{ "id": 8553106, "name": "STATE OF NORTH CAROLINA v. JUDY FAYE CODY", "name_abbreviation": "State v. Cody", "decision_date": "1979-04-17", "docket_number": "No. 7826SC1172", "first_page": "735", "last_page": "739", "citations": [ { "type": "official", "cite": "40 N.C. App. 735" } ], "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": "233 S.E. 2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569762 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0357-01" ] }, { "cite": "232 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "684" } ], "opinion_index": 0 }, { "cite": "292 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567711 ], "year": 1977, "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0160-01" ] }, { "cite": "96 S.Ct. 886", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "47 L.Ed. 2d 102", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "423 U.S. 1091", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6514491, 6514340, 6514795, 6515212, 6515120, 6514896, 6514417, 6514995, 6514579, 6514715 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/423/1091-03", "/us/423/1091-01", "/us/423/1091-06", "/us/423/1091-10", "/us/423/1091-09", "/us/423/1091-07", "/us/423/1091-02", "/us/423/1091-08", "/us/423/1091-04", "/us/423/1091-05" ] }, { "cite": "218 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568094 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0285-01" ] }, { "cite": "240 S.E. 2d 612", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570700 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0001-01" ] }, { "cite": "47 S.E. 2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "228 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628101 ], "year": 1948, "opinion_index": 0, "case_paths": [ "/nc/228/0689-01" ] } ], "analysis": { "cardinality": 501, "char_count": 8905, "ocr_confidence": 0.818, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2059556367958132 }, "sha256": "7e30f1f42f5601e54906a05a879adcbac464546e3eec66994acd1e0dfba69fe3", "simhash": "1:0bffa4227c30a13c", "word_count": 1504 }, "last_updated": "2023-07-14T20:01:10.825727+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Hedrick concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JUDY FAYE CODY" ], "opinions": [ { "text": "CARLTON, Judge.\nDefendant first assigns as error improper judicial comment on the evidence. She argues that the trial judge, in three instances, expressed an opinion on the evidence.\nAfter allowing defense counsel to reenact the incident on cross-examination of the prosecuting witness, defense counsel then asked the witness to \u201ctell me when six minutes is up.\u201d The court sustained the state\u2019s objection and stated, \u201cMr. Michael, the clock is there and the time can be counted. It\u2019s just a matter of waiting until six minutes have passed.\u201d Defendant argues that this comment amounted to an expression by the trial judge of an opinion about the evidence.\nThe trial court had allowed defendant wide latitude on cross-examination to show that Mrs. Walker was mistaken in her estimation of the time which elapsed during the robbery. In sustaining the objection to defense counsel\u2019s question in this instance, the trial judge was exercising his duty to see that the trial proceeded in an expeditious manner without unnecessary delay. The court\u2019s comment certainly did not constitute an expression of opinion on the evidence. A remark by the trial court in admitting or excluding evidence is not prejudicial when it amounts to no more than a ruling on the question or where it is made to expedite the trial. State v. Hooks, 228 N.C. 689, 47 S.E. 2d 234 (1948); 4 Strong, N.C. Index 3d, Criminal Law, \u00a7 99.3, p. 492.\nDefendant also argues that the failure of the trial court to summarize the testimony of two defense witnesses constituted judicial comment on the defendant\u2019s evidence.\nOur review of the judge\u2019s charge indicates that he s.uccinctly and fairly summarized the evidence for the state and the defendant. He also reminded the jury to recall all the testimony and to understand that he was undertaking only to summarize the testimony. The law does not require recapitulation of all of the evidence in the charge of the court to the jury. State v. Looney, 294 N.C. 1, 240 S.E. 2d 612 (1978). The statutory requirement that the judge state the evidence is met by presentation of the principal features of the evidence relied on by the prosecution and the defense. State v. Sanders, 288 N.C. 285, 218 S.E. 2d 352 (1975), cert. denied, 423 U.S. 1091, 47 L.Ed. 2d 102, 96 S.Ct. 886 (1976). Moreover, defendant did not object to the court\u2019s review of the evidence. A party desiring further elaboration must bring an alleged omission to the court\u2019s attention prior to the jury\u2019s retirement. State v. Looney, supra.\nAt one point in its charge, the trial court referred to the defendant as \u201cthe offender the defendant.\u201d Defendant argues that this remark is of the type contemplated by G.S. 15A-1222 and G.S. 15A-1232 and amounted to an expression by the court that the defendant was guilty.\nStanding alone, we do not approve of the word \u201coffender\u201d in referring to defendants in criminal cases. Contextually, however, we do not find any prejudice to defendant in this instance. \u201c[T]he test of prejudice resulting from a judge\u2019s remarks is whether a juror might reasonably infer that the judge expressed partiality or intimated an opinion as to a witness\u2019 credibility or as to any fact to be determined by the jury.\u201d State v. Staley, 292 N.C. 160, 165, 232 S.E. 2d 680, 684 (1977).\nIn none of the cited instances do we find that the trial judge violated G.S. 15A-1222 or G.S. 15A-1232. This assignment of error is overruled.