{ "id": 2672915, "name": "STATE OF NORTH CAROLINA v. MICHAEL DEAN KELLER", "name_abbreviation": "State v. Keller", "decision_date": "1981-01-20", "docket_number": "No. 8025SC561", "first_page": "364", "last_page": "372", "citations": [ { "type": "official", "cite": "50 N.C. App. 364" } ], "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": "228 S. E. 2d 437", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N. C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564438 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0681-01" ] }, { "cite": "409 U. 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C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626399 ], "year": 1961, "pin_cites": [ { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0380-01" ] }, { "cite": "235 S. E. 2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N. C. 105", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561617 ], "year": 1977, "pin_cites": [ { "page": "120" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0105-01" ] }, { "cite": "237 S. E. 2d 822", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N. C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564024 ], "year": 1977, "pin_cites": [ { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0321-01" ] }, { "cite": "235 S. E. 2d 219", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N. C. 47", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561358 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0047-01" ] }, { "cite": "400 U. S. 857", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12084192, 12084284, 12084237 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0857-01", "/us/400/0857-03", "/us/400/0857-02" ] }, { "cite": "398 U. S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6269377, 6268865, 6270821, 6269961, 6271466, 6269642, 6271150, 6270290, 6270515, 6269109, 6268600 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/398/0959-04", "/us/398/0959-02", "/us/398/0959-09", "/us/398/0959-06", "/us/398/0959-11", "/us/398/0959-05", "/us/398/0959-10", "/us/398/0959-07", "/us/398/0959-08", "/us/398/0959-03", "/us/398/0959-01" ] }, { "cite": "170 S. E. 2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N. C. 651", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559791 ], "year": 1969, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc/275/0651-01" ] }, { "cite": "192 S.E. 2d 75", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "16 N.C. App. 266", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550152 ], "year": 1972, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/16/0266-01" ] }, { "cite": "91 S. Ct. 462", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "27 L. Ed. 2d 441", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "400 U. S. 993", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12109446, 12109513, 12109482, 12109420, 12109454, 12109526, 12109463, 12109496, 12109433, 12109430, 12109470 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/400/0993-04", "/us/400/0993-10", "/us/400/0993-08", "/us/400/0993-01", "/us/400/0993-05", "/us/400/0993-11", "/us/400/0993-06", "/us/400/0993-09", "/us/400/0993-03", "/us/400/0993-02", "/us/400/0993-07" ] }, { "cite": "408 F. 2d 903", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2203558 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/408/0903-01" ] }, { "cite": "421 F. 2d 345", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2156278 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/f2d/421/0345-01" ] }, { "cite": "92 S. Ct. 941", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "30 L. Ed. 2d 787", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "405 U. S. 917", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11726691, 11726917, 11727077, 11726630, 11726570, 11727026, 11726868, 11727127, 11726971, 11726813 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/405/0917-03", "/us/405/0917-06", "/us/405/0917-09", "/us/405/0917-02", "/us/405/0917-01", "/us/405/0917-08", "/us/405/0917-05", "/us/405/0917-10", "/us/405/0917-07", "/us/405/0917-04" ] }, { "cite": "450 F. 2d 1131", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 793712 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/f2d/450/1131-01" ] }, { "cite": "92 S. Ct. 294", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "30 L. Ed. 2d 258", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "404 U. S. 943", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6402368, 6402465, 6402273, 6401829, 6402823, 6402940, 6401929, 6402091, 6402542, 6402711, 6402172 