{ "id": 8525740, "name": "STATE OF NORTH CAROLINA v. ROLAND PATRICK COBBINS", "name_abbreviation": "State v. Cobbins", "decision_date": "1984-02-21", "docket_number": "No. 8321SC708", "first_page": "616", "last_page": "624", "citations": [ { "type": "official", "cite": "66 N.C. App. 616" } ], "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": "268 S.E. 2d 517", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562782 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0515-01" ] }, { "cite": "191 S.E. 2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 58", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562661 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0058-01" ] }, { "cite": "205 S.E. 2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "21 N.C. App. 573", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556991 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/21/0573-01" ] }, { "cite": "284 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 471", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569175 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0471-01" ] }, { "cite": "243 S.E. 2d 143", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563507, 8563487 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0259-02", "/nc/293/0259-01" ] }, { "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": "175 S.E. 2d 561", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561677 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0001-01" ] }, { "cite": "194 S.E. 2d 353", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568083 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0633-01" ] }, { "cite": "90 S.E. 2d 310", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "243 N.C. 158", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622285 ], "year": 1955, "opinion_index": 0, "case_paths": [ "/nc/243/0158-01" ] }, { "cite": "275 S.E. 2d 450", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565360 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0223-01" ] }, { "cite": "238 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 474", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565271 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0474-01" ] }, { "cite": "23 S.E. 46", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1895, "opinion_index": 0 }, { "cite": "117 N.C. 558", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653651 ], "year": 1895, "opinion_index": 0, "case_paths": [ "/nc/117/0558-01" ] }, { "cite": "137 S.E. 151", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1927, "opinion_index": 0 }, { "cite": "193 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217840 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/nc/193/0350-01" ] }, { "cite": "238 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 394", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565078 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0394-01" ] } ], "analysis": { "cardinality": 716, "char_count": 17306, "ocr_confidence": 0.781, "pagerank": { "raw": 5.18191889605563e-08, "percentile": 0.32541047759927316 }, "sha256": "2b9fb647b4bdf6bf97159a88db07b63df1e4f7b066ff15bec1077270b2994681", "simhash": "1:8f2a3133047e1075", "word_count": 2802 }, "last_updated": "2023-07-14T17:15:19.573584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Webb and Johnson concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ROLAND PATRICK COBBINS" ], "opinions": [ { "text": "VAUGHN, Chief Judge.\nDefendant first contends that the trial court erred by admitting testimony, over defendant\u2019s objection, about a conversation between defendant and Warren. Specifically, defendant contends that the conversation wherein Warren accused him of breaking into Ms. Grimes\u2019 apartment was inadmissible hearsay, irrelevant, and prejudicial. We find no merit in defendant\u2019s contention.\nDefendant\u2019s statements during his conversation with Warren were admissible against him as admissions. See 2 Brandis on North Carolina Evidence \u00a7 167 (1982). Defendant\u2019s statements were, furthermore, relevant, tending to show his motive in the hit-and-run. See State v. Willard, 293 N.C. 394, 238 S.E. 2d 509 (1977).\nDefendant next contends that the trial court erred by admitting testimony, over defendant\u2019s objections, regarding alleged telephone calls made by defendant and defendant\u2019s brother in that no proper foundation was laid and the substance of such telephone conversations was hearsay and irrelevant. Defendant\u2019s contention has no merit.\nSpecifically, defendant objects to testimony relating to three telephone calls: Warren testified about two calls he had received, one from defendant and one from defendant\u2019s brother. Ms. Grimes testified about a call she had received from defendant. Both Warren and Grimes testified that they were familiar with and recognized the voices of their respective callers. Recognition of a caller\u2019s voice is sufficient to establish identity and lay the proper foundation for admitting a subsequent conversation. Manufacturing Co. v. Bray, 193 N.C. 350, 137 S.E. 151 (1927); see 1 Brandis on North Carolina Evidence, \u00a7 96 (1982). Defendant\u2019s telephone conversations were, furthermore, admissible as admissions and were relevant in helping to explain defendant\u2019s later actions.