{ "id": 2674682, "name": "STATE OF NORTH CAROLINA v. DONALD RAY POLLOCK", "name_abbreviation": "State v. Pollock", "decision_date": "1980-12-16", "docket_number": "No. 807SC600", "first_page": "169", "last_page": "173", "citations": [ { "type": "official", "cite": "50 N.C. App. 169" } ], "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": "573 P.2d 433", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1978, "opinion_index": 0 }, { "cite": "20 Cal. 3d 457", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2288545 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/cal-3d/20/0457-01" ] }, { "cite": "62 L. Ed. 2d 126", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 2, "year": 1979, "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "130 S.E. 848", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "opinion_index": 0 }, { "cite": "190 N.C. 810", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615200 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/nc/190/0810-01" ] }, { "cite": "169 S.E.2d 533", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "6 N.C. App. 147", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547141 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/6/0147-01" ] }, { "cite": "92 A.L.R.3d 845", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "882" } ], "opinion_index": 0 }, { "cite": "538 P.2d 247", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "259" } ], "opinion_index": 0 }, { "cite": "14 Cal. 3d 864", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2279717 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/cal-3d/14/0864-01" ] }, { "cite": "237 P.2d 1", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1951, "opinion_index": 0 }, { "cite": "38 Cal. 2d 34", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 4404825 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/cal-2d/38/0034-01" ] }, { "cite": "57 Cal. Rptr. 220", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1967, "opinion_index": 0 }, { "cite": "249 Cal. App. 2d 81", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2214540 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/cal-app-2d/249/0081-01" ] }, { "cite": "70 S.E.2d 665", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1952, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "235 N.C. 636", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626398 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/235/0636-01" ] }, { "cite": "79 S.E.2d 196", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1953, "opinion_index": 0 }, { "cite": "239 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625469 ], "year": 1953, "opinion_index": 0, "case_paths": [ "/nc/239/0011-01" ] }, { "cite": "253 S.E.2d 494", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 767", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553383 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0767-01" ] }, { "cite": "128 S.E.2d 590", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "258 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560322 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/nc/258/0271-01" ] }, { "cite": "232 S.E.2d 648", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 179", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567796 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0179-01" ] }, { "cite": "444 U.S. 943", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11399617, 11399742, 11399849, 11399791, 11399664, 11399698, 11400084, 11399545, 11399898, 11399934, 11400031 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/444/0943-02", "/us/444/0943-05", "/us/444/0943-07", "/us/444/0943-06", "/us/444/0943-03", "/us/444/0943-04", "/us/444/0943-11", "/us/444/0943-01", "/us/444/0943-08", "/us/444/0943-09", "/us/444/0943-10" ] }, { "cite": "254 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566864 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0069-01" ] } ], "analysis": { "cardinality": 570, "char_count": 9911, "ocr_confidence": 0.914, "pagerank": { "raw": 9.961721986493819e-08, "percentile": 0.5374232242883659 }, "sha256": "e7a302df4e3d7fa70041b1a7b0b835bdea1fb91f9a2cbded851c7c6aa040daff", "simhash": "1:0c3c012a0a9619f3", "word_count": 1651 }, "last_updated": "2023-07-14T22:39:05.008611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Morris and Judge WEBB concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD RAY POLLOCK" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nDefendant first contends the trial court should have declared a mistrial during the selection of the jury. After twelve jurors had been selected, the court was in the process of choosing a thirteenth or alternate juror. During a recess of the court, one of the twelve selected jurors and several other persons were in a room where soft drink machines evidently were located. A juror who had been rejected made the statement: \u201cWell, if he would do that to his own daughter he would do it to somebody else\u2019s daughter.