{
  "id": 8172681,
  "name": "STATE OF NORTH CAROLINA v. JAMES FRANK EZZELL",
  "name_abbreviation": "State v. Ezzell",
  "decision_date": "2007-04-03",
  "docket_number": "No. COA06-624",
  "first_page": "417",
  "last_page": "427",
  "citations": [
    {
      "type": "official",
      "cite": "182 N.C. App. 417"
    }
  ],
  "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": "626 S.E.2d 271",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12635151
      ],
      "pin_cites": [
        {
          "page": "286"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/626/0271-01"
      ]
    },
    {
      "cite": "616 S.E.2d 515",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "case_ids": [
        12633574
      ],
      "year": 2005,
      "pin_cites": [
        {
          "page": "523"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/se2d/616/0515-01"
      ]
    },
    {
      "cite": "370 S.E.2d 398",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1988,
      "pin_cites": [
        {
          "page": "405"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "322 N.C. 753",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2518221
      ],
      "year": 1988,
      "pin_cites": [
        {
          "page": "763"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/322/0753-01"
      ]
    },
    {
      "cite": "347 S.E.2d 729",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "pin_cites": [
        {
          "page": "739",
          "parenthetical": "internal quotation marks and citations omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "318 N.C. 54",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4732922
      ],
      "year": 1986,
      "pin_cites": [
        {
          "page": "68",
          "parenthetical": "internal quotation marks and citations omitted"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/318/0054-01"
      ]
    },
    {
      "cite": "154 L. Ed. 2d 73",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 2002,
      "opinion_index": 0
    },
    {
      "cite": "537 U.S. 846",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        9215040,
        9214883,
        9215012,
        9215077,
        9215139,
        9214908,
        9214827,
        9214860,
        9215115,
        9214990,
        9214960,
        9214932,
        9214811,
        9214844
      ],
      "year": 2002,
      "opinion_index": 0,
      "case_paths": [
        "/us/537/0846-11",
        "/us/537/0846-05",
        "/us/537/0846-10",
        "/us/537/0846-12",
        "/us/537/0846-14",
        "/us/537/0846-06",
        "/us/537/0846-02",
        "/us/537/0846-04",
        "/us/537/0846-13",
        "/us/537/0846-09",
        "/us/537/0846-08",
        "/us/537/0846-07",
        "/us/537/0846-01",
        "/us/537/0846-03"
      ]
    },
    {
      "cite": "555 S.E.2d 534",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "page": "551"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "354 N.C. 455",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        138528
      ],
      "year": 2001,
      "pin_cites": [
        {
          "page": "482"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/354/0455-01"
      ]
    },
    {
      "cite": "324 S.E.2d 241",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1985,
      "pin_cites": [
        {
          "page": "248"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "312 N.C. 553",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4753359
      ],
      "year": 1985,
      "pin_cites": [
        {
          "page": "563"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/312/0553-01"
      ]
    },
    {
      "cite": "166 L. Ed. 2d 116",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 2006,
      "opinion_index": 0
    },
    {
      "cite": "466 U.S. 668",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6204802
      ],
      "weight": 2,
      "year": 1984,
      "pin_cites": [
        {
          "page": "687"
        },
        {
          "page": "693"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/466/0668-01"
      ]
    },
    {
      "cite": "360 N.C. 297",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        3787721
      ],
      "pin_cites": [
        {
          "page": "316"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/360/0297-01"
      ]
    },
    {
      "cite": "346 S.E.2d 458",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1986,
      "pin_cites": [
        {
          "page": "462"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "317 N.C. 661",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4778292
      ],
      "year": 1986,
      "pin_cites": [
        {
          "page": "667"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/317/0661-01"
      ]
    },
    {
      "cite": "320 S.E.2d 297",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
      "pin_cites": [
        {
          "page": "300"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "70 N.C. App. 421",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8522630