\nUpon defendant\u2019s request, the trial court instructed the jury to disregard the substance of the telephone conversation Warren had with defendant\u2019s brother. This was a proper instruction; defendant\u2019s brother was not a party to the action and his statements, therefore, constituted hearsay.\nDefendant also objects to testimony by Police Officer Norris regarding her interview with Warren, wherein Warren told her of his telephone conversation with defendant. The record shows that upon defendant\u2019s objection, the trial judge instructed the jury that the officer\u2019s testimony would be \u201callowed in for the purpose of corroboration of other witnesses,\u201d but that if it did not corroborate what had already been said, to \u201cdisregard it.\u201d The instruction was correct; the officer\u2019s testimony was properly admitted for the limited purpose of corroboration.\nDefendant next contends that the trial court erred by admitting into evidence a diagram of the crime scene. The record shows that the diagram was introduced to help illustrate Warren\u2019s testimony and that Warren testified to the diagram\u2019s accuracy. Defendant\u2019s contention, therefore, has no merit. See Tankard v. R. R., 117 N.C. 558, 23 S.E. 46 (1895).\nDefendant next contends that the trial court erred by admitting into evidence State\u2019s Exhibit Two, a pistol barrel, before it had been sufficiently identified. There are no simple standards for determining whether \u201creal evidence\u201d sought to be admitted has been sufficiently identified as being the object involved in the incident in question. The trial judge has discretion to determine the standard of certainty necessary to show that the object offered is the same as the object involved in the incident and that the object has remained unchanged prior to trial. State v. Harbison, 293 N.C. 474, 238 S.E. 2d 449 (1977). Warren testified that during the evening of the crime, he picked up a barrel of an old gun and pointed it at defendant and defendant\u2019s brother in an attempt to scare them. He identified State\u2019s Exhibit Two as the pistol barrel in question. Warren\u2019s testimony was sufficient identification of the pistol barrel to permit it into evidence without showing a chain of custody. See State v. Silhan, 302 N.C. 223, 275 S.E. 2d 450 (1981). We find no abuse of discretion on the part of the trial judge.\nWarren testified, during direct examination, that defendant had been beating him with a bat when Warren pulled out the pistol barrel and told defendant to \u201cknock it out or I\u2019ll kill you.\u201d At that point, defendant stopped swinging the bat \u201cbecause,\u201d Warren testified, \u201cI guess he figured that it was a gun.\u201d Defendant argues that Warren\u2019s testimony as to what the defendant \u201cfigured\u201d was Warren\u2019s opinion, and thus, inadmissible. Generally, a lay witness is not allowed to give his opinion on the very question which the jury will decide. Wood v. Insurance Co., 243 N.C. 158, 90 S.E. 2d 310 (1955). Warren\u2019s testimony, which involved a preliminary fact, did not invade the jury province. Defendant was not prejudiced by and we find no error in Warren\u2019s description of what happened prior to the commission of the crime for which defendant was charged.\nWarren testified that defendant\u2019s brother realized that the pistol barrel was not a gun and so informed his brother. Defendant argues that Warren\u2019s testimony as to what Reginald told his brother was inadmissible hearsay. We disagree. Warren\u2019s testimony was not \u201coffered to prove the truth of the matter asserted,\u201d and thus, was not hearsay. See State v. Miller, 282 N.C. 633, 194 S.E. 2d 353 (1973); 1 Brandis on North Carolina Evidence \u00a7 138 (1982). Similarly, Ms. Grimes\u2019 testimony that Reginald said \u201cthat\u2019s right,\u201d while Reginald and defendant were in the convenience store was not hearsay, and thus, admissible.\nDefendant next contends that it was error, under the best evidence rule to allow Officer Norris to refresh her recollection by using a copy of her investigation report. Defendant\u2019s contention has no merit. The best evidence rule applies only where the contents or terms of a document are in question; the rule does not apply when a document is used merely to trigger a witness\u2019 memory and is not even offered into evidence. See State v. Fox, 277 N.C. 1, 175 S.E. 2d 561 (1970); 2 Brandis on North Carolina Evidence \u00a7 191 (1982).\nDuring cross-examination, defense counsel asked Officer Norris if defendant had told her what had happened during the evening of 19 November. The trial judge sustained the State\u2019s objection to the question. Defendant contends that Officer Norris\u2019 testimony would have shown that Warren was the aggressor in the fight between Warren and defendant and that the exclusion of such testimony denied him of his right to cross-examination. Defendant\u2019s contention has no merit. First, it appears that the excluded testimony would have been a self-serving declaration at a time when defendant had not yet testified. As such, it was properly excluded. State v. Brower, 289 N.C. 644, 224 S.E. 2d 551 (1976), reconsideration denied, 293 N.C. 259, 243 S.E. 2d 143 (1977). Furthermore, the answer that Officer Norris would have given, had she been allowed, was not placed in the record. We have no way to determine, therefore, whether such ruling was prejudicial. Id.