{ "id": 8551323, "name": "STATE OF NORTH CAROLINA v. BARBARA JEAN EATMAN, AKA BARBARA JEAN BRASWELL, AKA BARBARA JEAN MELVIN", "name_abbreviation": "State v. Eatman", "decision_date": "1977-12-21", "docket_number": "No. 777SC587", "first_page": "665", "last_page": "671", "citations": [ { "type": "official", "cite": "34 N.C. App. 665" } ], "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": "193 S.E. 2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 566", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567055 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0566-01" ] }, { "cite": "168 S.E. 2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 353", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550074 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0353-01" ] }, { "cite": "169 S.E. 2d 472", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 66", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8546913 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0066-01" ] }, { "cite": "150 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "268 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561746 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/268/0320-01" ] }, { "cite": "176 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "232 S.E. 2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 329", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550429 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0329-01" ] }, { "cite": "224 S.E. 2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "29 N.C. App. 413", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556155 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/29/0413-01" ] }, { "cite": "94 S.Ct. 920", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "39 L.Ed. 2d 112", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1974, "opinion_index": 0 }, { "cite": "414 U.S. 1160", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11856320, 11856386, 11856584, 11856425, 11856267, 11855982, 11856527, 11856081, 11856148, 11856215, 11856475, 11856028, 11856637 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/414/1160-07", "/us/414/1160-08", "/us/414/1160-12", "/us/414/1160-09", "/us/414/1160-06", "/us/414/1160-01", "/us/414/1160-11", "/us/414/1160-03", "/us/414/1160-04", "/us/414/1160-05", "/us/414/1160-10", "/us/414/1160-02", "/us/414/1160-13" ] }, { "cite": "185 S.E. 2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "280 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569839 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/280/0074-01" ] }, { "cite": "221 S.E. 2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 186", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567547 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0186-01" ] }, { "cite": "208 S.E. 2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 708", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569743 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0708-01" ] }, { "cite": "214 S.E. 2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561384 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0226-01" ] } ], "analysis": { "cardinality": 633, "char_count": 13034, "ocr_confidence": 0.815, "pagerank": { "raw": 5.4033266686372354e-08, "percentile": 0.34063202140356447 }, "sha256": "3006d7604ad4f3e9080ceb532ddf0416e86b153a0370af78c466b4af369ac6e3", "simhash": "1:b638e4265aa29efd", "word_count": 2207 }, "last_updated": "2023-07-14T20:28:15.830309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief-Judge Brock and Judge Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BARBARA JEAN EATMAN, AKA BARBARA JEAN BRASWELL, AKA BARBARA JEAN MELVIN" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant\u2019s counsel contends that the trial court erred in denying his motion for continuance and thereby deprived defendant of an opportunity fairly to prepare and present her defense in violation of the Federal and State Constitutions. Specifically, counsel argues that he requested the continuance in order to locate a crucial witness whom he had previously attempted to locate without success.\nIt is a well recognized rule that the Sixth Amendment right of confrontation carries with it the opportunity fairly to prepare and present one\u2019s defense and the right to face one\u2019s accuser and witnesses with other testimony. N.C. Const. Art.. I, \u00a7 23 (1971); State v. Smathers, 287 N.C. 226, 214 S.E. 2d 112 (1975); State v. Rigsbee, 285 N.C. 708, 208 S.E. 2d 656 (1974). If defendant\u2019s motion for continuance was in fact based on a right guaranteed by the Federal and State Constitutions, the decision of the trial court is reviewable as a question of law without a prior determination of gross abuse of discretion. State v. Harrill, 289 N.C. 186, 221 S.E. 2d 325 (1976). However, under the facts of this case, we do not believe any substantial issue concerning these constitutional guarantees is involved. Counsel\u2019s statement to the court in support of his motion to continue because of the absence of witnesses was lacking in specificity and unsatisfactory. See State v. Rigsbee, supra. The substance of the testimony the witnesses were expected to give was not divulged; in fact, the only information imparted was that the witnesses were defendant\u2019s husband\u2014 whose attendance at trial was \u201cno problem\u201d \u2014and defendant\u2019s brother \u2014 a transient who \u201cprobably\u201d would be called as a witness. Additionally, defendant\u2019s counsel admitted that these witnesses had not been subpoenaed, notwithstanding thirty days had transpired since defendant\u2019s probable cause hearing. We conclude that defendant has established no violation of her constitutional rights nor shown abuse of discretion. Defendant\u2019s first assignment of error is overruled.