{ "id": 8549660, "name": "STATE OF NORTH CAROLINA v. RAYMOND EDWARD BARBOUR", "name_abbreviation": "State v. Barbour", "decision_date": "1979-09-18", "docket_number": "No. 7915SC378", "first_page": "38", "last_page": "44", "citations": [ { "type": "official", "cite": "43 N.C. App. 38" } ], "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": "211 S.E. 2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "24 N.C. App. 582", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553413 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/24/0582-01" ] }, { "cite": "220 S.E. 2d 293", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "289 N.C. 19", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566449 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/289/0019-01" ] }, { "cite": "113 S.E. 2d 432", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "252 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621661 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/nc/252/0335-01" ] }, { "cite": "188 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574377, 8574317, 8574351, 8574299, 8574332 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0157-05", "/nc/281/0157-02", "/nc/281/0157-04", "/nc/281/0157-01", "/nc/281/0157-03" ] }, { "cite": "187 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "464" } ], "opinion_index": 0 }, { "cite": "14 N.C. App. 97", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547005 ], "year": 1972, "pin_cites": [ { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/nc-app/14/0097-01" ] }, { "cite": "55 S.E. 2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 710", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632094 ], "opinion_index": 0, "case_paths": [ "/nc/230/0710-01" ] }, { "cite": "174 S.E. 2d 503", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "509" } ], "opinion_index": 0 }, { "cite": "276 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563378 ], "year": 1970, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0703-01" ] }, { "cite": "231 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "cite": "157 S.E. 2d 335", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 646", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566320 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0646-01" ] }, { "cite": "158 S.E. 2d 638", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 327", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572884 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0327-01" ] }, { "cite": "165 S.E. 2d 245", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 50", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557770 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0050-01" ] }, { "cite": "181 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565770 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0085-01" ] } ], "analysis": { "cardinality": 609, "char_count": 11358, "ocr_confidence": 0.814, "pagerank": { "raw": 2.2651022441085285e-07, "percentile": 0.7830906357861018 }, "sha256": "c018681583da3bbceb3df62973eb2b6f797bd990da97275295595d50565a25aa", "simhash": "1:bdd94ab707381c3b", "word_count": 1896 }, "last_updated": "2023-07-14T16:43:38.047576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. RAYMOND EDWARD BARBOUR" ], "opinions": [ { "text": "HEDRICK, Judge.\nDefendant first assigns error to the Court\u2019s allowing Officer Hoggard to testify that the defendant stated to his wife in the presence of the officer, \u201cI shot him. . . . You know what happened.\u201d When defendant objected to testimony of what he said, the Court conducted a voir dire examination to determine the admissibility of the offered evidence.\nThe substance of the voir dire testimony was as follows:\nOfficer Hoggard testified that he advised defendant of his Miranda rights when he first arrived at the scene of the shooting:\nI advised him that he had a right to remain silent. That anything he said would be used in a court of law. I advised him he had a right to an attorney. If he could not afford an attorney, one would be appointed for him by the state. And, I also advised him that he had a right to stop talking to me at anytime he wanted to.\nDefendant did not request an attorney, nor did he refuse to talk to Officer Hoggard. He told the officer that \u201che had to stop Bill Abner. That Bill Abner was getting away with his drugs and he had to stop him and that\u2019s the reason he shot him.\u201d\nDefendant was then taken to the police station to be booked. He was not re-advised of his Miranda rights. Later on that night, defendant\u2019s wife appeared and asked Officer Hoggard if she could see her husband. Officer Hoggard initially refused her request, but subsequently agreed to accompany her to the booking room. Officer Hoggard testified that he insisted on being present during the visit for security reasons. As they walked into the booking room, the following conversation occurred between defendant and his wife:\nMrs. Barbour: \u201cRaymond, tell me it\u2019s not true.\u201d\nDefendant: \u201cYes, I shot him.\u201d\nMrs. Barbour: \u201cWhy?