{ "id": 8519586, "name": "STATE OF NORTH CAROLINA v. TERRY LEE MOORE", "name_abbreviation": "State v. Moore", "decision_date": "1985-12-03", "docket_number": "No. 843SC1195", "first_page": "77", "last_page": "85", "citations": [ { "type": "official", "cite": "78 N.C. App. 77" } ], "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": "307 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 421", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4766681 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0421-01" ] }, { "cite": "300 S.E. 2d 29", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "60 N.C. App. 679", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523490 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/60/0679-01" ] }, { "cite": "254 S.E. 2d 924", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 302", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569792, 8569765, 8569866, 8569838, 8569820 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0302-02", "/nc/297/0302-01", "/nc/297/0302-05", "/nc/297/0302-04", "/nc/297/0302-03" ] }, { "cite": "251 S.E. 2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "39 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553783 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/39/0605-01" ] }, { "cite": "447 U.S. 231", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6183056 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/447/0231-01" ] }, { "cite": "426 U.S. 610", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181032 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/us/426/0610-01" ] } ], "analysis": { "cardinality": 683, "char_count": 15775, "ocr_confidence": 0.808, "pagerank": { "raw": 2.1813549812920936e-07, "percentile": 0.772566856214397 }, "sha256": "886efcbff9fc9401c84ed0277d55e5d10d8050f3df32fc77f21cfd4fffb07a1c", "simhash": "1:c2aaa2cd56278ee8", "word_count": 2651 }, "last_updated": "2023-07-14T22:39:04.225821+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge Martin concurs.", "Judge BECTON concurs in part and dissents in part." ], "parties": [ "STATE OF NORTH CAROLINA v. TERRY LEE MOORE" ], "opinions": [ { "text": "WEBB, Judge.\nIn his first assignment of error the defendant argues that the trial court erred in permitting the prosecutor to question the defendant repeatedly concerning his failure to report the murder to the police. The following occurred on cross-examination:\nQ: But you never told it [the defendant\u2019s version of events] until the police went up there after you?\nA: I never told anything to the police until now.\nQ: You never told them anything until now?\nA: No, sir.\nQ: You never even told them this story about the two guys, did you?\nA: No, sir.\nQ: They asked you?\nA: They asked me about it, yes, sir.\nQ: And you refused to tell them, didn\u2019t you?\nA: Yes, sir.\nQ: To tell them anything at all?\nA: That\u2019s my right.\nMr. BoshameR: Objection.\nThe Court: Well, that objection is sustained. Ladies and Gentlemen of the Jury, disregard counsel\u2019s question and disregard the witness\u2019 answer.\nLater on cross-examination the prosecutor asked the defendant:\nQ: Well, didn\u2019t you say before the break that you called him [Captain Rose] to tell him that you didn\u2019t want to talk to him?\nA: Yes, sir, I told him that I didn\u2019t want to talk to him but if he needed to get with me about something that I was here.\nQ: But you refused to talk to him?\nA: Yes, sir, about the case.\nQ: And you never did talk to him about the case?\nA: No.\nAfter this exchange the court sustained defense counsel\u2019s objection but did not instruct the jury to disregard the question and answer. Still later the prosecutor asked the defendant:\nQ: You knew that you\u2019d be found sooner or later, didn\u2019t you?\nA: I just knew that I needed to come back and get this right.\nQ: But you also knew that you didn\u2019t need to tell Captain Rose about it?\nA: That\u2019s what my lawyer \u2014\nThe court again sustained defense counsel\u2019s objection without instructing the jury to disregard the question and answer.