      ],
      "year": 1984,
      "pin_cites": [
        {
          "page": "424"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/70/0421-01"
      ]
    },
    {
      "cite": "153 L. Ed. 2d 162",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 2002,
      "opinion_index": 0
    },
    {
      "cite": "535 U.S. 1114",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        354625,
        353731,
        354760,
        353448,
        352172,
        354576,
        355188,
        353749,
        351828,
        354680,
        354745,
        352827,
        353947,
        354297
      ],
      "year": 2002,
      "opinion_index": 0,
      "case_paths": [
        "/us/535/1114-11",
        "/us/535/1114-05",
        "/us/535/1114-06",
        "/us/535/1114-02",
        "/us/535/1114-09",
        "/us/535/1114-03",
        "/us/535/1114-10",
        "/us/535/1114-08",
        "/us/535/1114-07",
        "/us/535/1114-13",
        "/us/535/1114-04",
        "/us/535/1114-14",
        "/us/535/1114-12",
        "/us/535/1114-01"
      ]
    },
    {
      "cite": "557 S.E.2d 500",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 2001,
      "pin_cites": [
        {
          "page": "519",
          "parenthetical": "\"Cross-examination can properly be made into why, if the defendant's trial testimony ... is true, he did not include in his earlier statement the relevant information disclosed at trial.\""
        },
        {
          "page": "526"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "354 N.C. 131",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        138455
      ],
      "weight": 2,
      "year": 2001,
      "pin_cites": [
        {
          "page": "156",
          "parenthetical": "\"Cross-examination can properly be made into why, if the defendant's trial testimony ... is true, he did not include in his earlier statement the relevant information disclosed at trial.\""
        },
        {
          "page": "168"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/354/0131-01"
      ]
    },
    {
      "cite": "447 U.S. 404",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6185062
      ],
      "weight": 2,
      "year": 1980,
      "pin_cites": [
        {
          "page": "408"
        },
        {
          "page": "226"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/us/447/0404-01"
      ]
    },
    {
      "cite": "478 S.E.2d 483",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1996,
      "pin_cites": [
        {
          "page": "497"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "345 N.C. 43",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        53843
      ],
      "year": 1996,
      "pin_cites": [
        {
          "page": "65"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/345/0043-01"
      ]
    },
    {
      "cite": "547 S.E.2d 427",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "opinion_index": 0
    },
    {
      "cite": "353 N.C. 396",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        135841,
        135938,
        135760,
        135894,
        135895
      ],
      "year": 2001,
      "opinion_index": 0,
      "case_paths": [
        "/nc/353/0396-04",
        "/nc/353/0396-05",
        "/nc/353/0396-03",
        "/nc/353/0396-01",
        "/nc/353/0396-02"
      ]
    },
    {
      "cite": "540 S.E.2d 388",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2000,
      "pin_cites": [
        {
          "page": "401"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "141 N.C. App. 354",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        9441303
      ],
      "year": 2000,
      "pin_cites": [
        {
          "page": "373"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/141/0354-01"
      ]
    },
    {
      "cite": "340 S.E.2d 701",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 5,
      "year": 1986,
      "pin_cites": [
        {
          "page": "704-05"
        },
        {
          "page": "705",
          "parenthetical": "\"Defendant clearly indicated that he had not, in fact, remained silent but had talked with a detective about the matter.\""
        },
        {
          "page": "705"
        },
        {
          "page": "705",
          "parenthetical": "citations omitted"
        },
        {
          "page": "706"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "315 N.C. 444",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        4717320
      ],
      "weight": 4,
      "year": 1986,
      "pin_cites": [
        {
          "page": "447-48"
        },
        {
          "page": "448"
        },
        {
          "page": "449"
        },
        {
          "page": "449"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/315/0444-01"
      ]
    },
    {
      "cite": "459 S.E.2d 192",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1995,
      "pin_cites": [
        {
          "page": "201"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "340 N.C. 720",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        790161
