{ "id": 8523365, "name": "STATE OF NORTH CAROLINA v. JAMES THOMAS DAVIS", "name_abbreviation": "State v. Davis", "decision_date": "1984-01-17", "docket_number": "No. 839SC463", "first_page": "137", "last_page": "142", "citations": [ { "type": "official", "cite": "66 N.C. App. 137" } ], "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": "397 U.S. 759", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12058501 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0759-01" ] }, { "cite": "295 S.E. 2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573306 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0629-01" ] }, { "cite": "300 S.E. 2d 351", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 628", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565356 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0628-01" ] }, { "cite": "245 S.E. 2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 216", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551729 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0216-01" ] }, { "cite": "226 S.E. 2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "330" } ], "opinion_index": 0 }, { "cite": "290 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561808 ], "year": 1976, "pin_cites": [ { "page": "492" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0485-01" ] }, { "cite": "300 S.E. 2d 361", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 662", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565448 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0662-01" ] }, { "cite": "300 S.E. 2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "350" } ], "opinion_index": 0 }, { "cite": "307 N.C. 608", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565330 ], "year": 1983, "pin_cites": [ { "page": "627" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0608-01" ] }, { "cite": "275 S.E. 2d 857", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "51 N.C. App. 108", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 2643487 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/51/0108-01" ] }, { "cite": "164 S.E. 2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "461" } ], "opinion_index": 0 }, { "cite": "274 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561062 ], "year": 1968, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0556-01" ] } ], "analysis": { "cardinality": 544, "char_count": 12317, "ocr_confidence": 0.804, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3236262036898676 }, "sha256": "0b7145818512da5c696af4d6037b83293fd8321a09b3a54fa3b7777e074c53be", "simhash": "1:0d2f456f2082afde", "word_count": 2023 }, "last_updated": "2023-07-14T17:15:19.573584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Braswell concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES THOMAS DAVIS" ], "opinions": [ { "text": "EAGLES, Judge.\nI.\nDefendant\u2019s first assignment of error is that the trial court erred in denying his motion to dismiss for failure to comply with the Speedy Trial Act. He asserts three errors in the trial court\u2019s application of the Speedy Trial Act: (1) that an order dated 20 August 1981 to exclude the period from 17 August 1981 to 5 October 1981 was void because jurisdiction had not attached, making defendant\u2019s includable time more than 120 days, in violation of G.S. 15A-701; (2) that the trial court failed to set defendant\u2019s case for trial after his motion for a speedy trial pursuant to G.S. 15A-702(b); and (3) that defendant was not tried within six months of his request for trial pursuant to G.S. 15A-711(c). We find no merit in these assertions.\nDefendant contends that the judge\u2019s order of 20 August 1981 to exclude the period from 17 August 1981 to 5 October 1981 was void because the bill of indictment was not served on defendant until 26 August 1981. Contrary to appellant\u2019s contentions, service of an indictment is not the key to jurisdiction. While a \u201cvalid indictment is a condition precedent to the jurisdiction of the Superior Court to determine the guilt or innocence of the defendant,\u201d State v. Ray, 274 N.C. 556, 562, 164 S.E. 2d 457, 461 (1968), service of indictment is no longer the event which triggers the computation of speedy trial limitations. The clear language of the statute requires a trial to begin within 120 days from the date the defendant \u201cis arrested, served with criminal process, waives an indictment, or is indicted, whichever occurs last.\u201d G.S. 15A-701 (al)(l) (emphasis added). Before the 1977 amendment, the speedy trial statute referred to the date the defendant was \u201cnotified pursuant to G.S. 15A-630 that an indictment has been filed against him,\u201d G.S. 15A-701(a1)(1) (1973) (amended 1977) (emphasis added), but the amended version applies here.\nJurisdiction attached upon the return of a true bill of indictment on 17 August 1981. Consequently, the judge\u2019s order of 20 August 1981 was not jurisdictionally flawed, and it properly excluded the period of 17 August 1981 through 5 October 1981, pursuant to G.S. 15A-701(b)(8).