{ "id": 8521986, "name": "STATE OF NORTH CAROLINA v. JERRY SIMMS HALL", "name_abbreviation": "State v. Hall", "decision_date": "1985-02-19", "docket_number": "No. 848SC453", "first_page": "101", "last_page": "107", "citations": [ { "type": "official", "cite": "73 N.C. App. 101" } ], "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": "286 S.E. 2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 609", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570230 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0609-01" ] }, { "cite": "308 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767283 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0528-01" ] }, { "cite": "319 S.E. 2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4686860 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0573-01" ] } ], "analysis": { "cardinality": 576, "char_count": 11843, "ocr_confidence": 0.837, "pagerank": { "raw": 6.939155244961223e-08, "percentile": 0.4208948089251536 }, "sha256": "e6a9890df13e0162b68764ecd879c0a889b66bd330e06fc149a7f84cd052cfcf", "simhash": "1:ee9d606a3d1a31e0", "word_count": 1970 }, "last_updated": "2023-07-14T21:55:13.639601+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and COZORT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY SIMMS HALL" ], "opinions": [ { "text": "HEDRICK, Chief Judge.\nIn his first assignment of error, defendant challenges the court\u2019s denial of his pre-trial motion to suppress evidence discovered in a search of the area in which defendant was arrested. N.C. Gen. Stat. Sec. 15A-977 in pertinent part provides:\n(a) A motion to suppress evidence in superior court . . . must state the grounds upon which it is made. The motion must be accompanied by an affidavit containing facts supporting the motion.\n(c) The judge may summarily deny the motion to suppress evidence if:\n(1) The motion does not allege a legal basis for the motion; or\n(2) The affidavit does not as a matter of law support the grounds alleged.\nIn the instant case, the motion to suppress filed by defendant contained the following allegations concerning the challenged search:\nNow Comes the defendant, Jerry Simms Hall, and moves to suppress the following:\n2. Any evidence obtained as a result of a search without a search warrant.\nAs grounds for said motion to suppress, the defendant respectfully shows . . . that no evidence was obtained from the defendant; that the defendant had no controlled substance in his possession nor in his control at the time of his arrest.\nWherefore, the defendant moves that said evidence be suppressed, as the same was in violation of Article IV . . . and Article XIV, of the amendment to the Constitution of the United States, and that this verified Motion be accepted in support of said Motion to Suppress.\nDefendant filed no affidavit in support of his motion.\nWhile the record in the instant case reveals that the trial judge conducted a lengthy hearing on defendant\u2019s motion to suppress, making detailed findings of fact, we think it clear that the court could have summarily denied defendant\u2019s motion, which alleges no legal basis for suppression and which is unsupported by affidavits. Indeed, our examination of the motion filed by defendant reveals that the stated \u201cgrounds\u201d for suppression are so vague as to be no grounds at all. We hold that defendant, by his failure to comply with the statutory requirements set out in G.S. 15A-977, has waived his right to contest on appeal the admission of evidence seized in the challenged search. State v. Holloway, 311 N.C. 573, 319 S.E. 2d 261 (1984). The assignment of error is overruled.\nDefendant\u2019s second assignment of error is set out in his brief as follows: \u201cThe trial court committed reversible error in improperly allowing testimony by Chemist Evans identifying Exhibit 9 on the grounds that the State failed to properly prove a chain of custody for Exhibit 9 and its contents.\u201d This assignment of error is based on Exception No. 2, set out in the transcript as follows:\nMr. COPELAND: Your Honor, at this time I move to introduce state\u2019s Exhibits 1 through 9 into evidence.\nMr. DUKE: To which we object.\nException #2.\nFollowing defendant\u2019s objection, the trial court considered the State\u2019s motion as to each individual exhibit, and admitted each of the exhibits into evidence.