\nThe defendant contends that the prosecutor\u2019s repeated references to the defendant\u2019s failure to report to police his version of the crime abridged the defendant\u2019s right to remain silent. The United States Supreme Court held in Doyle v. Ohio, 426 U.S. 610, 49 L.Ed. 2d 91, 96 S.Ct. 2240 (1976) that when a defendant testifies he may not be cross-examined in regard to his remaining silent after he has been warned by the officers of his right to remain silent. In Jenkins v. Anderson, 447 U.S. 231, 65 L.Ed. 2d 86, 100 S.Ct. 2124 (1980) the Supreme Court held that a defendant may be cross-examined in regard to pre-arrest failure to tell the officers of a defense he asserts at trial. We followed this rule in State v. Burnett, 39 N.C. App. 605, 251 S.E. 2d 717, disc. rev. denied, 297 N.C. 302, 254 S.E. 2d 924 (1979). The defendant consulted an attorney in late March or April of 1983. The defendant did not tell the investigating officers anything about the two men he says attacked him and Ms. Ballard during the approximately nine months between the time of the incident and the date he first consulted an attorney. The State was entitled to cross-examine him as to the failure to so tell the officers during this period. This was the main thrust of the questions asked of the defendant on cross-examination. Although some of the questions may have involved a time after he was given his Miranda warnings we do not believe the defendant was prejudiced. The State elicited, as it had the right to do, testimony that defendant for a period of nine months did not tell the officers he had information in regard to a criminal investigation. We do not believe he was prejudiced because some of the testimony showed he did not tell them of this information after he had received a Miranda warning.\nThe defendant called as a witness an attorney whom he contacted when he returned from Mexico. The attorney testified in corroboration of the testimony of defendant. The attorney testified on direct examination that he advised the defendant not to talk to the officers about the case. This colloquy then occurred.\nQ: Did you talk to him about what would likely happen if he did talk to somebody about it?\nA: I told him that it was my opinion that if he recounted to the investigators the events that he recounted to me\u2014\nMr. McFayden: Judge, I\u2019m going to object and move to strike his opinion.\nThe COURT: Well, that motion to strike is allowed.\nThe defendant contends it was error to strike this testimony because it was relevant to show his flight was not from a consciousness of guilt but was on the advice of his attorney. We note that the principal evidence of flight by the defendant was his trip to Mexico which occurred before he consulted an attorney. At any rate we believe there was sufficient testimony from the attorney admitted without objection as to the advice given the defendant not to talk to law enforcement officers that the defendant was not prejudiced by the exclusion of this testimony.\nOn cross examination of the attorney the following colloquy occurred:\nQ: Okay. Now you remember talking with Special Agent Smith on the telephone?\nA: Yes.\nQ: And Special Agent Smith told you that he would like to sit down with you and your client and discuss this case?\nA: He may have.\nQ: And you told him that Terry would be going out of town and that you were pretty busy and you\u2019d have to get back together on that?\nMr. BOSHAMER: Objection, Your Honor.\nThe COURT: Overruled.\nQ: (Mr. McFayden) Do you recall that, sir?\nA: Not specifically, but I may very well have said that, that I would be unable at that time to meet with him, but I don\u2019t recall.\nQ: And there never came a date when you and Terry Moore sat down with the officers, or any officer?\nA: There did not.\nThe defendant contends it was error to allow this testimony as to the defendant\u2019s not talking to law enforcement officers on the advice of his attorney. The defendant elicited testimony from the attorney as to his advice to the defendant not to talk to the investigative officers. We hold it was not error to allow the State to elicit in more detail testimony as to this advice.\nThe defendant\u2019s next assignment of error concerns the trial court\u2019s finding as a non-statutory aggravating factor at sentencing that the defendant admitted during cross-examination that he had committed four criminal offenses punishable by more than 60 days\u2019 confinement for which he was never charged.\nG.S. 15A-1340.4(a) provides in part:\nIf the judge imposes a prison term, ... he must impose the presumptive term provided in this section unless, after consideration of aggravating or mitigating factors, or both, he decides to impose a longer or shorter term. ... In imposing a prison term, the judge . . . may consider any aggravating and mitigating factors that he finds are proved by the preponderance of the evidence, and that are reasonably related to the purposes of sentencing, whether or not such aggravating or mitigating factors are set forth herein.\nOne of the aggravating factors the judge is required to consider under the statute is whether \u201c[t]he defendant has a prior conviction or convictions for criminal offenses punishable by more than 60 days\u2019 confinement.