{ "id": 8527154, "name": "STATE OF NORTH CAROLINA v. EDWIN LaVERNE ELLIOTT", "name_abbreviation": "State v. Elliott", "decision_date": "1983-10-18", "docket_number": "No. 8327SC2", "first_page": "525", "last_page": "529", "citations": [ { "type": "official", "cite": "64 N.C. App. 525" } ], "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": "63 S.E. 2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602130 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0218-01" ] }, { "cite": "200 S.E. 2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561441, 8561506, 8561487, 8561427, 8561462 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0257-02", "/nc/284/0257-05", "/nc/284/0257-04", "/nc/284/0257-01", "/nc/284/0257-03" ] }, { "cite": "199 S.E. 2d 500", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "pin_cites": [ { "page": "501" } ], "opinion_index": 0 }, { "cite": "19 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554897 ], "year": 1973, "pin_cites": [ { "page": "574" } ], "opinion_index": 0, "case_paths": [ "/nc-app/19/0573-01" ] }, { "cite": "268 S.E. 2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "168" } ], "opinion_index": 0 }, { "cite": "300 N.C. 534", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562817 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0534-01" ] }, { "cite": "187 S.E. 2d 93", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 665", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573255 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0665-01" ] }, { "cite": "189 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "281 N.C. 592", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575699 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/281/0592-01" ] }, { "cite": "241 S.E. 2d 667", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "294 N.C. 407", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573284 ], "year": 1978, "pin_cites": [ { "page": "417-18" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0407-01" ] } ], "analysis": { "cardinality": 481, "char_count": 8536, "ocr_confidence": 0.825, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.32362658981276515 }, "sha256": "f54b0b5b402c0f0489a94d1cdfd62ae3460a4a94b1f94c0e84df5bd5feb96a84", "simhash": "1:015a36aab50e3f43", "word_count": 1430 }, "last_updated": "2023-07-14T21:03:16.623003+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WELLS and Eagles concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EDWIN LaVERNE ELLIOTT" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant\u2019s first two assignments of error are based upon the trial court\u2019s denials of motions for mistrial. On cross-examination, defendant testified that he had agreed to take a polygraph test and was still willing to do so. The district attorney then asked the following question: \u201cIs that because you know Mr. Cooke (defense counsel) won\u2019t let you?\u201d Defendant objected and moved to strike the question as being highly improper. The court properly sustained the objection, allowed the motion to strike and instructed the jury not to consider the question. The court, however, denied defendant\u2019s motion for mistrial.\n\u201cA mistrial is appropriate only for serious improprieties which render impossible a fair and impartial verdict under the law.\u201d State v. Chapman, 294 N.C. 407, 417-18, 241 S.E. 2d 667, 674 (1978). Rulings on motions for mistrial are not reviewable unless there is a showing of gross abuse of discretion. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481 (1972). We find no basis for defendant\u2019s argument that the trial court grossly abused its discretion by disallowing a mistrial. The court promptly sustained defendant\u2019s objection to the improper question and gave specific instructions to the jury not to consider it. Any possibility of error was sufficiently removed. See State v. Self, 280 N.C. 665, 187 S.E. 2d 93 (1972).\nDefendant next assigns error to the court\u2019s denial of his motion for mistrial made after the following proceedings:\nQ. Mr. Elliott, did you say you knew Candice Wright?\nA. Yes, I did.\nQ. Gave her guitar lessons?\nA. Yes, I did.\nQ. Lessons started in October, 1980. Is that correct?\nA. Yes, I did.\nProsecutor Langson then motioned to Candice Wright to stand up and asked her to stand up, whereupon Candice Wright stood up.\nQ. And is it not true that at the conclusion of numerous of these guitar lessons, you would unzip her jeans and pull down her pants and proceed to stare at her?\nMr. Cooke: Objection. Move to Strike that question.\nCourt: Overruled.\nMr. COOKE: Move for a mistrial.\nCourt: Denied.\nDefendant contends that by motioning to and asking young Candice Wright to stand in the courtroom, the district attorney committed a highly improper and prejudicial act. It is difficult to disagree with defendant\u2019s conclusion. Defendant had stated that he did know Candice Wright and had given her guitar lessons. It was improper for the district attorney then to have her stand before the jury.\nIn State v. Lynch, 300 N.C. 534, 268 S.E. 2d 161 (1980), a defendant who had been charged with rape was asked if he recognized anyone on a particular row of seats in the courtroom, and the defendant replied that he did not know anyone \u201cbut the Led-fords.\u201d The district attorney then had a woman on that row stand and asked the defendant if he had raped the woman on the front row with the black blouse. On appeal, the court found that there was no error \u201cbecause she was asked to stand only after defendant stated that he didn\u2019t know anyone on that row \u2018but the Ledfords.\u2019 \u201d 300 N.C. at 545, 268 S.E. 2d at 168. The purpose of asking the woman to stand was to determine whether the defendant could recognize her after stating that he did not. Id.