\nRule 10, North Carolina Rules of Appellate Procedure, in pertinent part provides:\n(a) Function in Limiting Scope of Review. Except as otherwise provided in this Rule 10, the scope of review on appeal is confined to a consideration of those exceptions set out and made the basis of assignments of error in the record on appeal in accordance with this Rule 10. No exception not so set out may be made the basis of an assignment of error. . . .\n(b) Exceptions.\n(1) . . . Each exception shall be set out immediately following the record of judicial action to which it is addressed and shall identify the action, without any statement of grounds or argumentation, by any clear means of reference.\nIn the instant case, we are unable to identify the judicial action that defendant wishes to challenge on appeal. Contrary to the requirements of Rule 10(b)(1), Exception No. 2 is not set out \u201cimmediately following the record of judicial action to which it is addressed,\u201d but instead appears immediately after defendant\u2019s objection to the State\u2019s motion. Furthermore, even if we were to assume that defendant intended to except to the court\u2019s admission into evidence of the exhibits, such exception would not support defendant\u2019s assignment of error, which concerns admission of testimony by \u201cChemist Evans.\u201d Indeed, the testimony of Mr. Evans appears in the transcript some one hundred pages before defendant\u2019s noted exception. Because we cannot identify the judicial action defendant has attempted to challenge, we are unable to consider the merits of this assignment of error.\nDefendant next contends the court erred \u201cin failing to dismiss the charges . . . due to the insufficiency of evidence.\u201d Evidence adduced at trial, considered in the light most favorable to the State, tended to show the following: On 6 May 1983 Goldsboro police officers went to a Goldsboro poolroom; the officers were looking for defendant. When they arrived at the scene, officers observed the defendant on the sidewalk outside the building. When defendant saw the officers, he threw a \u201csmall round object\u201d \u201cof grayish-whitish color\u201d \u201c[s]haped like an Anacin bottle\u201d over a fence into an alley. One of the officers climbed over the fence into the alley to look for the object. The alleyway had \u201csmall\u201d grass in some areas and was bare in others. The officer \u201ccombed the whole area\u201d and found a small white bottle. No items of similar appearance were found in the alleyway. The bottle was found to contain eight tinfoil packets, which contained white powder. Chemical analysis of the powder revealed that the substance was heroin.\nDefendant contends that the above evidence is insufficient to show \u201cthat he was ever in possession of any heroin.\u201d We do not agree. Evidence introduced by the State was ample to raise an inference that defendant possessed a bottle containing heroin which he threw into an alleyway when he observed the presence of police officers. The assignment of error is without merit.\nDefendant next assigns error to the court\u2019s refusal to give requested instructions on circumstantial evidence. The instruction requested by defendant in pertinent part provides:\nThere is no eyewitness testimony or direct evidence that the defendant committed the crime charged in this case. The State contends that the circumstances in evidence, taken together, establish the guilt of the defendant. In other words, the State relies upon what is known as circumstantial evidence.\nWe think the court was correct in refusing to give the requested instruction. The State offered eyewitness testimony that defendant was in actual possession of a bottle resembling that found in the alleyway. The requested instruction is proper only in cases in which the State offers no direct evidence. See State v. Bates, 309 N.C. 528, 308 S.E. 2d 258 (1983).\nDefendant finally assigns as error the court\u2019s refusal \u201cto declare a mistrial upon the jury announcing that they could not agree upon a verdict.\u201d The record reveals that after the jury had considered the case for less than an hour, it returned to the courtroom and the following exchange occurred:\nFOREMAN: We\u2019re at an impasse and we do not know how to proceed any further.\nCOURT: Is it some question of procedure, or is it\u2014\nFOREMAN: We cannot reach a verdict on the \u2014 a hung jury would be the way to put it, we cannot reach a verdict unanimously of any of these three verdicts.\nCOURT: You are not able to arrive at a verdict, you say?\nFOREMAN: That\u2019s correct.