{ "id": 8524876, "name": "STATE OF NORTH CAROLINA v. TOMMIE LEE CARTER", "name_abbreviation": "State v. Carter", "decision_date": "1985-05-07", "docket_number": "No. 843SC997", "first_page": "437", "last_page": "443", "citations": [ { "type": "official", "cite": "74 N.C. App. 437" } ], "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": "265 S.E. 2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559714 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0001-01" ] }, { "cite": "290 S.E. 2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "630" } ], "opinion_index": 0 }, { "cite": "305 N.C. 463", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571096 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/305/0463-01" ] }, { "cite": "273 S.E. 2d 273", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "302 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563625 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/302/0001-01" ] }, { "cite": "265 S.E. 2d 164", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 71", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559773 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0071-01" ] }, { "cite": "313 S.E. 2d 585", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2395265 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0563-01" ] }, { "cite": "316 S.E. 2d 72", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "311 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4683956 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/311/0299-01" ] }, { "cite": "309 S.E. 2d 464", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "65 N.C. App. 234", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523250 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/65/0234-01" ] }, { "cite": "235 S.E. 2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561507 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0091-01" ] }, { "cite": "156 S.E. 2d 155", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 379", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564082 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0379-01" ] }, { "cite": "306 S.E. 2d 100", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4761187 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0063-01" ] }, { "cite": "271 S.E. 2d 242", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565888 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0262-01" ] }, { "cite": "454 U.S. 973", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6449733, 6449926, 6450121, 6449578, 6449417, 6449328, 6449490, 6449656, 6450011, 6449245, 6449822 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/us/454/0973-07", "/us/454/0973-09", "/us/454/0973-11", "/us/454/0973-05", "/us/454/0973-03", "/us/454/0973-02", "/us/454/0973-04", "/us/454/0973-06", "/us/454/0973-10", "/us/454/0973-01", "/us/454/0973-08" ] }, { "cite": "259 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572862 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0512-01" ] } ], "analysis": { "cardinality": 605, "char_count": 12405, "ocr_confidence": 0.789, "pagerank": { "raw": 6.470291726553117e-08, "percentile": 0.3987649473000163 }, "sha256": "1db0286333e63e48b227b90b4a4f70b0289a7e75439f7be33983f330435c28c2", "simhash": "1:f7276409b6391572", "word_count": 2061 }, "last_updated": "2023-07-14T16:43:43.207286+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Whichard and Johnson concur." ], "parties": [ "STATE OF NORTH CAROLINA v. TOMMIE LEE CARTER" ], "opinions": [ { "text": "EAGLES, Judge.\nI\nDefendant first assigns as error the trial court\u2019s summation of the evidence in its jury instructions. We find no error.\nThe basis of defendant\u2019s argument is that the trial court gave the jury a detailed summary of the State\u2019s evidence, but failed to summarize any evidence favorable to defendant elicited by defendant on cross examination.\nThe trial court is not required to fully recapitulate all the evidence, but when it does, the trial court must summarize the evidence in the case that is favorable to defendant even though defendant presents no evidence. State v. Sanders, 298 N.C. 512, 259 S.E. 2d 258 (1979), cert. denied, 454 U.S. 973 (1981). G.S. 15A-1232 requires the trial court to summarize the evidence of both parties only to the extent necessary to explain the application of the law to the evidence. State v. Moore, 301 N.C. 262, 271 S.E. 2d 242 (1980). Evidence favorable to defendant elicited on cross examination that tends to exculpate defendant is substantive evidence. State v. Sanders, supra. A trial court cannot adequately explain the application of the law to the evidence in such a case without mentioning the exculpatory evidence elicited by defendant on cross examination. State v. Moore, supra.\nHere, defendant presented no evidence at trial and claims that the trial court failed to summarize evidence favorable to defendant elicited from State\u2019s witnesses on cross examination. However, our examination of the record indicates that defendant on cross examination did not elicit substantive evidence tending to exculpate himself. Rather, defendant\u2019s cross examination attempted to impeach the testimony of the State\u2019s witnesses. Testimony which merely tends to impeach or show bias is not substantive in nature and need not be summarized. State v. Abdullah, 309 N.C. 63, 306 S.E. 2d 100 (1983). Here, the evidence defendant claims is favorable to him includes the inability of an expert witness to positively conclude that defendant made the bite marks in question and prior inconsistent statements by other witnesses. This is all testimony which tends to impeach or show bias in the State\u2019s witnesses. It is not substantive in nature and would not exculpate defendant if believed. Accordingly, the trial court adequately related the application of the law to the evidence without being required to mention the evidence elicited by defendant on cross examination.