{ "id": 8523273, "name": "STATE OF NORTH CAROLINA v. JERRY ALONZO YOUNG", "name_abbreviation": "State v. Young", "decision_date": "1982-07-06", "docket_number": "No. 8118SC1296", "first_page": "83", "last_page": "89", "citations": [ { "type": "official", "cite": "58 N.C. App. 83" } ], "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": "285 S.E. 2d 617", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "620" } ], "opinion_index": 0 }, { "cite": "55 N.C. App. 349", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527258 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/55/0349-01" ] }, { "cite": "232 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "32 N.C. App. 414", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550981 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/32/0414-01" ] }, { "cite": "96 S.Ct. 3208", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "49 L.Ed. 2d 1209", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 903", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183298, 6181252, 6182756, 6183146, 6182571, 6181805, 6182223, 6181423, 6181585, 6182964, 6182388, 6181945, 6182076 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0903-13", "/us/428/0903-01", "/us/428/0903-10", "/us/428/0903-12", "/us/428/0903-09", "/us/428/0903-04", "/us/428/0903-07", "/us/428/0903-02", "/us/428/0903-03", "/us/428/0903-11", "/us/428/0903-08", "/us/428/0903-05", "/us/428/0903-06" ] }, { "cite": "215 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "548-49" } ], "opinion_index": 0 }, { "cite": "287 N.C. 645", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564430 ], "year": 1975, "pin_cites": [ { "page": "658" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0645-01" ] }, { "cite": "96 S.Ct. 3210", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "49 L.Ed. 2d 1210", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 904", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184738, 6185094, 6184392, 6185357, 6183598, 6183984, 6185553, 6184594, 6184179, 6183446, 6184922, 6183803 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0904-08", "/us/428/0904-10", "/us/428/0904-06", "/us/428/0904-11", "/us/428/0904-02", "/us/428/0904-04", "/us/428/0904-12", "/us/428/0904-07", "/us/428/0904-05", "/us/428/0904-01", "/us/428/0904-09", "/us/428/0904-03" ] }, { "cite": "219 S.E. 2d 48", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "52-53" } ], "opinion_index": 0 }, { "cite": "288 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569591 ], "year": 1975, "pin_cites": [ { "page": "442" } ], "opinion_index": 0, "case_paths": [ "/nc/288/0437-01" ] }, { "cite": "50 L.Ed. 2d 69", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "97 S.Ct. 46", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "429 U.S. 809", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6085, 7371, 6739, 5782, 5823 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/429/0809-04", "/us/429/0809-01", "/us/429/0809-03", "/us/429/0809-05", "/us/429/0809-02" ] }, { "cite": "221 S.E. 2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567445 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0159-01" ] }, { "cite": "272 S.E. 2d 116", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "121" } ], "opinion_index": 0 }, { "cite": "301 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568027 ], "year": 1980, "pin_cites": [ { "page": "496-97" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0489-01" ] }, { "cite": "277 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "434" } ], "opinion_index": 0 }, { "cite": "303 N.C. 169", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571760 ], "year": 1981, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0169-01" ] } ], "analysis": { "cardinality": 655, "char_count": 15568, "ocr_confidence": 0.805, "pagerank": { "raw": 6.439968260821995e-08, "percentile": 0.39766855133252943 }, "sha256": "f0e6f983dd247693e65fbd4169a1dd78210ea4a45ece41ac8e06a2d5fc29cd7f", "simhash": "1:96f276ea97bcf4aa", "word_count": 2525 }, "last_updated": "2023-07-14T18:20:52.636886+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Wells concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY ALONZO YOUNG" ], "opinions": [ { "text": "HEDRICK, Judge.\nThe first assignment of error argued in defendant\u2019s brief is \u201cthe trial court\u2019s denial of defendant\u2019s Motion to Suppress the out-of-court photographic identification of the defendant\u201d by the prosecuting witness. Defendant contends that the out-of-court identification was the product of an impermissibly suggestive photographic identification procedure. Since no evidence was presented at trial that defendant was identified at this pre-trial photographic identification session, then even if the procedure was impermissibly suggestive, its only relevance for defendant\u2019s appeal would be whether it tainted the prosecuting witness\u2019 in-court identification of defendant. Such a taint is alleged in defendant\u2019s next assignment of error, wherein defendant argues that \u201cthe trial court committed prejudicial error in denying the motion to suppress the in-court identification of defendant\u201d by the prosecuting witness.