\nDefendant\u2019s next assignment of error is that the court erred in allowing Robert Adsitt to testify for the state on rebuttal because earlier in the trial his testimony had been ruled inadmissible when offered by the defense.\nThe defendant had offered testimony attempting to show that Debra Adsitt may have committed the crime. The state\u2019s rebuttal witness, Robert Adsitt, testified as to the whereabouts of Debra Adsitt on the day of the crime. The testimony obviously was necessary and relevant for the state to rebut the negative inferences raised by the defendant. A witness is not permanently disqualified to testify for one party simply because his testimony has been previously ruled inadmissible when presented by the other party. Moreover, where defendant brings out evidence tending to show that someone else committed the crime charged, the state is entitled to introduce evidence in explanation or rebuttal. See State v. Stanfield, 292 N.C. 357, 233 S.E. 2d 574 (1977). This assignment of error is overruled.\nThe defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges Parker and Hedrick concur.", "type": "majority", "author": "CARLTON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Rebecca R. Bevacqua, for the State.", "Ann C. Villier, Assistant Public Defender, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JUDY FAYE CODY\nNo. 7826SC1172\n(Filed 17 April 1979)\n1. Criminal Law \u00a7 99.4\u2014 ruling on evidence \u2014 no expression of opinion\nIn an armed robbery prosecution in which the victim testified the robbery had lasted from 6 to 10 minutes, the trial court did not express an opinion when defense counsel asked the victim to \u201ctell me when six minutes is up\u201d and the court sustained the State\u2019s objection and stated that \u201cthe clock is there and the time can be counted. It\u2019s just a matter of waiting until six minutes have passed.\u201d\n2. Criminal Law \u00a7 114.2\u2014 failure to summarize some testimony \u2014 no expression of opinion\nThe trial court did not express an opinion on the evidence by its failure to summarize the testimony of two defense witnesses where the court did summarize the principal features of the evidence relied on by the prosecution and by the defense.\n3. Criminal Law \u00a7 114.3\u2014 reference to defendant as \u201coffender\u201d \u2014 no expression of opinion\nDefendant was not prejudiced by the court\u2019s reference to her at one point in the charge as \u201cthe offender the defendant,\u201d although use of the word \u201coffender\u201d in referring to a criminal defendant is disapproved.\n4. Criminal Law \u00a7 39\u2014 testimony ruled inadmissible for defense \u2014subsequent rebuttal testimony for State by same witness\nThe trial court did not err in permitting a witness to testify for the State on rebuttal after his testimony had been ruled inadmissible when offered by the defense.\nAPPEAL by defendant from Johnson, Judge. Judgment entered 4 August 1978 in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 29 March 1979.\nDefendant was indicted for armed robbery, convicted by a jury of common law robbery, and sentenced to 3 to 6 years.\nEvidence for the state tended to show the following: Kimberly Walker was walking down a street in Charlotte on 27 October 1977 when the defendant came up behind her, choked her and demanded money. Defendant grabbed her pocketbook, took her billfold containing $25 or $30 and left. Defendant had a bulge in her pocket resembling a gun, told Walker she would \u201cblow my head off\u201d and stuck her hand in the pocket. Defendant had on blue jeans, a brown suede jacket and was wearing turquoise rings. The episode lasted from 6 to 10 minutes. Walker described defendant to police and picked defendant from a group of photographs shortly after the robbery. Defendant was arrested at approximately 9:00 p.m. in the vicinity of the street where the incident occurred. Some two or three weeks later, Walker identified defendant in a lineup.\nEvidence for the defendant tended to show the following: Defendant denied the robbery. She testified that she had a conversation with Debbie Adsitt and others in jail, that she stated to them the description of the robber as given the police by Walker, that Debbie Adsitt said, \u201cthat sounds like me,\u201d and that Debbie was wearing turquoise rings. Debbie Adsitt testified that she was serving time for an armed robbery which occurred on 26 October 1977, the day before this incident. She did not commit this crime. She did wear turquoise rings and told the defendant it sounded like her, but it wasn\u2019t.\nDefendant also presented Debbie Adsitt\u2019s brother for the purpose of testifying that Debbie had told him that she had committed the robbery. However, he testified that he saw Debbie on 26 October 1977, at which time she told him that she had committed an armed robbery and that she would commit another. He saw her around noon on 27 October 1977 and she told him she had robbed someone else and was going to Atlanta. Following this testimony, the state moved to suppress his testimony. Defendant joined in the motion and it was allowed. The trial court found that the testimony did not benefit the defendant, was not critical to her defense, was not trustworthy and constituted hearsay evidence.\nIn rebuttal, the state called Robert Adsitt to testify that he saw Debbie on 27 October 1977 around noon and told her to get out of town because the police were looking for her. She then headed south on 1-85 and he did not hear from her again until she called him long distance on the telephone.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Associate Attorney Rebecca R. Bevacqua, for the State.\nAnn C. Villier, Assistant Public Defender, for the defendant." }, "file_name": "0735-01", "first_page_order": 763, "last_page_order": 767 }