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/us/404/0943-06", "/us/404/0943-07", "/us/404/0943-05", "/us/404/0943-01", "/us/404/0943-10", "/us/404/0943-11", "/us/404/0943-02", "/us/404/0943-03", "/us/404/0943-08", "/us/404/0943-09", "/us/404/0943-04" ] }, { "cite": "443 F. 2d 1022", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 774086 ], "opinion_index": 0, "case_paths": [ "/f2d/443/1022-01" ] }, { "cite": "81 S.E. 2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "opinion_index": 0 }, { "cite": "240 N. C. 244", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596934 ], "year": 1954, "pin_cites": [ { "page": "248-9" } ], "opinion_index": 0, "case_paths": [ "/nc/240/0244-01" ] } ], "analysis": { "cardinality": 716, "char_count": 17102, "ocr_confidence": 0.922, "pagerank": { "raw": 2.229218132129588e-07, "percentile": 0.7788060230538537 }, "sha256": "8bea5855c786690049f27109fd7b8ca0de515435779503f2c811a125c1884ca2", "simhash": "1:1e675c2bfa19207d", "word_count": 2905 }, "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 Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MICHAEL DEAN KELLER" ], "opinions": [ { "text": "HILL, Judge.\nAt defendant\u2019s second trial, one witness for the prosecution was not present in the courtroom. Another witness for the prosecution was present but refused to testify.\nThe trial court, in the absence of the jury, heard testimony and arguments of counsel, upon objection by defendant to the introduction into evidence by the State of a transcript of the testimony of witness Jerry Lyn Morrison. The testimony was given at a prior trial of this case in September, 1978, in the Superior Court for Caldwell County.\nThe trial court made the following findings of fact:\n1. Jerry Lyn Morrison was a material witness for the State at the previous trial and his testimony is material to the State at this trial.\n2. At the previous trial Morrison was examined by the District Attorney and cross examined by the defendant\u2019s counsel who also now represent the defendant.\n3. At the time at the first trial Morrison resided with his wife and 2 children in Alexander County, North Carolina. On November 1,1978, he left his home driving his wife\u2019s car after telling her that he would return the next day, but without stating where he was going. The next day she discovered her automobile in a church parking lot in Stony Point, North Carolina. She has not seen or heard from Morrison since November 1,1978.\n4. Morrison\u2019s mother, who lived next door to him, has not seen or heard from her son since November 1978.\n5. Morrison\u2019s attorney who was representing him at the time of the first trial of this case has not heard from him since that time.\n6. The State through an Agent of the State Bureau of Investigation have [sic] since last August 1979 made inquiry as to Morrison\u2019s whereabouts by interviewing residents of his neighborhood, former friends and associates and through other law enforcement agencies but have [sic] been unable to learn his whereabouts.\n7. Morrison is unavailable to testify at this trial and the State has made a reasonable, sufficient effort to ascertain his whereabouts without success.\nThe trial court then concluded that a properly authenticated transcript of Morrison\u2019s testimony at the prior trial could be introduced into evidence by the State at the second trial.\nDefendant excepted to the order entered by the trial judge, claiming there was no evidence that a subpoena was issued in Alexander County for Morrison and no evidence that the Sheriff of Alexander County or any of his deputies in charge of serving subpoenas for that county attempted to locate him. Defendant further contended the State had not shown a good faith effort to bring the witness into court.\nWe must first determine if the facts found by the trial judge are sufficient to support his conclusion. Subpoena for Morrison was issued in Caldwell County, the place of trial, but no subpoena was issued in Alexander County, the witness\u2019s place of residence. There is evidence that the witness had not been in his county of residence for a year or more. Nor has defendant shown a greater probability of locating the witness if a subpoena had been issued for Alexander County. The trial court\u2019s findings show the State exercised due diligence in searching for Morrison. Defendant\u2019s objection to the trial court\u2019s order is without merit.\nThe witness, Jackie Rand Robinette, was present at court, but refused to testify. The trial judge made findings of fact and conclusions as follows:\n1. Jackie Rand Robinette was charged in a bill of indictment by the Grand Jury of Caldwell County in case 78CRS1691 with the first degree murder of Edward Lee Greene, the bill being returned at the February 1978 session.