      ],
      "year": 1995,
      "pin_cites": [
        {
          "page": "734-35"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/340/0720-01"
      ]
    },
    {
      "cite": "382 S.E.2d 752",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1989,
      "pin_cites": [
        {
          "page": "754"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "325 N.C. 232",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2491571
      ],
      "year": 1989,
      "pin_cites": [
        {
          "page": "236"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/325/0232-01"
      ]
    },
    {
      "cite": "446 S.E.2d 535",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1994,
      "pin_cites": [
        {
          "page": "540",
          "parenthetical": "quoting State v. Hoyle, 325 N.C. 232, 236, 382 S.E.2d 752, 754 (1989)"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "337 N.C. 359",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        2549654
      ],
      "year": 1994,
      "pin_cites": [
        {
          "page": "367",
          "parenthetical": "quoting State v. Hoyle, 325 N.C. 232, 236, 382 S.E.2d 752, 754 (1989)"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/337/0359-01"
      ]
    },
    {
      "cite": "151 L. Ed. 2d 389",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 2001,
      "opinion_index": 0
    },
    {
      "cite": "534 U.S. 1000",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        9190852,
        9190628,
        9190822,
        9190649,
        9190667,
        9190873,
        9190700,
        9190799,
        9190738,
        9190901,
        9190966,
        9190933,
        9190777,
        9190684,
        9190717
      ],
      "year": 2001,
      "opinion_index": 0,
      "case_paths": [
        "/us/534/1000-11",
        "/us/534/1000-01",
        "/us/534/1000-10",
        "/us/534/1000-02",
        "/us/534/1000-03",
        "/us/534/1000-12",
        "/us/534/1000-05",
        "/us/534/1000-09",
        "/us/534/1000-07",
        "/us/534/1000-13",
        "/us/534/1000-15",
        "/us/534/1000-14",
        "/us/534/1000-08",
        "/us/534/1000-04",
        "/us/534/1000-06"
      ]
    },
    {
      "cite": "543 S.E.2d 830",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 2001,
      "pin_cites": [
        {
          "page": "840-41"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "353 N.C. 309",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        135701
      ],
      "year": 2001,
      "pin_cites": [
        {
          "page": "326"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/353/0309-01"
      ]
    },
    {
      "cite": "555 S.E.2d 251",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 2001,
      "pin_cites": [
        {
          "page": "273",
          "parenthetical": "alterations in original"
        },
        {
          "page": "265",
          "parenthetical": "internal citations omitted"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "354 N.C. 231",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        138474
      ],
      "weight": 3,
      "year": 2001,
      "pin_cites": [
        {
          "page": "266",
          "parenthetical": "alterations in original"
        },
        {
          "page": "251"
        },
        {
          "page": "251"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/354/0231-01"
      ]
    },
    {
      "cite": "74 L. Ed. 2d 513",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 1982,
      "opinion_index": 0
    },
    {
      "cite": "459 U.S. 1018",
      "category": "reporters:federal",
      "reporter": "U.S.",
      "case_ids": [
        6468801,
        6468547,
        6469476,
        6468711,
        6469608,
        6469353,
        6468967,
        6468624,
        6468240,
        6468465,
        6469044,
        6468343,
        6469144,
        6469246
      ],
      "year": 1982,
      "opinion_index": 0,
      "case_paths": [
        "/us/459/1018-07",
        "/us/459/1018-04",
        "/us/459/1018-13",
        "/us/459/1018-06",
        "/us/459/1018-14",
        "/us/459/1018-12",
        "/us/459/1018-08",
        "/us/459/1018-05",
        "/us/459/1018-01",
        "/us/459/1018-03",
        "/us/459/1018-09",
        "/us/459/1018-02",
        "/us/459/1018-10",
        "/us/459/1018-11"
      ]
    },
    {
      "cite": "676 F.2d 995",
      "category": "reporters:federal",
      "reporter": "F.2d",
      "case_ids": [
        562145
      ],
      "pin_cites": [
        {
          "page": "1002"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/f2d/676/0995-01"
      ]
    },
    {
      "cite": "300 S.E.2d 375",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1983,
      "pin_cites": [
        {
          "page": "378",
          "parenthetical": "emphasis and alterations in original"
        },
        {
          "page": "378",
