{ "id": 8521736, "name": "STATE OF NORTH CAROLINA v. JERRY WAYNE BAILEY", "name_abbreviation": "State v. Bailey", "decision_date": "1990-03-06", "docket_number": "No. 8918SC807", "first_page": "472", "last_page": "479", "citations": [ { "type": "official", "cite": "97 N.C. App. 472" } ], "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": "356 S.E.2d 826", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "86 N.C. App. 219", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12126922 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc-app/86/0219-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "321 S.E.2d 856", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "312 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753111 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/312/0237-01" ] }, { "cite": "341 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "315 N.C. 594", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4719329, 4720353, 4716047, 4719124, 4716764 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/315/0594-01", "/nc/315/0594-05", "/nc/315/0594-02", "/nc/315/0594-03", "/nc/315/0594-04" ] }, { "cite": "335 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "77 N.C. App. 663", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524974 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/77/0663-01" ] }, { "cite": "348 S.E.2d 788", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "318 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4736584 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/318/0390-01" ] }, { "cite": "337 S.E.2d 89", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "78 N.C. App. 100", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519679 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/78/0100-01" ] }, { "cite": "340 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "316 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4696125 ], "year": 1986, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0033-01" ] }, { "cite": "360 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4729998 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0746-01" ] }, { "cite": "307 S.E.2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "64 N.C. App. 536", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527181 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/64/0536-01" ] }, { "cite": "383 S.E.2d 419", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0 }, { "cite": "95 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521889 ], "year": 1989, "pin_cites": [ { "parenthetical": "and cases cited therein" } ], "opinion_index": 0, "case_paths": [ "/nc-app/95/0558-01" ] }, { "cite": "313 S.E.2d 556", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396898 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0596-01" ] }, { "cite": "374 S.E.2d 874", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "parenthetical": "quoting State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984)" } ], "opinion_index": 0 }, { "cite": "92 N.C. App. 398", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527052 ], "year": 1988, "pin_cites": [ { "parenthetical": "quoting State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/92/0398-01" ] } ], "analysis": { "cardinality": 685, "char_count": 14111, "ocr_confidence": 0.761, "pagerank": { "raw": 2.2192767227832902e-07, "percentile": 0.7774379896279667 }, "sha256": "ed985e174264034aaa00b7224b33f1db3258f1f4a24a5e736bdf79762fac081c", "simhash": "1:95ae002b5632deb3", "word_count": 2347 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges COZORT and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JERRY WAYNE BAILEY" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant first assigns as error the trial court\u2019s allowing the State\u2019s motion to correct the indictments to properly reflect the name of the victim. Defendant argues that this correction constitutes an impermissible amendment to the indictments. We disagree.\nN.C. Gen. Stat. \u00a7 15A-923(e) provides that \u201c[a] bill of indictment may not be amended.\u201d An amendment within the meaning of this statute is \u201cany change in the indictment which would substantially alter the charge set forth in the indictment.\u201d State v. Marshall, 92 N.C. App. 398, 374 S.E.2d 874 (1988) (quoting State v. Price, 310 N.C. 596, 313 S.E.2d 556 (1984)). In Marshall, this Court held that a change to one of four indictments, reconciling an inconsistency respecting the victim\u2019s surname, did not constitute an amendment within G.S. \u00a7 15A-923(e) where the variance in the indictment was inadvertent and the defendant was neither misled nor surprised as to the nature of the charges.