{ "id": 8547948, "name": "STATE OF NORTH CAROLINA v. EARL ANDREW FRANKLIN", "name_abbreviation": "State v. Franklin", "decision_date": "1974-09-18", "docket_number": "No. 7421SC635", "first_page": "93", "last_page": "96", "citations": [ { "type": "official", "cite": "23 N.C. App. 93" } ], "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": "158 S.E. 2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "527" } ], "opinion_index": 0 }, { "cite": "272 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573176 ], "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/nc/272/0417-01" ] }, { "cite": "158 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573790 ], "opinion_index": 0, "case_paths": [ "/nc/272/0509-01" ] }, { "cite": "187 S.E. 2d 493", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 82", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546942 ], "pin_cites": [ { "page": "84" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0082-01" ] }, { "cite": "174 S.E. 2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "531" } ], "opinion_index": 0 }, { "cite": "276 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563327 ], "pin_cites": [ { "page": "697" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0690-01" ] } ], "analysis": { "cardinality": 440, "char_count": 7478, "ocr_confidence": 0.597, "pagerank": { "raw": 5.6322777456879506e-08, "percentile": 0.35198403459043365 }, "sha256": "7ef81d4780d8db4b132580f532e6936da79f8f454d6dd7b09957fddd9342d783", "simhash": "1:a54070f6e3d721b3", "word_count": 1225 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EARL ANDREW FRANKLIN" ], "opinions": [ { "text": "VAUGHN, Judge.\nDefendant raises two points on appeal: (1) whether the Court erred in denying defendant\u2019s motion for continuance, and (2) whether the Court erred in permitting State\u2019s witness to testify regarding State\u2019s exhibits numbered five and six when said exhibits were not properly introduced into evidence.\nDefendant moved for a continuance on the grounds that the jury panel was present in court when defendant made his pleas at the arraignment; and, when defendant voiced dissatisfaction with his court-appointed counsel and requested new counsel or permission to employ his own attorney. Defendant contends the Court erred in denying this motion. We do not agree.\n\u201cA motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling thereon is not subject to review absent an abuse of discretion [citations].\u201d State v. Baldwin, 276 N.C. 690, 697, 174 S.E. 2d 526, 531. \u201cWhether a defendant bases his appeal upon an abuse of judicial discretion, or a denial of his constitutional rights, to entitle him to a new trial because his motion to continue was not allowed, he must show both error and prejudice.\u201d State v. Fountain, 14 N.C. App. 82, 84, 187 S.E. 2d 493, 494, as quoted in State v. Moses, 272 N.C. 509, 158 S.E. 2d 617.\nDefendant, of his own volition, made his original plea of guilty. He also chose to change the plea in open court. Further, defendant voluntarily voiced his dissatisfaction with his attorney before the prospective jurors. The jurors could not avoid hearing what defendant said. A defendant cannot by his own acts allow matters to come before jurors and then allege error by the Court in an attempt to escape the effects of his own acts.\nThe Court worked to avoid prejudice and minimize the effects of defendant\u2019s action. For example, after defendant\u2019s expression of dissatisfaction, the Court conducted a hearing on the matter outside the presence of prospective jurors. In its instruction to jurors before accepting evidence, the Court instructed them to disregard the proceedings at arraignment and to base their verdict \u201csolely upon the evidence as it comes from the witness stand and not anything which took place in the beginning of the Court\u2019s questioning of the defendant pertaining to his plea.\u201d\nOur survey of the record reveals that the Court acted properly and defendant failed to show error and prejudice, or an abuse of discretion.\nAs to the second point, the Court\u2019s permitting the testimony of a State\u2019s witness regarding exhibits numbered five and six, we also affirm the Court\u2019s ruling. The substance of this testimony was that defendant\u2019s fingerprints were found on the stolen automobile. Defendant readily admitted on at least two occasions that his fingerprints were on the car. One of these admissions came at the conclusion of his cross-examination of State\u2019s witness. In view of defendant\u2019s admission, there is no prejudice as a result of the admission of the evidence. A verdict or judgment is not to be set aside on the basis of mere error and no more. The ruling complained of must not only be erroneous. It must also be material and prejudicial, and prove that but for the error a different result likely would have ensued. See State v. Paige, 272 N.C. 417, 424, 158 S.E. 2d 522, 527. The burden to prove that a different result would have ensued is on appellant.