          "parenthetical": "emphasis in original"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "307 N.C. 655",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8565416
      ],
      "weight": 2,
      "year": 1983,
      "pin_cites": [
        {
          "page": "660",
          "parenthetical": "emphasis and alterations in original"
        },
        {
          "page": "660"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/307/0655-01"
      ]
    },
    {
      "cite": "165 L. Ed. 2d 988",
      "category": "reporters:federal",
      "reporter": "L. Ed. 2d",
      "year": 2006,
      "opinion_index": 0
    },
    {
      "cite": "359 N.C. 709",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        3802205
      ],
      "year": 2005,
      "pin_cites": [
        {
          "page": "717"
        }
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/359/0709-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 1101,
    "char_count": 23435,
    "ocr_confidence": 0.752,
    "pagerank": {
      "raw": 5.391834915735076e-08,
      "percentile": 0.33745133403530475
    },
    "sha256": "040c3446d52924adbe01b0cb836f20a18a1877159633de5780c23924bc657092",
    "simhash": "1:4504d46a292e4d46",
    "word_count": 3816
  },
  "last_updated": "2023-07-14T22:32:14.097428+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges CALABRIA and GEER concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES FRANK EZZELL"
    ],
    "opinions": [
      {
        "text": "JACKSON, Judge.\nOn 7 March 2005, James Ezzell (\u201cdefendant\u201d) was indicted for murder, and on 16 November 2005, the jury found defendant guilty of second-degree murder. The trial court sentenced defendant to a minimum of 125 months imprisonment with a corresponding maximum of 158 months. The court also ordered defendant to pay restitution in the amount of $14,850.03. Defendant gave timely notice of appeal.\nOn 2 October 2004, defendant invited several friends and family members to go four-wheeling with him on a trail , in Wilson County, North Carolina. Among the people defendant invited was Jeff Winstead (\u201cWinstead\u201d), who, without defendant\u2019s prior approval, invited Mark Carlini (\u201cCarlini\u201d) and Carlini\u2019s wife, Amy. The group gathered at a cabin being rented by defendant, and Carlini and his wife were introduced to defendant. The group then rode their four-wheelers on the trails, stopping occasionally to eat and drink beer.\nAt some point during the outing, the group stopped near a pond and talked, during which time a \u201cheated\u201d conversation erupted between Carlini and defendant. Carlini said to defendant, \u201cSo you\u2019re Frank Ezzell? ... I remember you.... You\u2019re Frank Ezzell, the old rabbit man. You used to sell rabbits.\u201d One of defendant\u2019s friends invited on the trip explained that he \u201ccould tell tension was getting high.\u201d' According to witnesses, Carlini recounted a story from when he and a friend, \u201cRomek,\u201d were teenagers, and defendant hit Romek in the head with a gun. Despite his wife\u2019s requests to drop the matter, Carlini, who had consumed over twelve beers during the day, became increasingly excited and agitated, explaining that he was not \u201csome young dumb kid anymore\u201d and telling defendant, \u201cI\u2019ve been waiting 25 years to kick your ass, old man.\u201d Defendant told Carlini, \u201cDon\u2019t start something,\u201d and Carlini then gave defendant a wraparound hug, saying, \u201cIt\u2019s okay. Water under the bridge.\u201d Two witnesses testified that they did not believe that Carlini squeezed defendant very hard, particularly since Carlini had a beer in one of his hands at the time. Defendant, however, testified that Carlini squeezed the breath out of him, squeezed him so hard his back popped, and \u201csqueezed [him] so hard [he] wet in [his] pants.\u201d Defendant further stated that after Carlini, who was a bigger and younger man, put defendant down, Carlini threatened \u201cto kick [defendant\u2019s] damn ass before this day is over with.\u201d\nImmediately after this incident, defendant and his girlfriend, Cynthia Edwards (\u201cEdwards\u201d), left the group. Two other members of the group \u2014 Robbie Jones (\u201cJones\u201d) and Christopher Hobson (\u201cHobson\u201d) \u2014 left the trails shortly thereafter. Once back at the cabin, Jones arid Hobson observed defendant yelling at Edwards and telling her to go home. Jones attempted to persuade defendant to drop the matter with Carlini: \u201cI pretty much told him \u2014 I said, \u2018Just leave it alone.\u2019 I said Mark [Carlini] was a little mouthy, just leave and we\u2019ll come back another day when he\u2019s not here and ride.\u201d Defendant, however, responded by saying, \u201cI don\u2019t know if I can do that.\u201d After helping Edwards with her four-wheeler, Jones got into his truck. Jones explained he had never seen defendant talk to Edwards in such a manner and stated to Hobson, \u201cI don\u2019t know what Frank might do, he might kill that man.