{ "id": 8554925, "name": "STATE OF NORTH CAROLINA v. EDDIE COLUMBUS DeBERRY", "name_abbreviation": "State v. DeBerry", "decision_date": "1978-11-07", "docket_number": "No. 7819SC586", "first_page": "538", "last_page": "542", "citations": [ { "type": "official", "cite": "38 N.C. App. 538" } ], "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": "229 S.E. 2d 921", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 275", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557911 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0275-01" ] }, { "cite": "232 S.E. 2d 693", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568008 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0227-01" ] }, { "cite": "146 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "266 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561099 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nc/266/0440-01" ] }, { "cite": "206 S.E. 2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565214 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0482-01" ] }, { "cite": "226 S.E. 2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "30 N.C. App. 232", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553365 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/30/0232-01" ] }, { "cite": "433 U.S. 907", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188288, 6188073, 6188651, 6188470, 6189015, 6187835, 6188829 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/433/0907-03", "/us/433/0907-02", "/us/433/0907-05", "/us/433/0907-04", "/us/433/0907-07", "/us/433/0907-01", "/us/433/0907-06" ] }, { "cite": "220 S.E. 2d 495", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 514", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570236 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0514-01" ] }, { "cite": "167 S.E. 2d 10", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "4 N.C. App. 481", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554373 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/4/0481-01" ] }, { "cite": "153 S.E. 2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 679", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565618 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0679-01" ] }, { "cite": "234 S.E. 2d 555", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571279 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0513-01" ] }, { "cite": "231 S.E. 2d 833", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "842" } ], "opinion_index": 0 }, { "cite": "291 N.C. 480", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558733 ], "year": 1977, "pin_cites": [ { "page": "494" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0480-01" ] }, { "cite": "187 S.E. 2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573255 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0665-01" ] } ], "analysis": { "cardinality": 523, "char_count": 8981, "ocr_confidence": 0.824, "pagerank": { "raw": 8.681045882581975e-08, "percentile": 0.4923178918925389 }, "sha256": "42b3d764d2c994e5363cb58a8566d3a95dcd43f84a3365290a21369cc68a87dc", "simhash": "1:96fd54cbf4d73cbc", "word_count": 1506 }, "last_updated": "2023-07-14T21:32:33.594298+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Clark and Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDDIE COLUMBUS DeBERRY" ], "opinions": [ { "text": "ERWIN, Judge.\nDefendant presents four arguments on this appeal. After having carefully examined them, we conclude that defendant received a fair trial, free of prejudicial error.\nFirst, he contends that it was error to allow testimony that he had fled the courtroom in July 1977, when the case first came on for trial. Defendant remained at large until January 1978. He argues that the evidence of flight has \u201cdoubtful probative value\u201d and that the escape occurred some six months after his arrest, making the evidence too remote and prejudicial. Defendant cites State v. Self, 280 N.C. 665, 187 S.E. 2d 93 (1972), for the proposition that while an accused\u2019s flight is admissible as evidence of guilt, such flight must have occurred shortly after the crime\u2019s commission to render such evidence admissible. We do not, however, construe that case as rendering inadmissible evidence of defendant\u2019s flight herein. In Self, the flight occurred 16 days after the offenses.\nWe do not quarrel with defendant\u2019s assertion that plausible explanations for flight, other than guilt of the offense charged, can be advanced, particularly when flight is removed from the crime by a considerable period of time. Remoteness, however, goes only to the weight of the evidence, not to its admissibility. Our Supreme Court held as follows in State v. Irick, 291 N.C. 480, 494, 231 S.E. 2d 833, 842 (1977):\n\u201c[S]o long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant\u2019s conduct does not render the instruction improper.\u201d (Citation omitted.)\nSee also State v. Jones, 292 N.C. 513, 234 S.E. 2d 555 (1977); State v. Self, supra.\nDefendant next contends that the trial court erred in failing to give requested limiting instructions when evidence of his past criminal record was first introduced. The trial court did, however, instruct as follows in its charge to the jury:\n\u201cMembers of the Jury, the defendant has testified that at an earlier time he was convicted of breaking and entering and larceny on two or three occasions. The Court charges you that you may consider this evidence for one purpose only. If, considering the nature of the crime, you believe that this bears on truthfulness, then you may consider it together with all other facts and circumstances bearing upon the defendant\u2019s truthfulness in deciding whether you will believe or disbelieve his other testimony at this trial. It is not evidence of the defendant\u2019s guilt in this case, however. You may not convict him on the present charge because of something he may have done in the past.\u201d\nDefendant does not except to the above portion of the charge and in his brief concedes that it was a proper instruction. He argues that it should have been given promptly as requested following the prosecution\u2019s question, \u201cWhat have you been convicted of?