\u201d G.S. 15A-1340.4(a)(1)(o). In State v. Thompson, 60 N.C. App. 679, 300 S.E. 2d 29, modified on other grounds, 309 N.C. 421, 307 S.E. 2d 156 (1983), this Court held that a defendant\u2019s statement during cross-examination that he had previously been convicted of two felonies was credible evidence and was sufficient to support the aggravating factor that the defendant had prior convictions for offenses punishable by 60 days\u2019 confinement under G.S. 15A-1340.4(a)(1)(o). In the instant case the defendant admitted during cross-examination that he had previously committed the crimes of possession of a schedule I controlled substance, LSD, sale of a schedule VI controlled substance, marijuana, breaking or entering and larceny. This testimony was sufficient to support the court\u2019s finding this factor. These offenses are all punishable by more than 60 days\u2019 confinement. If the fact of a defendant\u2019s prior convictions punishable by 60 days\u2019 confinement is reasonably related to the purposes of sentencing, we believe the fact of a defendant\u2019s admitted commission of prior criminal offenses also punishable by 60 days\u2019 confinement is reasonably related to the purposes of sentencing. This assignment of error is overruled.\nIn his last assignment of error the defendant argues that the trial court erred in failing to, find as a factor in mitigation that the defendant was 17 years old at the time of the crime. The defendant does not contend that there is a statutory mitigating factor that specifically applies but argues that age is something which is taken into account in many situations under our law and should be taken into account in this case. We believe a person at 17 years of age should be as well aware as any person of the wrong involved in the commission of murder. We do not believe the court abused its discretion in failing to find this mitigating factor.\nNo error.\nJudge Martin concurs.\nJudge BECTON concurs in part and dissents in part.", "type": "majority", "author": "WEBB, Judge." }, { "text": "Judge BECTON\nconcurring in part and dissenting in part.\nI concur in the majority\u2019s resolution of all of defendant\u2019s assignments of error except the assignment of error concerning \u201cthe trial court\u2019s finding as a non-statutory aggravating factor at sentencing that the defendant admitted during cross-examination that he had committed four criminal offenses punishable by more than sixty days confinement for which he was never charged.\u201d Ante p. 82. A defendant\u2019s admission on cross-examination that he has been convicted of two felonies is not only presumably verifiable but is also presumptively valid, considering the panoply of procedural safeguards that accompany a conviction. The same significance, however, cannot be given to a defendant\u2019s admission on cross-examination that \u201che has committed four criminal offenses punishable by more than sixty days\u2019 confinement for which he was never charged.\u201d\nI reject the majority\u2019s implicit premises that an uncorroborated admission \u2014 without evidence aliunde \u2014 is legally sufficient and that a defendant\u2019s characterization of conduct as criminal \u2014 without regard to whether the conduct was justifiable or excusable \u2014 is conclusive. I also cannot subscribe to the reasoning that \u201c[i]f the fact of a defendant\u2019s prior convictions punishable by sixty days\u2019 confinement is reasonably related to the purposes of sentencing, . . . the fact of a defendant\u2019s admitted commission of prior criminal offenses also punishable by sixty days\u2019 confinement is reasonably related to the purposes of sentencing.\u201d Ante p. 83. This language would allow the enhancement of a sentence based on conduct for which the State may never have sought punishment \u2014 e.g., the admission by defendant that he slept with his wife before they got married, see N.C. Gen. Stat. Sec. 14-184 (1981), or that he once won $2.00 in a penny ante family poker game. See N.C. Gen. Stat. Sec. 14-292 (Cum. Supp. 1985). That these examples, although punishable by sixty days\u2019 confinement, are not reasonably related to the purposes of sentencing is clear beyond cavil. Equally clear is the disincentive the majority opinion provides to defendants to demonstrate rehabilitative potential by telling the truth about suspected, but unprovable, criminal conduct. That is, defendants who had hopes the court would find their truthfulness a mitigating factor may now make fewer admissions for fear that the court will use their truthful admissions as aggravating factors.