\u201d Juror No. 12, Audrew Harrell, was the only one of the twelve selected jurors who heard the statement.\nJudge Peel inquired whether defendant or his counsel wanted juror Harrell removed from the case, and counsel, after conferring with defendant, stated that they did not want juror Harrell removed. The court offered to excuse the juror on its own motion if counsel for defendant so desired. Again, defendant\u2019s counsel stated they accepted j uror Harrell. The court also inquired of the remaining eleven j urors if any of them heard the statement and they indicated that none of them heard it. It is not required that the court question each juror individually under these circumstances. State v. McGuire, 297 N.C. 69, 254 S.E.2d 165, cert. denied, 444 U.S. 943 (1979). The court carefully examined j uror Harrell as to whether the statement would in any way influence his verdict in the case, and he positively stated that it would not. The court offered defendant\u2019s counsel an opportunity to examine the jury further with respect to the statement, but counsel stated they were content with the original twelve jurors. The court entered an order finding facts and denying defendant\u2019s motion for a mistrial. Defendant did not object or except to any of the court\u2019s findings of fact.\nWhen the court became aware of the statement made in the presence of the juror, it had the duty to determine whether substantial or irreparable prejudice to defendant resulted. See N.C. Gen. Stat. 15A-1061. The uncontradicted evidence shows that the remark did not prejudice or affect in any way juror Harrell. He was the only one of the twelve selected jurors who heard the remark. There are no exceptions to the court\u2019s findings of fact. They are deemed to be supported (and are in fact supported) by substantial competent evidence and are conclusive upon appeal. State v. Jenkins, 292 N.C. 179, 232 S.E.2d 648 (1977); Schloss v. Jamison, 258 N.C. 271, 128 S.E.2d 590 (1962); PlyMarts, Inc. v. Phileman, 40 N.C. App. 767, 253 S.E.2d 494 (1979). The record does not disclose any abuse of discretion by Judge Peel in denying defendant\u2019s motion. To the contrary, he made every effort to ensure the integrity of defendant\u2019s trial and gave him every opportunity to satisfy himself as to the jury. The assignment of error is overruled.\nDefendant argues the court erred in allowing witnesses to corroborate the prosecuting witness\u2019s testimony \u201cbeyond a reasonable measure.\u201d Defendant objects to repeated testimony by other witnesses of statements made to them by the prosecuting witness regarding defendant\u2019s acts toward her. The trial judge has wide discretion in allowing corroborative testimony. Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196 (1953); 1 Stansbury\u2019s N.C. Evidence \u00a7\u00a7 51-52 (Brandis rev. 1973). No abuse of discretion appears in the record. This case depended in a large measure upon the credibility of the seventeen-year-old prosecuting witness. The court properly instructed the jury concerning their consideration of the corroborative evidence. We find no error in allowing the corroborative evidence.\nDefendant\u2019s counsel requested the following instruction:\nI direct you, ladies and gentlemen of the jury to view the testimony of the prosecuting witness, Brenda Pollock, with caution because one can never be sure what part psychological factors play in the testimony of a child against their parent.\nDefendant concedes that the testimony of-a prosecutrix in an incest case need not be corroborated. State v. Wood, 235 N.C. 636, 70 S.E.2d 665 (1952). Nevertheless, defendant urges that the jury should have been cautioned that the testimony of an adolescent daughter against her father is inherently suspect. Defendant relies upon a statement in 41 Am. Jur. 2d Incest \u00a7 13,520 (1968), which cites as authority People v. Covert, 249 Cal. App. 2d 81, 57 Cal. Rptr. 220 (1967). The issue of the necessity of a cautionary instruction was not before the court in Covert, but the portion of that court\u2019s opinion on which the present defendant relies cited as authority People v. Nye, 38 Cal. 2d 34, 237 P.2d 1 (1951). The pertinent portion of Nye, in turn, was overruled in People v. Rincon-Pineda, 14 Cal. 3d 864, 538 P.2d 247, 92 A.L.R.3d 845 (1975). That court held: \u201cSince it does not in fact appear that the accused perpetrators of sex offenses ... are subject to capricious conviction by inflamed tribunals of justice, we conclude that the requirement of a cautionary instruction in all such cases is a rule without a reason.\u201d Id. at 882, 538 P.2d at 259.