{ "id": 8524412, "name": "STATE OF NORTH CAROLINA v. FREDDY MURPHY", "name_abbreviation": "State v. Murphy", "decision_date": "1982-04-20", "docket_number": "No. 8117SC1067", "first_page": "771", "last_page": "776", "citations": [ { "type": "official", "cite": "56 N.C. App. 771" } ], "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": "208 S.E. 2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569859 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0735-01" ] }, { "cite": "297 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569792, 8569765, 8569866, 8569838, 8569820 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0302-02", "/nc/297/0302-01", "/nc/297/0302-05", "/nc/297/0302-04", "/nc/297/0302-03" ] }, { "cite": "251 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "39 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553523 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0548-01" ] }, { "cite": "220 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0699-01" ] }, { "cite": "222 S.E. 2d 217", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569815 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0431-01" ] }, { "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": "213 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "25 N.C. App. 459", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554562 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/25/0459-01" ] }, { "cite": "254 S.E. 2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568828 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0285-01" ] }, { "cite": "220 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "290" }, { "page": "290" } ], "opinion_index": 1 }, { "cite": "288 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570646 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "710" }, { "page": "710" } ], "opinion_index": 1, "case_paths": [ "/nc/288/0699-01" ] } ], "analysis": { "cardinality": 565, "char_count": 11583, "ocr_confidence": 0.787, "pagerank": { "raw": 2.2316142117197433e-07, "percentile": 0.7790548792613006 }, "sha256": "52006244353d535e0770b45c79550182c490eb8aaf2f7f4e929ebe6aceb011ef", "simhash": "1:b570f4a3fed35c72", "word_count": 1959 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Martin (Robert M.) concurs.", "Judge WHICHARD dissents." ], "parties": [ "STATE OF NORTH CAROLINA v. FREDDY MURPHY" ], "opinions": [ { "text": "MARTIN (Harry C.), Judge.\nDefendant contends there was insufficient evidence that the crime was committed with a deadly weapon. Mrs. Sherrill testified that she saw a weapon in defendant\u2019s right hand. Defendant was seen walking toward the Sherrill home carrying a rifle. Mr. Sherrill testified, without objection, \u201cthat is when he [the defendant] pointed a gun in my stomach and told m@ to back up a$gl I did. He told me to cut the light off and I did because the gun was on me at the time. He told me to sit down and I did because the gun was still on me.\u201d (Emphasis ours.) Defendant\u2019s contention is without merit. See State v. Thompson, 297 N.C. 285, 254 S.E. 2d 526 (1979); State v. Evans, 25 N.C. App. 459, 213 S.E. 2d 389 (1975).\nDefendant further contends there was insufficient evidence that he was the person who committed the crime. We disagree. Mrs. Sherrill testified that she had seen or spoken with the defendant \u201cevery day or two\u201d from August to December and that defendant had worked for the Sherrills as a day laborer and had helped them with their tobacco. The witness observed her assailant sufficiently to permit subsequent identification based on \u201cthe sound of his voice and the size and shape of him.\u201d Her credibility and the weight given to her identification testimony was properly for the jury. Defendant fails to show that the evidence of identification was inherently incredible. State v. Wilson, 293 N.C. 47, 235 S.E. 2d 219 (1977).\nDuring his final argument to the jury, defendant\u2019s counsel stated: \u201cI argue and contend, ladies and gentlemen of the jury, that the State has not introduced any statement or confession of the crime there to bring before you for you to consider and say this is some other evidence. I have here where the defendant admitted to doing this. . . .You don\u2019t have that evidence before you to consider.\u201d\nThe district attorney, in his closing argument, responded: \u201cOkay, and you don\u2019t have the statement to consider, ladies and gentlemen of the jury, because the defendant objected to it.