{
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  "name_abbreviation": "State v. Davis",
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    "judges": [
      "Judges Arnold and Whichard concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. PHILLIP BARRY DAVIS"
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nDefendant, Phillip Barry Davis, was arrested and charged with driving under the influence of an alcoholic beverage, driving while his operator\u2019s license was revoked, assaulting a law enforcement officer, resisting arrest, and failing to stop for a blue light and siren. The charge of driving without a license was dismissed. The charge of driving under the influence was reduced to reckless driving. On 28 January 1983, a Burke County jury found the defendant guilty on all the charges. From judgments imposing sentences totalling 30 months, defendant appeals.\nI\nDefendant\u2019s assignments of error relate to: (a) the trial judge\u2019s restrictions on defendant\u2019s cross-examination of the State\u2019s witnesses, (b) the trial judge\u2019s admission of redirect examination testimony on topics not brought out on direct or cross-examination, (c) the trial judge\u2019s denial of defendant\u2019s motion for a directed verdict, (d) the trial judge\u2019s admission of identification testimony, (e) the trial judge\u2019s failure to sequester the State\u2019s witnesses, and (f) the trial judge\u2019s admission of opinion testimony. For the reasons that follow, we find no prejudicial error.\nII\nAfter noticing the erratic driving pattern of a car on 31 July 1982, Officer L. R. Rector turned on his blue light and siren and pursued the car. The car continued for some distance in the same manner before coming to a stop. Officer Rector approached the car and observed two men inside the car. When the driver attempted to drive away, the tires started to spin on the wet road. Officer Rector, who had been standing next to the driver\u2019s window, grabbed the driver around the neck. He and the driver exchanged blows. Officer Rector gained control of the steering wheel, but the driver regained control and drove away, at fifteen to twenty miles per hour. Officer Rector was thrown some twenty or thirty feet, suffering cuts, abrasions, and damage to his clothes, shoes and watch. He rushed to his patrol car and pursued the car while calling headquarters for assistance. After a few seconds, he saw the car turn off the highway and pull into a private driveway. The driver jumped out and ran into the woods. Before approaching the vehicle, Officer Rector notified headquarters. He then confronted the passenger, detected a stong odor of alcohol, and noticed beer cans in the car.\nOfficer Rector took the passenger, identified as L. G. Shuffler, into custody. The driver was taken into custody by Officer Jones, who had answered Officer Rector\u2019s call for assistance. At the jail, both Shuffler and Officer Rector identified defendant as the driver of the car. After being identified, defendant became upset. Defendant also refused to take a breathalyzer test. Defendant has consistently denied any connection with the events of 31 July 1982 even though Officer Rector and L. G. Shuffler identified him as the driver.\nIll\nDefendant\u2019s first assignment of error, based on his fifth, sixth and eighth exceptions, is that the trial court improperly restricted cross-examination of the State\u2019s two witnesses. The defendant contends that his statement to Officer Rector and Officer Jones that he was not driving the car should have been admitted. We find no error.\nThe North Carolina practice of cross-examination serves three purposes: \u201c(1) to elicit further details of the story related on direct, in the hope of presenting a complete picture less unfavorable to the cross-examiner\u2019s case; (2) to bring out new and different facts relevant to the whole case; and (3) to impeach the witness, or cast doubt upon his credibility.\u201d 1 H. Brandis, North Carolina Evidence \u00a7 35, at 145 (2d rev. ed. 1982). The wide latitude accorded the cross-examiner \u201c \u2018does not mean that all decisions with respect to cross-examination may be made by the cross-examiner.\u2019 [Citation omitted.] Rather the scope and duration of the cross-examination rest largely in the discretion of the trial judge.\u201d State v. Satterfield, 300 N.C. 621, 627, 268 S.E. 2d 510, 515 (1980) (quoting 1 Stansbury, North Carolina Evidence \u00a7 35, at 108 (Brandis rev. 1973)). The trial judge has the \u201cdiscretion to ban unduly repetitious and argumentative questions, as well as inquiry into matters of only tenuous relevance.\u201d 1 H. Brandis, supra, at 146.\nThe trial judge sustained objections to three repetitive questions about the defendant\u2019s self-serving declaration that he was not the driver of the car. One of the State\u2019s witnesses had already said that he did not recall any statement made by the defendant. The second witness later answered the same question in a different form. Since these questions had either been answered already or were asked again later using different phrasing, we find no abuse of discretion.\nIV\nThe defendant next assigns as error the trial court\u2019s decision to allow redirect examination of a State\u2019s witness on topics not brought out on direct or cross-examination. As a general rule, redirect examination is intended \u201cto clarify testimony which had been cast into doubt upon cross-examination, to clarify new matter brought out on cross-examination, or to refute testimony elicited on cross-examination. . . .