{
  "id": 8524524,
  "name": "STATE OF NORTH CAROLINA v. THOMAS TURNER, JR.",
  "name_abbreviation": "State v. Turner",
  "decision_date": "1981-11-17",
  "docket_number": "No. 8126SC421",
  "first_page": "631",
  "last_page": "635",
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      "category": "reporters:state_regional",
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      "year": 1981,
      "opinion_index": 0
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      "category": "reporters:state",
      "reporter": "N.C. App.",
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      "year": 1981,
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      "cite": "183 S.E. 2d 638",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
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    {
      "cite": "279 N.C. 464",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "year": 1971,
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  "last_updated": "2023-07-14T17:12:28.716896+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Judge Wells concurs.",
      "Judge WEBB dissents."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS TURNER, JR."
    ],
    "opinions": [
      {
        "text": "MARTIN (Robert M.), Judge.\nWe dismiss the appeal by the State for lack of jurisdiction by this Court. The general rule is that the prosecution cannot appeal from a judgment in favor of a defendant in a criminal case in the absence of a statute clearly conferring that right. State v. Harrell, 279 N.C. 464, 183 S.E. 2d 638 (1971); State v. Dobson, 51 N.C. App. 445, 276 S.E. 2d 480 (1981). Statutes which authorize an appeal by the State must be strictly construed. State v. Harrell, supra.\nN.C. G.S. \u00a7 15A-1445 grants to the State the right to appeal an order allowing a motion to suppress evidence as provided in N.C. G.S. \u00a7 15A-979. Subsection (c) of N.C. G.S. \u00a7 15A-979 states as follows:\nAn order by the superior court granting a motion to suppress prior to trial is appealable to the appellate division of the General Court of Justice prior to trial upon certificate by the prosecutor to the judge who granted the motion that the appeal is not taken for the purpose of delay and that the evidence is essential to the case.\nWe believe that the above statutory provision must be read in conjunction with N.C. G.S. \u00a7 15A-1448(a)(l) providing that \u201c[a] case remains open for the taking of an appeal to the appellate division for a period of ten days after the entry of judgment.\u201d Construed as a whole, these statutes mandate that the State pursue its right to appeal by submitting to the trial judge the certificate required by N.C. G.S. \u00a7 15A-979(c) within the time period the case remains viable for appeal under N.C. G.S. \u00a7 15A-1448(a)(l) or the order will not be held appealable. The legislature has accorded to the State a specific procedure for appeal of this particular type of order granting a motion to suppress prior to trial. The burden is on the State to demonstrate that it has fully complied with all statutory requirements. State v. Dobson, 51 N.C. App. 445, 276 S.E. 2d 480 (1981).\nIn the case at hand the appeal entry states that the prosecution gave oral notice of appeal in open court on 9 December 1980. The record on appeal includes a document entitled \u201ccertification by prosecutor.\u201d Although we find nothing in error regarding the substance of this document, we note that the certificate, which is signed by the Attorney General on behalf of the District Attorney, is dated 16 February 1981 and bears no indication that it was either filed in the clerk\u2019s office of Mecklenburg County or actually submitted to the trial judge in apt time. Because of the State\u2019s failure to properly perfect its appeal, we find that this appeal is not authorized by statute and our court has no jurisdiction. The appeal must be dismissed.\nWe also find that this Court lacks jurisdiction to hear the appeal of defendant from that portion of the order denying his motion to suppress. Appellate review of an order which denies a motion to suppress may be had only after a judgment of conviction, including a judgment entered upon a plea of guilty. N.C. G.S. \u00a7 15A-979(b); State v. Grogan, 40 N.C. App. 371, 253 S.E. 2d 20 (1979). Defendant\u2019s appeal is premature and must also be dismissed.\nThe appeal by the State is\nDismissed.\nThe appeal by the defendant is\nDismissed.\nJudge Wells concurs.\nJudge WEBB dissents.",
        "type": "majority",
        "author": "MARTIN (Robert M.), Judge."