\u201d It is defendant\u2019s contention that the trial court erred in allowing the district attorney to argue improper matters relating to suppressed evidence and defendant\u2019s failure to testify. Defendant did not object to the state\u2019s argument, and as a general rule, such failure constitutes waiver. State v. Coffey, 289 N.C. 431, 222 S.E. 2d 217 (1976). Moreover, defendant\u2019s counsel himself argued the matter of the suppressed evidence and, by implication, defendant\u2019s failure to testify; and it appears from the record that the trial court had apprised the jury of the matter of suppressed evidence prior to closing arguments. We find no evidence of gross impropriety upon the record before us that would require the trial court to intervene ex mero motu. State v. Britt, 288 N.C. 699, 220 S.E. 2d 283 (1975); State v. Brown, 39 N.C. App. 548, 251 S.E. 2d 706, cert. denied, 297 N.C. 302 (1979). The record does not support a finding of prejudicial error.\nDefendant next contends that the trial court erred in commenting on defendant\u2019s failure to testify. The court\u2019s instructions were proper and in compliance with State v. Baxter, 285 N.C. 735, 208 S.E. 2d 696 (1974). Moreover, there is nothing in the record before us to suggest that the trial court erred in stating the applicable law or in its summary of the facts.\nNo error.\nJudge Martin (Robert M.) concurs.\nJudge WHICHARD dissents.", "type": "majority", "author": "MARTIN (Harry C.), Judge." }, { "text": "Judge WHICHARD\ndissenting.\nI respectfully dissent from the majority\u2019s failure to find prejudicial error in the district attorney\u2019s closing argument. The pertinent facts are these:\nDeputy Sheriff L. H. Hamlett testified on recall for the State that he talked with defendant the day following the robbery. Defense counsel then objected \u201cto [defendant\u2019s] statement at this time,\u201d and the court excused the jury. On voir dire Hamlett testified to what defendant had told him. Defendant\u2019s statement was in the nature of an alibi and entirely exculpatory. It in no way implicated or tended to implicate him in the robbery with which he was charged.\nWhen the jury returned, the court stated:\nMembers of the jury, during the course of the trial, the Court has sustained the objection to anyone saying what Freddy Murphy has said on this occasion, this is an objection to what the defendant is alleged to have said to the officer and the Court sustained what Freddy said on the 20th day of December, 1980.\nThereafter defense counsel stated in his closing argument to the jury:\nLadies and gentlemen of the jury, the best evidence that the State of North Carolina can put before you as to the crime and its commission of it and what went on in the house is what you remember as to what Mr. and Mrs. Sherrill testified to as they were there.\nI argue and contend, ladies and gentlemen of the jury, that the State has not introduced any statement or confession of the crime there to bring before you for you to consider and say this is some other evidence. I have here where the defendant admitted to doing this. This is not a hard job at all if he says that he did, but you don\u2019t have that, ladies and gentlemen. You don\u2019t have that evidence before you to consider.\nThe district attorney then stated in his closing argument:\nThe defendant said there was no statement, talking about the evidence presented by the State, there was no statement made by the defendant for you to consider. No statement by the defendant for you to consider, that is what the defendant argued to you. Well, ladies and gentlemen of the jury, you remember Mr. Hamlett going to the stand last evening about fifteen of five and I asked him about talking with the defendant, Mr. Murphy, and did he talk with him. Yes, Saturday morning or Saturday afternoon, December the 20th, a statement by the defendant.\nOkay, and you don\u2019t have the statement to consider, ladies and gentlemen of the jury, because the defendant objected to it. And then the defendant wanted to argue that we have not done our job, wanted to tell you that we have not done our job and brought in a statement for you to consider by the defendant. Well, there it was if he wanted you to consider it, ladies and gentlemen of the jury. If he wanted you to consider it, all he had to do was just be quiet.\nThe statement by defense counsel was entirely proper. There was in fact no confession in evidence. It is inaccurate to say, as does the majority opinion, that \u201cdefendant\u2019s counsel himself argued the matter of the suppressed evidence.\u201d Defense counsel\u2019s argument related to a confession, and the suppressed evidence was not a confession.\nThe statement by the district attorney, however, conveyed the inevitable impression that defendant had in fact confessed and his confession had been excluded due to some legal technicality. \u201cThe district attorney owes honesty and fervor to the State and fairness to the defendant in the performance of his duties as a prosecutor.