\u201d\nDefendant: \u201cBecause you know what happened.\u201d\nAt the conclusion of Officer Hoggard\u2019s testimony, the court found that the statements by defendant to his wife were made in response to her question, \u201cTell me it\u2019s not true\u201d, and that Officer Hoggard had asked no questions of defendant. The Court therefore concluded that defendant\u2019s statement was \u201cspontaneous\u201d, and \u201cnot the product of custodial interrogation, even though it was made at a time when he was in custody.\u201d\nDefendant excepted to the Court\u2019s ruling and contends on appeal that he was not \u201ceffectively\u201d advised of his Miranda rights' and that his statement to his wife was involuntary. We disagree. The decision of the North Carolina Supreme Court in State v. Fletcher, 279 N.C. 85, 181 S.E. 2d 405 (1971), is dispositive of this issue.\nIn Fletcher, the defendant confessed his guilt to the victim of the crime. He made his statement while in jail and in the presence of a police officer, who failed to recite the Miranda warnings to defendant. However, the confession resulted from a question put to defendant by the victim, and not by the police officer. The Court found that the defendant\u2019s statement was not the result of custodial interrogation. Therefore, the Miranda warnings were not required. State v. Morris, 275 N.C. 50, 165 S.E. 2d 245 (1969); State v. Meadows, 272 N.C. 327, 158 S.E. 2d 638 (1968).\nWe hold in the case at bar that defendant\u2019s statement to his wife was volunteered in response to the question she asked. The statement was not the result of custodial interrogation, and the failure to give the Miranda warnings did not render the statement inadmissible.\nMoreover, even if the statement was erroneously admitted, the error was harmless. Defendant does not contend that he did not shoot Abner. There is no reasonable possibility, therefore, that the statement contributed to his conviction. State v. Fletcher, supra.\nDefendant next assigns error to remarks made by the private prosecutor in his closing argument to the jury. Citing State v. Miller, 271 N.C. 646, 157 S.E. 2d 335 (1967), he argues that the prosecutor improperly expressed his personal opinion that defendant was \u201cguilty as sin.\u201d Defendant\u2019s assertion in this regard is clearly unsound. Immediately upon the prosecutor\u2019s uttering the word \u201cbelieve\u201d, defense counsel objected, and the prosecutor thereafter confined his expression to a contention that defendant was guilty. Counsel was properly permitted to contend that the jury find defendant guilty. State v. Britt, 291 N.C. 528, 231 S.E. 2d 644 (1977).\nDefendant also attacks that portion of the final argument wherein the prosecutor maintained that defendant and his lawyer fabricated for trial defendant\u2019s assertion that he slipped on the curb. The prosecutor pointed out that defendant had not mentioned \u201cslipping\u201d to his wife on the night of the shooting; he then commented,\nHe didn\u2019t even open his mouth about it being an accident. And, the first time that this defendant has opened his mouth about slipping and being an accident, is when he\u2019s been on trial in this Court. That\u2019s his lawyer\u2019s defense. . . . That\u2019s a defense that\u2019s been thought up since it happened that night.\nAccording to defendant, this language was \u201ccalculated to cause prejudice.\u201d He contends that the prosecutor traveled outside of the record and impermissibly commented upon the defendant\u2019s silence while in custody. This argument misses the point. The reference, if any, to defendant\u2019s silence served merely to point out that defendant failed to characterize or explain the shooting as an accident to his wife when she asked him why he had shot Abner.\nIn State v. Williams, 276 N.C. 703, 712, 174 S.E. 2d 503, 509 (1970), it is said:\nIn this jurisdiction wide latitude is given to counsel in the argument of contested cases. Moreover, what constitutes an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge. State v. Bowen, 230 N.C. 710, 55 S.E. 2d 466. . . .\nWe hold that the prosecutor\u2019s argument was not \u201csufficiently grave to be prejudicial in order to entitle defendant to a new trial.\u201d State v. Parks, 14 N.C. App. 97, 100, 187 S.E. 2d 462, 464 (1972), cert. denied, 281 N.C. 157, 188 S.E. 2d 366 (1972); State v. Seipel, 252 N.C. 335, 113 S.E. 2d 432 (1960).\nFinally, defendant contends that the Court erred in disqualifying a juror and substituting an alternate juror at the conclusion of the final arguments of counsel. He argues that the judge\u2019s disqualification of the original juror on grounds of \u201clack of attention\u201d is not a permissible basis under N.C. General Statutes \u00a7 15A-1215 (a). Defendant also asserts error in the judge\u2019s failure to explain what he meant by \u201clack of attention.\u201d\nG.S. \u00a7 15A-1215(a) provides in pertinent part:\nIf before final submission of the case to the jury, any juror dies, becomes incapacited or disqualified, or is discharged for any other reason, an alternate juror becomes a juror, in the order in which selected, and serves in all respects as those selected on the regular trial panel. [Emphasis added.]