\nThe court then gave additional clarifying instructions on the role of the jury in accordance with N.C. Gen. Stat. Sec. 15A-1235(b) and on the requirement that any verdict rendered must be unanimous. After the court\u2019s instructions the following dialogue occurred:\nFOREMAN: May I ask a question?\nCOURT: Yes, sir.\nFOREMAN: We must reach a unanimous verdict of one of these three?\nCOURT: No, no, in order to arrive at a verdict it must be unanimous, before you can arrive at any verdict it must be unanimous, but I\u2019m not ordering, saying that you have to agree \u2014 I have tried to explain it otherwise.\nFOREMAN: I realize you\u2019re not telling us we have to reach a verdict. My question is for us to reach a verdict in our own minds, it must be one of these three verdicts and it must be unanimous?\nCOURT: Yes, sir, any verdict must be unanimous. There must be a meeting of the minds before you can arrive at any verdict in this case, yes, sir.\nThe jury then resumed their deliberations, at which time defendant asked that the court act immediately to declare a mistrial if the jury, upon being called back to the courtroom, had not reached a verdict. Judge Peel denied defendant\u2019s request.\nN.C. Gen. Stat. Sec. 15A-1235(c) provides in pertinent part:\nIf it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b).\nIn the instant case the court\u2019s actions were expressly sanctioned by the above-quoted statute. Furthermore, it is well settled that the decision of the trial judge to declare or to refuse to declare a mistrial pursuant to the provisions of G.S. 15A-1235(d) is reviewable only for abuse of discretion. State v. Wall, 304 N.C. 609, 286 S.E. 2d 68 (1982). The record in this case contains no indication that Judge Peel abused his discretion, nor does defendant make such a contention in his brief. The assignment of error is without merit.\nWe hold defendant had a fair trial free from prejudicial error.\nNo error.\nJudges JOHNSON and COZORT concur.", "type": "majority", "author": "HEDRICK, Chief Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.", "Duke and Brown, by John E. Duke, for defendant, appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY SIMMS HALL\nNo. 848SC453\n(Filed 19 February 1985)\n1. Criminal Law \u00a7 84\u2014 evidence allegedly unlawfully seized \u2014no basis for suppression\nThe trial court did not err in denying defendant\u2019s pretrial motion to suppress evidence discovered in a search of the area in which he was arrested, since defendant\u2019s motion alleged no legal basis for suppression and was unsupported by affidavits.\n2. Narcotics \u00a7 4.3\u2014 possession of heroin \u2014 sufficiency of evidence\nIn a prosecution of defendant for possession of heroin, evidence was sufficient to be submitted to the jury where it was ample to raise the inference that defendant possessed a bottle containing heroin which he threw into an alleyway when he observed the presence of police officers.\n3. Narcotics \u00a7 4.5; Criminal Law \u00a7 112.4\u2014 circumstantial evidence \u2014request for instructions properly denied\nThe trial court did not err in refusing to give defendant\u2019s requested instructions on circumstantial evidence where the State offered eyewitness testimony that defendant was in actual possession of a bottle resembling one containing heroin found in an alleyway.\n4. Criminal Law \u00a7 122.2\u2014 failure of jury to reach verdict \u2014further instructions proper\nWhere the jury announced its inability to reach a verdict after considering the case for less than an hour, the trial court did not err in giving additional clarifying instructions on the role of the jury, sending the jury back to deliberate further, and denying defendant\u2019s motion to declare a mistrial.\nAppeal by defendant from Peel, Judge. Judgment entered 27 October 1983 in Superior Court, WAYNE County. Heard in the Court of Appeals 4 February 1985.\nDefendant was charged in a proper bill of indictment with possession of a controlled substance, heroin, with intent to sell and deliver. The matter came on for trial on 20 September 1983, and the jury returned a verdict of guilty of the lesser included offense of possession of a controlled substance, heroin. The court entered judgment on the verdict and sentenced defendant to the presumptive term of two years in prison. Defendant appealed.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Thomas B. Wood, for the State.\nDuke and Brown, by John E. Duke, for defendant, appellant." }, "file_name": "0101-01", "first_page_order": 133, "last_page_order": 139 }