\nWe have been unable to find any North Carolina cases mandating an instruction such as that requested by defendant. In State v. Hardee, 6 N.C. App. 147, 169 S.E.2d 533 (1969), an incest prosecution, this Court held that it is permissible to instruct on the credibility of witnesses, but that failure to do so is not the proper subject of exception. In another incest case, State v. Sauls, 190 N.C. 810, 130 S.E. 848 (1925), the jury was instructed to scrutinize the testimony of the defendant and his close relatives before accepting their testimony as true. The defendant excepted to the instruction because it was not extended and applied to all interested witnesses. The Court overruled the exception because such an instruction is a subordinate, not a substantive, feature of the trial. Although in both Hardee and Sauls there was no request for a cautionary instruction, as there was in the present case, we cannot conclude that failure to submit the instruction was prej udicial error. Judge Peel did instruct the j ury that it could consider the interest of a witness in determining whether to believe that witness. We do not find defendant\u2019s authority persuasive and find no error in the refusal by the court to so instruct the jury.\nLast, defendant urges that the court should have allowed his motions for dismissal at the close of all the evidence and to set.aside the verdict as being against the weight of the evidence. Without reciting the sordid facts of this case, we nevertheless find there was substantial competent evidence to require the case be submitted to the twelve and to support the verdict. On behalf of defendant, the jurors were polled and reaffirmed their verdict. We also find the evidence when considered on these motions complies with the standards of Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, rehearing denied, 62 L. Ed. 2d 126 (1979).\nThe statement of Justice Ervin in State v. Wood, supra at 638, 70 S.E.2d at 667, is also fitting in this case:\nAccording to the verdict of the jury, the defendant has sinned grievously against his . . . child. This tragic case calls to mind the execration of the Man of Galilee. \u201cIt were better for him that a millstone were hanged about his neck, and he were [sic] cast into the sea, than that he should offend one of these little ones.\u201d Luke 17:2\nNo error.\nChief Judge Morris and Judge WEBB concur.\nPeople v. Thomas, 20 Cal. 3d 457, 573 P.2d 433 (1978), overruled the relevant portion of Covert. Thomas held that evidence for corroborative purposes of prior sex offenses by a defendant, which involved victims other than the prosecuting witness, would no longer be allowed without regard to remoteness or similarity of the offense.", "type": "majority", "author": "MARTIN (Harry C.), Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Charles M. Hensey, for the State.", "Philips, Bourne, Harper & Keel, by Jimmie R. Keel, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD RAY POLLOCK\nNo. 807SC600\n(Filed 16 December 1980)\n1. Criminal Law\u00a7 101.1\u2014 statement by rejected juror \u2014 accepted juror not prejudiced \u2014 denial of mistrial proper\nThe trial court did not err in failing to declare a mistrial during the jury-selection process because of a statement made during a recess by a rejected juror in the presence of jurors who had been accepted, since only one juror heard the statement; defendant and his counsel stated that they did not want the juror removed; the court inquired of the remaining eleven jurors if any of them heard the statement and they indicated that none of them heard it; the court carefully examined the j uror who heard the statement as to whether it would in any way influence his verdict in the case; and the court offered defendant\u2019s counsel an opportunity to examine the j ury further with respect to the statement, but counsel stated they were content with the original twelve jurors.\n2. Criminal Law \u00a7 89.3\u2014 corroborating testimony admissible\nThe trial court in an incest prosecution did not err in permitting repeated testimony by other witnesses of statements allegedly made to them by the prosecuting witness regarding defendant\u2019s acts toward her.\n3. Incest \u00a7 1; Criminal Law \u00a7 117.2- victim of incest \u2014 instruction to view testimony with caution not required\nThe trial court in an incest prosecution was not required to instruct the jury that they should \u201cview the testimony of the prosecuting witness with caution because one can never be sure what part psychological factors play in the testimony of a child against their parent.\u201d\nAppeal by defendant from Peel, Judge. Judgment entered 29 January 1980 in Superior Court, EDGECOMBE County. Heard in the Court of Appeals 5 November 1980.\nDefendant was tried upon an indictment charging him with incest, convicted by jury, and sentenced to imprisonment. From this judgment, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Charles M. Hensey, for the State.\nPhilips, Bourne, Harper & Keel, by Jimmie R. Keel, for defendant appellant." }, "file_name": "0169-01", "first_page_order": 195, "last_page_order": 199 }