{ "id": 2675245, "name": "STATE OF NORTH CAROLINA v. STEVEN DAVID HARPER", "name_abbreviation": "State v. Harper", "decision_date": "1980-12-16", "docket_number": "No. 805SC699", "first_page": "198", "last_page": "201", "citations": [ { "type": "official", "cite": "50 N.C. App. 198" } ], "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 800", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 420", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568452, 8568422, 8568489, 8568526, 8568566 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0420-02", "/nc/286/0420-01", "/nc/286/0420-03", "/nc/286/0420-04", "/nc/286/0420-05" ] }, { "cite": "209 S.E.2d 350", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "352" } ], "opinion_index": 0 }, { "cite": "23 N.C.App. 396", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550729 ], "year": 1974, "pin_cites": [ { "page": "398" } ], "opinion_index": 0, "case_paths": [ "/nc-app/23/0396-01" ] }, { "cite": "236 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561922, 8561865, 8561837, 8561902, 8561948 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0160-04", "/nc/293/0160-02", "/nc/293/0160-01", "/nc/293/0160-03", "/nc/293/0160-05" ] }, { "cite": "234 S.E.2d 652", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "33 N.C.App. 233", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548910 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/33/0233-01" ] }, { "cite": "225 S.E.2d 553", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "557" } ], "opinion_index": 0 }, { "cite": "290 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560962 ], "year": 1976, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0286-01" ] } ], "analysis": { "cardinality": 412, "char_count": 6795, "ocr_confidence": 0.927, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.31092951751241094 }, "sha256": "f5d13743c3a6bf0e5bf2bb114a2cab36ed0130d85f0d554314974b6e4c0ee821", "simhash": "1:e3aa526c3d20b8eb", "word_count": 1076 }, "last_updated": "2023-07-14T22:39:05.008611+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. STEVEN DAVID HARPER" ], "opinions": [ { "text": "WHICHARD, Judge.\nThe record on appeal contains six assignments of error, two of which are presented and discussed in defendant\u2019s brief. The other assignments, because they are not presented and discussed, are deemed abandoned. Rule 28 (a), North Carolina Rules of Appellate Procedure; State v. McMorris, 290 N.C. 286, 292, 225 S.E.2d 553, 557 (1976); State v. Brothers, 33 N.C.App. 233, 234 S.E.2d 652, cert. denied, 293 N.C. 160, 236 S.E.2d 704 (1977).\nBy the first assignment of error presented and discussed, defendant contends the trial court erred in directing the jury selection procedure. In summary, the procedure was as follows:\nThe trial j udge directed the clerk to call the names of twenty-four prospective jurors. After explaining the charges against defendant and the burden of proof, the judge asked the twenty-four an extended series of questions routinely propounded to prospective jurors. During his questioning, the judge excused one person who indicated that he was the victim in a pending criminal case.\nUpon completion of questioning by the court, the prospective jurors were tendered first to the State and then to the defendant for supplemental questions. After supplemental questioning by the State and the defendant, they were tendered first to the State and then to the defendant for the purpose of exercising peremptory challenges. The State and the defendant each exercised four peremptory challenges. The trial judge then advised the State and the defendant that each had three peremptory challenges remaining. The State exercised no further challenges, and the defendant exercised two. The defendant\u2019s exercise of two further peremptory challenges left one person to serve as the alternate juror. The trial then commenced.\nDefendant correctly contends that this procedure did not comply with the provisions of G.S. 15A, Article 72, Selecting and Impaneling the Jury, and with G.S. 15A-1221 (3). He fails, however, to demonstrate any prejudice to his rights or that a different result would likely have ensued from following the jury selection procedure set forth in the statutes. In 4 Strong\u2019s North Carolina Index 3d, Criminal Law \u00a7167 at 851, the author states, with supporting citations:\nTo warrant a new trial, there should be made to appear that the ruling complained of was material and prejudicial to defendant\u2019s rights and that a different result would likely have ensued. . . .\nMere technical error will not entitle defendant to a new trial; it is necessary that error be material and prejudicial and amount to a denial of some substantial right.\nThis principle has been incorporated in the Criminal Procedure Act in G.S. 15A-1443 (a), which provides:\nA defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.\nThe defendant here had full opportunity to examine and challenge prospective jurors. Because, when the jury was finally constituted, defendant had one peremptory challenge remaining and had exercised no challenges for cause, the jurors selected obviously met with his approval. Under these circumstances we fail to see how defendant could have been prejudiced by the trial court\u2019s deviations from the statutorily prescribed method of jury selection. Therefore, this assignment of error is overruled.\nBy the second assignment of error presented and discussed, defendant contends the court erred in permitting a State\u2019s witness to testify, in response to questioning about a photograph, \u201c[t]hat is a view of the building looking toward the Northwest with my car and the patrol car there where the entrance was made into the building.\u201d (Emphasis supplied.) He argues that there was no proof at this point in the trial that an entrance had been made. His contention overlooks the prior testimony of this witness, admitted without objection, to the effect that a window of the building \u201cwas completely taken out\u201d and that \u201cwhoever it was . . . had to completely remove the molding to completely remove the glass.\u201d The witness had also testified without objection, prior to the testimony objected to, that his inspection of \u201cthe building that had the window missing\u201d had revealed that \u201cthere were a few packs of cigarettes and possibly a few bars of candy missing.\u201d \u201cIt is the well established rule that when evidence is admitted over objection but the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost.\u201d State v. Zimmerman, 23 N.C.App. 396, 398, 209 S.E.2d 350, 352 (1974), cert. denied, 286 N.C. 420, 211 S.E.2d 800 (1975). Assuming, arguendo only, that defendant\u2019s objection to the testimony in question was otherwise meritorious, he clearly lost the benefit of his objection by his failure to object to the above-recited testimony which had been admitted previously. This assignment of error is without merit and is overruled.\nNo error.\nJudges Hedrick and Clark concur.", "type": "majority", "author": "WHICHARD, Judge." } ], "attorneys": [ "Attorney General Edmisten by Assistant Attorney General James E. Magner, Jr., for the State.", "Arnold Smith for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. STEVEN DAVID HARPER\nNo. 805SC699\n(Filed 16 December 1980)\n1. Jury \u00a73.1\u2014 improper method of jury selection \u2014 defendant not prejudiced\nThough the trial court deviated from the statutorily prescribed method of jury selection, defendant failed to show that he was prejudiced because he had full opportunity to examine and challenge prospective jurors and because, when the jury was finally constituted, defendant had one peremptory challenge remaining and had exercised no challenges for cause so that the jurors selected obviously met with his approval. G.S. 15A, Art. 72; G.S. 15A-1221 (3).\n2. Criminal Law \u00a7 162\u2014 objection to evidence \u2014 similar evidence previously admitted\nIn a prosecution of defendant for breaking or entering and larceny, the trial court did not err in permitting a State\u2019s witness to testify concerning an entrance made into the building in question, since the witness had earlier testified, without objection, to substantially the same thing.\nAppeal by defendant from Bruce, Judge. Judgments entered 13 December 1979 in Superior Court, New Hanover County. Heard in the Court of Appeals 4 December 1980.\nDefendant was tried and convicted on five counts of felonious breaking and entering and four counts of felonious larceny. From judgments of imprisonment, defendant appeals.\nAttorney General Edmisten by Assistant Attorney General James E. Magner, Jr., for the State.\nArnold Smith for defendant appellant." }, "file_name": "0198-01", "first_page_order": 224, "last_page_order": 227 }