\n2. At the same session in case 78CRS1692 Robinette was charged in a true bill with the first degree murder of Alfred Conrad Greene, Jr.\n5. On August 16,1978, in the Superior Court for Caldwell County Honorable Thomas H. Lee, Judge Presiding, the defendant freely, intelligently and voluntarily entered, in each case, pleas of guilty to the felony of voluntary manslaughter. The pleas were tendered and accepted upon the following conditions: (1) The defendant agrees to prove truthful testimony on behalf of the State in the prosecution of 2 homicide cases against Michael Dean Keller wherein Alfred Conrad Greene, Jr., and Edward Lee Green were victims;...\n7. The defendant did appear as a witness for the State and testified at a prior trial in the case of State vs. Michael Dean Keller.\n8. Keller was then represented by the same counsel as now represent him, and the defendant confronted and cross examined the witness.\n9. On 11 December 1979, Robinette, being called to testify in the present trial, informed the Court that he refused to testify. On this date, under oath, Robinette again informed the Court that he refused to testify and acknowledged that this was in violation of the terms of his plea agreement with the State; that he discussed the matter with his attorney; that he understood the possible consequences of his refusal; and that he intelligently and voluntarily declined to testify in violation of the plea agreement.\n10. Robinette is now unavailable to the State as a witness. His testimony is material and crucial to the State\u2019s case.\n11. The State relied upon the testimony of Robinette and was not aware that he would refuse to testify until 11 December 1979.\nBased upon the foregoing, the Court concluded as a matter of law that the transcript of Robinette\u2019s testimony at the prior trial of this case could be introduced into evidence.\nDefendant challenges the introduction of the transcripts of both witnesses\u2019 testimony. Defendant contends his right to confront any witness against him has been denied. Further, defendant contends the denial of the jury\u2019s right to look at the witnesses and examine their credibility as live witnesses denied him a fair trial.\nPreviously recorded testimony is authorized if:\n(1) the witness is unavailable;\n(2) the recorded testimony stems from a former trial of the same cause;\n(3) the current defendant was present at that time and represented by counsel.\nDefendant herein concedes the requirements of items (2) and (3) are met, but argues that the witnesses were not unavailable.\nJustice Denny has stated the rule in State v. Cope, 240 N. C. 244, 248-9, 81 S.E. 2d 773 (1954):\nOrdinarily, testimony given by a witness in a . . . former trial, will not be admitted as substantive evidence in a trial unless it is impossible to produce the witness. The witness himself, if available, must be produced and testify de novo. (Citations omitted.)\nDefendant points to three U.S. Supreme Court cases as arguments that the two witnesses were available. However, each of those cases is distinguishable on its facts from the case under consideration. In all of those cases the whereabouts of the witness was known, and the presence of the witness could have been obtained through the use of a subpoena or other process.\nThere was no evidence before the trial judge in this case as to the whereabouts of Morrison. He had simply disappeared. It appears from the record that the district attorney had used due diligence and every reasonable effort to have the witness present. Witness Robinette, though present, apparently was invoking his constitutionally guaranteed right to be free from self-incrimination. The important inquiry is whether Robinette\u2019s testimony was available, not whether he was. See United States v. Milano, 443 F. 2d 1022 (10th Cir.), cert. denied 404 U. S. 943, 30 L. Ed. 2d 258, 92 S. Ct. 294 (1971); United States v. Wilcox, 450 F. 2d 1131 (5th Cir. 1971), cert. denied 405 U. S. 917, 30 L. Ed. 2d 787, 92 S. Ct. 941 (1972); United States v. Mobley, 421 F. 2d 345 (5th Cir. 1970); Mason v. United States, 408 F. 2d 903 (10th Cir. 1969), cert. denied, 400 U. S. 993, 27 L. Ed. 2d 441, 91 S. Ct. 462 (1971).\nMotions in regard to the use of transcripts of prior proceedings are addressed to the discretion of the trial judge. His ruling thereon will not be upset on appeal absent a showing of such abuse of discretion as would deprive a defendant of a fair trial. State v. Holloway and State v. Jones, 16 N.C. App. 266, 270, 192 S.E. 2d 75 (1972). We find no such abuse and no error. Defendant\u2019s assignment of error is overruled.