\nIn the present case, the three indictments before us state the victim\u2019s name as Pettress Cebron. The trial court allowed the State\u2019s motion to change the indictments to correctly reflect the victim\u2019s name as Cebron Pettress. No additional changes were made, and the indictments are correct in all other respects. The error in the indictments was inadvertent. We discern no manner in which defendant could have been misled or surprised as to the nature of the charges against him. We conclude that the change to the indictments in this case is not an amendment within the meaning of G.S. \u00a7 15A-923(e), and the trial court properly allowed the State\u2019s motion. This assignment of error is overruled.\nBy his third assignment of error, defendant challenges the trial court\u2019s denial of his motion for mistrial. To place this issue in the appropriate context, the record reflects that defendant testified on direct examination that he went to his girlfriend\u2019s apartment, located near the scene of the crime, at approximately 1:30 a.m., about one-half hour before the shooting. The prosecutor cross-examined defendant as follows:\nQ. Did you actually go over to [your girlfriend\u2019s] house?\nA. Yes[.]\nQ. You know that her house was broken into that night, don\u2019t you?\n[Defense Counsel]: Objection.\nCOURT: Sustained.\nQ. Well, did you break into her house?\n[Defense Counsel]: Objection.\nCOURT: Sustained.\n[Defense Counsel]: Make a motion, Judge.\nCOURT: Motion denied.\nQ. Did you shoot\u2014\n[Defense Counsel]: Like [sic] to have it on the record at the appropriate time.\nQ. Did you shoot her windows out at her house?\nCOURT: Sustained.\n[Defense Counsel]: Motion for mistrial.\nCOURT: Motion denied.\nDefendant requested no curative instruction. At the close of the evidence and out of the jury\u2019s presence, the trial court heard argument on the admissibility of the evidence sought by this last question and on defendant\u2019s motion for mistrial, which was renewed at this time. The court again sustained the objection to the question and again denied the motion for mistrial. Defendant at this time also failed to request a curative instruction.\nIn support of this assignment of error, defendant contends that the prosecutor\u2019s questions resulted in substantial and irreparable prejudice to his case because they improperly suggested to the jury that he was in possession of the gun prior to the events in question, thus bolstering the victim\u2019s testimony that defendant first used the gun. Defendant also contends that the prosecutor\u2019s repeated use of this line of questioning, despite the trial court\u2019s rulings, and the trial court\u2019s failure to give a curative instruction ex mero motu contributed to the prejudicial effect of the questions. We find no error.\nA trial court \u201cmust declare a mistrial upon the defendant\u2019s motion if there occurs during the trial an error or legal defect in the proceedings . . . resulting in substantial and irreparable prejudice to the defendant\u2019s case.\u201d N.C. Gen. Stat. \u00a7 15A-1061. It is well established, however, that the decision as to whether such prejudice has occurred within the meaning of the statute is addressed to the sound discretion of the trial judge. State v. Green, 95 N.C. App. 558, 383 S.E.2d 419 (1989) (and cases cited therein). Consequently, a trial court\u2019s ruling on a motion for mistrial is not reviewable on appeal absent the appearance of a manifest abuse of that discretion. Id. Applying these standards to the issue before us, we conclude that no abuse of discretion appears, and therefore we overrule this assignment of error.\nBy three related assignments of error defendant challenges the trial court\u2019s jury instructions. Defendant advances arguments going to the trial court\u2019s refusal to give an instruction on duress and to the trial court\u2019s instructions given on self-defense and first-degree kidnapping. We address these in turn.\nFirst, defendant contends that the trial court erred in refusing to instruct the jury on the defense of duress in connection with the charge of armed robbery. To be entitled to an instruction on the defense of duress, defendant must have presented evidence sufficient to invoke the benefit of that doctrine. State v. Henderson, 64 N.C. App. 536, 307 S.E.2d 846 (1983). Defendant, however, testified that during the struggle he gained control of the gun, demanded and received from Pettress Pettress\u2019 wallet, and then shot him in the back of the head. This testimony plainly negates a defense of duress, and the trial court did not err in refusing to give the requested jury instruction.