\nEven if the prosecuting witness participated in an illegal pretrial identification procedure, that witness\u2019 in-court identification of the defendant \u201cis nevertheless admissible if the trial judge determines from the evidence presented that the in-court identification is of independent origin, based on the witness\u2019 observations at the time and scene of the crime, and thus not tainted by the pretrial identification procedure.\u201d State v. Thompson, 303 N.C. 169, 172, 277 S.E. 2d 431, 434 (1981).\n[W]hen the admissibility of in-court identification testimony is challenged on the ground it is tainted by an out-of-court identification made under constitutionally impermissible circumstances, the trial judge must make findings as to the background facts to determine whether the proffered testimony meets the tests of admissibility; and when the facts so found are supported by competent evidence, they are conclusive on the appellate courts.\nState v. Allen, 301 N.C. 489, 496-97, 272 S.E. 2d 116, 121 (1980).\nThe trial court in the present case, at the conclusion of a voir dire hearing, made unchallenged findings of fact which were amply supported by evidence. These conclusive findings were that immediately prior to the perpetration of the second degree rape of and crime against nature against the prosecuting witness, she had an opportunity to observe the perpetrator for several minutes under ample lighting, and that she identified defendant at voir dire as that perpetrator. The court then concluded that her in-court identification of defendant was independent of and in no way tainted by a previous out-of-court identification procedure. These conclusive findings of fact support the court\u2019s conclusions of law, which in turn support the court\u2019s denial of the motion to suppress the in-court identification. Furthermore, there is nothing in the record to indicate that the trial judge, as finder of fact at voir dire, applied anything less than a \u201cclear and convincing evidence\u201d test in determining whether the in-court identification was of independent origin, and his factual determination that such evidence was of clear and convincing weight is not subject to review on appeal. This assignment of error is overruled.\nDefendant next assigns error to the admission of the \u201ctestimony of Gary Wade Brower as to his opinion that he could tell there had just been an accident and that paint chips he found [on the bumper of the prosecutrix\u2019s car] were fresh.\u201d Defendant contends that this testimony was inadmissible opinion evidence.\nWith respect to Brower\u2019s testimony that the paint chips were \u201cfresh,\u201d the following law regarding \u201cshorthand statements of the fact\u201d is controlling: such a shorthand statement, though it represents an inference drawn from constituent basic facts, is admissible in certain situations in which it would be impracticable to describe the basic facts in detail, e.g. because of the limitations of customary speech, or the relative unimportance of the subject testified about, or the difficulty in analyzing the thought processes by which the witness reaches his conclusion, or because the inference drawn is such a natural and well understood one that it would be a waste of time for him to elaborate the facts. State v. Bush, 289 N.C. 159, 221 S.E. 2d 333, death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed. 2d 69 (1976). The law does not demand a witness to further analyze his conclusion about the freshness of paint chips on an automobile bumper, and his testimony that they were \u201cfresh\u201d is an admissible shorthand statement of the facts.\nWith respect to Brower\u2019s testimony about the occurrence of an \u201caccident,\u201d the full content of such testimony should first be noted; he testified, \u201cthat there had just been an [automobile] accident . . . because . . . [t]here was [sic] paint chips, fresh paint chips . . . [o]n the dent on the front fender\u201d of the prosecutrix\u2019s automobile. This testimony involves the drawing of an inference by Brower of the occurrence of an accident from the existence of fresh paint chips on a dented automobile fender. Brower, if he were a mere layman, would be no more qualified than the jury to draw such an inference from the circumstances presented; prior to making such an inference, however, Brower testified, \u201cI\u2019m a body man for Hilliard Motor Company \u2014 I fix cars, body repair.\u201d Given his vocation as a body repair man, the trial court could have found that Brower would be better qualified than the jury to draw inferences from the facts of the fresh paint chips on the dent of the automobile\u2019s fender. \u201c[WJhere the witness is better qualified than the jury to draw appropriate inferences from the facts,\u201d the opinion of that witness is admissible as expert testimony. State v. Griffin, 288 N.C. 437, 442, 219 S.E. 2d 48, 52-53 (1975), death sentence vacated, 428 U.S. 904, 49 L.Ed. 2d 1210, 96 S.Ct. 3210 (1976). The determination that a witness possesses the requisite skill to testify as an expert is chiefly a question of fact ordinarily within the exclusive province of the trial judge, and \u201c \u2018will not be reversed on appeal unless there is no evidence to support it.