\u201d\nShortly after Jones left and approximately twenty-five to thirty minutes after initially leaving Carlini and the others at the pond, defendant went back up the trail on his four-wheeler, leaving Edwards and Hobson at the cabin. Edwards expressed concern about what defendant might do, stating that defendant \u201cprobably had a gun.\u201d A few minutes later, Winstead and the Carlinis, who remained at the pond, saw defendant on the trail, \u201cputtering up in the distance,\u201d by which Winstead meant that defendant was \u201cjust driving around, puttering a little bit, slowly.\u201d Hobson returned and informed the group of the need to leave, and then defendant approached to within fifty yards of the group and told everyone remaining, \u201cYa\u2019ll have ten minutes to get off of my property.\u201d\nDefendant left once again, and the group began to pack up their belongings and leave the trail on their four-wheelers. Carlini led the group, followed by his wife, then Hobson, and Winstead in the rear. Hobson warned Winstead that defendant might have a gun, and Winstead then warned Carlini\u2019s wife of that possibility. Winstead caught up with Carlini and warned him, \u201cMark, he might have a gun. Don\u2019t say anything. Be good. Let\u2019s just go.\u201d\nAs the group proceeded along the trail, Hobson noticed that Carlini and defendant were riding approximately twenty-five feet away from one another. Hobson, who was approximately one hundred yards away at the time, observed that Carlini and defendant were riding slowly and had their heads turned to each other. Hobson testified, \u201cI could tell that they were talking, arguing, or whatever it may be. But I could not hear what they were saying.\u201d According to Hobson, at no time did Carlini attempt to ram defendant on the four-wheeler. Hobson then attempted to catch up with them, and when he was approximately twenty-five or thirty feet behind them, he observed defendant pull out a gun \u00e1nd shoot Carlini.\nHobson slammed on the brakes when he heard the gunshot, and he saw that Carlini stopped his four-wheeler. Hobson and Carlini\u2019s wife ran to Carlini, and Hobson testified that \u201cMark said, \u2018I\u2019ve been shot,\u2019 or \u2018He shot me.\u2019 I can\u2019t remember which'he said. Amy thought he might have been joking at first because he was sitting on his four-wheeler. I said, \u2018Let me check you.\u2019 I looked down his side and I saw a hole in his shirt.\u201d Carlini then appeared to go into shock, \u201cand he just slumped forward.\u201d Defendant meanwhile left the scene, and Hobson did not see defendant after the shooting. Defendant testified at trial that he drove away from the scene and hid his ghns under pine straw near a pine tree. After Carlini slumped over on his four-wheeler, Carlini\u2019s wife jumped on the four-wheeler and drove to the nearest residence where they called 911. Carlini was pronounced dead at the hospital.\nPolice responded to the residence from which the 911 phone call was placed, and Hobson showed the police where the shooting had occurred. The police were alerted to be on the lookout for defendant, and Detective J.T. Bass (\u201cDetective Bass\u201d) spotted defendant on a four-wheeler in the distance. Detective Bass turned to inform a fellow officer that he had spotted an individual that matched defendant\u2019s description. Detective Bass testified, \u201cAs I turned back to look, the individual on the four-wheeler pretty much did a circle turn and left . . . .\u201d Police officers continued to search for defendant, and Deputy Steven Babcock (\u201cDeputy Babcock\u201d) eventually \u201cobserved the defendant peeking over the top of the beans\u201d in a nearby field. Deputy Babcock then apprehended and arrested defendant. Defendant subsequently was indicted, and on 16 November 2005, the jury found defendant guilty of second-degree murder.\nOn appeal, defendant contends that the trial court erred in permitting extensive cross-examination by the State questioning defendant\u2019s exercise of his right to remain silent. We disagree.\nAt trial, defense counsel failed to object to those portions of the cross-examination that defendant now challenges on appeal. Accordingly, we review defendant\u2019s contentions under the plain error standard. See State v. Augustine, 359 N.C. 709, 717, 616 S.E.2d 515, 523 (2005), cert. denied, \u2014 U.S. \u2014, 165 L. Ed. 2d 988 (2006).\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u2018'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201cresulted in a miscarriage of justice or in the denial to appellant of a fair trial\u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (emphasis and alterations in original) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)).