\nThe period from 11 December 1981 through 1 March 1982 was also properly excluded, pursuant to G.S. 15A-701(b)(8). The period from 15 February 1982 through 2 May 1982 was excludable pursuant to G.S. 15A-701(b)(l), because of the pendency of defendant\u2019s motion seeking dismissal of charges. The period from 3 May 1982 until the trial date was properly excluded, pursuant to G.S. 15A-701(b)(l), because of defendant\u2019s motion for a continuance. Defendant\u2019s includable time for speedy trial purposes was the sixty-six days from 6 October 1981 through 10 December 1981, well within the 120 day limit.\nG.S. 15A-702 provides that for cases in which venue for trial is in a county with a limited number of court sessions, a defendant can file a motion for a prompt trial and the judge \u201cmay order the defendant\u2019s case be brought to trial within not less than 30 days.\u201d Defendant\u2019s 15 February 1982 \u201cmotion and request for dismissal of charge,\u201d is not equivalent to the \u201cmotion for prompt trial\u201d required by G.S. 15A-702. Because defendant moved for dismissal, not a prompt trial, the trial judge did not err in failing to set defendant\u2019s trial as contemplated by G.S. 15A-702. Even if defendant had filed a proper \u201cmotion for prompt trial,\u201d setting a trial date within not less than 30 days is permissive rather than mandatory for the judge under G.S. 15A-702. See, State v. Cornell, 51 N.C. App. 108, 275 S.E. 2d 857 (1981). Sanctions, including dismissal, are available under G.S. 15A-703 if defendant is not tried within the time set by the trial judge under G.S. 15A-702 (if he enters a prompt trial order) or the time limits set by G.S. 15A-701.\nRelying on G.S. 15A-711, defendant also contends that his trial should have been held within six months of his 15 February motion to dismiss. G.S. 15A-711(c) provides that an imprisoned defendant who has other charges pending against him, may:\n[B]y written request filed with the clerk of court where the other charges are pending, require the prosecutor prosecuting such charges to proceed. ... If the prosecutor does not proceed . . . within six months from the date the request is filed with the clerk, the charges must be dismissed.\nBecause defendant\u2019s \u201cmotion and request for dismissal of charge\u201d is not the equivalent of a request to proceed under G.S. 15A-711, there was no error in failing to set defendant\u2019s trial within six months of 15 February 1982.\nII.\nDefendant assigns as error the admission into evidence of a photographic identification and an in-court identification of defendant. As to admissibility of photographic identifications, our Supreme Court has stated the appropriate standard:\nIdentification evidence must be excluded as violating a defendant\u2019s rights to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification.\nState v. Barnett, 307 N.C. 608, 627, 300 S.E. 2d 340, 350 (1983). Defendant asserts that the store clerk\u2019s testimony showed that she was unable to identify defendant\u2019s picture until she saw defendant in person, and that the photographic identification was tainted by a subsequent one-on-one confrontation. In fact, Ms. Love\u2019s testimony was that she told a detective that defendant\u2019s face \u201cstood out\u201d in the photographs and that: \u201cI wasn\u2019t sure that I had to see the person in person to make sure of the height and all of that.\u201d At the pre-trial photographic lineup, Ms. Love expressed no doubt as to her identification of the defendant as the perpetrator of the crime. We find no error in the trial judge\u2019s ruling that allowed the photographic identification into evidence. Ms. Love\u2019s testimony supports the trial court\u2019s conclusion that there was nothing \u201cimpermissibly suggestive\u201d about the pre-trial photographic identification procedure here.\nAs to the in-court identification of defendant by Ms. Love, defendant failed to object. It is a well-established rule that, nothing else appearing, admission of evidence that may be incompetent is not prejudicial error when there was no objection at the time the evidence was offered. State v. Hammond, 307 N.C. 662, 300 S.E. 2d 361 (1983). Accordingly, we find no error here.\nrH hH\nDefendant assigns as error the trial judge s failure to instruct the jury on \u201creasonable doubt.\u201d Without a request to instruct on reasonable doubt, the trial court is not required to define it. State v. Wells, 290 N.C. 485, 492, 226 S.E. 2d 325, 330 (1976); State v. Joyner, 37 N.C. App. 216, 245 S.E. 2d 592 (1978). Because there was no request by defendant, we find no error in the judge\u2019s failure to instruct the jury on reasonable doubt.\nDefendant also cites as error the trial judge\u2019s denial of defendant\u2019s motion to require the State\u2019s witness, Ms. Love, to submit to a polygraph test. Defendant has no right to require that a witness for the State submit to polygraph examination. Further, our Supreme Court has recently stated that polygraph evidence is not admissible in any trial. State v. Grier, 307 N.C. 628, 300 S.E. 2d 351 (1983). Although defendant\u2019s trial occurred before Grier was decided, the policy against using polygraphic evidence that led to the Grier decision is applicable here.