{ "id": 8549563, "name": "STATE OF NORTH CAROLINA v. LASH LARUE HAMMONDS", "name_abbreviation": "State v. Hammonds", "decision_date": "1980-03-04", "docket_number": "No. 7918SC787", "first_page": "495", "last_page": "500", "citations": [ { "type": "official", "cite": "45 N.C. App. 495" } ], "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": "160 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575701 ], "year": 1968, "pin_cites": [ { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0509-01" ] }, { "cite": "336 U.S. 969", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3939011, 3940133, 3942987, 3937651, 3943318, 3937048, 3936060 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/us/336/0969-01", "/us/336/0969-05", "/us/336/0969-04", "/us/336/0969-06", "/us/336/0969-02", "/us/336/0969-07", "/us/336/0969-03" ] }, { "cite": "50 S.E. 2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1948, "opinion_index": 0 }, { "cite": "229 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167342 ], "year": 1948, "pin_cites": [ { "page": "644" } ], "opinion_index": 0, "case_paths": [ "/nc/229/0640-01" ] }, { "cite": "284 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561441, 8561506, 8561487, 8561427, 8561462 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0257-02", "/nc/284/0257-05", "/nc/284/0257-04", "/nc/284/0257-01", "/nc/284/0257-03" ] }, { "cite": "199 S.E. 2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "19 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554897 ], "year": 1973, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0573-01" ] }, { "cite": "88 S.E. 433", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1916, "opinion_index": 0 }, { "cite": "171 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272407 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nc/171/0787-01" ] }, { "cite": "282 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565984, 8566018, 8565912, 8565949, 8565887 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0427-04", "/nc/282/0427-05", "/nc/282/0427-02", "/nc/282/0427-03", "/nc/282/0427-01" ] }, { "cite": "191 S.E. 2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 301", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550342 ], "year": 1972, "pin_cites": [ { "page": "305-6" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0301-01" ] }, { "cite": "146 F. 2d 197", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 7413917 ], "year": 1944, "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/f2d/146/0197-01" ] }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "214 S.E. 2d 763", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562870 ], "year": 1975, "pin_cites": [ { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0377-01" ] } ], "analysis": { "cardinality": 596, "char_count": 11184, "ocr_confidence": 0.818, "pagerank": { "raw": 7.21040481250181e-08, "percentile": 0.43088014011627707 }, "sha256": "812bf3159de4254b978933940609a3e166851b4d6ca2cd762d1ec208fafaacc0", "simhash": "1:0db3afae33089ef2", "word_count": 1835 }, "last_updated": "2023-07-14T22:44:38.339487+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MORRIS and Judge MARTIN (Harry C.) concur." ], "parties": [ "STATE OF NORTH CAROLINA v. LASH LARUE HAMMONDS" ], "opinions": [ { "text": "HILL, Judge.\nDefendant argues that the trial court erred by not allowing him to examine prospective jurors as to whether they owned firearms or weapons. \u201cRegulation of the manner and the extent of the inquiry on voir dire rests largely in the trial judge\u2019s discretion. (Citations omitted.) A defendant seeking to establish on appeal that the exercise of such discretion constitutes reversible error must show harmful prejudice as well as clear abuse of discretion. (Citations omitted.)\u201d State v. Young, 287 N.C. 377, 387, 214 S.E. 2d 763 (1975); modified as to death penalty 428 U.S. 903 (1976). We find that the trial judge\u2019s refusal did not prejudice defendant or hinder his ability to make peremptory challenges. There was no abuse of discretion by the trial judge. Consequently, defendant\u2019s first assignment of error is without merit.\nDefendant next assigns as error the trial court\u2019s action in overruling his objections to testimony given by Billy Ray, Billy Joe, and Tommy Joe Fritts. Defendant contends that testimony from the above witnesses to the effect that a neighbor came to their door and stated that, \u201cLash is out here and wants a piece of Tommy\u2019s and Billy\u2019s ass.\u201d was hearsay. Similar testimony regarding the statement by the neighbor was given by each witness and properly objected to each time.\nTestimony is defined as hearsay . . whenever the assertion of any person, other than that of the witness himself in his present testimony, is offered to prove the truth of the matter asserted . 