{ "id": 2672778, "name": "STATE OF NORTH CAROLINA v. CHARLES FRANKLIN McCULLOUGH", "name_abbreviation": "State v. McCullough", "decision_date": "1980-12-16", "docket_number": "No. 8025SC567", "first_page": "184", "last_page": "188", "citations": [ { "type": "official", "cite": "50 N.C. App. 184" } ], "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": "192 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 220", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564078 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0220-01" ] }, { "cite": "214 S.E. 2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "80" } ], "opinion_index": 0 }, { "cite": "287 N.C. 178", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561290 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "182" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0178-01" ] }, { "cite": "404 U.S. 226", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171947 ], "weight": 12, "year": 1971, "pin_cites": [ { "page": "227" }, { "page": "403, 404" }, { "page": "435" }, { "page": "229" }, { "page": "405" }, { "page": "434, 435" }, { "page": "228" }, { "page": "404" }, { "page": "434" } ], "opinion_index": 0, "case_paths": [ "/us/404/0226-01" ] } ], "analysis": { "cardinality": 483, "char_count": 9020, "ocr_confidence": 0.936, "pagerank": { "raw": 5.0779895834515036e-08, "percentile": 0.3201132575682984 }, "sha256": "24ed48286424f591dc950abe6b9fb65f3ccd1957b2b2d9c39302246ae504c29c", "simhash": "1:9846146e6193b0dc", "word_count": 1488 }, "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 Hill concur." ], "parties": [ "STATE OF NORTH CAROLINA v. CHARLES FRANKLIN McCULLOUGH" ], "opinions": [ { "text": "ARNOLD Judge.\nDefendant challenges the denial of his pretrial motion requesting a free transcript of a previous and separate trial in which two men arrested with him and tried on the same charges were acquitted by a jury. The defendant contends his indigency prevented him from obtaining the transcript which he argues \u201cwould have been invaluable\u201d in his defense. Defendant cites Britt v. North Carolina, 404 U.S. 226, 30 L.Ed. 2d 400, 92 S.Ct. 431 (1971), and State v. McAllister, 287 N.C. 178, 214 S.E. 2d 75 (1975), as authority for the proposition that he should have been allowed a copy of the transcript.\nIn neither case cited by defendant was the indigent defendant allowed a free transcript. The Court in Britt outlined the history of indigent defendants\u2019 rights to a transcript.\nGriffin v. Illinois and its progeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal....\nIn prior cases involving an indigent defendant\u2019s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.\n(Emphasis added) 404 U.S. at 227, 30 L.Ed. 2d at 403, 404, 92 S.Ct. at 435. In denying that defendant Britt\u2019s rights were violated, the Court based the decision on the availability of an alternative to a transcript, i.e., an informal request by defense counsel that the court reporter, who was a \u201cgood friend of all the local lawyers and was reporting the second trial,\u201d read back to counsel his notes of the mistrial. 404 U.S. at 229, 30 L.Ed. 2d at 405, 92 S.Ct. at 434, 435.\nThe Court rejected the suggestion that the defendant must make a showing of \u201cparticularized need\u201d to be entitled to the transcript, stating:\nWe agree with the dissenters that there would be serious doubts about the decision below if it rested on petitioner\u2019s failure to specify how the transcript might have been useful to him. Our cases have consistently recognized the value to a defendant of a transcript of prior proceedings, without requiring a showing of need tailored to the facts of the particular case. As Mr. Justice Douglas makes clear, even in the absence of specific allegations it can ordinarily be assumed that a transcript of a prior mistrial would be valuable to the defendant in at least two ways: as a discovery device in preparation for trial, and as a tool at the trial itself for the impeachment of prosecution witnesses.\n404 U.S. at 228, 30 L.Ed. 2d at 404, 92 S.Ct. at 434.\nMcAllister involved the trial of a defendant charged with three counts of forgery and uttering a forged instrument. Two of the counts were consolidated for trial and defendant requested a free transcript of the trial on the other count which ended in nonsuit. The Supreme Court agreed that defendant was not entitled to the transcript since \u201cthe transcript requested was one of a separate and distinct proceeding rather than a prior proceeding in the present case, and defendant\u2019s attorney did not take advantage of any other formal or informal alternative methods for discovering the information sought....\u201d State v. McAllister, 287 N.C. at 182, 214 S.E. 2d at 80.\nAs in McAllister, defendant in this case seeks a transcript of a separate and distinct proceeding with a different jury and different defendants. Defense counsel suggested the transcript was needed to \u201csee what worked\u201d in the trial of other defendants who were acquitted. We see no support for defendant\u2019s contentions that denial of the transcript was a violation of due process and equal protection rights. In the absence of compelling evidence of the need for a transcript of a separate proceeding to afford defendant adequate tools for his defense, and no alternative means of obtaining such information, the State should not be required to furnish such a transcript.