{ "id": 8552045, "name": "STATE OF NORTH CAROLINA v. BOBBY GLENN MOORE", "name_abbreviation": "State v. Moore", "decision_date": "1980-05-06", "docket_number": "No. 797SC1110", "first_page": "563", "last_page": "568", "citations": [ { "type": "official", "cite": "46 N.C. App. 563" } ], "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": "158 S.E. 2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "272 N.C. 417", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573176 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/272/0417-01" ] }, { "cite": "249 S.E. 2d 371", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 66", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564608 ], "year": 1978, "pin_cites": [ { "page": "72" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0066-01" ] }, { "cite": "187 S.E. 2d 729", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573776 ], "year": 1972, "pin_cites": [ { "page": "78" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0070-01" ] } ], "analysis": { "cardinality": 530, "char_count": 11384, "ocr_confidence": 0.825, "pagerank": { "raw": 2.0446031217563963e-07, "percentile": 0.7530753723479632 }, "sha256": "ec18fab998896b3b9ad5f002eaa345d79e03024646ff9f1c52b5781ee31cd0b9", "simhash": "1:2e6ee76652b296de", "word_count": 1957 }, "last_updated": "2023-07-14T21:32:37.131990+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN (Robert M.) and WEBB concur." ], "parties": [ "STATE OF NORTH CAROLINA v. BOBBY GLENN MOORE" ], "opinions": [ { "text": "HILL, Judge.\nUpon the call of the case for trial, the court stated to the jury: \u201cIt\u2019s my understanding that the state has advised the Court that they intend to proceed on the basis of a second degree murder plea.\u201d The defendant contends that such language gave the jury the impression defendant had pled guilty to murder in the second degree and that the language constitutes reversible error. Such contention is without merit. Furthermore, we note no objection to the statement was made by the defendant at the time. A thorough reading of the entire record makes it clear that the court and the jury understood defendant\u2019s plea to be \u201cnot guilty.\u201d In no way was the defendant prejudiced by the judge\u2019s \u201cslip of the tongue.\u201d This assignment of error is overruled.\nThe defendant next contends the trial judge erred in admitting improper evidence over the defendant\u2019s objections and in excluding competent evidence elicited by defendant at trial We will examine the questions in some detail.\nOn cross-examination, the defendant asked Deputy Sheriff Poythress why he had failed to bring to the stand copies of statements made by eyewitnesses. The trial judge ruled the defendant would not be allowed copies of the statements until such time as the eyewitnesses testified, and at such time the defendant would be allowed copies of the statements for impeachment purposes. The defendant contends he was placed at a disadvantage in preparing his defense by the delay in receiving such statements. The position taken by the trial judge is well within his discretion in controlling cross-examination.\nDefendant then asserts the trial judge interrupted his cross-examination of a witness by suggesting an answer to the witness. Specifically, the witness had testified to a statement made by the defendant that he wished the deceased had not come to the party and the defendant\u2019s counsel had asked the witness why he had failed to tell this during district court proceedings. The trial judge pointed out that there was no evidence the question was asked in the district court. Such action by the trial judge did not prejudice the defendant. The trial judge only kept the record straight.\nNext, the district attorney questioned a witness as follows:\nQ. Now, I believe Mrs. Moore testified that no one was ever shown a shotgun shell on that night, but you say that\u2019s not correct?\n(Objection by Mr. Farris. Overruled.)\nA. Yes, Sir.\n(Motion to Strike by Mr. Farris. Denied.)\nAdmittedly, the question was leading and improper as to form, but we fail to see how the defendant suffered any prejudice.\nLikewise, defendant asserts it was improper for the district attorney to question the defendant on cross-examination about prior convictions for impeachment purposes. This is a common practice and generally accepted. State v. Miller, 281 N.C. 70, 78, 187 S.E. 2d 729 (1972). When we look at all the questions in the assignment of error to which the defendant objects, we do not find sufficient prejudice to warrant a new trial, and, therefore, overrule this assignment of error.\nThe defendant contends the trial court erred in denying his motion to dismiss at the end of the State\u2019s evidence and at the conclusion of all the evidence. Defendant contends that the evidence points to nothing more than an accidental killing. This argument is without merit.\nThe State presented the testimony of Timothy Webb who testified as follows regarding the events on the night Andy Jones was killed: that when they got to defendant\u2019s house the defendant showed them a shotgun, along with a shell that went in it; that the defendant said he would use the gun if he had to; that prior to Andy Jones\u2019 coming into the defendant\u2019s house, defendant said he wished Jones hadn\u2019t come because they didn\u2019t get along; that when defendant got the gun later in the evening and told everyone to be quiet, he pointed it at Jones and said, \u201cespecially you\u201d; that Jones snickered and the gun went off; and that defendant did not point the gun at anyone else nor did he see defendant stumble or get bumped.\nThe State also offered the testimony of Karen Strickland who testified as follows: that she had heard defendant say he didn\u2019t like Jones; that the defendant showed them the shotgun and the shell; that later the defendant went and got the gun, told everybody to be quiet, and standing right in front of Jones said \u201cespecially you\u201d; that Jones kind of laughed and then the gun went off; that the breech on the shotgun was closed when the defendant stood in front of Andy; and that she didn\u2019t see the defendant bump anything or anybody.\nThe State further presented the testimony of Rhonda Glover. Glover testified to the following: that before Jones got to the defendant\u2019s house, the defendant showed them the gun and the shell and said he would use the gun if he had to; that the defendant said he didn\u2019t like Jones; that the defendant went to get the gun later in the evening, came out of the bedroom walking real fast and went straight to where Jones was; that the defendant told everybody to be quiet, looked at Andy and said \u201cespecially you\u201d; that when Jones laughed, the defendant shot him; and that she didn\u2019t see the defendant bump into a door or get bumped.