\nDefendant next assigns as error the denial of her motions for nonsuit made at the close of the State\u2019s evidence and at the close of all the evidence. This assignment of error is without merit.\nThe record on appeal reveals that the victim, Mrs. Dorothy Parker, testified on several occasions \u2014 during direct and cross-examination \u2014 that one of the robbers had a \u201clittle, short\u201d gun and it was pointed in her face during the incident. Moreover, State\u2019s witness Janice Batts testified to the same effect. Thus, with regards to whether the robbery was committed with a firearm, we hold that the evidence, viewed in the light most favorable to the State, was sufficient to submit the case to the jury on the charge of armed robbery.\nDefendant contends in her third argument that the court erred in charging the jury relative to the unanimous verdict requirement. The challenged instructions are as follows:\n\u201cAs you well know, this is a criminal case, and in a criminal case, we require any verdict which you jurors return be a unanimous verdict.\nDefendant\u2019s Exception No. 23\nThat means, of course, that if and when you agree, then all twelve of you must agree in that verdict. In no event, will this Court accept a majority verdict.\u201d\nDefendant argues that this instruction is confusing in that it could have led the jury to think that a minority must yield to a majority; and that the court failed to accurately explain the concept to the jury and did not inform them that they did not have to recede from their positions if all could not agree on the same verdict. We disagree.\nIt is the law of North Carolina that no person can be finally convicted of any crime except by the unanimous consent of twelve jurors who have been duly impaneled to try his case. State v. Hudson, 280 N.C. 74, 185 S.E. 2d 189 (1971), cert. denied, 414 U.S. 1160, 39 L.Ed. 2d 112, 94 S.Ct. 920 (1974). In State v. Parker, 29 N.C. App. 413, 224 S.E. 2d 280 (1976), this Court found the following instruction to erroneously convey the impression that when a vote is taken and there is a majority \u2014 either for conviction or acquittal \u2014 the minority must then cast their vote with the majority and make the verdict unanimous, before returning the verdict in open court:\n\u201c \u2018. . . before you return your verdict it must be unanimous. You cannot return a verdict without a majority vote. That does not mean that your verdict must be unanimous when you retire. It means that it must be unanimous when you return to open court to announce it, because the jury is a deliberative body. You are to sit together, discuss the evidence, recall and review it all and remember it all; then after you have deliberated together return an unanimous verdict to open court.\u2019 \u201d\nFor a decision in accord, see State v. Cumber, 32 N.C. App. 329, 232 S.E. 2d 291 (1977).\nWe do not think the challenged instruction in the instant case is susceptible to a similar interpretation. The defendant failed to include in her exception, although included in her argument, that portion of the instruction in which the trial court explains the first sentence of the challenged instruction by stating \u201cThat means, of course, that if and when you agree, then all twelve of you must agree in that verdict.\u201d (Emphasis added.) Viewing this language in light of the rule that the charge of the court must be read contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct, State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970), we are unable to find error in the subject charge.\nIn defendant\u2019s fourth assignment of error, she contends that the court erred in commenting on the testimony of a State\u2019s witness favorably, thus invading the province of the jury.\nDefendant\u2019s argument is based on the following portion of the charge:\n\u201cNow, there was also some evidence, again take your recollection, but as I remember it, there was also some evidence which tended to show that at some earlier time, Dorothy Parker and Janice Carolyn Batts made some statements to Officer John Moore which was consistent with their testimony here in the courtroom\nDEFENDANT\u2019S EXCEPTION NO. 25\nor which you might find was consistent with their testimony here in the courtroom, but you must not consider those earlier statements, if you should find that they were made, as evidence of the truth of what was said at the earlier time, because those statements, if you find that they were made, were not made under oath here in the courtroom. But, if you find that those earlier statements were made, and that those statements were consistent with the testimony of Miss Batts, and Mrs. Parker here in the courtroom, then you can consider that, together with all other facts and circumstances, which you find might bear upon Mrs. Parker\u2019s and Miss Batts\u2019 truthfulness in deciding whether or not you will believe their testimony.\u201d\nIt is well established that G.S. 1-180 does not allow a trial court to directly or indirectly indicate what impression the evidence has made on its mind or what deductions it thinks should be drawn thereform. State v. Belk, 268 N.C. 320, 150 S.E. 2d 481 (1966). However, it is equally established that the charge of the court will be construed contextually, and segregated portions will not be held prejudicial error when the charge as a whole is free from objection. State v. Lee, supra; State v. Blackmon, 6 N.C. App. 66, 169 S.E. 2d 472 (1969); State v. Phillips, 5 N.C. App. 353, 168 S.E. 2d 704 (1969). Thus, considering the entire portion of the charge relative to the statements made by Dorothy Parker and Janice Batts to Officer Moore, we find no expression of opinion by the trial court as to whether such statements were \u201cconsistent\u201d with their testimony; in fact, the court admonished the jury that they were not to consider these out-of-court statements if they were not consistent with the witnesses\u2019 in-court testimony. This assignment is overruled.