{ "id": 8523024, "name": "STATE OF NORTH CAROLINA v. HERMAN LEE GLOVER", "name_abbreviation": "State v. Glover", "decision_date": "1985-10-15", "docket_number": "No. 8521SC125", "first_page": "418", "last_page": "421", "citations": [ { "type": "official", "cite": "77 N.C. App. 418" } ], "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": "392 U.S. 219", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168861 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "222" }, { "page": "1051" }, { "page": "2010" } ], "opinion_index": 0, "case_paths": [ "/us/392/0219-01" ] }, { "cite": "250 S.E. 2d 220", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "296 N.C. 194", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565410 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/296/0194-01" ] }, { "cite": "279 S.E. 2d 881", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "52 N.C. App. 676", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170693 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc-app/52/0676-01" ] }, { "cite": "194 S.E. 482", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1938, "opinion_index": 0 }, { "cite": "212 N.C. 725", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619002 ], "year": 1938, "opinion_index": 0, "case_paths": [ "/nc/212/0725-01" ] }, { "cite": "260 S.E. 2d 427", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "429-30" } ], "opinion_index": 0 }, { "cite": "298 N.C. 783", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574147 ], "year": 1979, "pin_cites": [ { "page": "785-86" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0783-01" ] }, { "cite": "95 S.E. 2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "245 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8601922 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/nc/245/0001-01" ] } ], "analysis": { "cardinality": 504, "char_count": 7435, "ocr_confidence": 0.78, "pagerank": { "raw": 1.0245357012884623e-07, "percentile": 0.5462563647533119 }, "sha256": "a3499c102e91b24ba3be86ad8562587d91788009d8ec8c7284a9ab4469f7b19c", "simhash": "1:cd1b87207d7690a7", "word_count": 1246 }, "last_updated": "2023-07-14T21:22:01.691260+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Johnson and Parker concur." ], "parties": [ "STATE OF NORTH CAROLINA v. HERMAN LEE GLOVER" ], "opinions": [ { "text": "EAGLES, Judge.\nBy his sole assignment of error, the defendant contends that the trial court erred when it denied his motion for mistrial, when the motion was based on the admission of defendant\u2019s criminal record by incompetent and highly prejudicial evidence which violated the defendant\u2019s constitutional right to remain silent. We disagree.\nDefendant\u2019s only assignment of error is based on two exceptions. However, the exceptions do not appear in the record except under the purported assignment of error. These exceptions are worthless and will not be considered on appeal. Holden v. Holden, 245 N.C. 1, 95 S.E. 2d 118 (1956).\nUnder our former Rules . . ., the appeal itself constituted an exception to the judgment and presented for review any error appearing on the face of the record proper. [Citations omitted.] Our present Rules of Appellate Procedure, effective 1 July 1975, obliterated the former distinction between the \u201crecord proper\u201d and the \u201csettled case on appeal.\u201d Instead, the single concept of \u201crecord on appeal\u201d is used and the composition of the record on appeal is governed by Rule 9(b), Rules of Appellate Procedure.\nState v. Samuels, 298 N.C. 783, 785-86, 260 S.E. 2d 427, 429-30 (1979).\nThe crux of this appeal involves certain testimony of Officer Larry Reavis. The pertinent portions, excerpted from the record, are as follows:\nQ. Do you know of your own knowledge whether or not the defendant goes by another name other than Herman Lee Glover?\nMr. JOHNSON: Object, Your Honor, it would have to be hearsay.\nCOURT: Overruled.\nA. He had numerous charges in our records division \u2014\nMr. JOHNSON: Your Honor, object.\nCOURT: Sustained. That\u2019s not responsive. Members of the jury, don\u2019t consider that answer.\nQ. Simply do you know of your own knowledge whether or not the defendant goes by a name other than Herman Lee Glover?\nA. I do.\nDefense counsel promptly objected, and the trial judge promptly sustained the objection and instructed the jury to disregard the witness\u2019 answer. While psychologists may debate a juror\u2019s ability to ignore spoken words and erase their impressions from his mind, our legal system through trial by jury operates on the assumption that a jury is composed of men and women of sufficient intelligence to comply with the court\u2019s instructions and they are presumed to have done so. State v. Ray, 212 N.C. 725, 194 S.E. 482 (1938). A defendant\u2019s motion for mistrial must be granted, as required by G.S. 15A-1061, \u201cif there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant\u2019s cas\u00e9.