\nThe facts at hand differ. Defendant had answered that he did know Candice Wright and had given her guitar lessons. There was no need to refresh his memory. The only conceivable purpose of having the young girl stand in the courtroom was to inflame the jury.\nMoreover, adding to his impropriety, during his closing argument to the jury, in referring to defendant\u2019s alleged misconduct with Candice Wright and another female who was also present in the courtroom during the trial, the district attorney stated, \u201cLadies and gentlemen, I submit that you know that I didn\u2019t corral two people . . .\u201d before defendant objected. The trial judge sustained defendant\u2019s objection and instructed the jury not to consider \u201cthe remarks of counsel concerning the going out and corraling the witnesses.\u201d\nWe recognize the principle that \u201c[t]he control of the argument of the solicitor and counsel must be left largely to the discretion of the trial court, and an impropriety must be sufficiently grave to be prejudicial in order to entitle defendant to a new trial.\u201d State v. Morrison, 19 N.C. App. 573, 574, 199 S.E. 2d 500, 501, cert. denied, 284 N.C. 257, 200 S.E. 2d 657 (1973).\nIt is clear, however, that the remarks by the district attorney were unfairly prejudicial to the defendant. The judge\u2019s attempt to cure was insufficient. The damage already was done. See State v. Eagle, 233 N.C. 218, 63 S.E. 2d 170 (1951). Fairness demands that defendant be given a new trial.\nNew trial.\nJudges WELLS and Eagles concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Douglas A. Johnston, for the State.", "Gray & Stroud, by Jay Stroud, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EDWIN LaVERNE ELLIOTT\nNo. 8327SC2\n(Filed 18 October 1983)\n1. Criminal Law \u00a7 128.2\u2014 improper question \u2014 error cured by court\u2019s instructions\nThere was no basis for defendant\u2019s argument that the trial court grossly abused its discretion by disallowing a mistrial upon the district attorney asking defendant: \u201cIs that because you know Mr. Cooke (defense counsel) won\u2019t let you?\u201d after defendant had testified that he had agreed to take a polygraph test and was still willing to do so. Any possibility of error was sufficiently removed where the court properly sustained defendant\u2019s objection to the improper question and gave specific instructions to the jury not to consider it.\n2. Criminal Law \u00a7 128.2\u2014 improper and prejudicial act by district attorney-mistrial improperly denied\nAfter defendant had stated that he did know a young girl and had given her guitar lessons, it was highly improper and prejudicial for the district attorney to motion to the young girl to stand up in the courtroom and ask defendant, \u201cAnd is it not true that at the conclusion of numerous of these guitar lessons, you would unzip her jeans and pull down her pants and proceed to stare at her?\u201d The only conceivable purpose of having the young girl stand in the courtroom was to inflame the jury, and the trial court should have granted defendant\u2019s motion for a mistrial.\nAPPEAL by defendant from Owens, Judge. Judgments entered 8 June 1982 in Superior Court, GASTON County. Heard in the Court of Appeals 22 September 1983.\nDefendant was indicted on charges of first degree kidnapping and attempted first degree sexual offense. He was convicted of these crimes and now appeals from the imposition of consecutive prison sentences.\nThe State\u2019s evidence tends to show that on the evening of 22 December 1981, the prosecuting witness was at Eastridge Mall in Gastonia, North Carolina. She left the mall around 9:00 p.m. and walked to her car. Defendant grabbed her, placed a knife to her throat, and told the prosecuting witness that he had just committed robbery and needed a ride. Defendant ordered her to drive him to the Coachman\u2019s Inn, which was 1.4 miles from the mall. When the two reached the Inn, defendant ordered the prosecuting witness to park her car. He then indicated that he was going \u201cto eat\u201d her and asked if she wanted it \u201cdead or alive.\u201d Defendant told her to disrobe and threatened to kill her. After the prosecuting witness had partially disrobed, she attempted to open the car door. Defendant grabbed her, and the prosecuting witness was cut on the hand as the two struggled. She returned to the back seat of the car after the defendant threatened to kill her if she tried to escape again. The prosecuting witness was able to divert defendant\u2019s attention, and ran to the office of the Coachman\u2019s Inn. The desk clerk called the police.\nAfter the prosecuting witness gave the police a description of her assailant, defendant was notified that he was a suspect. Defendant voluntarily went to the police station and agreed to be fingerprinted and photographed. On 6 February 1982 the prosecuting witness was shown eight photographs. She selected defendant\u2019s photograph from this lineup.\nThe defendant and other witnesses presented evidence tending to show that on 22 December 1981, defendant was at Honey\u2019s Restaurant in Gastonia from 8:45 p.m. until a few minutes after 9:00 p.m. Defendant then picked his wife up at Gaston College around 9:30 p.m. Defendant presented further evidence which refuted the State\u2019s evidence regarding defendant\u2019s appearance on the evening of 22 December 1981. Numerous witnesses also testified of defendant\u2019s good character and reputation.\nAttorney General Edmisten, by Assistant Attorney General Douglas A. Johnston, for the State.\nGray & Stroud, by Jay Stroud, for defendant appellant." }, "file_name": "0525-01", "first_page_order": 557, "last_page_order": 561 }