\nDefendant contends that the trial court erred in denying his motions to dismiss, made both at the close of the State\u2019s evidence and at the close of all the evidence. In a prosecution under G.S. 20-166(a), the State must prove that the defendant knew (1) that he had been involved in an accident or collision and (2) that a person was killed or physically injured in the collision. The knowledge required may be actual or implied. State v. Fearing, 304 N.C. 471, 284 S.E. 2d 487 (1981). Implied knowledge can be inferred from the circumstances of an accident. Id. The State produced plenary evidence supporting the inference that defendant knew he had hit and caused injury to Ms. Grimes. The trial court was correct in submitting the case to the jury.\nDefendant next contends that the trial court erred by permitting the district attorney to cross-examine defendant and his brother about their prior convictions, without restricting his questions to specific crimes and dates. We find no merit in defendant\u2019s contention. The district attorney asked defendant and his brother, \u201cWhat have you been tried and convicted of in a court of law?\u201d Although such questions were broad in scope, there is no indication that they were asked in bad faith. A criminal defendant and any other witness who testified may be cross-examined regarding prior criminal convictions. State v. Murray, 21 N.C. App. 573, 205 S.E. 2d 587 (1974).\nWhen the district attorney was cross-examining defendant about his prior convictions, defendant testified as to several offenses before the following exchange occurred:\n[Defendant]: I can\u2019t really say what else because I don\u2019t really know. It\u2019s been a while.\n[Mr. Cole]: So many you can\u2019t remember, is that a fair statement?\nDefendant argues that the district attorney\u2019s question was improperly admitted over his objection and prejudiced the defendant. We find no error. Although the State is bound by a defendant\u2019s answer when he denies prior convictions, defendant here did not deny his prior convictions. It is an acceptable practice, as exemplified here, to press or \u201csift\u201d a witness by further cross-examination. State v. Fountain, 282 N.C. 58, 191 S.E. 2d 674 (1972).\nDefendant next contends that the trial court erred by permitting the district attorney to question defendant and Officer Norris about threatening remarks defendant made to two of the State\u2019s witnesses. We find no error. When a criminal defendant elects to testify in his own behalf, he is subject to cross-examination for purposes of impeachment regarding prior criminal acts or misconduct for which there is no conviction. State v. Royal, 300 N.C. 515, 268 S.E. 2d 517 (1980).\nThe trial court procedures were entirely proper; contrary to defendant\u2019s contentions, therefore, the judgment and sentence defendant received were also proper.\nNo error.\nJudges Webb and Johnson concur.", "type": "majority", "author": "VAUGHN, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Luden Capone, III, Assistant Attorney General, for the State.", "Alice E. Patterson, for the defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ROLAND PATRICK COBBINS\nNo. 8321SC708\n(Filed 21 February 1984)\n1. Criminal Law \u00a7 77.1\u2014 conversation competent as admission by defendant\nIn a prosecution for hit and run in which defendant allegedly attempted to run over a State\u2019s witness and struck the witness\u2019s girl friend, a conversation between defendant and the witness wherein the witness accused defendant of breaking into his girl friend\u2019s apartment and defendant threatened to kill the witness was competent as an admission by defendant and was relevant as tending to show his motive for the hit and run.\n2. Criminal Law 88 69, 77.1\u2014 telephone conversations \u2014 proper foundation-competency as admissions by defendant\nA proper foundation was laid for the admission of defendant\u2019s telephone conversations with two State\u2019s witnesses where the witnesses testified that they were familiar with and recognized the voices of their respective callers, and the conversations were competent as admissions by defendant and were relevant to explain defendant\u2019s later actions against the witnesses.\n3. Criminal Law g 43\u2014 diagram of crime scene\nA diagram of the crime scene was properly admitted to illustrate the testimony of a witness.\n4. Criminal Law \u00a7 42.2\u2014 pistol barrel \u2014 sufficiency of identification\nA witness\u2019s testimony that during the evening of the crime, he picked up a barrel of an old gun and pointed it at defendant and defendant\u2019s brother in an attempt to scare them and that a State\u2019s exhibit was the pistol barrel in question constituted sufficient identification of the pistol barrel for its admission into evidence without showing of a chain of custody.\n5. Criminal Law 8 50\u2014 testimony not invasion of province of jury\nA witness\u2019s testimony that defendant stopped hitting him with a bat when he pulled out a pistol barrel because \u201cI guess he figured that it was a gun\u201d involved a preliminary fact and did not invade the province of the jury.\n6. Criminal Law 8 73.2\u2014 testimony not hearsay\nTestimony that defendant informed his brother that a pistol barrel pulled out by the witness was not a gun was not inadmissible hearsay since it was not offered to prove the truth of the matter asserted.