{ "id": 8555975, "name": "STATE OF NORTH CAROLINA v. TOMMY DAVIS", "name_abbreviation": "State v. Davis", "decision_date": "1976-05-05", "docket_number": "No. 7516SC1027", "first_page": "383", "last_page": "386", "citations": [ { "type": "official", "cite": "29 N.C. App. 383" } ], "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": "185 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572320 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0426-01" ] }, { "cite": "186 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572261 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0413-01" ] }, { "cite": "160 S.E. 2d 508", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "1 N.C. App. 145", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550779 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/1/0145-01" ] }, { "cite": "139 S.E. 232", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "opinion_index": 0 }, { "cite": "193 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217725 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nc/193/0670-01" ] } ], "analysis": { "cardinality": 321, "char_count": 5143, "ocr_confidence": 0.676, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2060235944257754 }, "sha256": "c2e82846a46c38cc08953cac55806ec87f2047afb3b74c1e730710abfffd25c1", "simhash": "1:c2d58a3cc66c4042", "word_count": 839 }, "last_updated": "2023-07-14T16:29:22.308082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Morris and Hedrick concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TOMMY DAVIS" ], "opinions": [ { "text": "ARNOLD, Judge.\nThe investigating officer testified concerning the statement defendant had made at the time of his arrest. Over objection the officer stated that defendant did not volunteer information with respect to Edward Brewer\u2019s having a weapon or defendant\u2019s having to defend himself.\nAppellant contends that it was error to allow the officer\u2019s testimony, and that he did not volunteer such information because he was merely exercising his Fifth Amendment rights.\nOn cross-examination defendant himself testified that the officers advised him of his constitutional rights, and that he [defendant] made a statement to the effect that he shot Brewer, \u201cand that\u2019s all I said. I didn\u2019t tell them at that time that I had to shoot him in self defense, because I didn\u2019t feel like talking right then. I didn\u2019t even bother to tell them that he had a gun at that time.\u201d There was no objection to this testimony.\nThe established rule provides that where incompetent evidence is admitted over objection, but the same evidence is thereafter admitted without objection, the benefit of the objection is ordinarily lost. Stansbury, N. C. Evidence (Brandis Rev.) \u00a7 30, citing Shelton v. R. R., 193 N.C. 670, 139 S.E. 232 (1927). See also State v. Brown, 1 N.C. App. 145, 160 S.E. 2d 508 (1968).\nDuring defendant\u2019s direct examination he testified that Brewer grabbed him and \u201che [Brewer] said wasn\u2019t nobody going to play no pool in here tonight\u201d and that Brewer \u201ctold me not [to] walk away from him.\u201d The trial court immediately sustained an objection by the district attorney and instructed the jurors not to consider anything that the deceased said to defendant.\nA second objection was sustained when defendant again stated that Brewer \u201ctold me not [to] walk away from him.\u201d The trial court then instructed the defendant: \u201cYou may not tell anything that Edward Brewer said to you.\u201d\nWhile we agree with defendant\u2019s contention that the court erred in sustaining the objections and instructing the jury not to consider anything Brewer said to defendant, we nevertheless feel that the error was harmless beyond a reasonable doubt. All of defendant\u2019s evidence relevant to self-defense tended to show that Brewer grabbed defendant by the collar and shook him; that defendant left the poolroom but was followed by Brewer who pulled a gun on defendant; and that defendant shot Brewer in self-defense.\nThe record does not reflect, nor does defendant contend, that defendant would have testified that Brewer made any statements except those objected to by the district attorney. Although the exclusion of the statements by the trial court was error, it was not prejudicial to defendant. The \u201cbare possibility\u201d that defendant may have suffered prejudice is not enough to reverse the jury\u2019s verdict. See State v. Best, 280 N.C. 413, 186 S.E. 2d 1 (1972) ; State v. Holden, 280 N.C. 426, 185 S.E. 2d 889 (1972).\nWe hold that defendant received a fair trial without prejudicial error.\nNo error.\nJudges Morris and Hedrick concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney David S. Crump, for the State.", "J. H. Barrington, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TOMMY DAVIS\nNo. 7516SC1027\n(Filed 5 May 1976)\n1. Criminal Law \u00a7 169\u2014 evidence admitted over objection \u2014 similar subsequent testimony allowed \u2014 no prejudice\nIn a second degree murder prosecution, defendant was not prejudiced by the trial court\u2019s admission of testimony by a police officer that defendant, in making a statement at the time of his arrest, did not volunteer any information with respect to his victim having a weapon or defendant\u2019s having to defend himself, where defendant subsequently made statements to the same effect on cross-examination.\n2. Criminal Law \u00a7 169\u2014 evidence improperly excluded \u2014 no prejudice\nIn a prosecution for second degree murder, the trial court\u2019s error in excluding defendant\u2019s testimony as to things the victim said to defendant prior to the homicide was not prejudicial to defendant.\nON writ of certiorari to review proceedings before Godwin, Judge. Judgment entered 14 April 1975 in Superior Court, Robeson County. Heard in the Court of Appeals 6 April 1976.\nDefendant was indicted for the first degree murder of Edward Brewer. When the case was called for trial the district attorney announced that the State would seek no verdict greater than second degree murder.\nEvidence by the State tended to show that Edward Brewer and his brother were shooting pool at the Patio Club. As the brothers started to leave the poolroom and enter another room in the Club defendant drew a revolver and shot Edward Brewer.\nTestimony by the detective who investigated the shooting and arrested defendant indicated that defendant made a statement to the effect that Brewer and defendant argued, and defendant shot Brewer.\nDefendant presented testimony by himself and others that Brewer grabbed him and then followed him as he left the poolroom and pulled a gun on defendant. Defendant then shot Brewer \u201cbecause I was fearful he would shoot me.\u201d\nFrom a verdict of guilty of second degree murder, and a thirty year prison term, defendant appealed to this Court.\nAttorney General Edmisten, by Associate Attorney David S. Crump, for the State.\nJ. H. Barrington, Jr., for defendant appellant." }, "file_name": "0383-01", "first_page_order": 415, "last_page_order": 418 }