{ "id": 11433837, "name": "STATE OF NORTH CAROLINA v. PETER JUSTIN PALLAS", "name_abbreviation": "State v. Pallas", "decision_date": "2001-06-19", "docket_number": "No. COA00-497", "first_page": "277", "last_page": "286", "citations": [ { "type": "official", "cite": "144 N.C. App. 277" } ], "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": "215 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "581" }, { "page": "582" } ], "opinion_index": 0 }, { "cite": "288 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565031 ], "year": 1975, "pin_cites": [ { "page": "117" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0113-01" ] }, { "cite": "333 S.E.2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "314 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696763 ], "year": 1985, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0232-01" ] }, { "cite": "488 S.E.2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "346 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 139622 ], "year": 1997, "pin_cites": [ { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/nc/346/0497-01" ] }, { "cite": "505 S.E.2d 138", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1998, "pin_cites": [ { "page": "140" }, { "page": "140" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 675", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11469961 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "679" }, { "page": "679" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0675-01" ] }, { "cite": "268 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "48 N.C. App. 128", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549281 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/48/0128-01" ] }, { "cite": "356 S.E.2d 319", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "323" } ], "opinion_index": 0 }, { "cite": "319 N.C. 562", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739096 ], "year": 1987, "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0562-01" ] }, { "cite": "431 S.E.2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "333 N.C. 793", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2545229, 2547728, 2548155, 2550236, 2549950 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/333/0793-04", "/nc/333/0793-01", "/nc/333/0793-05", "/nc/333/0793-03", "/nc/333/0793-02" ] }, { "cite": "428 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "854" } ], "opinion_index": 0 }, { "cite": "110 N.C. App. 91", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524904 ], "year": 1993, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/nc-app/110/0091-01" ] }, { "cite": "269 S.E.2d 110", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "112-13" }, { "page": "113" } ], "opinion_index": 0 }, { "cite": "301 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561058 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "36" }, { "page": "36" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0031-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 3, "year": 1965, "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "441 S.E.2d 306", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "310", "parenthetical": "quoting State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)" } ], "opinion_index": 0 }, { "cite": "335 N.C. 741", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530091 ], "year": 1994, "pin_cites": [ { "page": "749", "parenthetical": "quoting State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc/335/0741-01" ] }, { "cite": "334 S.E.2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1985, "pin_cites": [ { "page": "60" }, { "page": "60" } ], "opinion_index": 0 }, { "cite": "314 N.C. 359", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694660 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "370" }, { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0359-01" ] }, { "cite": "148 L.Ed.2d 797", "category": "reporters:federal", "reporter": "L. 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Ct.", "year": 2001, "opinion_index": 0 }, { "cite": "531 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "443" } ], "opinion_index": 0 }, { "cite": "352 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685078 ], "year": 2000, "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0158-01" ] }, { "cite": "459 S.E.2d 739", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "745" } ], "opinion_index": 0 }, { "cite": "340 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790153 ], "year": 1995, "pin_cites": [ { "page": "745" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0735-01" ] }, { "cite": "441 S.E.2d 295", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 696", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526731 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0696-01" ] }, { "cite": "228 S.E.2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "440" } ], "opinion_index": 0 }, { "cite": "290 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564438 ], "year": 1976, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0681-01" ] }, { "cite": "174 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "276 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563327 ], "weight": 2, "year": 1970, "pin_cites": [ { "page": "698" }, { "page": "700" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0690-01" ] }, { "cite": "418 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "487" } ], "opinion_index": 0 }, { "cite": "332 N.C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2505926 ], "year": 1992, "pin_cites": [ { "page": "59" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0047-01" ] }, { "cite": "364 S.E.2d 341", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 392", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568444 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0392-01" ] }, { "cite": "406 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "818" } ], "opinion_index": 0 }, { "cite": "329 N.C. 507", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556019 ], "year": 1991, "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0507-01" ] }, { "cite": "531 S.E.2d 482", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "486" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 392", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11079918 ], "year": 2000, "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0392-01" ] }, { "cite": "414 S.E.2d 764", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501123, 2502629, 2502194, 2498873, 2502586 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0120-01", "/nc/331/0120-03", "/nc/331/0120-05", "/nc/331/0120-02", "/nc/331/0120-04" ] }, { "cite": "366 S.E.2d 520", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "522" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 529", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523452 ], "year": 1988, "pin_cites": [ { "page": "531" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0529-01" ] }, { "cite": "410 S.E.2d 516", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "520" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523002 ], "year": 1991, "pin_cites": [ { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0558-01" ] } ], "analysis": { "cardinality": 1039, "char_count": 22789, "ocr_confidence": 0.772, "pagerank": { "raw": 1.196302816615171e-07, "percentile": 0.5925077099089561 }, "sha256": "c0716b99dd4910ff0ffaaa5026e889ab7348dedb6ef19094b1a7bbd7c1a4a246", "simhash": "1:8d2bd56fb21ecddc", "word_count": 3741 }, "last_updated": "2023-07-14T14:55:44.896074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and HUDSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PETER JUSTIN PALLAS" ], "opinions": [ { "text": "WYNN, Judge.\nIn August 1999, defendant was tried and convicted for first-degree murder, first-degree kidnapping, and robbery with a dangerous weapon.\nThe State\u2019s evidence tended to show that three teenagers\u2014 defendant (16), Keith Wiley (19), and Alicia Doster (16) successfully planned the murder of Richie Futrelle (17). This tragedy was heightened by the additional revelation that the killing stemmed from a disputed cocaine debt of around $25.00.\nIt began when the three invited Futrelle to an abandoned house that they shared. When Futrelle arrived at the house, he helped John Mullins fix his car. After Mullins left, defendant and Wiley hit and kicked Futrelle; they hog-tied his hands and feet with pre-cut cable, and took his wallet. Then, they carried Futrelle to his father\u2019s car; placed him in the trunk; drove the car to a deserted area, and removed him from the trunk.\nSomehow Futrelle untied the cable from his hands in the trunk; but, the three again tied him up and Doster gagged him with a bandana. Then they walked Futrelle down to a ditch where they laid him on his back. Again, Futrelle freed himself from the cable. When Futrelle started running, Wiley shot him in either the arm or leg with a sawed-off 12-gauge shotgun; Futrelle screamed. Wiley handed the shotgun to defendant, who shot Futrelle in his back or arm and in the back of his neck.\nThe medical evidence confirmed a gaping gunshot wound to Futrelle\u2019s right arm, a large gaping wound to the center of his back at the shoulder blade, a large wound to the left of his buttocks, and a wound at his left groin caused his death. The wound in Futrelle\u2019s chest damaged his right lung, lacerated a blood vessel under his heart and filled his chest cavity with blood. The shotgun blast to his back fatally destroyed his spinal column. The buttocks\u2019 wound fatally ruptured his kidney and liver.\nFollowing additional evidence and the resulting jury convictions, the trial judge sentenced defendant to life imprisonment without parole. He appeals to this Court.\nThe issues on appeal are whether the trial court erred in: (I) denying defendant\u2019s motion to exclude testimony of Alicia Doster; (II) prohibiting defendant from introducing evidence in support of his motion to exclude the testimony of Alicia Doster; (III) excluding the testimony of defense witnesses and preventing defendant from compelling attendance of a witness; (IV) denying defendant\u2019s motion for mistrial; (V) and denying defendant\u2019s motion for a nonsuit at the close of State\u2019s evidence and again at the close of all of the evidence. For the reasons stated below, we conclude that defendant received a fair trial, free from prejudicial error.