\nDefendant also assigns as error the denial of his motion to dismiss on the grounds that his co-defendants were acquitted at a separate trial, and the court\u2019s limitation of questioning directed to the co-defendants concerning the outcome of their trial. His assertions are untenable. Breaking and entering, larceny and uttering a forged check are offenses that require only one perpetrator. Therefore, the acquittal of third persons arrested with the accused for the crime is not relevant evidence at defendant\u2019s trial. 22A C.J.S. Criminal Law \u00a7 622 (1961).\nWe also hold that the trial judge properly admitted the bank teller\u2019s identification of the defendant from a photographic display since the procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification. See, State v. Knight, 282 N.C. 220, 192 S.E. 2d 283 (1972). The witness testified that she was not wearing her glasses when the defendant was in the bank, but that he was within arm\u2019s length of her, and she recognized him from his prior visits to the bank. She picked the defendant and another man out of eight photographs presented to her by the police officer and testified that the officer\u2019s comments following her identification had no effect on the identification.\nDefendant\u2019s remaining assignments of error have been carefully reviewed. We conclude that they fail to show any prejudicial error.\nNo error.\nChief Judge Morris and Judge Hill concur.", "type": "majority", "author": "ARNOLD Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General James C. Gulick, for the State.", "Tate, Young and Morphis, by Thomas C. Morphis, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. CHARLES FRANKLIN McCULLOUGH\nNo. 8025SC567\n(Filed 16 December 1980)\n1. Constitutional Law \u00a7 30\u2014 trial involving other defendants \u2014 motion for free transcript properly denied\nThe trial court did not err in denying defendant\u2019s motion for a free transcript of a previous and separate trial in which two men arrested with him and tried on the same charges were acquitted by a j ury, since there was no compelling evidence of the need for the transcript and no showing that no alternative means existed for obtaining such information.\n2. Criminal Law \u00a7 33\u2014 third persons arrested with defendant \u2014 evidence of acquittal inadmissible\nEvidence of the acquittal of third persons arrested with defendant for the crimes charged was not relevant evidence at defendant\u2019s trial.\n3. Criminal Law \u00a7 66.9\u2014 identification of defendant from photographic display \u2014 no impermissibly suggestive procedure\nIn a prosecution of defendant for uttering a forged check, the trial court properly admitted a bank teller\u2019s identification of defendant from a photographic display, since the procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification; at the time of the crimes defendant was within arm\u2019s length of the teller; the teller recognized defendant from his prior visits to the bank; and she picked defendant and another man out of eight photographs presented to her by the police officer and testified that the officer\u2019s comments following her identification had no effect on the identification.\nAPPEAL by defendant from Jolly, Judge. Judgment entered 30 January 1980 in Superior Court, CATAWBA County. Heard in the Court of Appeals 17 October 1980.\nDefendant pled not guilty to charges of breaking and entering, larceny and uttering a forged check. The evidence at trial was undisputed that defendant at one time worked for Norris Wood Products, Inc. but was terminated prior to 8 June 1979. The evidence further showed that the office of Norris Wood Products was broken into on 8 June 1979 and that along with other articles taken from the office, several blank checks were removed from a business checkbook. The State\u2019s evidence tended to show that defendant, under the name of Jerry Lewis, cashed one of the checks taken from the Norris Wood Products office. The defendant was identified by a bank teller in a photographic display and arrested along with two other suspects. The vehicle in which defendant and the others were riding at the time of their arrest was searched pursuant to a warrant, and evidence of the crime was found.\nThe jury found the defendant guilty of larceny and uttering a forged check, but not guilty of breaking and entering. Defendant\u2019s motion to set aside the jury verdict as to the larceny charge was granted and defendant was sentenced to 3 to 5 years in prison for the offense of uttering a forged check, from which judgment defendant appeals.\nAttorney General Edmisten, by Special Deputy Attorney General John R. B. Matthis and Assistant Attorney General James C. Gulick, for the State.\nTate, Young and Morphis, by Thomas C. Morphis, for defendant appellant." }, "file_name": "0184-01", "first_page_order": 210, "last_page_order": 214 }