\u201d The decision as to whether prejudice has occurred is addressed to the discretion of the trial judge. State v. Rogers, 52 N.C. App. 676, 279 S.E. 2d 881 (1981). His decision is not reviewable absent a showing of gross abuse of discretion. State v. Love, 296 N.C. 194, 250 S.E. 2d 220 (1978). There is no abuse here.\nThe witness\u2019 nonresponsive statement did not violate the defendant\u2019s constitutional right to remain silent and the defendant is not entitled to a new trial. Contrary to defendant\u2019s argument, it is clear from the transcript of the defendant\u2019s testimony that the defendant took the stand, not to answer the State\u2019s evidence regarding other charges, but in order to rebut the State\u2019s evidence that he committed the crime.\nA defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.\nHarrison v. United States, 392 U.S. 219, 222, 20 L.Ed. 2d 1047, 1051, 88 S.Ct. 2008, 2010 (1968).\nWe find no error in the judgment or in the record on appeal which warrants a new trial.\nNo error.\nJudges Johnson and Parker concur.", "type": "majority", "author": "EAGLES, Judge." } ], "attorneys": [ "Attorney General Thornburg by Special Deputy Attorney General H. A. Cole, Jr., for the State.", "Dan S. Johnson, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. HERMAN LEE GLOVER\nNo. 8521SC125\n(Filed 15 October 1985)\nCriminal Law \u00a7 128.2\u2014 defendant\u2019s criminal record \u2014 mistrial denied \u2014no abuse of discretion\nThe trial court did not abuse its discretion in a prosecution for felonious larceny when it denied defendant\u2019s motion for a mistrial after an officer testified, in response to a question concerning whether defendant went by another name, that defendant had numerous charges in the records division. The trial court properly sustained defendant\u2019s objection and instructed the jury to disregard the witness\u2019s answer, and defendant was not deprived of his constitutional right to remain silent because he clearly took the stand to rebut the State\u2019s evidence that he committed the crime and not to answer the State\u2019s evidence regarding other charges.\nAPPEAL by defendant from Wood, Judge. Judgment entered 28 September 1984 in Superior Court, FORSYTH County. Heard in the Court of Appeals 19 September 1985.\nThis is a criminal case in which defendant was charged with felonious larceny in violation of G.S. 14-72. Upon a plea of not guilty, the defendant was tried before a jury and found guilty.\nThe essential facts are:\nOn 8 March 1984 at approximately 1:00 o\u2019clock p.m. a money box containing $1,900.00 in cash and $960.00 in checks was stolen from the Winston-Salem Barber School (the School). The State presented evidence that on 8 March 1984 around 1:00 o\u2019clock p.m. a black man was seated in the reception area of the School. He was observed by several people working at the School that day, including Miss Sandy. Miss Sandy, a student, was in her barber\u2019s chair approximately 20 feet away from the man seated in the reception area and approximately seven to nine feet away from the counter where the money box was located. Miss Sandy stated that the man wore a red toboggan, sunglasses and blue jeans. As she was watching him, the man got up out of his chair and walked over to the counter. He picked up the telephone receiver and then replaced it. He then reached over the counter, picked up the money box, and ran out the door. Miss Sandy went over to the door, looked out and saw the man running through a parking lot. Mr. Whitney, the secretary/treasurer of the School, and several students gave chase but were unable to apprehend the man.\nMiss Sandy later identified the man at the School from a photographic lineup. She identified a photograph of the defendant.\nBetty Barnes, another student, was also working there on 8 March 1984. She testified that she had known the defendant for more than three years. She saw him at the School around 1:00 p.m. on 8 March 1984. He waved to her and she said \u201cHey, Glover\u201d and asked him what he was doing there. He told her that he was waiting for someone. She asked if he would like a haircut and he told her \u201cNo.\u201d Miss Barnes also identified the defendant from a photographic lineup.\nThe defendant presented evidence which tended to show that he worked for Mrs. Dorothy Felder. Mrs. Felder testified that from 10:30 a.m. until 4:00 p.m. on 8 March 1984 she was with the defendant, running errands and visiting her sister in the hospital. Other witnesses testified for the defendant corroborating his alibi.\nFrom his conviction and the judgment imposing a sentence of five years, the defendant appeals.\nAttorney General Thornburg by Special Deputy Attorney General H. A. Cole, Jr., for the State.\nDan S. Johnson, for the defendant-appellant." }, "file_name": "0418-01", "first_page_order": 450, "last_page_order": 453 }