{
  "id": 8556029,
  "name": "STATE OF NORTH CAROLINA v. FRED BROWN",
  "name_abbreviation": "State v. Brown",
  "decision_date": "1976-05-05",
  "docket_number": "No. 7529SC896",
  "first_page": "391",
  "last_page": "395",
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    "name_abbreviation": "N.C. Ct. App.",
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      "cite": "215 S.E. 2d 134",
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    {
      "cite": "287 N.C. 530",
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges Morris and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. FRED BROWN"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nThe record on appeal discloses that the following took place:\n\u201cImmediately before the defendant was arraigned, the Court accepted a guilty plea from one, Mickey Cunningham. Cunningham pled guilty to a charge of felonious sale of a controlled substance. This plea was taken in open court with all eligible jurors present. The Trial Judge made the following comments concerning Cunningham\u2019s verdict:\nThe Court: T have no sympathy for drug users.\u2019 The Court also related in open court, with all jurors present, the details of a drug case that he had tried in Richmond County. In that case, the Trial Judge said, the drug users robbed the people in their hometown in North Carolina to get money for drugs and then had a good time out of state. These drug users returned to Richmond County on two occasions to steal money to buy drugs and to have a good time. The Court also commented that the McDowell County Commissioners should be upset if they appropriated the taxpayers money for the purchase of drugs and then got nothing in return.\nWhile taking this guilty plea, District Attorney Lowe commented about one, Richard McEntire, being a \u2018big pusher\u2019 and that McEntire was allowed earlier to plead guilty to a misdemeanor drug charge and only got a probationary sentence. Mr. Lowe\u2019s comments were also in open court with all eligible jurors present in the courtroom.\nWhen the guilty plea of Cunningham was accepted, the State put on two witnesses, Rudy Stroupe and Captain David Sigmon, who testified to a direct purchase of MDA from Cunningham. Stroupe and Sigmon were also the key witnesses in the next case called for trial, State of North Carolina vs. Fred Brown. [The appellant in the case before us.]\nWithin minutes after taking Cunningham\u2019s guilty plea, the State called defendant appellant\u2019s case for trial.\nThe State arraigned the defendant and the following proceedings were had:\nMr. Kimel: Before entering a plea, I would like to make a motion on behalf of the defendant to continue this case for the term for the reason that in view of what has just gone on, we cannot get 12 impartial jurors. I think these prior proceedings would inherently prejudice anyone who was present in the Courtroom and I do not feel that the defendant can get a fair and impartial trial.\u201d\nWe are thus faced with essentially the same problem presented in State v. Carriker, 287 N.C. 530, 215 S.E. 2d 134. When Carriker\u2019s case (for selling marijuana) was called for trial, his attorney moved for a continuance because of comments made before sentencing a defendant in the preceding case. That defendant had pled guilty to the possession of marijuana. After Carriker\u2019s motion for continuance, the following took place:\n\u201c \u2018The Court: I said when they got hooked on marijuana that my experience was that anything went, and I have tried them for robbery; they get desperate for money and anything goes, robbery or anything else.\n\u2018Mr. Lea: I think that is close to what you said; and further, as the defendant in a previous case left the Courtroom, the Presiding Judge looked at the Jury and stated substantially as follows: That they all got religion when they come in the Courtroom. Is this a fair statement, Your Honor ?\n\u2018The Court: I don\u2019t know that I said they all do. I said a lot of them get religion when they come in the Courtroom.\n\u2018Mr. Lea: Is it necessary for me to give the reasons for this?\n\u2018The Court: I don\u2019t care anything about the reasons. You can take it up if you want to and tell the Court up there why you took it up. All I said in front of the Jury is what you get from the papers everyday, on the radio or on the television anytime you want to turn it on, and those people sitting on the Jury are grown men and women. The Motion is Denied.\u2019 \u201d State v. Carriker, supra.\nUnder G.S. 1-180.1, if a judge comments on a verdict in a criminal case, all other defendants whose cases remain for trial during that week are entitled to continuance as a matter of right. In Carriker the Court said:\n\u201cThis statute by its express terms applies to comments made by the presiding judge concerning verdicts rendered during the session. However, we fail to see how comments made by the judge in the presence of the jury panel concerning a verdict of guilty could be more prejudicial than the same remarks made concerning a plea of guilty. Such comments violate the spirit if not the letter of G.S. 1-180.1.\u201d State v. Carriker, supra.\nThe Court then held that the comments made by the trial judge concerning cases involving marijuana, coming shortly before defendant\u2019s case was called, entitled defendant to a continuance. A new trial was ordered for failure to grant the motion. The Carriker case was before the Supreme Court on certiorari to review the decision of the Court of Appeals reported at 24 N.C. App. 91, 210 S.E. 2d 98, wherein it was held that there was no error in denying the motion to continue.\nWe must, therefore, follow the opinion of the Supreme Court in State v. Carriker, supra, and hold that the trial judge erred in denying defendant\u2019s motion for a continuance.\nBrown, the defendant herein, did not testify at trial. He did, however, offer the testimony of his cousin, Steve Brown. Steve Brown\u2019s testimony was calculated to show that he was present during the time of the alleged transaction between defendant and the undercover agent and that defendant did not sell or deliver any drugs to the agent. The State did not attempt to cross-examine Steve Brown about prior misconduct on his part. After defendant rested, the State was allowed to reopen its case. The State called an undercover agent who, over defendant\u2019s strenuous objection, was allowed to testify, in substance, that about one month after the date of the offense being tried, the witness Steve Brown had shown him some marijuana plants he was growing. The judge erred when he overruled defendant\u2019s objection to that testimony.\nFor the reasons stated, there must be a new trial.\nNew trial.\nJudges Morris and Clark concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Isaac T. Avery III, for the State.",
      "Davis and Kimel, by Horace M. Kimel, Jr., for defenda/nt cuppellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. FRED BROWN\nNo. 7529SC896\n(Filed 5 May 1976)\n1. Criminal Law \u00a7 91\u2014 judge\u2019s comment on guilty plea in narcotics trial \u2014 subsequent narcotics trial \u2014 denial of motion to continue \u2014 error\nIn a prosecution for selling LSD, the trial court erred in denying defendant\u2019s motion for a continuance of his case where the court commented concerning a guilty plea to a charge of felonious sale of a controlled substance in the case heard immediately prior to defendant\u2019s at a time when all eligible jurors in defendant\u2019s case were present in the courtroom.\n2. Criminal Law \u00a7 89\u2014 allowing State to reopen case \u2014 impeachment of defense witness \u2014 evidence of misconduct\nIn a prosecution for selling LSD, the trial court erred in allowing the State to reopen its case after defendant had rested for the purpose of introducing evidence of the prior misconduct of defendant\u2019s witness whom the State had not attempted to cross-examine about prior misconduct.\nAppeal by defendant from Gavin, Judge. Judgment entered 11 June 1975 in Superior Court, McDowell County. Heard in the Court of Appeals 19 February 1976.\nDefendant was convicted of the felonious sale and delivery of the controlled substance, Lysergic Acid Diethylamide. Judgment imposing a prison sentence of not less than five nor more than seven years was entered.\nAttorney General Edmisten, by Associate Attorney Isaac T. Avery III, for the State.\nDavis and Kimel, by Horace M. Kimel, Jr., for defenda/nt cuppellant."
  },
  "file_name": "0391-01",
  "first_page_order": 423,
  "last_page_order": 427
}