\nII\nDefendant next assigns as error the sufficiency of the evidence to support a finding beyond a reasonable doubt that defendant was the perpetrator of the crimes. We find no error.\nDefendant argues that the State\u2019s evidence failed to establish the identity of the assailant and that, at best, the State\u2019s evidence raises only a \u201csuspicion or conjecture\u201d that defendant was the assailant. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 155 (1967); State v. White, 293 N.C. 91, 235 S.E. 2d 55 (1977); State v. Bell, 65 N.C. App. 234, 309 S.E. 2d 464 (1983), aff\u2019d, 311 N.C. 299, 316 S.E. 2d 72 (1984). The identity of defendant as the assailant is, of course, a necessary element of each crime charged and must be proven by the State beyond a reasonable doubt. Before submitting the evidence to the jury, the trial court must consider whether there is substantial evidence of each element of the crimes charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Brown, 310 N.C. 563, 313 S.E. 2d 585 (1984); State v. Smith, 300 N.C. 71, 265 S.E. 2d 164 (1980).\nDefendant only assigns as error the element of identity of defendant as the victim\u2019s assailant. Based on the record before us, we hold that there was substantial evidence from which the jury could conclude that defendant was, in fact, the assailant.\nThe evidence presented by the State, although circumstantial, tends to identify defendant as the perpetrator. The victim described the assault and identified her assailant\u2019s race, height and clothing. One State\u2019s witness testified that he saw defendant\u2019s car parked near the victim\u2019s home on the morning of the attack. Another witness testified that he saw defendant standing on the grass near the victim\u2019s front door on the morning in question and that he saw defendant get into his car and drive away. Further evidence showed that the semen left on the rug and a blood sample taken from defendant revealed that both samples were from an individual who was a blood type \u201cO\u201d, type 1 secretor, a blood type found in 28% of the population in North Carolina. In addition, the State presented evidence from two forensic odon-tologists. Dr. Webster testified that he was able to identify a total of seventeen points of bite identification, eight of which came from the victim\u2019s shoulder wound. Dr. Souviron testified that he noted ten of the most obvious points of identification. Bite mark identification, approved in other jurisdictions, was first approved in North Carolina in State v. Temple, 302 N.C. 1, 273 S.E. 2d 273 (1981). In that case, Dr. Webster, the same expert who testified here, testified as to eight points of identification between overlays of defendant\u2019s teeth and bite marks on the victim. Here, Dr. Webster identified a total of seventeen common points of identification, eight of which were from one wound. In State v. Green, 305 N.C. 463, 290 S.E. 2d 625 (1982), Dr. Webster again testified as to bite marks, finding fourteen common points of identification between defendant\u2019s teeth and the bite marks on the victim\u2019s arm. Our Supreme Court stated in Green, \u201cwe find no reason to suspect that the methodology employed by this expert witness [Dr. Webster] was anything less than scientifically sound and reliable.\u201d Id. at 471, 290 S.E. 2d at 630. We agree. Here, the evidence shows that in addition to a positive comparison of defendant\u2019s teeth with the bite marks by Dr. Webster, there is evidence that the dental casts were identical representations of the teeth of defendant and testimony that the bite marks, represented in photographs of the victim, were \u201csimilar and identical\u201d to the dental cast. Based on the record before us, we cannot say that the State\u2019s evidence raised \u201conly a suspicion or conjecture that the accused was the assailant.\u201d State v. Cutler, supra; State v. Bell, supra. Rather, we believe that when taken together and considered in the light most favorable to the State, there is substantial evidence from which the jury could conclude that defendant was the assailant and committed the crimes charged. Accordingly, we find that defendant received a fair trial free of prejudicial error.\nDefendant\u2019s assignments of errors numbered 1, 2, 3, 4, 5, 9 and 10 were not brought forward and argued in defendant\u2019s brief and are therefore deemed abandoned. State v. Franks, 300 N.C. 1, 265 S.E. 2d 177 (1980). Rules 28(a), 28(b)(5), Rules of Appellate Procedure.\nNo error.\nJudges Whichard and Johnson concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney General T. Byron Smith, for the State.", "Appellate Defender Stein, by First Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TOMMIE LEE CARTER\nNo. 843SC997\n(Filed 7 May 1985)\n1. Criminal Law \u00a7 113.1\u2014 evidence elicited by defendant on cross-examination\u2014 failure to summarize\nThe trial court did not err in failing to summarize evidence elicited by defendant on cross-examination where such evidence tended merely to impeach or show bias and did not constitute substantive evidence tending to exculpate defendant.