\nDefendant next asserts the trial judge erred in denying his motion for nonsuit at the close of the State\u2019s evidence and at the close of all the evidence. Defendant contends the only evidence before the court sufficient to withstand a motion for nonsuit was the testimony of the witness Jackie Robinette.\nRobinette previously had been tried and convicted in Statesville of solicitation to commit murder. There were material differences in the testimony offered by Robinette in the Statesville trial and the case now before the Court. No corroboration was offered to the testimony of Robinette, although a witness was available who would have corroborated Robinette.\nThe defendant acknowledges that the uncorroborated testimony of an accomplice standing alone is sufficient evidence to submit to the jury and to support conviction of a criminal offense. State v. Horton, 275 N. C. 651, 657, 170 S. E. 2d 466 (1969), cert. denied 398 U. S. 959 (1970), reh. denied 400 U. S. 857 (1970). Defendant contends, however, that such testimony ought not to be sufficient when it is contrary to that offered by other witnesses more reliable than the accomplice and when the accomplice has committed perjury in a previous trial concerning the same transaction as his testimony in this case. Defendant concedes he finds no North Carolina cases in support of his contention. Neither do we.\nIt has long been the rule in this State that the credibility of witnesses and the weight to be given to their testimony is exclusively a matter for the jury. State v. Wilson, 293 N. C. 47, 235 S. E. 2d 219 (1977). Further, upon a motion for nonsuit, the evidence for the State must be considered in the light most favorable to it; discrepancies and contradictions therein are disregarded. State v. Witherspoon, 293 N. C. 321, 326, 237 S. E. 2d 822 (1977). Defendant\u2019s assignment of error is overruled.\nDefendant further contends the trial j udge erred in his charge to the jury regarding the weight to be given to testimony offered by witnesses Warren and Morrison, both of whom had testified pursuant to an agreement that they would not be prosecuted for certain charges against them. The trial judge instructed the jury that if either or both of the witnesses testified in whole or in part because of such concessions, the jury should examine the testimony of that witness with great care and caution. The jury was instructed that if they should believe the testimony in whole or in part, they should treat what they believed the same as any other reliable evidence.\nDefendant contends the judge should have charged the jury that the two witnesses were interested in the verdict as provided by G. S. 15A-1052(c). The statute provides that,\nIn a j ury trial the j udge must inform the j ury of the grant of immunity and the order to testify prior to the testimony of the witness under the grant of immunity. During the charge to the jury, the judge must instruct the jury as in the case of interested witnesses. (Emphasis added.)\nWe do not find in the charge any prejudice toward the defendant. The charge is similar to that used by the trial court in State v. Hardy, 293 N. C. 105, 120, 235 S. E. 2d 828 (1977), in which the Supreme Court found no error:\nThere is evidence in these cases which tends to show that the witness, Green, is testifying under an agreement with the prosecutor for a charge reduction in exchange for his testimony; and under agreement with the prosecutor for recommendation for sentence concession in exchange for his testimony____If you find this witness Green, testified in whole or part from these reasons you should examine this testimony with great care and caution in deciding whether or not to believe it. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence in the case.\nIn the present case the charge was in substantial accord with that approved in Hardy, supra. Defendant\u2019s assignment is overruled.\nFinally, defendant contends the trial j udge erred in his charge to the jury concerning the weight to be given Robinette\u2019s testimony.\nThe trial judge charged:\nAnd there is evidence which tends to show that the witness Robinette was an accomplice in the commission of the crime charged in this case.\nAn accomplice is a person who joins with another in the commission of a crime. An accomplice is considered by the law to have an interest in the outcome of the case. You should examine every part of the testimony of this witness with the greatest care and caution. If, after doing so, you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.