\nThe validity of the polygraphic process is dependent upon ... a large number of variable factors, many of which are extremely difficult, if not impossible, to assess.\nId. at 645, 300 S.E. 2d at 360. We find no error in the trial judge\u2019s denial of defendant\u2019s motion to require a State\u2019s witness to submit to a polygraph test.\nIV.\nDefendant assigns as error that he was denied his constitutional right to effective assistance of counsel. In State v. Weaver, 306 N.C. 629, 295 S.E. 2d 375 (1982), our Supreme Court adopted the McMann standard in determining what constitutes ineffective assistance of counsel, i.e., whether counsel\u2019s performance was \u201cwithin the range of competence demanded of attorneys in criminal cases.\u201d McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970). Defendant asserts that his attorney was incompetent in that he did not prepare a defense before trial, he did not submit proposed instructions to the trial judge, and he filed a motion for a continuance. The record shows on its face that defendant\u2019s attorney provided an adequate defense through objections to evidence and cross examination of witnesses. Failure to submit proposed instructions did not adversely affect defendant\u2019s rights. The trial judge gave adequate instructions without submissions from defendant. Merely asking for a continuance, nothing else appearing, cannot be characterized as attorney incompetence. The facts are not sufficient to support a conclusion that the performance of his attorney was not within the range demanded of criminal defense attorneys.\nWe have examined defendant\u2019s other assignments of error and find them to be without merit.\nNo error.\nJudges Hedrick and Braswell concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney John R. Come, for the State.", "Ronnie P. King, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES THOMAS DAVIS\nNo. 839SC463\n(Filed 17 January 1984)\n1. Criminal Law 8 91\u2014 speedy trial \u2014 time computed from date of indictment and not service of indictment\nDefendant\u2019s contention that the judge\u2019s order of 20 August 1981 to exclude the period from 17 August 1981 to 5 October 1981 for speedy trial purposes was void for lack of jurisdiction because the bill of indictment was not served on defendant until 26 August 1981 was without merit since the day of indictment rather than service of indictment is the event which triggers the computation of speedy trial limitations. G.S. 15A-701(al)(l).\n2. Criminal Law 8 91\u2014 motion for dismissal of charge not equivalent to motion for prompt trial\nDefendant\u2019s \u201cmotion and request for dismissal of charge\u201d was not equivalent to the \u201cmotion for prompt trial\u201d required by G.S. 15A-702; therefore, the trial judge did not err in failing to set defendant\u2019s trial within the 30 day time of 15A-702 or the six month period set by 15A-711. G.S. 15A-701, G.S. 15A-703, and G.S. 15A-711(c).\n3. Criminal Law 8 66.7\u2014 photographic identification \u2014 properly admitted\nThere was no error in the trial judge\u2019s allowing a photographic identification into evidence where the witness expressed no doubt as to her identification of the defendant as the perpetrator of the crime.\n4. Criminal Law 8 112.1\u2014 failure to instruct on reasonable doubt \u2014 no request\nWithout a request to instruct on reasonable doubt, the trial court is not required to define it.\n5. Criminal Law 8 62\u2014 motion to require State\u2019s witness to submit to polygraph test properly denied\nThe trial judge properly denied defendant\u2019s motion to require the State\u2019s witness to submit to a polygraph test since (1) defendant has no right to require that a witness for the State submit to a polygraph examination, and (2) the Supreme Court has recently stated that polygraph evidence is not admissible in any trial.\n6. Constitutional Law 8 48\u2014 ineffective assistance of counsel \u2014 insufficiency of evidence\nDefendant failed to show that his attorney was incompetent in that he did not prepare a defense before trial, he did not submit proposed instructions to the trial judge, and he filed a motion for a continuance since the record showed on its face that defendant\u2019s attorney provided an adequate defense through objections to evidence and cross-examination of witnesses, failure to submit proposed instructions did not adversely affect defendant\u2019s rights, and merely asking for a continuance, nothing else appearing, cannot be characterized as attorney incompetence.\nAPPEAL by defendant from Bailey, Judge. Judgment entered 9 December 1982 in Superior Court, PERSON County. Heard in the Court of Appeals 6 December 1983.\nDefendant was indicted on 17 August 1981 for armed robbery of $2,327.00 from Brenda Love, a clerk at a Pantry, Inc. store on 28 June 1981. He was found guilty of armed robbery at the 2 September 1982 Criminal Session of Person County Superior Court and was sentenced to seven years in prison on 9 December 1982. Defendant appeals.\nAttorney General Edmisten, by Associate Attorney John R. Come, for the State.\nRonnie P. King, for defendant-appellant." }, "file_name": "0137-01", "first_page_order": 169, "last_page_order": 174 }