{ "id": 8522172, "name": "STATE OF NORTH CAROLINA v. WILBERT LOUIS DAVIS", "name_abbreviation": "State v. Davis", "decision_date": "1983-04-05", "docket_number": "No. 829SC712", "first_page": "522", "last_page": "526", "citations": [ { "type": "official", "cite": "61 N.C. App. 522" } ], "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": "181 S.E. 2d 405", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "279 N.C. 85", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565770 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/279/0085-01" ] }, { "cite": "34 L.Ed. 2d 499", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1972, "opinion_index": 0 }, { "cite": "93 S.Ct. 537", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1972, "opinion_index": 0 }, { "cite": "409 U.S. 1047", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6469257, 6469165, 6469074, 6469331, 6469653, 6469557, 6469433, 6468988, 6469759 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/us/409/1047-04", "/us/409/1047-03", "/us/409/1047-02", "/us/409/1047-05", "/us/409/1047-08", "/us/409/1047-07", "/us/409/1047-06", "/us/409/1047-01", "/us/409/1047-09" ] }, { "cite": "188 S.E. 2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574551 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0198-01" ] }, { "cite": "224 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 644", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572613 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0644-01" ] }, { "cite": "214 S.E. 2d 112", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561384 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0226-01" ] }, { "cite": "229 S.E. 2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 164", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557461 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0164-01" ] }, { "cite": "160 S.E. 2d 697", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 533", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575742 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0533-01" ] } ], "analysis": { "cardinality": 539, "char_count": 10472, "ocr_confidence": 0.809, "pagerank": { "raw": 1.5405338548943952e-07, "percentile": 0.6727882590838308 }, "sha256": "8db81ac246bd4e0fe8ae3976693ca001023c76fb6e38f324920a7346be14199f", "simhash": "1:beb3d42a5ec24038", "word_count": 1766 }, "last_updated": "2023-07-14T21:13:54.976609+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Wells and Braswell concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILBERT LOUIS DAVIS" ], "opinions": [ { "text": "VAUGHN, Chief Judge.\nDefendant\u2019s first argument is that he was deprived of his right to a unanimous verdict as required by Art. 1, \u00a7 24 of the North Carolina Constitution. Defendant contends that one juror, Bertha Brodie, was coerced into assenting to the verdict. We do not agree. After the jury finished deliberating, they returned to the courtroom and the assistant clerk read the following: \u201cWe, the jury, by unanimous verdict, find the defendant, Wilbert Louis Davis, to be guilty of driving while his license was suspended.\u201d Then he asked: \u201cIs this your verdict, so say you all? If it is, please raise your hand.\u201d All the jurors raised their hands. The clerk then polled the jury. When he reached the eleventh juror, the following exchange took place:\nClerk: Bertha Brodie. Your foreman has returned a verdict of guilty of driving while his license was suspended. Is this your verdict and do you now assent thereto?\nJuror Brodie: Not guilty.\nThe Court: Excuse me, ma\u2019am?\nJuror Brodie: What do you say? I vote guilty or not guilty?\nThe Court: Guilty?\nJuror Brodie: Oh, yes, ma\u2019am.\nClerk: Guilty of driving while\u2014\nThe Court: Is that your verdict?\nJuror Brodie: Yes, ma\u2019am.\nThe Court: And do you still assent thereto?\nJuror Brodie: Yes, sir.\nThe purpose of polling the jury is to give each juror an opportunity, before the verdict is recorded, to declare his or her assent in open court, and enable the court to determine that a unanimous verdict has been reached. Davis v. State, 273 N.C. 533, 160 S.E. 2d 697 (1968). A verdict is not defective if the juror understood that he or she has a right to dissent and eventually freely assented to the verdict. State v. Asbury, 291 N.C. 164, 229 S.E. 2d 175 (1976). In this case it is likely that when Brodie said \u201cNot guilty\u201d she was asking if the clerk\u2019s question was whether she voted guilty or not guilty. Her subsequent assent to the verdict was unequivocal. Defendant was convicted by an unambiguous, unanimous verdict.