\nAs our Supreme Court has explained,\n[i]t is well established that a criminal defendant has a right to remain silent under the Fifth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment, and under Article I, Section 23 of the North Carolina Constitution. A defendant\u2019s decision to remain silent following his arrest may not be used to infer his guilt, and any comment by the prosecutor on the defendant\u2019s exercise of his right to silence is unconstitutional. \u201cA statement that may be interpreted as commenting on a defendant\u2019s decision [to remain silent] is improper if the jury would naturally and necessarily understand the statement to be a comment on the [exercise of his right to silence.]\u201d\nState v. Ward, 354 N.C. 231, 266, 555 S.E.2d 251, 273 (2001) (alterations in original) (quoting State v. Mitchell, 353 N.C. 309, 326, 543 S.E.2d 830, 840-41, cert. denied, 534 U.S. 1000, 151 L. Ed. 2d 389 (2001)). Furthermore, \u201c[o]nce a defendant has been advised of his right to remain silent, \u2018it is a violation of defendant\u2019s rights under the Fourteenth Amendment to the Constitution of the United States to then impeach the defendant on cross-examination by questioning him about the silence.\u2019 \u201d State v. Quick, 337 N.C. 359, 367, 446 S.E.2d 535, 540 (1994) (quoting State v. Hoyle, 325 N.C. 232, 236, 382 S.E.2d 752, 754 (1989)). \u201cNevertheless, a comment implicating a defendant\u2019s right to remain silent, although erroneous, is not invariably prejudicial. Indeed, such error will not earn the defendant a new trial if, after examining the entire record, this Court determines that the error was harmless beyond a reasonable doubt.\u201d Ward, 354 N.C. at 251, 555 S.E.2d at 265 (internal citations omitted).\nIn the case sub judice, Deputy Babcock testified that he gave defendant Miranda warnings at the scene of the crime. Defendant nevertheless waived his rights and chose to answer Deputy Babcock\u2019s questions without a lawyer present. En route to the patrol car, defendant voluntarily informed Deputy Babcock that the firearm was \u201cup by the bam where we were all at.\u201d Defendant attempted to show officers where the firearm was located, although the firearm was not recovered that evening. Deputy Babcock testified that defendant asked about Carlini\u2019s condition and whether he was still alive, to which Deputy Babcock responded that he did not know. Defendant twice told Deputy Babcock that he shot Carlini in self-defense. Deputy Babcock attempted to ascertain what happened that day that led to the shooting, and during his testimony, Deputy Babcock read from a statement he had prepared around the time of the arrest:\nDeputy Babcock: I asked. Ezzell, \u201cWhat in the world happened?\u201d Ezzell stated, \u201cThe guy ran me off the path into the ditch. I almost flipped, so I shot him.\u201d I asked Ezzell, \u201cWeren\u2019t ya\u2019ll hanging out together earlier today?\u201d Ezzell answered, \u201cYes. We were drinking some beers. The guy kept looking at me and said, T know you, you\u2019re Frank Ezzell,\u2019 and then started talking about something I was supposed to have done 20 years ago.\u201d Ezzell stated that Mark later squoze [sic] him so hard that he couldn\u2019t breathe. Ezzell stated, \u201cYou\u2019ve seen him. He\u2019s a big boy.\u201d As we approached my patrol car, Ezzell stated, \u201cI bet you he don\u2019t call me an old motherfucker anymore.\u201d\nDetective Bass testified that after arriving at the sheriff\u2019s office, defendant once again was given Miranda warnings. This time, defendant asserted his right to remain silent.\nAfter Deputy Babcock testified, defendant testified on his own behalf. Defendant testified that Carlini threatened to break defendant\u2019s back, that Carlini rode up behind defendant and almost yanked defendant off his four-wheeler, and that Carlini tried to mn defendant over the embankment of the path. Defendant further testified that Carlini was drunk and that he thought he saw Carlini snorting cocaine.\nDuring cross-examination of defendant, the following colloquy took place:\nProsecutor: Now, you mentioned that you saw him [Carlini] lean down across the four-wheeler, you said you thought that he was doing what appeared to be cocaine; is that correct?\nDefendant: Yes.\nProsecutor: Now, you never told any law enforcement officers about that, did you?\nDefendant: I didn\u2019t make a statement. When they asked me if I wanted to make a statement here, I didn\u2019t make a statement. The reason I didn\u2019t make a statement, I felt like whatever I said may get turned around.\nProsecutor: And you didn\u2019t tell them about the repeated threats about breaking your back either, did you?\nDefendant: I told you I didn\u2019t make a statement. They asked me if I wanted to make a statement. I did not make a statement.\nProsecutor: But you made a statement to the initial officer that apprehended you.\nDefendant: No, I did not make a statement to him either. What he is saying is what \u2014 what me and him were talking about. But I didn\u2019t call myself making a \u2014 -necessarily a statement to him. I felt like I was probably better off not to say anything.\nProsecutor: But at that point you made a general statement along the lines of \u201cI shot him in self-defense,\u201d didn\u2019t you?