1 Stansbury\u2019s N. C. Evidence \u00a7 138, pp. 459-60 (Brandis rev. 1973). (Citing many cases.) \u201cWhen the witness reports on the stand that one declarant stated to him that another declarant made a given statement, this may be termed \u2018double hearsay,\u2019 if both statements are offered to prove the facts asserted.\u201d (Emphasis added.) McCormick, Evidence \u00a7 246, p. 585 (2d ed. 1972). In order to find \u201cdouble hearsay\u201d competent, we must find an exception to the hearsay rule for each of the out-of-court statements.\nWe discuss the witnesses\u2019 testimony regarding the neighbor\u2019s statement first. Courts have traditionally characterized such a statement as hearsay and then applied the res gestae exception. The res gestae exception \u201c. . . appears to have been first used as a justification for admitting evidence of oral statements attending and connected with the transaction which was the subject of inquiry, without examining too closely the possible hearsay aspects of the declaration.\u201d 1 Stansbury\u2019s N.C. Evidence \u00a7 158, at p. 530-1. The exception has been criticized often as being too vague, and Judge Learned Hand once wrote that the phrase \u201c. . . has been accountable for so much confusion that it had best be denied any place whatever in legal terminology.\u201d United States v. Matot, 146 F. 2d 197, 198 (2d Cir. 1944).\nThe better analysis of how to characterize the witnesses\u2019 testimony concerning the neighbor\u2019s statement is to say that the testimony is simply not hearsay. The testimony was not given as proof of the matter asserted. We are not concerned with whether the neighbor actually stated what the witnesses have alleged he did. Our only concern is that the neighbor made a statement which catapulted the Fritts family into action. \u201cWhen it is proved that D made a statement to X, with the purpose of showing the probable state of mind thereby induced in X, . . . the evidence is not subject to attack as hearsay.\u201d See McCormick, Evidence \u00a7 249, pp. 589-90 (2d ed. 1972) and cases cited therein.\nNext, we discuss the neighbor\u2019s statement regarding what defendant had told him. Defendant had told the neighbor that he \u201c. . . want[ed] a piece of Tommy\u2019s and Billy\u2019s ass.\u201d Defendant was indicted for assault with a deadly weapon with intent to kill. \u201cWhere intent is directly in issue, as in cases involving . . . assault with intent to commit a felony, ... a person\u2019s statements relative to his then existing intention are admitted without question.\u201d 1 Stansbury\u2019s Evidence \u00a7 162, pp. 541-2 (Brandis rev. 1973). Defendant\u2019s assignment of error is without merit.\nDuring the trial, defendant\u2019s counsel questioned Billy Ray Fritts regarding an assault charge pending against him. The question was important to the defense because Fritts was charged with assaulting defendant. The State objected to the question each time it was asked, and the trial court sustained the objections. Defendant assigns as error the court\u2019s action. Defendant\u2019s assignments are without merit. \u201c[A] witness may not be cross-examined for impeachment purposes as to whether he has been indicted or is under indictment for a criminal offense.\u201d (Citations omitted.) State v. Coxe, 16 N.C. App. 301, 305-6, 191 S.E. 2d 923, cert. denied 282 N.C. 427 (1972).\nDefendant\u2019s next assignment of error deals with comments made by the judge during the trial. We find that the judge\u2019s questioning of witness Roland Starr was exercised well within his power to do so. State v. Horne, 171 N.C. 787, 88 S.E. 433 (1916); and that the judge\u2019s comments to the jury regarding a side-bar conference and a witness\u2019s cursing were made in furtherance of his duty to run a fair and decorous trial. Defendant\u2019s assignment of error is without merit, borders on the frivolous, and is overruled.\nDefendant assigns as error prejudicial remarks made by the prosecutor during his closing argument to the jury which tended to place the burden of producing the gun defendant had allegedly used in the shooting on the defense rather than on the State. Defendant\u2019s counsel objected to the remarks, and his objection was sustained. \u201c \u2018It is only in extreme cases of abuse of the privilege of counsel, and when the trial court does not intervene or correct an impropriety, that a new trial may be allowed.\u2019 \u201d State v. Morrison, 19 N.C. App. 573, 574, 199 S.E. 2d 500, cert. denied 284 N.C. 257 (1973). The court sustained defendant\u2019s objection to the improper remarks. This was enough to remove any prejudice defendant may have suffered. See State v. Correll, 229 N.C. 640, 644, 50 S.E. 2d 717 (1948), cert. denied 336 U.S. 969 (1949). Defendant\u2019s assignment of error is without merit and is overruled.\nDefendant\u2019s final assignment of error is to the judge\u2019s submission to the jury of the charge of shooting into occupied property. Defendant asserts that his motion for nonsuit should have been allowed.