\u201d State v. Franks, 300 N.C. 1, 12, 265 S.E. 2d 177, 183 (1980). \u201cNevertheless, the judge has discretion to vary the regular order and permit counsel to elicit on redirect relevant evidence which could have been but was not included in the examination in chief.\u201d 1 H. Brandis, supra p. 3, \u00a7 36, at 147; see also State v. Branch, 288 N.C. 514, 220 S.E. 2d 495 (1975), cert. denied, 433 U.S. 907, 53 L.Ed. 2d 1091, 97 S.Ct. 2971 (1977); State v. Locklear, 60 N.C. App. 428, 298 S.E. 2d 766 (1983). The Locklear Court said:\nWe find no abuse of [judicial] discretion here where the subject of the redirect examination was the identification of the defendant by James Strickland, which was discussed on both direct and cross-examination. Even if some new matter were the subject of redirect, any error here would not be prejudicial given the heavy weight of the evidence against the defendant.\n60 N.C. App. at 430, 298 S.E. 2d at 767.\nIn this case, the friendship between defendant and L. G. Shuffler was raised on the redirect examination of Officer Jones. Although the State did not question Officer Jones on direct concerning Shuffler, both the State and the defendant had mentioned Shuffler\u2019s name when Officer Rector testified. Indeed, defense counsel had cross-examined Officer Rector about a scuffle between defendant and Shuffler. Therefore, the trial court did not abuse its discretion in admitting evidence of defendant\u2019s friendship with Shuffler on redirect examination.\nV\nDefendant next contends that the trial judge improperly denied his motions for a directed verdict. A motion for a directed verdict has the same legal effect as a motion for nonsuit and challenges the sufficiency of the evidence. State v. Glover, 270 N.C. 319, 154 S.E. 2d 305 (1967). \u201cIt is elementary that, upon a motion for judgment of nonsuit in a criminal action, all of the evidence favorable to the State, whether competent or incompetent, must be considered, such evidence must be deemed true and considered in the light most favorable to the State, discrepancies and contradictions therein are disregarded and the State is entitled to every inference of fact which may be reasonably deduced therefrom.\u201d State v. Witherspoon, 293 N.C. 321, 326, 237 S.E. 2d 822, 826 (1977).\nIn support of his contention that there was insufficient evidence that he failed to stop for a blue light and siren, defendant argues that the State\u2019s evidence did not show two essential facts \u2014 (1) that the vehicle had a siren that could be heard from a distance of not less than one thousand feet, and (2) that the defendant was able to hear the siren.\nBecause defendant consistently denied any connection with the disputed events, the State presented the only version of the events of 31 July 1982. Officer Rector testified that he turned on his siren when he saw defendant\u2019s erratic driving pattern. He testified further that after he turned on his siren, the defendant came to a complete stop and waited for the officer to approach his car before fleeing. This evidence, although circumstantial, is sufficient, when viewed in the light most favorable to the State, to carry the case to the jury. Defendant\u2019s motion for a directed verdict was properly denied.\nVI\nDefendant next argues that the trial court erred by not dismissing the charge of assault on a police officer. We do not agree. A person is guilty of a misdemeanor if he assaults a law enforcement officer \u201cwhile the officer ... is discharging or attempting to discharge a duty of his office.\u201d N.C. Gen. Stat. \u00a7 14-33(b)(4) (Supp. 1983). This statute is designed \u201cto protect the State\u2019s law enforcement officers from bodily injury and threats of violence. . . .\u201d State v. Hardy, 298 N.C. 191, 197, 257 S.E. 2d 426, 431 (1979).\nAn assault is \u201can overt act or an attempt, or the unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another . . . sufficient to put a [reasonable person] in fear of immediate bodily harm.\u201d State v. Roberts, 270 N.C. 655, 658, 155 S.E. 2d 303, 305 (1967). Even though intent is an essential element of criminal assault, the \u201cintent may be implied from culpable or criminal negligence, [citation omitted], if the injury or apprehension thereof is the direct result of intentional acts done under circumstances which show a reckless disregard for the safety of others and a willingness to inflict injury.\u201d State v. Coffey, 43 N.C. App. 541, 543, 259 S.E. 2d 356, 357 (1979).\nAfter grabbing the defendant around the neck to try to prevent him from escaping, Officer Rector was dragged along beside the car. The defendant attempted to strike the officer in the face. Then, with the automobile travelling at approximately twenty miles per hour, the defendant turned the steering wheel sharply to the right, causing Officer Rector to be thrown from the automobile into a ditch.\nThe defendant\u2019s actions were sufficient to submit the issue of assault on a police officer to the jury.\nVII\nThe defendant argues that the trial court erred by not striking Officer Rector\u2019s identification testimony of Shuffler, the passenger. Again, we do not agree. The identification of Shuffler was collateral and non-prejudicial. Further, defendant\u2019s objection was not timely made. Moreover, the test used in determining \u201cwhether the identification evidence is inherently incredible is whether \u2018there is a reasonable possibility of observation sufficient to permit subsequent identification.\u2019 Where such a possibility exists, the credibility of the witness\u2019 identification and the weight given his testimony is for the jury to decide.