\nDefendant: Yes.\nProsecutor: And that\u2019s all you added, you didn\u2019t elaborate on that, you didn\u2019t tell them, \u201cLook, here is where the four-wheeler went off,\u201d did you?\nDefendant: I told him he ran me off a bank. I didn\u2019t say he ran me down in a ditch. I said he ran me off the bank.\nProsecutor: And you didn\u2019t tell them about the use of cocaine, did you?\nDefendant: Uh-uh.\nProsecutor: And you didn\u2019t tell them about the repeated threats of breaking you over his back and I\u2019ve been waiting 25 years for this moment to get even with you?\nDefendant: I felt like the less I said to him the better off I would be.\nDefendant contends on appeal that \u201c[t]he gist of the cross-examination was that Mr. Ezzell must be lying if he did not tell law enforcement officers everything after receiving the Miranda warnings,\u201d and that as a result, defendant\u2019s constitutional right to remain silent was violated.\nThe State, meanwhile, contends that defendant waived his right to review this issue. Here, there was no objection during the portion of the cross-examination to which defendant now takes exception, and there is no specific assertion of plain error in defendant\u2019s brief. Accordingly, defendant is not entitled to review of this issue. See State v. Wilson, 340 N.C. 720, 734-35, 459 S.E.2d 192, 201 (1995); State v. Gardner, 315 N.C. 444, 447-48, 340 S.E.2d 701, 704-05 (1986).\nNevertheless, assuming arguendo that defendant had asserted plain error in his brief, we hold that the prosecutor\u2019s cross-examination of defendant does not constitute \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.\u201d Odom, 307 N.C. at 660, 300 S.E.2d at 378 (emphasis in original).\n\u201c[T]here is no question that a defendant who takes the stand relinquishes some constitutional rights.\u201d State v. Washington, 141 N.C. App. 354, 373, 540 S.E.2d 388, 401 (2000), disc. rev. denied, 353 N.C. 396, 547 S.E.2d 427 (2001). Regardless, under the facts and circumstances presented, we hold defendant\u2019s constitutional rights were not violated. First, defendant acknowledged that he had spoken with Deputy Babcock at the scene of the crime, even after receiving his Miranda warnings. See Gardner, 315 N.C. at 448, 340 S.E.2d at 705 (\u201cDefendant clearly indicated that he had not, in fact, remained silent but had talked with a detective about the matter.\u201d). Defendant waived his right to remain silent with respect to comments made to Deputy Babcock at the scene of the arrest, and thus, it was entirely appropriate for the prosecutor to question defendant on what he told and did not tell Deputy Babcock at that time. See State v. Westbrooks, 345 N.C. 43, 65, 478 S.E.2d 483, 497 (1996) (\u201cSuch questioning makes no. unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has' not remained silent at all.\u201d (quoting Anderson v. Charles, 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226 (1980))). The prosecutor questioned defendant on his reason for omitting from his voluntary discussion with Deputy Babcock such important facts as that Carlini had been drunk and possibly on cocaine and that Carlini had threatened defendant\u2019s life several times prior to the shooting. It would have been natural and expected for defendant to have mentioned such details to Deputy Babcock. See State v. Fair, 354 N.C. 131, 156, 557 S.E.2d 500, 519 (2001) (\u201cCross-examination can properly be made into why, if the defendant\u2019s trial testimony ... is true, he did not include in his earlier statement the relevant information disclosed at trial.\u201d), cert. denied, 535 U.S. 1114, 153 L. Ed. 2d 162 (2002); see also State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300 (1984). As such, \u201c[t]he prosecutor did not attempt to capitalize on the defendant\u2019s reliance on the implicit assurances of the Miranda warnings.\u201d State v. Mitchell, 317 N.C. 661, 667, 346 S.E.2d 458, 462 (1986). Accordingly, \u201c[w]hatever motives prompted the cross-examination questions, neither they nor defendant\u2019s responses constituted an impermissible comment upon the defendant\u2019s invocation of his constitutional right to remain silent.\u201d Gardner, 315 N.C. at 449, 340 S.E.2d at 705.\nFinally, \u201ceven assuming, arguendo, the violation of a constitutional right, admission of the evidence complained of was harmless beyond a reasonable doubt. This is so because the evidence presented by the State was very convincing.\u201d Gardner, 315 N.C. at 449, 340 S.E.2d at 705 (citations omitted). The evidence in the case sub judice included, inter alia: (1) that defendant admitted to shooting Carlini; (2) testimony by Hobson who witnessed the shooting and denied that Carlini attempted to ram defendant\u2019s four-wheeler; (3) testimony that both defendant and Carlini had been drinking prior to the shooting; (4) that some of the other people present prior to the incident believed defendant to have a gun and the intention to take action against Carlini; (5) that defendant left Carlini\u2019s presence after being squeezed by Carlini yet nevertheless returned a short while later; (6) that defendant initially hid the weapons; and (7) that defendant left the scene of the shooting and was apprehended later crouching in a bean field. In sum, evidence presented by the State was very convincing that defendant intended to kill Carlini. Therefore, \u201c[e]ven had the exchange on cross-examination constituted error, we conclude that, absent such error, the jury probably would have reached the same result.