\nFurthermore, the statute provides that alternate jurors \u201cmust be sworn and seated near the jury with equal opportunity to see and hear the proceedings. They must attend the trial at all times with the jury, and obey all orders and admonitions of the judge.\u201d\nIt is well settled that the decision as to a juror\u2019s continued competency to serve rests within the trial judge\u2019s sound discretion. State v. Waddell, 289 N.C. 19, 220 S.E. 2d 293 (1975); State v. Moore, 24 N.C. App. 582, 211 S.E. 2d 470 (1975). There was no necessity for the trial judge in this case to explain \u201clack of attention.\u201d We hold that his action did not constitute an abuse of his discretion and, therefore, no reversible error was committed.\nWe hold that defendant had a fair trial free from prejudicial error.\nNo error.\nJudges Vaughn and Arnold concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.", "Van Camp, Gill & Crumpler, by James R. Van Camp and Douglas R. Gill, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RAYMOND EDWARD BARBOUR\nNo. 7915SC378\n(Filed 18 September 1979)\n1. Criminal Law \u00a7 75.9\u2014 defendant in custody \u2014 inculpatory statement to wife \u2014 volunteered statement\nThe trial court in a homicide prosecution did not err in allowing an officer to testify that defendant stated to his wife in the presence of the officer, \u201cI shot him .... You know what happened,\u201d since the statement was made in response to an inquiry by defendant\u2019s wife; the officer asked defendant no questions; and defendant\u2019s statement was volunteered and not the product of custodial interrogation.\n2. Criminal Law \u00a7 102.11\u2014 prosecutor\u2019s jury argument \u2014 comment on defendant\u2019s guilt \u2014 no impropriety\nThere was no merit to the defendant\u2019s contention that the private prosecutor, during his jury argument, improperly expressed his personal opinion that defendant was \u201cguilty as sin,\u201d since defense counsel immediately objected when the prosecutor uttered the word \u201cbelieve\u201d; the prosecutor thereafter confined his expression to a contention that defendant was guilty; and counsel was properly permitted to contend that the jury should find defendant guilty.\n3. Criminal Law \u00a7 102.1\u2014 prosecutor\u2019s jury argument \u2014comment on defense of accident \u2014 no impropriety\nThe prosecutor\u2019s jury argument in a homicide prosecution that defendant and his lawyer fabricated for trial defendant\u2019s assertion that he slipped on a curb and that the gun he was holding then fired accidentally was not improper.\n4. Jury \u00a7 9\u2014 lack of attention by juror \u2014 disqualification \u2014explanation unnecessary-substitution of alternate juror proper\nThe trial court did not abuse its discretion in disqualifying a juror on the ground of \u201clack of attention\u201d and in substituting an alternate juror at the conclusion of the final arguments of counsel; and the court was not required to explain \u201clack of attention.\u201d\nAPPEAL by defendant from Lewis, Judge. Judgment entered 22 September 1978 in Superior Court, ALAMANCE County. Heard in the Court of Appeals on 28 August 1979.\nDefendant was tried on a bill of indictment proper in form for the second degree murder of William Samuel Abner. Upon his plea of not guilty, the State offered evidence which tended to show that, on the night of 13 June 1974, defendant intentionally shot Abner in the back as Abner walked away from defendant. Witnesses for the State testified that defendant leaned across the open rear door of the car in which he and Abner had been riding, and shot Abner when Abner refused to stop walking away as defendant had demanded.\nDefendant\u2019s evidence tended to show that he accidentally shot Abner while trying to \u201carrest\u201d Abner on a \u201cdrug bust.\u201d Defendant, a private citizen, testified that Police Chief William F. Miles of Graham, North Carolina, had authorized him to work on a drug case on the evening of June 13 and to use his pistol \u201cin making an arrest, and that he could use it only for his own self-protection and for no other purpose.\u201d Defendant suspected Abner of being heavily involved in drug trafficking and attempted to \u201carrest\u201d Abner that evening after finding a large quantity of pills in Abner\u2019s possession. Abner refused to cooperate with defendant. Defendant alleged that he then prepared to fire a warning shot as Abner walked away from him. He testified that his foot slipped off the curb as he prepared to fire, causing the gun to discharge as he stumbled into the car.\nDefendant was found guilty of second degree murder and was sentenced to a prison term of 25 to 30 years from which he appealed.\nAttorney General Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.\nVan Camp, Gill & Crumpler, by James R. Van Camp and Douglas R. Gill, for defendant appellant." }, "file_name": "0038-01", "first_page_order": 66, "last_page_order": 72 }