\nThe purposes of the Fair Sentencing Act have not been advanced by the majority\u2019s resolution of this issue. Believing the trial court erred in finding as a non-statutory aggravating factor that defendant admitted during cross-examination that he had committed four criminal offenses punishable by more than sixty days\u2019 confinement for which he was never charged, I dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge BECTON" } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General James Peeler Smith, for the State.", "Appellate Defender Adam Stein, by First Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. TERRY LEE MOORE\nNo. 843SC1195\n(Filed 3 December 1985)\n1. Criminal Law 8 48\u2014 silence of defendant \u2014 use for impeachment\nDefendant\u2019s right to remain silent was not violated by the State\u2019s cross-examination of defendant regarding his failure to advise police officers of the defense he asserted at trial during the nine months between the incident and the date he first consulted an attorney. Furthermore, defendant was not prejudiced because some of the questions involved a time after he had been given his Miranda warnings.\n2. Criminal Law 8 46.1\u2014 advice by attorney \u2014 reason for flight \u2014 exclusion of evidence\nThe trial court in a murder prosecution did not err in striking the testimony of an attorney consulted by defendant which allegedly showed that defendant\u2019s flight was not from a consciousness of guilt but was on the advice of his attorney not to talk with officers about the case where the principal evidence of flight by defendant was a trip to Mexico which occurred before he consulted the attorney.\n3. Criminal Law 8 138\u2014 aggravating factor \u2014 crimes for which not charged\nThe trial court\u2019s finding as a non-statutory aggravating factor for second degree murder that defendant admitted during cross-examination that he had committed four criminal offenses punishable by more than 60 days\u2019 confinement for which he was never charged was based on sufficient evidence and was reasonably related to the purposes of sentencing.\n4. Criminal Law 8 138\u2014 age of defendant \u2014 failure to find as mitigating factor\nThe trial court did not abuse its discretion in failing to find as a mitigating factor for second degree murder that defendant was only 17 years old at the time of the crime.\nJudge Becton concurring in part and dissenting in part.\nAppeal by defendant from Strickland, Judge. Judgment entered 20 April 1984 in Superior Court, Carteret County. Heard in the Court of Appeals 27 August 1985.\nThe defendant was tried for first degree murder. The State\u2019s evidence tended to show that on 9 July 1982 the body of Angela Willis Ballard was found on the beach at Atlantic Beach, North Carolina. On the night of the murder the defendant, Terry Lee Moore, his friend Lee Johnson, and Ms. Ballard went to the beach to smoke marijuana. Johnson testified that while there Ms. Ballard had sexual intercourse first with the defendant and then with Johnson. Johnson left the defendant and Ms. Ballard on the beach. At approximately 2:00 a.m. Johnson returned to the motel room he shared with the defendant. The defendant was there. He had been scratched and was swollen around his face, hands and neck. The defendant told Johnson that while he and Ms. Ballard were on the beach two Marines arrived and started a fight. The defendant was knocked unconscious. When he awoke Ms. Ballard appeared to be dead. Neither the defendant nor Johnson reported the crime.\nIn March 1983 the defendant and Johnson learned that the police were aware of their involvement and both decided to leave town. They went to Georgia, Louisiana, Texas and Mexico and returned to their hometown of Garner after approximately two weeks. The defendant testified to essentially the same things as Johnson. He also explained that he left Garner because he was confused and afraid that he would be arrested.\nMichael Denning testified that he talked to the defendant in August 1982 and the defendant told him that the defendant and a \u201cfriend had met a girl at the Big Surf and that they had took her out on the beach and gangbanged her and she started making noise and he fucked her up.\u201d\nThe defendant was convicted of second degree murder and sentenced to 45 years in prison. He appealed.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General James Peeler Smith, for the State.\nAppellate Defender Adam Stein, by First Assistant Appellate Defender Malcolm Ray Hunter, Jr., for defendant appellant." }, "file_name": "0077-01", "first_page_order": 109, "last_page_order": 117 }