\u201d Id. at 450, 340 S.E.2d at 706. Accordingly, defendant\u2019s assignment of error is overruled.\nDefendant, in his final argument, contends that his trial counsel\u2019s failure to object at trial to the portions of the prosecutor\u2019s cross-examination regarding defendant\u2019s invocation of the right to remain silent constituted ineffective assistance of counsel. We disagree.\n\u201cTo prevail on a claim of ineffective assistance of counsel, a defendant must first show that his counsel\u2019s performance was deficient and then that counsel\u2019s deficient performance prejudiced his defense.\u201d State v. Allen, 360 N.C. 297, 316, 626 S.E.2d 271, 286 (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)), cert. denied, \u2014 U.S. \u2014, 166 L. Ed. 2d 116 (2006). \u201cThe fact that counsel made an error, even an unreasonable error, does not warrant reversal of a conviction unless there is a reasonable probability that, but for counsel\u2019s errors, there would have been a different result in the proceedings.\u201d State v. Braswell, 312 N.C. 553, 563, 324 S.E.2d 241, 248 (1985). Furthermore, \u201c[c]ounsel is given wide latitude in matters of strategy,\u201d State v. Fletcher, 354 N.C. 455, 482, 555 S.E.2d 534, 551 (2001), cert. denied, 537 U.S. 846, 154 L. Ed. 2d 73 (2002), and \u201c [ineffective assistance of counsel claims are not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness.\u201d State v. Lowery, 318 N.C. 54, 68, 347 S.E.2d 729, 739 (1986) (internal quotation marks and citations omitted).\nWhether or not defense counsel should have objected to the portion of the cross-examination at issue in the instant appeal, we decline to find that defense counsel\u2019s actions fall below an objective standard of reasonableness. As discussed supra, the State\u2019s questioning of defendant was proper. \u201cThere was no basis for an objection by trial counsel, and thus there was no ineffective assistance of counsel.\u201d Fair, 354 N.C. at 168, 557 S.E.2d at 526. Furthermore, even if defense counsel\u2019s actions could be characterized as unreasonable, we conclude that defendant\u2019s counsel\u2019s failure to object did not affect the outcome of the case. This brief questioning spanned less than two of the approximately 400 transcript pages, and cannot be construed to constitute the \u201cextended comment\u201d of which our Supreme Court has warned. See Ward, 354 N.C. at 251, 555 S.E.2d at 264 (quoting State v. Banks, 322 N.C. 753, 763, 370 S.E.2d 398, 405 (1988)). The questioning here could not have tainted a case that otherwise included convine-ing evidence of defendant\u2019s guilt, and accordingly, this assignment of error is overruled.\nNo Error.\nJudges CALABRIA and GEER concur.",
        "type": "majority",
        "author": "JACKSON, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Richard L. Harrison, for the State.",
      "Miles & Montgomery, Attorneys, by Lisa Miles, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES FRANK EZZELL\nNo. COA06-624\n(Filed 3 April 2007)\n1. Confessions and Incriminating Statements\u2014 right to silence \u2014 first waived, then invoked \u2014 cross-examination\nThere was no prejudicial error in a second-degree murder prosecution from a cross-examination about a statement made by defendant after waiving his Miranda rights at the arrest scene even though he later asserted his right to remain silent after being advised of his rights again. The prosecutor was not attempting to capitalize on defendant\u2019s reliance on the Miranda warnings and the questions were not an impermissible comment upon defendant remaining silent. Moreover, the evidence against defendant was convincing and the jury would probably have reached the same result without any error.\n2. Constitutional Law\u2014 effective assistance to counsel \u2014 failure to object\nDefendant\u2019s counsel was not ineffective in not objecting to portions of the prosecutor\u2019s cross-examination of defendant. Defense counsel\u2019s actions did not fall below an objective standard of reasonableness, and did not affect the outcome of the case.\nAppeal by defendant from judgment entered 16 November 2006 by Judge Milton F. Fitch, Jr. in Wilson County Superior Court. Heard in the Court of Appeals 14 December 2006.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Richard L. Harrison, for the State.\nMiles & Montgomery, Attorneys, by Lisa Miles, for defendant-appellant."
  },
  "file_name": "0417-01",
  "first_page_order": 449,
  "last_page_order": 459
}