\nFirst, defendant argues that the trial court violated his constitutional right to due process of law by allowing the State to introduce the alleged untruthful testimony of Doster. We disagree.\n\u201cThe law is clear that a prosecutor\u2019s presentation of known false evidence, allowed to go uncorrected, is a violation of a defendant\u2019s right to due process.\u201d State v. Joyce, 104 N.C. App. 558, 565, 410 S.E.2d 516, 520 (1991). However, \u201c[i]nconsistencies and contradictions in the State\u2019s evidence are a matter for the jury to consider and resolve.\u201d State v. Edwards, 89 N.C. App. 529, 531, 366 S.E.2d 520, 522 (1988), rev. denied, 331 N.C. 120, 414 S.E.2d 764 (1992). Where the evidence is found to be \u201cinconsistent or contradictory, rather than a knowing falsehood, such contradictions in the State\u2019s evidence are for the jury to consider and resolve.\u201d State v. Clark, 138 N.C. App. 392, 397, 531 S.E.2d 482, 486 (2000).\nIn this case, defendant moved to exclude Doster\u2019s testimony, asserting that the State knew that she gave false testimony. He states that in the May 1999 trial of co-defendant Wiley, the prosecutor in that case argued that Doster had not testified truthfully. He contends that the State is bound by that argument in this case; however, the State responds that \u201cthere was no untruthful testimony on the part of Miss Doster as it relates to whether or not this defendant. . . did, in fact shoot\u201d Futrelle.\nIn the subject case, we find that there is no reasonable likelihood that Doster\u2019s memory that three shots had been fired, instead of four shots as confirmed by the autopsy report, affected the jury\u2019s judgment in convicting defendant of felony murder, kidnapping and armed robbery. The exact number of shots fired or the actual identity of the person firing a fourth shot was not material and the inconsistencies were for the jury to resolve.\nEven assuming, for the sake of argument, that Foster\u2019s statement was erroneously admitted, the error was not prejudicial. \u201cWhere improperly admitted evidence merely corroborates testimony from other witnesses, we have found the error harmless.\u201d State v. Wynne, 329 N.C. 507, 519, 406 S.E.2d 812, 818 (1991). In this case, Doster was not the only witness linking defendant to armed robbery, kidnapping and murder of Futrelle. Futrelle\u2019s mother testified that her son told her he was going to defendant\u2019s house on the day of the murder; and she never saw her son alive again. John Mullins who had been at the place where defendant, Wiley and Doster planned and carried out the robbery and kidnapping, saw Futrelle arrive that afternoon; and he learned that defendant and Wiley committed the murders. Mullins also observed that defendant was in possession of Futrelle\u2019s keys. Brian Jacobs testified that he saw defendant and Wiley drive Futrelle\u2019s car to the back of a trail and shortly thereafter, he saw the two men walk out of the woods. Further, defendant was connected to numerous items from the crime scene and on his person at the time of arrest. Overwhelming evidence of a defendant\u2019s guilt may render a constitutional error harmless. See State v. Autry, 321 N.C. 392, 364 S.E.2d 341 (1988). Under the record on appeal in this case, we find sufficient evidence connecting defendant to the robbery, kidnapping and felony murder of Futrelle; and thus, the admission of Doster\u2019s testimony regarding the firing of three shots if error was harmless. See State v. Soyars, 332 N.C. 47, 59, 418 S.E.2d 480, 487 (1992).\nIn his second argument, defendant contends the trial court violated his constitutional right to present his defense to the charges, when it prohibited him from introducing evidence and refused to enforce the subpoena and the writ that he properly issued to his witnesses. We disagree.\n\u201cDue process requires that every defendant be allowed a reasonable time and opportunity to investigate and produce competent evidence, if he can, in defense of the crime with which he stands charged and to confront his accusers with other testimony.\u201d State v. Baldwin, 276 N.C. 690, 698, 174 S.E.2d 526, 531 (1970). \u201cHowever, no set length of time for investigation, preparation and presentation is required, and whether defendant is denied due process must be determined upon the basis of the circumstances of each case.\u201d State v. Harris, 290 N.C. 681, 687, 228 S.E.2d 437, 440 (1976). \u201cDue process does not include the right [to develop] immaterial evidence.\u201d Baldwin, 276 N.C. at 700, 173 S.E.2d at 533.\nIn this case, defendant subpoenaed, John Merrill, the assistant district attorney who made the closing argument in the earlier trial of co-defendant Wiley. The State moved to quash the subpoena because Merrill was an advocate in the murder trial of co-defendant Wiley, and worked with the State in preparation in this trial. The State argued that the evidence in this trial was substantially identical to that of the trial of the co-defendant, Wiley. The State also argued that any knowledge of Sherrill is privileged work product; and that defendant seeks to circumvent N.C. Gen. Stat. \u00a7 15A-Article 48, the discovery statutes, by use of subpoena.