\nDefendant\u2019s second argument is that the trial court erred in denying his motion for a continuance to enable him to secure attendance of his witnesses. A motion for continuance is ordinarily addressed to the sound discretion of the trial court, and its ruling is not reviewable absent abuse of discretion. State v. Smathers, 287 N.C. 226, 214 S.E. 2d 112 (1975). The question is one of law, not discretion, and is reviewable on appeal if the motion is based on a right guaranteed by the federal and state constitutions. State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976). The question here is one of law because the right to face one\u2019s accusers and witnesses with other testimony is guaranteed by the sixth amendment to the federal constitution, applicable to the states through the fourteenth amendment, and by Article I, sections 19 and 23 of the North Carolina Constitution. State v. Cradle, 281 N.C. 198, 188 S.E. 2d 296, cert. denied, 409 U.S. 1047, 93 S.Ct. 537, 34 L.Ed. 2d 499 (1972). Defendant contends he was prejudiced because the testimony of the absent witnesses would have established testimony critical to his defense and refuted Valentine\u2019s testimony. Defendant, however, failed to include in the record the proposed testimony of the absent witnesses. Defendant\u2019s counsel merely said,\nI would like for the record to show that the defendant, prior to entering his plea, moved for a continuance for reason that three or four of his defense witnesses are not present or available for trial; that all four of them are under subpoena, namely, Charles Smith, Ricky Walker, Johnny Lee Davis and Wanda Allen. That the majority, or all but one of these witnesses were present in court yesterday when the case was calendared; however, for reasons unknown to me and just only speculating, they are not here today. And the defendant is of the opinion that they are vital to his defense in this cause.\nSince defendant had an opportunity to present his defense through his own testimony and the testimony of his nephew, Rufus Davis, and has failed to show how he was prejudiced by the absence of his other witnesses, the testimony of the absent witnesses would not have added anything more than corroboration to his defense. The denial of defendant\u2019s motion for a continuance did not deprive him of his constitutional right to confront his accusers.\nDefendant\u2019s third argument is that the trial court erred when it did not allow witness Rufus Davis to say whether Smith resembled defendant. Defendant contends that his defense was that Valentine mistook Smith for him, and he was deprived of his defense when the trial judge sustained the State\u2019s objection to his question on redirect examination. \u201cPoes Charles Smith] look anything like Wilbur?\u201d Defendant, however, failed to include in the record what Rufus Davis would have said had he been permitted to answer, so the assignment of error cannot be sustained. State v. Fletcher, 279 N.C. 85, 181 S.E. 2d 405 (1971). As well as being too speculative, the question was beyond the scope of the matters raised on cross-examination. 1 Brandis on North Carolina Evidence \u00a7 36 (1982). Moreover, defendant previously said Smith \u201cain\u2019t identical to me, but he favors me,\u201d so if Rufus Davis had said Smith resembled defendant it would be merely corroborative and not essential to his defense.\nWe have carefully reviewed defendant\u2019s assignments of error and find no error.\nNo error.\nJudges Wells and Braswell concur.", "type": "majority", "author": "VAUGHN, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney John R. Come, for the State.", "Appellate Defender Adam Stein, by Assistant Appellate Defender Lorinzo L. Joyner, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILBERT LOUIS DAVIS\nNo. 829SC712\n(Filed 5 April 1983)\n1. Criminal Law g 126\u2014 right to unanimous verdict \u2014 no coercion into assenting to verdict\nA juror was not coerced into assenting to the verdict where the record disclosed that when the juror said \u201cnot guilty\u201d in response to the polling of the jury, she was asking if the clerk\u2019s question was whether she voted guilty or not guilty, and her subsequent assent to the verdict was unequivocal. N.C. Constitution Art. I, \u00a7 24.