{ "id": 8528748, "name": "STATE OF NORTH CAROLINA v. GEORGE LEE FORTNER", "name_abbreviation": "State v. Fortner", "decision_date": "1989-05-16", "docket_number": "No. 8830SC995", "first_page": "753", "last_page": "757", "citations": [ { "type": "official", "cite": "93 N.C. App. 753" } ], "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": "252 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "40 N.C. App. 72", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548892 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc-app/40/0072-01" ] }, { "cite": "231 S.E. 2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "888" } ], "opinion_index": 0 }, { "cite": "292 N.C. 70", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567415 ], "year": 1977, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0070-01" ] }, { "cite": "271 S.E. 2d 277", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "301 N.C. 374", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566386 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/301/0374-01" ] }, { "cite": "265 S.E. 2d 923", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "925" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 680", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553034 ], "year": 1980, "pin_cites": [ { "page": "683" } ], "opinion_index": 0, "case_paths": [ "/nc-app/46/0680-01" ] }, { "cite": "332 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 120", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691533, 4686006, 4686841, 4690139, 4687644 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0120-05", "/nc/314/0120-04", "/nc/314/0120-03", "/nc/314/0120-02", "/nc/314/0120-01" ] }, { "cite": "328 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "74 N.C. App. 443", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524903 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/74/0443-01" ] }, { "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": "423 U.S. 96", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6175104 ], "weight": 6, "year": 1975, "pin_cites": [ { "page": "104" }, { "page": "321" }, { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/us/423/0096-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 6, "year": 1966, "pin_cites": [ { "page": "473-74" }, { "page": "723" }, { "page": "1627-28" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 468, "char_count": 8643, "ocr_confidence": 0.777, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20561179435557825 }, "sha256": "ef6819da1ca7c8f7e477dbed4f37905aa88086eead238c39b46f63cea5ee4ec0", "simhash": "1:a70b5d7bfa125d41", "word_count": 1409 }, "last_updated": "2023-07-14T17:06:43.799233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Greene concur." ], "parties": [ "STATE OF NORTH CAROLINA v. GEORGE LEE FORTNER" ], "opinions": [ { "text": "LEWIS, Judge.\nDefendant brings forward two assignments of error. He first asserts that the trial court committed prejudicial error in admitting into evidence statements made by defendant to a State Bureau of Investigation (SBI) agent after defendant had expressed a desire not to answer questions. Second, defendant contends the court erroneously submitted the case to the jury in that there was insufficient evidence that defendant committed the crime charged.\nThe statement to which defendant objects was made during an interview session with SBI agent Tim Shook (Shook) in the early morning hours of 27 September 1987. At that time defendant was under arrest and incarcerated in the Swain County jail. Several hours earlier, defendant had made an unsolicited admission in front of law enforcement personnel that he shot Shannon, and shortly thereafter, under questioning, he made inculpatory statements to Sheriff Ray Kline (Kline) and Deputy Sheriff Mitchell Jenkins (Jenkins) that he had shot Shannon after Shannon had insulted defendant\u2019s father and threatened defendant with a knife and that he had thrown the gun into the river. After this statement, defendant told Kline he did not want to answer further questions. Kline immediately ceased his questions.\nShook testified at trial that although he talked to Kline before he questioned defendant, he was not advised that defendant had previously told Kline he did not wish to answer any more questions. Shook further testified that prior to questioning defendant, he advised defendant of his constitutional rights and made sure defendant understood these rights. Shook also obtained defendant\u2019s signature on a waiver of rights form. Defendant then told Shook that he was asleep in the bedroom when Shannon was shot and that he did not remember anything. Defendant stated that his earlier statement to Kline was made in an effort to have his bond reduced.\nDefendant argues that his Fifth Amendment right to remain silent was violated when Shook initiated questioning after defendant had previously expressed to Kline his desire not to answer further questions and that the statement made to Shook should have been excluded. We do not agree.\nThe United States Supreme Court stated in Miranda v. Arizona, 384 U.S. 436, 16 L.Ed. 2d 694, 86 S.Ct. 1602 (1966):\nIf the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.\nId. at 473-74, 16 L.Ed. 2d at 723, 86 S.Ct. at 1627-28. However, in a subsequent case, Michigan v. Mosley, 423 U.S. 96, 46 L.Ed. 2d 313, 96 S.Ct. 321 (1975), the Supreme Court held that such prohibition against continued questioning did not mean that the police may never interrogate a person once that person invokes the right to remain silent. Whether a statement obtained after a suspect has expressed a desire not to answer further questions is admissible depends on whether his right to cut off further questioning \u201cwas scrupulously honored.