\nThe trial court may not \u201cpermit disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation in which the material is sought or work product of the attorney or attorneys of record in the particular action.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 26(b)(3) 1999). Further, the trial court at all times has the discretion to exclude \u201cneedless presentation of cumulative evidence,\u201d even where the evidence is arguably relevant, and to \u201cexercise reasonable control over the mode and order of interrogating witnesses ... so as to .. . avoid needless consumption of time.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rules 403 and 611 (1999); see also State v. Barton, 335 N.C. 696, 441 S.E.2d 295 (1994).\nIn this case, the content of any possible testimony of Sherrill and its lack of materiality was addressed by the trial court. We find the prosecutor\u2019s mere opinion about possible inferences to be drawn from Doster\u2019s testimony concerning her witnessing only three shots, is not equivalent to the knowing presentation of false testimony that would reasonably affect the jury\u2019s judgments as to defendant\u2019s culpability for felony murder, kidnapping and armed robbery.\nThe trial court also prohibited defendant from introducing any evidence through the testimony of Bruce Mason, the attorney who represented co-defendant Doster. In a voir dire hearing, Mason testified he had not been present during every meeting between Doster and the detectives. He also stated in voir dire that the prosecutors discussed how the testimony would be conducted and the facts of the case with Doster. The State argued that Mason\u2019s testimony arguably raised attorney-client privilege issues and that the \u201cthe Court, as jury, has already heard evidence about the amount of time that Doster spent with detectives and with the District Attorney\u2019s office involving this case.\u201d\nNonetheless, defendant asserts that he did not have any questions for Mason that violated the lawyer-client privilege, but sought him as a witness to discuss what the detectives and the prosecutors said to Doster in their preparations for her testimony. According to the record, Doster testified at trial about those topics in considerable detail and defendant both cross-examined and recross-examined her. During the cross-examination, she admitted the differences in the various statements she gave to law enforcement officers; estimated the exact number of hours spent in meetings with police and prosecutors; and testified about her plea agreement with the State. Thus, the tendered testimony would have been cumulative. Moreover, even assuming, for the sake of argument, that similar testimony by Mason was relevant to any theory of the defendant\u2019s case, any error in not admitting that evidence was harmless. See State v. Hightower, 340 N.C. 735, 745, 459 S.E.2d 739, 745 (1995).\nWe also uphold the trial court\u2019s decision not to enforce the subpoena for Wiley\u2019s appearance because defendant failed at trial to make an offer of proof as to Wiley\u2019s proposed testimony. \u201cAccordingly, defendant has failed to preserve this issue for appellate review under the standard set forth in N.C.G.S. \u00a7 8C-1, Rule 103(a)(2).\u201d State v. Braxton, 352 N.C. 158, 184, 531 S.E.2d 428, 443 (2000), cert. denied, 121 S.Ct. 890, 148 L.Ed.2d 797 (2001). \u201c[I]n order for a party to preserve for appellate review the exclusion of evidence, the significance of the excluded evidence must be made to appear in the record and a specific offer of proof is required unless the significance of the evidence is obvious from the record.\u201d State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985). \u201cThe reason for such a rule is that \u2018the essential content or substance of the witness\u2019 testimony must be shown before we can ascertain whether prejudicial error occurred.\u2019 \u201d State v. Barton, 335 N.C. 741, 749, 441 S.E.2d 306, 310 (1994) (quoting State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)). In the case at bar, defendant made no offer of proof regarding his proffered testimony and the significance of the excluded testimony is not obvious from the record. The defendant therefore failed to preserve any issue concerning the exclusion of this testimony for appellate review.\nIn his third argument, defendant contends that the trial court violated his constitutional right to confront and cross-examine the witnesses against him. The defendant specifically argues that the trial court\u2019s limitation on his cross-examination of Doster and Mullins constituted reversible error, on the grounds that he was precluded from testing the credibility of these two State witnesses and such preclusion prejudicially influenced the jury\u2019s verdict.\n\u201cThe Sixth Amendment of the Constitution, made applicable to state criminal proceedings by Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), guarantees the right of an accused in a criminal trial to be confronted with the witnesses against him.