\nMotion to nonsuit requires the trial court to consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. (Citations omitted.) . . . [IJf there is evidence from which a jury could find that the offense charged has been committed and that defendant committed it, the motion to nonsuit should be overruled. (Citations omitted.) State v. Goines, 273 N.C. 509, 513, 160 S.E. 2d 469 (1968).\nWe find that there was more than sufficient evidence to withstand defendant\u2019s motion for nonsuit. Two members of the Fritts family, Tommy Joe and Billy Ray, testified that bullets were coming into the house and that two females were inside. Billy Joe Fritts testified that defendant \u201ccommenced shooting\u201d and that bullets hit the corner of his house. Defendant\u2019s final assignment of error is without merit.\nIn defendant\u2019s trial we find\nNo error.\nChief Judge MORRIS and Judge MARTIN (Harry C.) concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Nonnie F. Midgette, for the State.", "Frederick G. Lind for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LASH LARUE HAMMONDS\nNo. 7918SC787\n(Filed 4 March 1980)\n1. Jury \u00a7 6.3\u2014 juror\u2019s ownership of weapons \u2014 examination properly limited\nIn a prosecution of defendant for assault with a deadly weapon and discharging a firearm into occupied property, the trial court\u2019s refusal to allow defendant to examine prospective jurors as to whether they owned firearms or weapons did not prejudice defendant or hinder his ability to make peremptory challenges.\n2. Criminal Law \u00a7 73.3\u2014 hearsay testimony \u2014 admissibility to show state of mind \u2014 intent\nIn a prosecution of defendant for assault with a deadly weapon and discharging a firearm into occupied property, testimony by the victims that a neighbor knocked on their door and told them that defendant \u201cis out here and wants a piece of [the victims\u2019] ass\u201d was not excludable as hearsay, since the statement of the neighbor was admissible to show the state of mind which caused the victims to take action and was not offered to prove the truth of the matter asserted, and since defendant\u2019s statement was admissible to show his intent.\n3. Criminal Law \u00a7 89.10\u2014 pending charge against witness \u2014 cross-examination for impeachment improper\nThe trial court did not err in refusing to allow defendant to ask an assault victim questions concerning an assault charge pending against him, since a witness may not be cross-examined for impeachment purposes as to whether he had been indicted or is under indictment for a criminal offense.\n4. Criminal Law \u00a7 102.3\u2014 improper jury argument \u2014 impropriety cured\nWhere the trial court sustained defendant\u2019s objection to the prosecutor\u2019s improper remarks concerning the burden of producing the gun used in the assault with which defendant was charged, any prejudice which defendant may have suffered was removed.\n5. Weapons and Firearms \u00a7 3\u2014 shooting into occupied property \u2014 sufficiency of evidence\nEvidence was sufficient for the jury in a prosecution for shooting into occupied property where it tended to show that defendant commenced shooting; bullets hit the victims\u2019 house; and two females were inside the house.\nAPPEAL by defendant from Davis, Judge. Judgment entered 4 May 1979 in Superior Court, GUILFORD County. Heard in the Court of Appeals 28 January 1980.\nThe events which led to these criminal prosecutions took place around 9:00 p.m. on 12 November 1978. Evidence was presented at trial tending to show that defendant parked his car on the street in front of a house occupied by Billy Joe Fritts and his sons, Tommy Joe and Billy Ray. Defendant told a neighbor to knock on the front door of the house and deliver a message. Billy Joe Fritts answered the door, and the neighbor stated that defendant was outside and that \u201c. . . he wants a piece of Tommy\u2019s and Billy\u2019s ass.\u201d\nBilly Ray Fritts went out the front door, through the yard to the road, and confronted defendant. Billy Joe Fritts, the father, came outside and stood on the front porch. It is not clear from the evidence what words passed between Billy Ray and defendant, but not long after Billy Ray approached defendant, Hammonds pulled out a gun and began firing in Billy Ray\u2019s direction. Billy Ray swung a knife at defendant and then retreated into the house.\nThere was testimony at trial that bullets were found in the outside wall of the house, in Billy Joe Fritts\u2019s truck, and in a car owned by a neighbor. Billy Joe Fritts testified that two shots went through a bedroom.\nDefendant was arrested on 12 November 1978 and subsequently indicted. Hammonds was found guilty of assault with a deadly weapon and of discharging a firearm into occupied property and sentenced to an active prison term. From the conviction, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Nonnie F. Midgette, for the State.\nFrederick G. Lind for defendant appellant." }, "file_name": "0495-01", "first_page_order": 523, "last_page_order": 528 }