\nDefendant contends the court erred by failing to charge that when considering an accomplice\u2019s testimony, the jury should remember that an accomplice, by his own admission, is guilty, as an accomplice, of the crime charged against the defendant. State v. Bailey, 254 N. C. 380, 388, 119 S. E. 2d 165 (1961).\nWe note that charges subsequent to Bailey, supra, have been approved by our Supreme Court in which no recital is made that the accomplice is guilty, as an accomplice, of the crime charged against the defendant. See State v. Hairston and State v. Howard and State v. McIntyre, 280 N. C. 220, 234, 185 S. E. 2d 633 (1971), cert. denied 409 U. S. 888 (1972); State v. Harris, 290 N. C. 681, 228 S. E. 2d 437 (1976). Defendant\u2019s assignment of error is overruled.\nFor the reasons stated above, we find in defendant\u2019s trial\nNo error.\nChief Judge Morris and Judge Arnold concur.", "type": "majority", "author": "HILL, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.", "McElwee, Hall, McElwee & Cannon, by John E. Hall, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MICHAEL DEAN KELLER\nNo. 8025SC561\n(Filed 20 January 1981)\n1. Criminal Law \u00a7 40\u2014 admissibility of testimony given at former trial \u2014 unavailability of witnesses\nThe trial court properly found that a witness was unavailable so as to permit the introduction of a transcript of testimony given by the witness at a prior trial of defendant where the evidence tended to show that the SBI made an investigation to determine the whereabouts of the witness but was unable to locate him. a subpoena was issued for the witness in the county of trial but not in the county of the witness\u2019s place of residence, and the witness had not been in his county of residence for more than a year. Furthermore, the trial court properly found that the testimony of a second witness was unavailable so as to permit the introduction of a transcript of his testimony given at the prior trial of defendant where the witness was present in the courtroom but asserted his right against self-incrimination and refused to testify in violation of a plea bargain agreement.\n2. Criminal Law \u00a7 106.5\u2014 testimony of accomplice \u2014 sufficiency for conviction\nThere is no merit in defendant\u2019s contention that the uncorroborated testimony of an accomplice should not be sufficient to support a conviction when it is contrary to that offered by other witnesses more reliable than the accomplice and when the accomplice has committed perjury in a previous trial concerning the same transaction, and the testimony of an accomplice in this case was sufficient to support defendant\u2019s conviction of second degree murder.\n3.Criminal Law\u00a7117.3\u2014 te stimony in return for agreement not to prosecute \u2014 instructions\nThe trial court did not err in failing to instruct the j ury that two witnesses who testified pursuant to an agreement that they would not be prosecuted for certain charges against them were interested in the verdict, the trial court\u2019s instruction on the credibility of the witnesses being sufficient where the court instructed that if either or both of the witnesses testified in whole or in part because of such concessions, the jury should examine the testimony of that witness with great care and caution, and that if the jurors should believe the testimony in whole or in part, they should treat what they believed the same as any other reliable evidence.\n4.Criminal Law \u00a7 117.4\u2014 accomplice testimony \u2014instructions\nThe trial court did not err in failing to instruct the jury that an accomplice is guilty, as an accomplice, of the crime charged against defendant.\nAppeal by defendant from Snepp, Judge. Judgment entered 14 December 1979 in Superior Court, CALDWELL County. Heard in the Court of Appeals 17 October 1980.\nThe defendant was previously convicted of first degree murder. That verdict was overturned and a new trial ordered. During the second trial, over objection by the defendant, the State was permitted by the trial judge to introduce testimony of two witnesses taken at the previous trial. Defendant was convicted of second degree murder and sentenced to not less than 50 years nor more than 60 years\u2019 imprisonment. Defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General George W. Boylan, for the State.\nMcElwee, Hall, McElwee & Cannon, by John E. Hall, for defendant appellant." }, "file_name": "0364-01", "first_page_order": 390, "last_page_order": 398 }