\u201d State v. Fortney, 301 N.C. 31, 36, 269 S.E.2d 110, 112-13 (1980). \u201cBut, the defendant\u2019s right to cross-examination is not absolute. The testimony which defendant sought to elicit must be relevant to some defense or relevant to impeach the witness.\u201d State v. Guthrie, 110 N.C. App. 91, 93, 428 S.E.2d 853, 854, rev. denied, 333 N.C. 793, 431 S.E.2d 28 (1993). \u201c[T]he right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.\u201d State v. Fortney, 301 N.C. at 36, 269 S.E.2d at 113. The trial court may exclude evidence that is irrelevant, non-probative, speculative, not within a witness\u2019 personal knowledge, and calling for legal conclusions from a lay witness. N.C. Gen. Stat. \u00a7 8C-1, Rules 401, 402, 602, 611(a), 611(b) and 701 (1999).\nAs to this assignment of error, defendant first argues that the trial court prevented him from questioning Doster concerning her plea agreement, memory loss, memory gain and pre-trial confinement. The trial court sustained the State\u2019s objection to this line of questioning. Significantly, these questions had already been answered by Doster in prior questioning. The defendant further argues that the trial court improperly prevented him from questioning Mullins about his involvement in the murder. However, the record on appeal shows that defendant questioned Mullins about whether he had been charged with anything; and Mullins twice answered that he had not been charged. We hold that defendant fails to make a showing that the verdict was improperly influenced by any of the trial court\u2019s curtailments of his cross-examination; accordingly, this assignment of error is overruled.\nNext, defendant contends that the trial court committed reversible error when it denied his motion for a mistrial after the jury informed the trial court that it is unable to reach unanimous verdict.\nThis Court has held that the decision to order a mistrial lies within the discretion of the trial judge. See State v. Pakulski, 319 N.C. 562, 568, 356 S.E.2d 319, 323 (1987). Such a ruling is reviewable only for gross abuse of discretion. See State v. Darden, 48 N.C. App. 128, 268 S.E.2d 225 (1980). A mistrial is generally granted where there have been improprieties in the trial of such a serious nature, that defendant cannot receive a fair and impartial verdict. See State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 140 (1998); see also N.C. Gen. Stat. \u00a7 15A-1061 (1996); State v. Cagle, 346 N.C. 497, 516, 488 S.E.2d 535, 548 (1997).\nIn this case, the jury left the courtroom at 2:42 p.m. to commence its deliberations. At approximately one hour and a half later, the bailiff made the judge aware that the jury had a question; that was discussed with counsel and then a record was made as follows:\nThe Court: All right. Let the record reflect that the jury knocked on the door, handed a note to the Bailiff and the Bailiff delivered the note to me. The note says, \u201cIf we are hung on Count No. 1 and if we find the defendant guilty of 2 or 3 or both, would he still get life with no chance of parole?\u201d\nI have spoken with counsel in Chambers and it is my intention to bring the jury back in and to inform them that they are not to be concerned with the punishment in this case, that their role is to find the facts of the case as they find the facts to be, and that is their function in this case, and they are not to consider the punishment as to any crime. . . .\nMr. Hosford: Your honor, at this time, without the jury present, I would make a motion for mistrial on Count I if the jury says they are hung.\nThe Court: Well, because of the nature of the way the question is worded, I\u2019m not going to deal with that at this time. I don\u2019t think they have sufficiently deliberated as to reach that point.\nThis colloquy confirms that the trial court correctly found that there had not been sufficient deliberation by the jury to conclude that it had no reasonable possibility of agreement on the murder charge. The record shows that the jury deliberated less than two hours on three charges in a case involving twenty-seven witnesses and over a hundred exhibits.\nMoreover, we also uphold the trial court\u2019s ruling on defendant\u2019s second motion for a mistrial, which followed the delivery of a jury note at just after 5:00 p.m. on the same afternoon. In the second note, the jury wrote: \u201cWe would like to have in writing the five points of the burden of proof for first degree murder charges. We would like to reconvene at 9:30 tomorrow morning.\u201d After defendant moved for mistrial, the trial court responded:\n[T]he jury got the case at quarter to 3:00 . . . and it\u2019s a little after 5:00, and there is not further indication in this note that. . . they are in a hung status . . . . [A]s a matter of fact, they are wanting some further instructions on the law. And there is no sufficient reason at this time to entertain that motion.\nWe overrule this assignment of error because the facts show no abuse of discretion and no serious improprieties that would make it impossible for defendant to receive a fair and impartial verdict. See State v. Blackstock, 314 N.C. 232, 243, 333 S.E.2d 245, 252 (1985); State v. Davis, 130 N.C. App. at 679, 505 S.E.2d at 140; see also N.C. Gen. Stat. \u00a7 15A-1061 (1999).