\u201d State v. Turner, 305 N.C. 356, 363, 289 S.E. 2d 368, 372 (1982) (quoting State v. Miller, 270 N.C. 726, 732, 154 S.E. 2d 902, 906 (1967)). Officer Rector testified that he walked up to the defendant\u2019s automobile and turned so that he was directly facing the driver. After Officer Rector observed both the driver and the passenger, the automobile was driven away.\nVIII\nThe defendant next argues that the trial court erred by denying his motion to sequester the State\u2019s witnesses. However, we find no prejudicial error.\n\u201cUpon motion of a party the judge may order all or some of the witnesses other than the defendant to remain outside of the courtroom until called to testify. . . .\u201d N.C. Gen. Stat. \u00a7 15A-1225 (1983). A ruling on a motion to sequester is within the trial judge\u2019s discretion and will not be disturbed absent a showing of an abuse of discretion. State v. Royal, 300 N.C. 515, 268 S.E. 2d 517 (1980); State v. Woods, 307 N.C. 213, 297 S.E. 2d 574 (1982).\nThe defendant contends the trial court erred by allowing Officer Jones to hear Officer Rector identify defendant as the driver of the car. However, Officer Jones had already heard Officer Rector\u2019s testimony in district court. Therefore, sequestering him would have served no purpose. The trial judge did not abuse his discretion.\nIX\nThe defendant\u2019s final assignment of error relates to the trial court\u2019s decision to allow Officer Rector to give an opinion concerning defendant\u2019s intoxication. The defendant has failed to argue this issue in his brief. Therefore, pursuant to Rule 28(b)(5) of the North Carolina Rules of Appellate Procedure (1983), this issue is deemed abandoned.\nFor the foregoing reasons, we find no prejudicial error.\nNo error.\nJudges Arnold and Whichard concur.\n. N.C. Gen. Stat. \u00a7 20-157(a) (1983) states that \u201c[u]pon the approach of any police or fire department vehicle . . . giving warning signal by appropriate light and by audible bell, siren or exhaust whistle, audible under normal conditions from a distance not less than 1,000 feet, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, clear of any intersection of streets or highways, and shall stop and remain in such position unless otherwise directed by a police or traffic officer.",
        "type": "majority",
        "author": "BECTON, Judge."
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    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.",
      "Simpson, Aycock, Beyer & Simpson, P.A., by Richard W. Beyer, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP BARRY DAVIS\nNo. 8325SC935\n(Filed 1 May 1984)\n1. Criminal Law \u00a7 88.3\u2014 cross-examination of State\u2019s witnesses not improperly restricted\nThe trial court did not improperly restrict cross-examination of the State\u2019s two witnesses when he sustained objections to three repetitive questions about the defendant\u2019s self-serving declaration that he was not the driver of a car, and where these questions had either been answered already or were asked again later using different phrasing.\n2. Criminal Law \u00a7 87.4\u2014 redirect examination \u2014 questions not improper\nIn a prosecution for driving under the influence of an alcoholic beverage, assaulting a law enforcement officer, and similar crimes, the trial court did not abuse its discretion in admitting evidence of defendant\u2019s friendship with the man identified as a passenger in his car on redirect examination where one of the State\u2019s witnesses had been cross-examined about a scuffle between defendant and the man identified as his passenger.\n3. Automobiles and Other Vehicles 8 137\u2014 failure to stop for blue light and siren \u2014 sufficiency of evidence\nThe evidence that defendant failed to stop for a blue light and siren was sufficient to withstand defendant\u2019s motion for directed verdict where an officer testified that he turned on his siren when he saw defendant\u2019s erratic driving pattern, and that, after he turned on his siren, the defendant came to a complete stop and waited for the officer to approach his car before fleeing. O.S. 20-157(a).\n4. Assault and Battery \u00a7 14.6\u2014 assault on a police officer \u2014 sufficiency of evidence\nThe trial court properly failed to dismiss the charge of assault on a police officer where the evidence tended to show that after grabbing the defendant around the neck to try to prevent him from escaping, the officer was dragged along beside defendant\u2019s car; that the defendant attempted to strike the officer in the face; and that then, with the automobile traveling at approximately 20 miles per hour, the defendant turned the steering wheel sharply to the right, causing the officer to be thrown from the automobile into a ditch.\n5. Criminal Law \u00a7 98.2\u2014 denial of motion to sequester witness \u2014 no prejudicial error\nThe trial judge did not abuse his discretion by allowing an officer to hear another officer\u2019s identification of defendant as the driver of a car where the officer had already heard the other officer testify in district court, and sequestering him would have served no purpose. G.S. 15A-1225.\nAppeal by defendant from Sitton, Judge. Judgment entered 28 January 1983 in Superior Court, Burke County. Heard in the Court of Appeals 16 February 1984.\nAttorney General Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.\nSimpson, Aycock, Beyer & Simpson, P.A., by Richard W. Beyer, for defendant appellant."
  },
  "file_name": "0238-01",
  "first_page_order": 270,
  "last_page_order": 278
}