\n7. Criminal Law 8 81\u2014 use of report to refresh memory \u2014 best evidence rule inapplicable\nThe best evidence rule did not apply to an officer\u2019s use of her investigation report to refresh her recollection.\n8. Criminal Law 8 77.2\u2014 exclusion of self-serving declaration\nThe trial court did not err in sustaining the State\u2019s objection to cross-examination of an officer as to whether defendant had told her what happened during the evening in question since it appears that the excluded testimony would have been a self-serving declaration at a time when defendant had not yet testified, and since the excluded testimony was not placed in the record.\n9. Criminal Law 8 131.1\u2014 hit and run driving \u2014 sufficiency of evidence\nThe State produced plenary evidence supporting the inference that defendant knew he had hit and caused injury to another person so as to support conviction of defendant for failing to stop immediately at the scene when defendant was the driver of a vehicle involved in an accident or collision which resulted in injury to another. G.S. 20-166(a)s\n10. Criminal Law 8 86.2\u2014 impeachment of defendant and witness \u2014 general question about prior convictions\nThe trial court did not err in permitting the prosecutor to cross-examine defendant and his brother by asking a general question as to what they had been tried and convicted of in a court of law without restricting the questions to specific crimes and dates.\n11. Criminal Law 8 86.3\u2014 defendant\u2019s prior convictions \u2014 sifting the witness\nWhen defendant testified on cross-examination about several prior convictions and then stated that he couldn\u2019t say what else he had been convicted of because it had been a while, the prosecutor\u2019s question as to whether defendant had so many that he couldn\u2019t remember constituted a proper \u201csifting\u201d of the witness by further cross-examination.\n12. Criminal Law \u00a7 86.5\u2014 impeachment of defendant \u2014 threats to witnesses\nThe prosecutor was properly permitted to cross-examine defendant for impeachment purposes concerning threatening remarks defendant had made to two of the State\u2019s witnesses.\nAppeal by defendant from Mills, Judge. Judgment entered 17 March 1983 in Superior Court, FORSYTH County. Heard in the Court of Appeals 18 January 1984.\nDefendant was convicted, pursuant to G.S. 20-166, for failing to stop immediately at the scene when he was the driver of a vehicle involved in an accident or collision which resulted in injury to another.\nThe State\u2019s evidence tended to show:\nAt around 6:30 p.m. on 19 November 1982, defendant and State\u2019s witness, Malcolm Warren, quarreled after Warren accused defendant of breaking into his girlfriend\u2019s apartment. Defendant threatened Warren, telling him he would kill him. Shortly thereafter, Warren received a telephone call at home from defendant, in which defendant again threatened to kill him.\nAt around 7:00 p.m. on 19 November 1982, defendant and his brother, Reginald, drove to a convenience store where Angela Grimes, Warren\u2019s girlfriend, worked. Defendant told Ms. Grimes that he and his brother planned to beat up Warren and asked her if she knew where he was. Defendant grabbed Ms. Grimes by the neck, pushed her to the floor, and knocked a crockpot of chili and a stand of confectioneries to the floor. Ms. Grimes telephoned Warren, told him what had happened, and asked him to come to the store.\nWarren arrived at the store at around 8:30 p.m. Soon thereafter, defendant and Reginald came to the store. They chased Warren out of the store, caught him, and defendant began beating him with a bat. Warren tried to scare his attackers by pointing a pistol barrel at them. When the brothers realized, however, that Warren did not have a gun, they continued their attack.\nAfter some time, a group of people at a Dunkin Donuts across the street from the store\u2019s parking lot became aware of the fight and began yelling to break it up. Defendant and Reginald ran to their car. Ms. Grimes ran out of the store to find out if Warren, doubled up in the parking lot, was all right.\nFrom his position, Warren saw defendant drive away with his brother in the passenger seat. Defendant then turned around, and with the car lights off, drove toward Ms. Grimes and Warren at a high rate of speed. Warren grabbed Ms. Grimes, pulled her out of the way, but she was hit by the car in her leg. The parking lot was well lit and nothing therein could have blocked a driver\u2019s view. A witness, standing fifty to seventy-five yards away, saw and heard the collision. Afterwards, defendant drove away without stopping.\nDefendant\u2019s evidence tended to show: On 19 November 1982, defendant and Reginald drove to the convenience store where Ms. Grimes worked, in order to get gas. Reginald went into the store and began fighting with Warren. Warren pulled out a gun, but dropped it during the fight. Outside the store, Warren pulled a knife on Reginald. Defendant snatched the knife away and threw it to the ground. Defendant and his brother then ran to their car and defendant drove straight away.\nAttorney General Edmisten, by Luden Capone, III, Assistant Attorney General, for the State.\nAlice E. Patterson, for the defendant appellant." }, "file_name": "0616-01", "first_page_order": 648, "last_page_order": 656 }