\u201d State v. Britt, 288 N.C. 699, 710, 220 S.E. 2d 283, 290 (1975). (Emphasis supplied.) The .argument suggesting that defendant had confessed when his excluded statement was in fact exculpatory rather than inculpatory was manifestly unfair to defendant. In light of the highly inconclusive nature of the identification evidence, the possibility that the jury convicted defendant by drawing the reasonable inference from this argument that defendant had confessed, when in fact his statement was exculpatory, is by no means remote. The likelihood of prejudice is thus considerable.\nI recognize that absent objection the court may have been inadvertent to the district attorney\u2019s statement. The court has a duty, however, to see that a defendant\u2019s right to a fair trial is sustained. Britt, 288 N.C. at 710, 220 S.E. 2d at 290. If the impropriety here was not sufficiently \u201cgross\u201d to evoke ex mero mo tu corrective action, such impropriety is non-extant. The statement, especially in the context of inconclusive identification evidence, rendered defendant\u2019s trial manifestly unfair. I therefore vote for a trial de novo.", "type": "dissent", "author": "Judge WHICHARD" } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Fred R. Gamin, for the State.", "Ronald M. Price for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. FREDDY MURPHY\nNo. 8117SC1067\n(Filed 20 April 1982)\n1. Robbery \u00a7 4.3\u2014 use of deadly weapon \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient to show that defendant committed a robbery with a deadly weapon where one victim testified that she saw a weapon in defendant\u2019s right hand; the second victim on several occasions referred to the use of \u201ca gun\u201d by defendant; and there was evidence that defendant was seen walking toward the victim\u2019s home carrying a rifle.\n2. Criminal Law \u00a7 66.1\u2014 identity of defendant by sight \u2014 acquaintance with defendant \u2014 opportunity for observation\nA robbery victim was sufficiently acquainted with defendant and sufficiently observed her assailant to permit her to identify defendant as her assailant based on \u201cthe sound of his voice and the size and shape of him.\u201d\n3. Criminal Law \u00a7 102.6\u2014 prosecutor\u2019s jury argument \u2014 comment on defendant\u2019s objection to confession\nIn an armed robbery case in which defense counsel argued to the jury that \u201cthe State has not introduced any statement or confession of the crime . . .,\u201d the district attorney\u2019s jury argument that \u201cyou don\u2019t have the statement to consider, ladies and gentlemen of the jury, because the defendant objected to it\u201d did not constitute a gross impropriety which would require the trial court to intervene ex mero mo tu.\nJudge Whichard dissenting.\nAppeal by defendant from Washington, Judge. Judgments entered 7 May 1981 in Superior Court, CASWELL County. Heard in the Court of Appeals 9 March 1982.\nDefendant appeals his conviction on two counts of armed robbery. At trial the evidence tended to show that on 19 December 1980, between 7:00 and 7:30 p.m., James Sherrill and his wife were at home watching television when they heard a knock at their door. Mr. Sherrill went to the door, and because he did not see anyone immediately, he stepped about a foot outside. At that time, an individual put a gun to his stomach and told him to back into the house and turn off the light. The robber demanded guns and money and left with a small amount of money ($1.45) from Mrs. Sherrill\u2019s purse, and Mr. Sherrill\u2019s wallet containing only his food stamps.\nNeither of the victims saw the robber\u2019s face because it was covered with something plastic. Mrs. Sherrill testified that he was wearing \u201ca waist Army jacket that comes down about halfway of your legs\u201d and that a \u201clong thing covered up with a white slip . . . was pointed straight at my husband\u2019s stomach.\u201d The robber had another weapon in his right hand that \u201cwas a sawed-off looking like gun but it was short.\u201d After the robber left, Mrs. Sherrill told her husband that she believed the robber was the defendant, Freddy Murphy.\nJames Price and Philmore Gillespie testified that on the evening of 19 December 1980, they had seen the defendant in the vicinity of the Sherrill home carrying what seemed like a rifle under his arm. Defendant was wearing an Army jacket.\nJames Price\u2019s son testified that on the evening in question he was outside shooting basketball and spoke with defendant, who was at that time carrying a .22 rifle.\nDefendant\u2019s witnesses also placed defendant in the vicinity of the Sherrill home on the evening of 19 December. William Murphy, defendant\u2019s brother, testified that sometime after 7:30 p.m. he arrived at his mother\u2019s house, located close to the Sherrill home, where he saw defendant. The two left for Danville.\nAttorney General Edmisten, by Assistant Attorney General Fred R. Gamin, for the State.\nRonald M. Price for defendant appellant." }, "file_name": "0771-01", "first_page_order": 803, "last_page_order": 808 }