\nIn defendant\u2019s fifth assignment of error, she contends that the court erred in failing to submit to the jury a charge on the lesser included offense of common law robbery.\nThe trial judge is not required to charge the jury upon a lesser degree of the crime charged when there is no evidence to sustain a verdict of defendant\u2019s guilt of such lesser degree, and when there is no conflicting evidence relating to the elements of the crime charged, no instruction is required. State v. Lee, 282 N.C. 566, 193 S.E. 2d 705 (1973). In the case at bar, the evidence showed the use of a gun in the crime and there was no conflicting evidence with respect to the element of the use of a firearm. Defendant\u2019s fifth assignment is without merit and is overruled.\nDefendant\u2019s sixth assignment of error is without merit.\nIn the trial we find no prejudicial error.\nNo error.\nChief-Judge Brock and Judge Clark concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Acie L. Ward, for the state.", "Fitch, Butterfield & Sumner, by Milton F. Fitch, Jr., for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BARBARA JEAN EATMAN, AKA BARBARA JEAN BRASWELL, AKA BARBARA JEAN MELVIN\nNo. 777SC587\n(Filed 21 December 1977)\n1. Criminal Law \u00a7 91.7\u2014 motion for continuance \u2014 location of witnesses\nThe trial court did not err in the denial of defendant\u2019s motion for a continuance in order to locate witnesses where the substance of the testimony the witnesses were expected to give was not divulged; the only information given was that the witnesses were defendant\u2019s husband, whose attendance at trial was \u201cno problem,\u201d and defendant\u2019s brother, a transient who \u201cprobably\u201d would be called as a witness; and defense counsel admitted that the witnesses had not been subpoenaed.\n2. Robbery \u00a7 4\u2014 use of firearm\nThe State\u2019s evidence was sufficient for the jury to find that defendant committed a robbery with a firearm where both the victim and defendant\u2019s accomplice testified that one of the robbers had a gun pointed in the victim\u2019s face during the incident.\n3. Criminal Law \u00a7 126\u2014 instruction on unanimity of verdict\nThe trial court\u2019s instruction that a unanimous verdict \u201cmeans, of course, that if and when you agree, then all twelve of you must agree in that verdict\u201d could not have led the jury to believe that a minority of the jury members must yield to a majority.\n4. Criminal Law \u00a7 114.2\u2014 instructions \u2014 consistency of trial testimony and prior statements \u2014 no expression of opinion\nThe trial judge did not comment upon the evidence in violation of G.S. 1-180 when he instructed the jury that there was some evidence tending to show that defendant and her accomplice made statements to an officer which were \u201cconsistent\u201d with their trial testimony where the court also instructed the jury that it should not consider the prior statements to the officer if they were not consistent with the in-court testimony of the witnesses.\n5. Robbery \u00a7 5\u2014 armed robbery \u2014 failure to submit common law robbery\nThe trial court in an armed robbery case did not err in failing to submit to the jury an issue of defendant\u2019s guilt of common law robbery where all of the evidence showed that a gun was used in the crime.\nAppeal by defendant from Smith (Donald L.j, Judge. Judgment entered 17 March 1977 in Superior Court, WILSON County. Heard in the Court of Appeals 16 November 1977.\nDefendant was indicted for armed robbery. She pleaded not guilty and was tried by a jury. State\u2019s evidence tended to show that on 20 December 1976 Dorothy Jean Parker was shopping at Penney\u2019s. Around 8:00 p.m. she left the store, went to her car in the parking lot and got into the back seat to lay down some packages. Two black girls, one tall and the other short, followed her to the car. The tall one held a gun in her face, while the short one grabbed her pocketbook and ran. The pocketbook contained several hundred dollars.\nJanice Carolyn Batts is charged with the same offense as defendant. She testified that on 20 December 1976 she, defendant and another person went to Penney\u2019s for the purpose of snatching pocketbooks. Defendant pointed a gun at Dorothy Parker and asked Mrs. Parker for her pocketbook. Mrs. Parker refused to give up the pocketbook, and Janice Batts snatched it and ran. Johnny Moore, a detective with the Wilson Police Department, testified in corroboration of the preceding facts.\nDefendant\u2019s evidence tended to show that she was in Fremont with her husband trying to reconcile her marriage from 12 December until 23 December 1976. Defendant lives in Bailey and knows Janice Batts, but she did net participate in an armed robbery with Janice Batts at Parkwood. Janice Batts and defendant ceased to associate with one another prior to 20 December 1976 when Batts accused defendant of taking her gun. Defendant believes Batts is trying to get even with defendant because of the gun and because defendant refused to have sexual relations with her.\nFrom a verdict of guilty and judgment entered thereon sentencing defendant to twenty (20) to twenty-five (25) years in prison, defendant appealed.\nAttorney General Edmisten, by Associate Attorney Acie L. Ward, for the state.\nFitch, Butterfield & Sumner, by Milton F. Fitch, Jr., for the defendant." }, "file_name": "0665-01", "first_page_order": 693, "last_page_order": 699 }