\n2. Criminal Law \u00a7 91.7\u2014 denial of motion for continuance \u2014 absence of witnesses \u2014 no error\nWhere defendant had an opportunity to present his defense through his own testimony and that of another, where he failed to show how he was prejudiced by the absence of other witnesses, and where the testimony of the absent witnesses would not have added anything more than corroboration to his defense, the denial of his motion for a continuance did not deprive him of his constitutional right to confront his accusers.\n3. Criminal Law g 169.7\u2014 exclusion of testimony \u2014 absence of prejudice\nThe failure of the trial court to allow a defense witness on redirect examination to answer whether another man looked anything like defendant was not prejudicial error since defendant failed to include in the record what the witness would have said had he been permitted to answer, since the question was beyond the scope of the matters raised on cross-examination, and since defendant had previously said that the man \u201cain\u2019t identical to me, but he favors me.\u201d\nAPPEAL by defendant from Brewer, Judge. Judgment entered 22 April 1982 in Superior Court, FRANKLIN County. Heard in the Court of Appeals 17 January 1983.\nDefendant was charged with driving while his license was revoked and suspended, in violation of G.S. 20-28(a). He was convicted in District Court and received a sentence of not less than seven months and not more than eight months. Defendant appealed to Superior Court for a trial de novo. Prior to jury selection, defendant moved for a continuance because four of his subpoenaed witnesses were not present. The motion was denied.\nThe State\u2019s evidence tended to show the following. Donald Valentine, a United States Postal Service mail carrier and auxiliary policeman with the Louisburg Police Department, was the only witness for the State. He had known defendant for about eleven years. He saw defendant at a party on Kenmore Avenue on 7 September 1981 at midnight or twelve-thirty a.m. About five hours later, Valentine was patrolling, looking for break-ins, and saw defendant\u2019s car. He signalled it to stop. With his blue light and siren on, he pursued defendant\u2019s car for several blocks. According to Valentine, defendant stopped, got out of his car, turned around and looked at Valentine, and ran off into the bushes. Valentine called out his name and told him not to run. He did not try to follow defendant. Although it was still dark, the headlights of both cars and nearby street lights were on. Valentine said he was positive the man he saw was defendant, and he did not know anybody else who looked like defendant. There were two other officers present who had arrived to assist Valentine. They talked to the woman who was sitting in defendant\u2019s car. Valentine asked her what she and Wilbert Davis had been doing, and she told him they had been driving around drinking. He did not ask for her name.\nDefendant\u2019s evidence tended to show the following. Rufus Davis, defendant\u2019s nephew, said he was with defendant all day before they went to the party on Kenmore Avenue. He drove defendant to the party in defendant\u2019s car. At the party, Charlie Smith, defendant\u2019s cousin, and Wanda Allen, borrowed defendant\u2019s car. Rufus Davis said he and defendant left together with Ricky Walker, his brother, at four or five a.m. On re-direct, defendant\u2019s counsel asked Rufus Davis if Smith looked like defendant. The State\u2019s general objection to the question was sustained.\nDeputy Sheriff Johnson testified that he answered a call about a disturbance at a party on Kenmore Avenue. He told defendant and his brother Johnny Davis to leave. When defendant and Johnny Davis got in defendant\u2019s car, Johnny Davis got in the driver\u2019s side and defendant got in the passenger side.\nDefendant\u2019s testimony essentially corroborated Rufus Davis\u2019 testimony. He said Ricky Walker took him home from the party because Smith had not yet returned his car. He also said that when he got to his mother\u2019s house his mother told him someone had brought his car back. The keys were not in the car. He described Smith and said \u201che ain\u2019t identical to me, but he favors me.\u201d He denied driving his car on 7 September 1981.\nDefendant was found guilty of driving with suspended or revoked license. He was sentenced to a minimum of twenty-two months and maximum of twenty-four months.\nAttorney General Edmisten, by Associate Attorney John R. Come, for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Lorinzo L. Joyner, for defendant appellant." }, "file_name": "0522-01", "first_page_order": 554, "last_page_order": 558 }