\nSecond, defendant challenges as plain error the trial court\u2019s \u2022instruction to the jury that self-defense was an excuse only if he was not the aggressor. It is axiomatic that \u201c[a] prerequisite to . . . engaging in a \u2018plain error\u2019 analysis is the determination that the [action] complained of constitutes \u2018error\u2019 at all.\u201d State v. Johnson, 320 N.C. 746, 360 S.E.2d 676 (1987); see also State v. Walker, 316 N.C. 33, 340 S.E.2d 80 (1986) (and cases cited therein). It is not error for the trial court to instruct that one who is an aggressor cannot claim self-defense where the evidence in the record supports such an instruction. State v. Lilley, 78 N.C. App. 100, 337 S.E.2d 89, aff\u2019d, 318 N.C. 390, 348 S.E.2d 788 (1985). Pettress testified that when he stopped his truck to let defendant out, defendant, without provocation, pulled a gun, uttered a profane threat to kill him, and then placed the muzzle of the gun against his head. This evidence is clearly sufficient to support the challenged instruction, and a plain error analysis is consequently inapplicable. Johnson, supra.\nLastly, defendant contends that he is entitled to a new trial on the first-degree kidnapping charge because the trial court instructed the jury on serious bodily injury under G.S. \u00a7 14-39(b) while the indictment alleged as the basis for first-degree kidnapping that the victim was not released in a safe place. Defendant did not object at trial to this aspect of the jury instructions. Instead, he argues that this variance between the instruction and the indictment constitutes plain error. We agree and award defendant a new trial on the kidnapping charge.\nThis Court addressed the same issue in State v. Mitchell, 77 N.C. App. 663, 335 S.E.2d 793 (1985), cert. denied, 315 N.C. 594, 341 S.E.2d 35 (1986). We stated in that case:\nIn State v. Brown, 312 N.C. 237, 321 S.E.2d 856 (1984), involving a similar variance in a kidnapping indictment and the jury instruction, our Supreme Court held that a new trial was required. As in this case, the defendant in Brown did not object at trial to the instruction . . . but the Court held that the \u2018plain error\u2019 rule adopted in State v. Odum, 307 N.C. 655, 300 S.E.2d 375 (1983) was applicable to allow consideration of such an asserted error. While we view Brown as a significant extension and liberalization of the \u2018plain error\u2019 standards set out in Odum, we conclude that Brown requires us to grant a new trial on the kidnapping charge in this case.\nLikewise, Brown and Mitchell require that defendant in this case be awarded a new trial on the charge of first-degree kidnapping. Accord State v. McClain, 86 N.C. App. 219, 356 S.E.2d 826 (1987).\nDefendant\u2019s remaining assignments of error are deemed waived pursuant to N.C. R. App. P., Rule 28(a).\nThe results are:\nIn case No. 88CRS41544,\nNew trial.\nIn cases Nos. 88CRS41545-46,\nNo error.\nJudges COZORT and LEWIS concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Lacy H. Thornburg, by Assistant Attorney General Roy A. Giles, Jr., for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JERRY WAYNE BAILEY\nNo. 8918SC807\n(Filed 6 March 1990)\n1. Indictment and Warrant \u00a7 12 (NCI3d)\u2014 victim\u2019s name changed in indictments \u2014no amendment\nA change in indictments to reflect the proper name of the victim was not an amendment within the meaning of N.C.G.S. \u00a7 15A-923(e), since the charge set forth in the indictment was not altered, and defendant could not have been misled or surprised as to the nature of the charges against him.\nAm Jur 2d, Indictments and Informations \u00a7\u00a7 129, 174, 178, 190.\n2. Criminal Law \u00a7 544 (NCI4th)\u2014 prosecutor\u2019s questions about another offense \u2014no substantial and irreparable prejudice\nIn a prosecution of defendant for first degree kidnapping, armed robbery, and assault with a deadly weapon with intent to kill inflicting serious injury, the trial court did not err in denying defendant\u2019s motion for mistrial based on his contention that the prosecutor\u2019s questions as to whether defendant shot out the windows of his girlfriend\u2019s house shortly before the charged crimes were committed resulted in substantial and irreparable prejudice to his case because they improperly suggested to the jury that he was in possession of the gun prior to the events in question, thus bolstering the victim\u2019s testimony that defendant first used the gun.