEN\nNo. COA00-855\n(Filed 19 June 2001)\n1. Criminal Law\u2014 mistrial denied \u2014 Fifth Amendment privilege asserted\nThe trial court did not err in a prosecution for first-degree murder and armed robbery by not granting a mistrial where a witness was allowed to assert a blanket Fifth Amendment privilege to all questions asked by defense counsel. The defense questions could have been links in the chain of evidence against the witness and could have harmed him in a subsequent trial; moreover, any error regarding the privilege was harmless beyond a reasonable doubt because there was overwhelming evidence of defendant\u2019s guilt and because the testimony was cumulative at best.\n2. Jury\u2014 summoning of additional jurors \u2014 statute facially constitutional\nThere was no error in a first-degree murder and robbery prosecution where the court ordered the sheriff to summon additional jurors but all of those supplemental jurors were eventually excused. Although there is a possibility of abuse in the jury selection process under N.C.G.S. \u00a7 9-11, it is also important to give the sheriff discretion so that he may carry out his duties and the statute is constitutional on its face.\n3. Discovery\u2014 trigger pull test \u2014 no notice\nThe trial court did not abuse its discretion in a first-degree murder and armed robbery prosecution by admitting evidence of a trigger pull test conducted by an S.B.I. agent where defendant contended that he was not notified that the agent would testify about trigger pull tests. The prosecutor fulfilled his duty by providing defendant with a copy of the agent\u2019s report, even though it did not contain the trigger pull information. Moreover, even if the prosecutor\u2019s actions constituted a discovery violation, the court retained discretion to determine whether sanctions were appropriate, defendant never made a motion for discovery of test results but relied on the State\u2019s \u201copen file\u201d policy, and there was no unfair surprise or bad faith.\n4. Evidence\u2014 defendant\u2019s appearance on the night of the crimes \u2014 other evidence admitted\nThere was no prejudice in a prosecution for first-degree minder and armed robbery where defendant contended that the court erred by sustaining the State\u2019s objections to questions eliciting information about whether defendant appeared drunk and irrational on the night of the crime, but defendant elicited testimony from other witnesses who saw him consume drugs and alcohol throughout the day before the commission of the crimes.\n5. Homicide\u2014 short-form murder indictment \u2014 constitutional\nThe short-form murder indictment is constitutional.\nAppeal by defendant from judgment entered 2 September 1999 by Judge B. Craig Ellis in Bladen County Superior Court. Heard in the Court of Appeals 16 May 2001.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Thomas F. Moffitt, for the State.\nLisa Miles for defendant appellant." }, "file_name": "0172-01", "first_page_order": 200, "last_page_order": 214 }