\nIn his final argument, defendant contends that the trial court erred when it denied his motions for nonsuit at the close of the State\u2019s evidence and again at the close of all of the evidence.\nA motion for nonsuit in a criminal case requires consideration of the evidence in the light most favorable to the State, and the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom, [citation omitted]. Contradictions and discrepancies are for the jury to resolve and do not warrant nonsuit.\nState v. McKinney, 288 N.C. 113, 117, 215 S.E.2d 578, 581 (1975). \u201cIf there is substantial evidence \u2014 whether direct, circumstantial, or both \u2014 to support a finding that the offense charged has been committed and that defendant committed it, a case for the jury is made and nonsuit should be denied.\u201d Id. at 117, 215 S.E.2d at 582.\nWe hold that the trial court did not abuse its discretion when it denied defendant\u2019s motion for nonsuit because the State presented substantial evidence that defendant committed first-degree murder under the felony murder rule, first-degree kidnapping, and robbery with a dangerous weapon. Therefore, this assignment of error is overruled.\nFor the foregoing reasons, we find that defendant received a fair trial, free from prejudicial error.\nNo prejudicial error.\nJudges TIMMONS-GOODSON and HUDSON concur.", "type": "majority", "author": "WYNN, Judge." } ], "attorneys": [ "Roy A. Cooper, Attorney General, by Joyce S. Rutledge, Assistant Attorney General, for the State.", "Geoffrey W. Hosford for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PETER JUSTIN PALLAS\nNo. COA00-497\n(Filed 19 June 2001)\n1. Constitutional Law\u2014 due process \u2014 no knowing use of false testimony\nThe State did not knowlingly use false testimony in violation of defendant\u2019s trial for murder, kidnapping and armed robbery by its use of a codefendant\u2019s testimony that three shots were fired at the victim rather than four as shown by the autopsy, although the State had argued in a second codefendant\u2019s trial that the code-fendant \u2014 witness had not testified truthfully in that trial, since the exact number of shots fired and the identity of the person firing a fourth shot was immaterial and the inconsistencies were for the jury to resolve. Even if the codefendant\u2019s testimony was erroneously admitted, the error was not prejudicial because other witnesses also linked defendant to the robbery, kidnapping and murder of the victim.\n2. Constitutional Law\u2014 right to present defense \u2014 attorneys from codefendant\u2019s trial \u2014 not permitted to testify\nThe trial court did not violate a defendant\u2019s right to present his defense to charges of first-degree murder, first-degree kidnapping, and armed robbery where the court prohibited testimony from the prosecutor and defense attorney in the earlier trial of a codefendant and did not enforce a subpoena for another codefendant. The closing argument of the prosecutor in the prior trial about inferences to be drawn from a codefendant\u2019s testimony in that trial is not the equivalent of the State knowingly presenting false testimony in this trial, the tendered testimony of the defense attorney would have been cumulative, and defendant failed to make an offer of proof as to the testimony of the missing codefendant.\n3. Constitutional Law\u2014 right to confront witnesses \u2014 cross-examination limited\nThe trial court did not unconstitutionally limit cross-examination by defendant in a prosecution for first-degree murder, first-degree kidnapping, and armed robbery. The right to confront and cross-examine is not absolute and may bow to accommodate other legitimate interests in the criminal trial process; the court may exclude evidence that is irrelevant, non-probative, speculative, not within a witness\u2019s personal knowledge, or that includes legal conclusions from a lay witness.\n4. Criminal Law\u2014 hung jury \u2014 insufficient time for deliberation \u2014 mistrial denied\nThe trial court did not abuse its discretion by denying defendant\u2019s motions for a mistrial when informed that the jury could not reach a unanimous verdict where the court correctly found that there had not been sufficient deliberation by the jury in the first instance and that there was insufficient evidence that the jury was hung in the second.\n5. Homicide; Kidnapping; Robbery\u2014 evidence sufficient\nThe trial court did not err in a prosecution for first-degree murder, first-degree kidnapping, and armed robbery by denying defendant\u2019s motions for nonsuit where the State presented sufficient evidence.\nAppeal by defendant from judgment entered 2 September 1999 by Judge W. Allen Cobb, Jr. in Superior Court, New Hanover County. Heard in the Court of Appeals 18 April 2001.\nRoy A. Cooper, Attorney General, by Joyce S. Rutledge, Assistant Attorney General, for the State.\nGeoffrey W. Hosford for defendant-appellant." }, "file_name": "0277-01", "first_page_order": 305, "last_page_order": 314 }