\u201d Id. at 104, 46 L.Ed. 2d at 321, 96 S.Ct. at 326. In applying the Supreme Court\u2019s admonitions in Miranda and Mosley, our Supreme Court in State v. Temple, 302 N.C. 1, 273 S.E. 2d 273 (1981), held that a defendant\u2019s constitutional rights were not violated when police continued to question him after he indicated he did not want to answer any more questions. In that case, the court noted that each time the defendant said he did not wish to answer further questions the police immediately ceased interrogation for some period of time, that defendant had repeatedly been advised of his rights, and that prior to his \u201cconfession\u201d defendant indicated that he understood his rights and voluntarily and affirmatively waived them.\nHere, the evidence reveals that before each interrogation session defendant was advised of his constitutional rights and affirmatively indicated he understood them and that when defendant told Kline he did not want to answer further questions, Kline immediately ceased his interrogation. Several hours later Shook began his questioning but only after advising defendant of his rights and obtaining defendant\u2019s signature on a waiver form. Finally, we note that contrary to the confession elicited from the defendant in Temple, the statement made by defendant to Shook was exculpatory in nature. Defendant\u2019s argument is without merit.\nAlso without merit is defendant\u2019s second contention that the trial court erred in not granting his motion to dismiss for lack of sufficient evidence. A motion to dismiss is properly denied if there is substantial evidence as to each and every element of the crime charged and that defendant committed it. State v. Leonard, 74 N.C. App. 443, 328 S.E. 2d 593, disc. rev. denied, 314 N.C. 120, 332 S.E. 2d 487 (1985). \u201c \u2018 \u201cSubstantial evidence\u201d is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.\u2019 \u201d State v. Cummings, 46 N.C. App. 680, 683, 265 S.E. 2d 923, 925, aff'd, 301 N.C. 374, 271 S.E. 2d 277 (1980), quoting Comr. of Insurance v. Rating Bureau, 292 N.C. 70, 80, 231 S.E. 2d 882, 888 (1977). This evidence must also be viewed in the light most favorable to the State and given every favorable inference. State v. Smith, 40 N.C. App. 72, 252 S.E. 2d 535 (1979).\nIn the case before us, aside from defendant\u2019s own admissions to the police that he shot Shannon, the State\u2019s evidence tended to show that 1) Shannon was killed with a gun, 9 mm. caliber or larger (not a rifle), 2) just prior to and immediately after the shooting defendant\u2019s wife saw a holstered handgun lying on the kitchen table where Shannon had been sitting, 3) no knife, other than two closed pocketknives found in Shannon\u2019s pants\u2019 pocket, was found on or near Shannon\u2019s body and 4) defendant and Shannon were the only known occupants of defendant\u2019s apartment when the gunshots were fired. Taking these facts in the light most favorable to the State and assigning them every favorable inference, we are of the opinion that there was sufficient evidence to submit this case to the jury. Defendant\u2019s assignment is overruled.\nFor the foregoing reasons we hold defendant had a trial free from prejudicial error.\nNo error.\nJudges Arnold and Greene concur.", "type": "majority", "author": "LEWIS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General John H. Watters, for the State.", "Smith & Queen, by Frank G. Queen, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. GEORGE LEE FORTNER\nNo. 8830SC995\n(Filed 16 May 1989)\n1. Criminal Law \u00a7 75.8\u2014 statements made to SBI agent \u2014 warning given before resumption of interrogation \u2014 statement admissible\nThe trial court did not err in admitting into evidence statements made by defendant to an SBI agent after defendant had expressed to the sheriff a desire not to answer further questions since defendant was advised of his constitutional rights before each interrogation and affirmatively indicated he understood them; when defendant told the sheriff that he did not want to answer further questions, the sheriff immediately ceased his interrogation; several hours later the SBI agent began his questioning but only after advising defendant of his rights and obtaining defendant\u2019s signature on a waiver form; and the statement made by defendant to the SBI agent was exculpatory.\n2. Homicide \u00a7 21.7\u2014 second degree murder \u2014 sufficiency of evidence\nEvidence was sufficient to be submitted to the jury in a prosecution for homicide where it tended to show that defendant admitted that he shot the victim; the victim was killed with a handgun, and just prior to and immediately after the shooting, defendant\u2019s wife saw a holstered handgun lying on the kitchen table where the victim had been sitting; no knife, other than two closed pocketknives found in the victim\u2019s pants pocket, was found on or near the victim\u2019s body; and defendant and the victim were the only known occupants of defendant\u2019s apartment when the gunshots were fired.\nAPPEAL by defendant from Burroughs (Robert MJ, Judge. Judgment entered 17 March 1988 in Superior Court, SWAIN County. Heard in the Court of Appeals 11 April 1989.\nDefendant was charged with the 26 September 1987 shooting death of John Shannon (Shannon). A trial was held during the 14 March 1988 Criminal Session of Superior Court in Swain County at the conclusion of which defendant was found guilty of second degree murder. From a judgment imposing a twenty year active sentence, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General John H. Watters, for the State.\nSmith & Queen, by Frank G. Queen, for defendant-appellant." }, "file_name": "0753-01", "first_page_order": 783, "last_page_order": 787 }