\n2. Criminal Law \u00a7 68; Rape and Allied Offenses 8 5\u2014 identification of defendant \u2014bite marks and other evidence \u2014 sufficiency of evidence\nThe State\u2019s evidence of defendant\u2019s identity as the perpetrator of a first-degree burglary, second-degree rape and attempted second-degree sexual offense was sufficient to support defendant\u2019s conviction of those crimes where it tended to show: defendant\u2019s car was parked near the victim\u2019s home on the morning of the crimes; a witness saw defendant standing on the grass near the victim\u2019s front door on the morning in question and saw defendant get into his car and drive away; semen found on a rug in the victim\u2019s home and blood samples taken from defendant both contained blood type 0, type 1 secretor, a blood type found in 28% of the population in North Carolina; and, based on comparisons of photographs of bite marks on the victim\u2019s body with casts of defendant\u2019s teeth and with the teeth themselves, bite marks on the victim\u2019s body were made by defendant\u2019s teeth.\nAppeal by defendant from Reid, Judge. Judgment entered 2 June 1984 in Superior Court, Pitt County. Heard in the Court of Appeals 3 April 1985.\nThis is a criminal case in which defendant, Tommie Lee Carter, was convicted at a jury trial on 2 June 1984 of first degree burglary, second degree rape and attempted second degree sexual offense. Defendant\u2019s first trial on these same charges had ended in a mistrial based upon the jury\u2019s inability to reach a verdict.\nThe charges arose out of the sexual assault of the victim in her home at 91B Howell Street in Greenville on 4 October 1983.\nThe State\u2019s evidence tended to show that the victim was awakened early in the. morning hours of the day in question by a man squatting on the window ledge of her bedroom. The man wore a jacket, trousers, tennis shoes, a black scarf, gloves and a black mask on his face. The victim attempted to run from the room but the man caught her by placing his arm around the victim\u2019s neck. The man then bit the victim several times on the left shoulder and left side of her neck, took money from her purse and forced her into her living room. The man forced the victim to lie down on the rug. He attempted to have anal intercourse with the victim, had vaginal intercourse with the victim and ejaculated on the living room rug. The victim testified that her assailant left her home through the front door and she watched him walk south on Green Street. The victim then called police who interviewed her and had her taken to a local hospital.\nAt the hospital emergency room, medical personnel observed bite marks on the victim. A physician ordered the marks cleaned with iodine. After the victim returned home, a police photographer took photographs of the bite marks in question. These photographs were taken approximately three hours after the bites were inflicted.\nPolice cut out the damp section of the victim\u2019s living room rug and sent it to the SBI laboratory in Raleigh for testing. An SBI forensic serologist compared semen taken from the rug and blood samples taken from defendant. The report of the testing indicated that the semen and blood samples were blood type \u201c0\u201d, type 1 secretors, a blood type found in 28\u00b0/o of the population.\nPrior to defendant\u2019s arrest, a Greenville dentist had made casts of defendant\u2019s teeth. The photographs of the bite marks on the victim and the casts of defendant\u2019s teeth were submitted to two experts in the field of forensic odontology, Dr. William P. Webster, a professor in the Schools of Dentistry and Medicine at the University of North Carolina in Chapel Hill and Dr. Richard Souviron, a dentist and assistant medical examiner in Coral Gables, Florida. Dr. Webster was able to identify a total of seventeen common points of identification, eight of which came from a shoulder wound of the victim. Dr. Souviron testified that he had highlighted ten of the most obvious points of identification. Both medical experts testified that the casts of defendant\u2019s teeth and the bite marks revealed in the photographs were consistent. Dr. Webster had also examined defendant\u2019s teeth and testified that the dental casts were identical representations of the defendant\u2019s teeth and that the bite marks in the photographs were \u201csimilar and identical\u201d to the dental casts.\nA State\u2019s witness, Robert Lee Jenkins, Sr., testified that on the morning in question he saw a red and white Grand Prix automobile parked at the Howell Street stop sign near the victim\u2019s home. He did not notice the license plate, but testified that he recognized the automobile as belonging to defendant. Mr. Jenkins\u2019 13 year old son, Robert, testified that while walking near the victim\u2019s home on the morning in question, he saw defendant standing in the victim\u2019s yard near her front door and then driving away down Howell Street, turning up Green Street.\nAttorney General Edmisten, by Associate Attorney General T. Byron Smith, for the State.\nAppellate Defender Stein, by First Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." }, "file_name": "0437-01", "first_page_order": 469, "last_page_order": 475 }