\nAm Jur 2d, Evidence \u00a7\u00a7 320, 333.\n3. Criminal Law \u00a7 34 (NCI4th)\u2014 defense of duress \u2014 insufficiency of evidence\nIn a kidnapping, robbery, and assault prosecution the trial court did not err in refusing to instruct the jury on the defense of duress, since defendant testified that, during the struggle with the victim, he gained control of the gun, demanded and received the victim\u2019s wallet, and then shot him in the back of the head, and this testimony plainly negated a defense of duress.\nAm Jur 2d, Criminal Law \u00a7 148.\n4. Assault and Battery \u00a7 15.5 (NCI3d)\u2014 aggressor unable to claim self-defense \u2014 instruction proper\nIt was not error for the trial court to instruct that one who is an aggressor cannot claim self-defense where the victim testified that, when he stopped his truck to let defendant out, defendant without provocation pulled a gun, uttered a profane threat to kill him, and then placed the muzzle of the gun against his head.\nAm Jur 2d, Assault and Battery \u00a7 69.\n5. Kidnapping \u00a7 1.3 (NCI3d|\u2014 basis for first degree kidnapping charge \u2014 improper instruction \u2014 plain error\nDefendant was entitled to a new trial on the kidnapping charge where the trial court committed plain error by instructing the jury on serious bodily injury under N.C.G.S. \u00a7 14-39(b), while the indictment alleged as the basis for first degree kidnapping that the victim was not released in a safe place.\nAm Jur 2d, Abduction and Kidnapping \u00a7\u00a7 13, 18.\nAPPEAL by defendant from judgments entered 23 February 1989 in GUILFORD County Superior Court by Rousseau, Julius A., Judge. Heard in the Court of Appeals 13 February 1990.\nDefendant was convicted of first-degree kidnapping, armed robbery, and assault with a deadly weapon with intent to kill, inflicting serious injury. The State\u2019s evidence tended to establish that at approximately 2:00 a.m. on 13 June 1988 the victim, Cebron Pettress, was stopped at a convenience store to purchase gas for his pickup truck. When he returned from paying, he found defendant, a stranger, standing next to the truck on the passenger side. Defendant requested a ride. Pettress obliged. After driving a short distance, Pettress reached his turn-off and pulled over to let defendant out. Defendant remained in the truck, pulled out a gun, and uttered a profane threat to kill Pettress. Defendant ordered Pettress to get out of the truck and lie face down in the road. Pettress, leaving the motor running, obeyed. Defendant then ordered him to get up from the road and lie face down in a ditch alongside the road. Again he obeyed. A third time, defendant ordered Pettress to get up, forcing him into the woods. There, defendant once more made him lie face down. As Pettress pleaded for his life, defendant put the gun against his head and demanded his money. Pettress complied. Defendant pulled the trigger.\nPettress testified that he felt an explosion hit his head, jumped up, and told defendant, \u201cYou shot me.\u201d He struggled with defendant, causing him to drop the gun. Pettress picked up the gun and shot defendant twice in the chest. He then beat defendant\u2019s face with the gun. Pettress further testified that defendant broke free, ran to the truck, and drove away. Pettress walked to the road and hailed a passing police car.\nBoth men were admitted shortly thereafter to the emergency room of a nearby hospital. Pettress was treated for a gunshot wound to his head. Defendant was treated for two gunshot wounds to his chest and injuries to his face. Pettress\u2019 wallet was discovered by hospital personnel in the pocket of defendant\u2019s trousers.\nDefendant testified that it was Pettress who first pulled the gun, robbed defendant of his wallet, and then shot defendant in the chest. Defendant also testified that\nwe was [sic] wrestling, and we both fell and hit the ground, and I landed on top of him, and I managed to get the gun from him. . . . And then I told him to give me my wallet back, and he give [sic] me my wallet. And in the process I told him to give me his wallet. . . . Then he give [sic] me the wallets and I stuck them in my back pocket, and then I shot him in the back of the head and I took off running.\nFrom the judgments entered on the jury\u2019s verdicts of guilty, defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General Roy A. Giles, Jr., for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., for defendant-appellant." }, "file_name": "0472-01", "first_page_order": 500, "last_page_order": 507 }