\nCareful consideration of defendant\u2019s assignments of error leads us to conclude that they are without merit.\nNo error.\nJudges Campbell and Parker concur.", "type": "majority", "author": "VAUGHN, Judge." } ], "attorneys": [ "Attorney General Robert Morgan by Archie W. Anders, Associate Attorney, for the State.", "John J. Schramm, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EARL ANDREW FRANKLIN\nNo. 7421SC635\n(Filed 18 September 1974)\nCriminal Law \u00a7 90\u2014 motion for continuance denied \u2014 no prejudice\n'The trial court did not err in denying defendant\u2019s motion for a continuance made on the grounds that the jury panel was present in court when defendant changed his plea from guilty to not guilty and demanded a jury trial and when defendant voiced dissatisfaction with his court appointed counsel and requested new counsel or permission to employ his own attorney, since defendant allowed those matters to come before the jurors by his own acts and since the court worked to avoid prejudice by conducting a hearing with respect to defendant\u2019s dissatisfaction outside the presence of prospective jurors and by instructing the jury to disregard the proceedings at arraignment.\nCriminal Law \u00a7\u00a7 60, 169\u2014 fingerprint evidence \u2014 admission not prejudicial\nDefendant was not prejudiced by admission of expert testimony concerning the presence of his fingerprints on a stolen automobile where defendant himself admitted that his fingerprints were on the ear.\nAppeal by defendant from McConnell, Judge, 18 February 1974 Session of Superior Court held in Forsyth County.\nDefendant Earl Andrew Franklin was indicted for felonious larceny of an automobile.\nAt the arraignment, the defendant, pursuant to a plea bargaining arrangement, pled guilty to temporary larceny of a motor vehicle, in violation of G.S. 20-105, for which he had also been indicted. Later defendant changed his plea to not guilty and demanded a jury trial. In so doing, defendant stated that he understood the charges against him, and understood his right to plead not guilty and to request a jury trial.\nThis arraignment took place in the presence of prospective jurors. The Court instructed the potential jurors to disregard any of the proceedings at arraignment. Defendant then announced in open court that he would like another attorney and would like the case to be continued. At this point the Court, defendant, clerk, court reporter and attorneys retired to a room outside the presence of the prospective jurors for a brief hearing. Defendant\u2019s motion was denied.\nThe State presented the following evidence. On 2 October 1972, at 8:00 a.m., Roger Cope left his white 1963 Chevrolet Impala in a parking lot. It was unlocked and the keys were in the ignition. Approximately four hours later Cope returned to the lot and discovered that his automobile was missing. He reported this to the police the last Sunday in October.\nOn 29 October 1972, at about 9:00 a.m., Officer B. W. Rich was in a restaurant and recognized the defendant as a prison escapee. When defendant left the restaurant, Rich followed him. The defendant ran, and while chasing him, Rich observed a weapon on defendant\u2019s person. Rich placed defendant under arrest for carrying a concealed weapon.\nAn investigation revealed that defendant was traveling in the stolen white 1963 Chevrolet Impala. A search of defendant\u2019s person yielded keys which fit the ignition of the stolen automobile.\nWhen the automobile was returned to Cope the speedometer registered an additional 2,000 miles.\nJohn R. Davis, a criminal lab specialist, made a positive identification that the latent fingerprints taken from the vehicle were those of defendant.\nWhile cross-examining Davis, defendant said that he would like to tell the jury \u201chow my fingerprints came to be on the car.\u201d On the stand defendant added, \u201cMy fingerprints were on that car.\u201d Defendant further added, \u201cThe evidence against me is almost overwhelming in this case, but I would like to clarify some points to the jury.\u201d He then testified that his reason for being in the automobile was to help start it for another person.\nDefendant was found guilty and judgment imposing a prison term was entered.\nAttorney General Robert Morgan by Archie W. Anders, Associate Attorney, for the State.\nJohn J. Schramm, Jr., for defendant appellant." }, "file_name": "0093-01", "first_page_order": 121, "last_page_order": 124 }