\u201d Defendant relies on State v. Norkett, 269 N.C. 679, 153 S.E. 2d 362 (1967), and State v. Austin, 4 N.C. App. 481, 167 S.E. 2d 10 (1969), in support of this argument. In both cases, however, the trial court failed to give a limiting instruction at any time, even though indicating that it would do so. Here, although better practice may have been for the court to have given the requested instruction at the time the request was made and in conjunction with the admission of the evidence, we see no prejudicial error, since the trial court, in its charge, gave a correct limiting instuction. See State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975), cert. denied, 433 U.S. 907 (1977); State v. Dupree, 30 N.C. App. 232, 226 S.E. 2d 670 (1976). We observe that when counsel objected and requested a limiting instruction, no answers as to past convictions had yet been given. The trial court responded, \u201cAll right, what do you contend at this stage I should instruct the jury on?\u201d (Emphasis added.) Defendant did not renew his objection and request a limiting instruction after the answers had been given. At the time of objection and request, the trial court had no way of knowing to what purpose, if any, the evidence to be elicited should be limited. Indeed, at that point, defendant might have responded that he had been convicted of nothing. Thus, defendant may not have even been entitled to a limiting instruction. He received one in any event.\nDefendant\u2019s next contention pertains to a portion of the testimony of one of the State\u2019s witnesses, Chief Jailer Johnny Smith. While defendant was confined in the county jail, he requested to see the robbery victim, Mason. Defendant met with Mason in Smith\u2019s office. Defendant excepts to the following:\n\u201cQ. Did the defendant . . . make any statement to Alvin Mason about returning Mr. Mason\u2019s money?\nA. Not to my knowledge. I was there for protection for Mr. Mason as a jailer.\nMr. DORSETT: I object to that and move to strike.\nCOURT: Well, objection sustained, motion allowed.\u201d\nDefendant contends that the trial court should have gone further, instructing the jury to disregard Smith\u2019s testimony. Again, we see no prejudicial error. Upon allowing a motion to strike an unresponsive answer, it is proper procedure for the court immediately to instruct the jury not to consider the answer. The court did, however, promptly allow the motion to strike, a ruling the jury could only interpret as meaning that Smith\u2019s answer was not to be regarded as evidence. See State v. Greene, 285 N.C. 482, 206 S.E. 2d 229 (1974); Moore v. Insurance Co., 266 N.C. 440, 146 S.E. 2d 492 (1966).\nFinally, defendant argues that the trial court abused its discretion in sentencing him to a term of not less than 30 nor more than 40 years and recommending that he \u201cserved this sentence at hard labor without the benefit of parole, commutation, work release or community leave.\u201d Where, as here, the sentence is within statutory limits, the punishment imposed is a matter of trial court discertion. State v. Barrow, 292 N.C. 227, 232 S.E. 2d 693 (1977); State v. Slade, 291 N.C. 275, 229 S.E. 2d 921 (1976). We see no abuse of that discretion.\nBased on the foregoing, in the trial below, we find\nNo error.\nJudges Clark and Arnold concur.", "type": "majority", "author": "ERWIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Luden Capone III, for the State.", "Charles H. Dorsett, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDDIE COLUMBUS DeBERRY\nNo. 7819SC586\n(Filed 7 November 1978)\n1. Criminal Law \u00a7 46.1\u2014 evidence of flight \u2014 remoteness\nIn a prosecution for armed robbery, the trial court properly admitted testimony that defendant fled the courtroom when the case first came on for trial some six months after defendant\u2019s arrest, since remoteness goes only to the weight and not to the admissibility of the evidence of flight.\n2. Criminal Law \u00a7 86.7\u2014 defendant\u2019s criminal record \u2014 limiting instructions\nAlthough it would have been the better practice for the court to have given a requested limiting instruction on evidence of defendant\u2019s criminal record at the time the request was made and in conjunction with the admission of the evidence, defendant was not prejudiced by the court's failure to give the limiting instruction at that time where the court did give a proper limiting instruction in its charge to the jury.\n3. Criminal Law \u00a7 96\u2014 allowance of motion to strike \u2014 failure to instruct jury not to consider answer\nWhere the trial court promptly allowed a motion to strike a witness\u2019s unresponsive answer, defendant was not prejudiced by the court\u2019s failure to instruct the jury not to consider the unresponsive answer.\n4. Criminal Law \u00a7 138\u2014 armed robbery \u2014 sentence and recommendation\nThe trial court did not abuse its discretion in sentencing defendant upon his conviction of armed robbery to a term of not less than 30 nor more than 40 years and in recommending that he \u201cserve this sentence at hard labor without the benefit of parole, commutation, work release or community leave.\u201d\nAPPEAL by defendant from Albright, Judge. Judgment entered 1 March 1978 in Superior Court, MONTGOMERY County. Heard in the Court of Appeals 19 October 1978.\nDefendant was indicted for armed robbery, convicted by a jury, and setenced to 30 to 40 years.\nState\u2019s- evidence tended to show that Alvin Mason, was operating his taxi at about 9:30 p.m. on 6 February 1977 when defendant robbed him of over $8,000 in cash while holding a straight razor to Mason\u2019s throat. Shortly after defendant was arrested, Mason identified him from a lineup. Approximately $7,000 was found in defendant\u2019s home, and Mason identified certain silver certificates and $100 bills among the cash recovered as being his.\nDefendant\u2019s evidence tended to show that he was at his sister\u2019s home at the time of the robbery and that a friend named Calvin came to defendant\u2019s home on the night of the robbery and paid defendant to permit him to hide the money in defendant\u2019s home.\nOther pertinent facts will be stated below. Defendant appeals.\nAttorney General Edmisten, by Associate Attorney Luden Capone III, for the State.\nCharles H. Dorsett, for defendant appellant." }, "file_name": "0538-01", "first_page_order": 566, "last_page_order": 570 }