\nAnd finally, the State presented the testimony of Ralph Lamm, who testified: that the defendant pointed the breeched shotgun at Jones so that the barrel was actually touching him when the gun went off; that he didn\u2019t see defendant point the gun at anyone else; that he didn\u2019t see anyone bump into defendant; and that he had heard of the defendant and Jones being in fights.\nThe State\u2019s evidence is sufficient to be submitted to the jury on the issue of defendant\u2019s guilt of murder in the second degree where as here it tends to show that the defendant intentionally inflicted a wound with a deadly weapon which caused deceased\u2019s death. State v. Hodges, 296 N.C. 66, 72, 249 S.E. 2d 371 (1978). The defendant\u2019s motions to dismiss were properly denied.\nDefendant has grouped together six unrelated exceptions without citing a single authority in support, which he contends point to prejudice in the court\u2019s instructions. The burden is on the defendant, not only to show error, but also to show that the error complained of adversely affected him. State v. Paige, 272 N.C. 417, 158 S.E. 2d 522 (1968). We have examined the exceptions which make up this assignment of error and conclude defendant has shown no error in the instructions made by the judge to the jury which would adversely affect the defendant.\nFinally, defendant contends the trial judge erred in recalling an alternate juror. At the end of the case, the alternate juror was dismissed, and took a seat among the public. Almost immediately one of the original twelve jurors notified the court that she had discovered she knew some of the people involved and such knowledge would affect her decision. The court dismissed her and replaced her with the alternate juror. While the defendant did ask to note an exception, he gave no reason and declined an invitation to question the juror.\nDefendant contends the trial judge should have made findings of fact that the juror could again accept his oath and disregard any comments that may have been made by the public while he was discharged. The alternate juror had been discharged for no more than two or three minutes before his recall. There is no evidence that the juror spoke to anyone or listened to anyone during his brief stay in the courtroom. It may have been the better practice to have the trial judge make findings of fact under the circumstances, but we fail to see any prejudice accruing to the defendant. The assignment of error is overruled.\nIn the trial of the case below, we find\nNo error.\nJudges MARTIN (Robert M.) and WEBB concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General Rebecca R. Bevacqua, for the State.", "Farris, Thomas & Farris, by Robert A. Farris, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. BOBBY GLENN MOORE\nNo. 797SC1110\n(Filed 6 May 1980)\n1. Criminal Law \u00a7 99\u2014 court\u2019s statement concerning defendant\u2019s plea \u2014 error not prejudicial\nDefendant was not prejudiced where the court, upon call of the case for trial, stated to the jury, \u201cIt\u2019s my understanding that the state has advised the Court that they intend to proceed on the basis of a second degree murder plea,\u201d since no objection to the statement was made by defendant at the time, and the court and the jury understood defendant\u2019s plea to be \u201cnot guilty.\u201d\n2. Homicide \u00a7 21.7\u2014 second degree murder \u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a prosecution for second degree murder where it tended to show that a party was in progress at defendant\u2019s house on the night in question; before deceased arrived at the party, defendant showed his guests a shotgun with a shell that went in it; defendant stated that he would use the gun if he had to; prior to deceased\u2019s coming into defendant\u2019s house, defendant stated that he wished deceased had not come because they did not get along; when defendant got the gun later in the evening and told everyone to be quiet, he pointed it at deceased and said \u201cespecially you\u201d; deceased snickered and the gun went off; and witnesses did not see defendant point the gun at anyone else or see defendant stumble or get bumped.\n3. Jury \u00a7 9; Criminal Law \u00a7 101\u2014 alternate juror discharged \u2014 recall within minutes \u2014absence of findings not prejudicial\nWhere an alternate juror had been dismissed for no more than two or three minutes before his recall, and there was no evidence that the juror spoke to anyone or listened to anyone during his brief stay in the courtroom, defendant was not prejudiced by the trial court\u2019s failure to make findings of fact that the juror could again accept his oath and disregard any comments that may have been made by the public while he was discharged.\nAPPEAL by defendant from Reid, Judge. Judgment entered 6 July 1979 in Superior Court, WILSON County. Heard in the Court of Appeals 16 April 1980.\nThe defendant was tried for the murder in the second degree of Andy Earl Jones, and was convicted of voluntary manslaughter. The State\u2019s evidence tended to show that the defendant and his girl friend invited several people to their home on the night of 16 February 1979 where the parties drank liquor and beer and smoked some marijuana. Among the guests was the decedent. Prior to the arrival of Andy Earl Jones, when the party became noisy, the defendant brought out a shotgun and shell and said he would use it if he had to. Later in the evening, Andy Earl Jones arrived, and the defendant was heard to say that he wished Jones had not come over; that the defendant did not like Jones and did not get along with him. Later in the evening, about 1:00 a.m., there was much loud talking and laughing. The defendant appeared with the gun, pointed it at the deceased and said: \u201cEverybody\u2019s going to have to get quiet \u2014 especially you [Jones].\u201d The deceased laughed, and the gun went off. After the shot was fired, the defendant said: \u201cOh, my God! What have I done;\u201d and threw the gun down.\nThe judge instructed the jury on murder in the second degree, voluntary manslaughter, and involuntary manslaughter, and the jury returned a verdict of guilty of voluntary manslaughter. Defendant appealed.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General Rebecca R. Bevacqua, for the State.\nFarris, Thomas & Farris, by Robert A. Farris, for defendant appellant." }, "file_name": "0563-01", "first_page_order": 591, "last_page_order": 596 }