      },
      {
        "text": "Judge WEBB\ndissenting.\nI dissent from the majority. The majority states that G.S. 15A-1445, G.S. 15A-1448(a)(l), and G.S. 15A-979 must be read together, which requires the prosecutor within ten days of an order suppressing testimony to file a certificate to the judge who granted the motion stating the appeal is not taken for the purpose of delay and the evidence is essential to the case. I do not so read these statutes together or singly. G.S. 15A-1448(a)(l) provides an appeal must be taken within ten days. This was done. G.S. 15A-979 requires the prosecutor\u2019s certificate must be filed. This was done. I would hold this Court should entertain the appeal.\nI also believe the order of the superior court should be reversed because the findings of fact are not supported by the evidence. Among the facts found by the court was the following:\n\u201cThat although she struggled with the individual in her bedroom, she was unable to recognize the face of the individual to the point of making an identification of the face.\u201d\nThe only testimony on this finding of fact was as follows:\n\u201cQ. Did you recognize him at that time?\nA. Not when he grabbed me but when he first came in the room and I saw him.\nQ. You recognized him when?\nA. When he first came in the room.\u201d\nI believe the evidence is to the effect that the witness had recognized the defendant before she struggled with him and not that she could not recognize him when they were struggling as found by the court.\nThe court also found as a fact that the witness\u2019s identification was based upon a name given to her by her brother. As I read her testimony, the witness testified she recognized the defendant as being a man she had seen in the neighborhood and when she told her brother who the intruder was, her brother told the witness the name of the defendant. This is the only evidence as to this finding of fact and it does not support the fact found in superior court.\nThe suppression of the witness\u2019s identification testimony was based on these two findings of fact which I do not believe were supported by the evidence. I would reverse and remand for another hearing on the State\u2019s appeal. I vote with the majority on the defendant\u2019s appeal.",
        "type": "dissent",
        "author": "Judge WEBB"
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Joan H. Byers, for the State-appellant.",
      "Ellis M. Bragg for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS TURNER, JR.\nNo. 8126SC421\n(Filed 17 November 1981)\n1. Criminal Law \u00a7 149\u2014 order suppressing evidence \u2014appeal by State \u2014time for filing prosecutor\u2019s certificate\nIn order for the State to appeal a pretrial order allowing a motion to suppress evidence, the prosecutor\u2019s certificate required by G.S. 15A-979(c) stating that the appeal is not taken for the purpose of delay and that the evidence is essential to the case must be submitted to the trial judge within the ten-day period the case remains viable for appeal under G.S. 15A-1448(a)(l).\n2. Criminal Law \u00a7 148\u2014 appeal of order denying motion to suppress\nAppellate review of an order which denies a motion to suppress may be had only after a judgment of conviction, including a judgment entered upon a plea of guilty. G.S. 15A-979(b).\nJudge Webb dissenting.\nAppeal by the State and cross-appeal by defendant from Johnson, Judge. Order dated 29 December 1980 entered in Superior Court, MECKLENBURG County. Heard in the Court of Appeals 14 October 1981.\nDefendant was indicted for the breaking and entering of a dwelling house with the intent to commit a felony and felonious larceny after breaking and entering. Prior to trial, defendant moved to suppress the identification testimony of Aleasia Mungo and Eddy Mungo on the grounds that he was illegally arrested and subjected to \u00e1n unconstitutional identification procedure. After a hearing on the motion, the trial judge entered an order granting defendant\u2019s motion to suppress the identification testimony of Aleasia Mungo and denying the motion to suppress the identification testimony of Eddy Mungo.\nThe State has appealed from that part of the order granting defendant\u2019s motion to suppress. The defendant has cross-appealed from that part of the order denying his motion to suppress.\nAttorney General Edmisten, by Assistant Attorney General Joan H. Byers, for the State-appellant.\nEllis M. Bragg for defendant-appellant."
  },
  "file_name": "0631-01",
  "first_page_order": 659,
  "last_page_order": 663
}