\u2019 \u201d State v. King, 287 N.C. 645, 658, 215 S.E. 2d 540, 548-49 (1975), death sentence vacated, 428 U.S. 903, 49 L.Ed. 2d 1209, 96 S.Ct. 3208 (1976). It will be assumed that the trial judge in the present case made an implicit finding that Brower was an expert on inferences to be drawn from fresh paint chips on fenders, see Lawrence v. Reliance Insurance Co., 32 N.C. App. 414, 232 S.E. 2d 462 (1977), and such a finding is here sufficiently supported by evidence to avoid reversal on appeal. This assignment of error is overruled.\nDefendant also assigns error to the court\u2019s admission of testimony by Detective Grady Bryant that the body side molding on defendant\u2019s automobile resembled body side molding found at the scene of the alleged crimes. Defendant contends that Bryant was in no better position than the jury to draw inferences about any similarity between the side molding on defendant\u2019s car and the side molding found at the scene of the alleged crime, since the jury had pieces of each before it as exhibits and could make its own determination. We disagree. The record indicates that the inference to which Bryant testified was based on observations to which the jury was not privy, to wit, an observation of the body side molding found at the scene of the alleged crime, and an observation of defendant\u2019s entire car, which he testified was missing a piece of body side molding. The jury, on the other hand, had before it only two pieces of molding, and was not able to observe either of their relationships to an automobile, or to the gap in molding on defendant\u2019s automobile. The inference to which Bryant testified was therefore not one which the jury could also draw, since Bryant\u2019s inference was based on data which was different from and more complete than what was before the jury. Furthermore, at the time of Bryant\u2019s testimony, the exhibit of the body side molding from defendant\u2019s car had not even been introduced into evidence, and, hence, the jury was in no position to compare the likenesses of the two moldings to one another, whereas Bryant was. This assignment of error has no merit.\nDefendant next assigns as error the court\u2019s exclusion of an insurance company document containing a statement by defendant to the effect that his car had been stolen on the day of the alleged crimes. Defendant argues that the excluded evidence were records made in the ordinary course of business and were therefore admissible.\nThe admissibility of entries made in the regular course of business derives from circumstances which furnish a guaranty of the trustworthiness of such entries, notwithstanding the fact that the person making the entry is unavailable for cross-examination; the guaranty of trustworthiness derives from the desire of the person making the entry to provide accurate information to the business for which the records are intended. Hence, a business entry that defendant\u2019s car was stolen on the night of the alleged crime would be admissible to show that the car was so stolen; a business entry, however, that defendant said his car was stolen on the night of the alleged crime would contain a guaranty of trustworthiness of only the fact that that was what defendant said; that the person making the entry desires to record truthfully what defendant reports in no way means that what defendant reported was true. The business entry exception to the hearsay rule therefore does not mandate the admission of a business record that defendant said his car was stolen on the night of the alleged crime, when, as here, such record is offered to prove that the car was so stolen. Defendant\u2019s statement that his car was stolen, unlike the insurance company employee\u2019s record of his statement, is not necessarily imbued with an intent to provide reliable information to the insurance company. Rather, defendant\u2019s statement, contained in the proffered records, was an extrajudicial assertion offered to prove the truth of the matter asserted therein, and was therefore properly excluded as hearsay. This assignment of error is overruled.\nBy his next assignment of error, defendant argues that the prosecutor\u2019s closing argument to the jury was improperly inflammatory. When, however, the district attorney\u2019s argument to the jury is challenged as improper, the argument of defense counsel should be placed in the record on appeal to enable appellate courts to determine whether the challenged argument has been provoked; if a portion of the argument of either counsel is omitted from the record on appeal, the arguments must be presumed proper. State v. Quilliams, 55 N.C. App. 349, 285 S.E. 2d 617 (1982). \u201cOrdinarily the exercise of the trial judge\u2019s discretion in controlling jury arguments will not be reviewed unless the impropriety of counsel\u2019s remarks is extreme and clearly calculated to prejudice the defendant in the eyes of the jury.\u201d State v. Quilliams, supra at 352, 285 S.E. 2d at 620. In the present case, the record on appeal contains no portion of defendant\u2019s argument to the jury, and only a brief excerpt of the district attorney\u2019s in which he intimated that the absence of resistance by the prosecu-trix to the act of sexual intercourse was not exculpatory of defendant, since had the prosecutrix resisted the defendant might have murdered her. Given only an isolated portion of the jury argument, we must presume that counsel\u2019s argument was proper since we cannot tell if it was provoked; further, the excerpt which has been presented to us in the record is not so clearly calculated to prejudice the defendant as to exceed the bounds of propriety. This assignment of error has no merit.\nDefendant\u2019s last two assignments of error relate to the court\u2019s instructions to the jury. We have carefully considered the exceptions upon which these assignments of error are based and find that the court\u2019s instructions, when considered contextually as a whole, were not improper.\nWe hold defendant had a fair trial free of prejudicial error.\nNo error.\nJudges Arnold and Wells concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Tiare B. Smiley, for the State.", "Boyan and Nix, by Kathleen E. Nix, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY ALONZO YOUNG\nNo. 8118SC1296\n(Filed 6 July 1982)\n1. Criminal Law \u00a7 66.16\u2014 pre-trial photographic identification \u2014 independent origin of in-court identification\nThe trial court\u2019s conclusion that a rape victim\u2019s in-court identification of defendant was of independent origin and not tainted by a pre-trial photographic identification was supported by findings that the victim had an opportunity to observe her assailant for several minutes under ample lighting and that she identified defendant at voir dire as that assailant.\n2. Criminal Law \u00a7 71\u2014 observation of \u201cfresh\u201d paint chips \u2014 shorthand statement of fact\nA witness\u2019s testimony that paint chips he observed on a car bumper were \u201cfresh\u201d was competent as a shorthand statement of fact.\n3. Criminal Law \u00a7\u00a7 50.1, 51\u2014 paint chips on fender \u2014 qualification of expert \u2014 implied ruling\nThe trial court by implication ruled that a vehicle body repairman was an expert on inferences to be drawn from fresh paint chips on fenders, and the repairman was properly permitted to state his opinion that he could tell that there had just been an accident because there were fresh paint chips on a dented automobile fender.\n4. Criminal Law \u00a7 50.2\u2014 admissibility of nonexpert opinion testimony\nIn a prosecution for rape and crime against nature which allegedly occurred after automobiles driven by defendant and by the victim collided, an officer was properly permitted to testify that the body side molding on defendant\u2019s automobile resembled body side molding found at the crime scene, although the jury had pieces of both before it as exhibits, where the officer also testified that defendant\u2019s car was missing a piece of body side molding, and the officer\u2019s opinion was based on observations of defendant\u2019s entire car to which the jury was not privy.\n5. Criminal Law \u00a7 80\u2014 statement in business record \u2014hearsay\nAn insurance company document containing a statement by defendant that his car had been stolen on the day of the alleged crimes was not admissible under the business entry exception to the hearsay rule when it was offered to prove that the car was so stolen.\n6. Criminal Law \u00a7 102.6\u2014 prosecutor\u2019s jury argument \u2014 absence of defense counsel\u2019s argument in record\nThe district attorney\u2019s jury argument that the absence of resistance by the prosecutrix to an act of sexual intercourse was not exculpatory of defendant since defendant might have murdered her had she resisted will not be held improper where the argument of defense counsel was not placed in the record on appeal so as to enable the appellate court to determine whether the challenged argument was provoked. Furthermore, such argument was not so clearly calculated to prejudice the defendant as to exceed the bounds of propriety.\nAppeal by defendant from Wood, Judge. Judgments entered 2 July 1981 in Superior Court, GUILFORD County. Heard in the Court of Appeals on 25 May 1982.\nDefendant was charged in proper bills of indictment with second degree rape and crime against nature. Defendant pleaded not guilty, and was found guilty as charged in both cases. From judgments imposing consecutive prison terms of no more and no less than forty years for second degree rape and no more and no less than ten years for crime against nature, defendant appealed.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Tiare B. Smiley, for the State.\nBoyan and Nix, by Kathleen E. Nix, for defendant appellant." }, "file_name": "0083-01", "first_page_order": 115, "last_page_order": 121 }