{ "id": 8523906, "name": "STATE OF NORTH CAROLINA v. PERRY ANGELO SHERRILL", "name_abbreviation": "State v. Sherrill", "decision_date": "1990-07-17", "docket_number": "No. 8926SC1095", "first_page": "540", "last_page": "544", "citations": [ { "type": "official", "cite": "99 N.C. App. 540" } ], "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": "345 S.E.2d 186", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "192" } ], "opinion_index": 0 }, { "cite": "317 N.C. 219", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4774741 ], "year": 1986, "pin_cites": [ { "page": "228, n.2" } ], "opinion_index": 0, "case_paths": [ "/nc/317/0219-01" ] }, { "cite": "244 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561543, 8561520, 8561587, 8561495, 8561564 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0093-03", "/nc/295/0093-02", "/nc/295/0093-05", "/nc/295/0093-01", "/nc/295/0093-04" ] }, { "cite": "241 S.E.2d 336", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "338" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549264 ], "year": 1978, "pin_cites": [ { "page": "367" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0364-01" ] }, { "cite": "381 S.E.2d 787", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "parenthetical": "quoting 1 H. Brandis, Brandis on North Carolina Evidence \u00a7 52, at 243 (3d ed. 1988)" } ], "opinion_index": 0 }, { "cite": "325 N.C. 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2487562, 2489132, 2489743, 2489329, 2491191 ], "year": 1989, "pin_cites": [ { "parenthetical": "quoting 1 H. Brandis, Brandis on North Carolina Evidence \u00a7 52, at 243 (3d ed. 1988)" } ], "opinion_index": 0, "case_paths": [ "/nc/325/0229-01", "/nc/325/0229-05", "/nc/325/0229-03", "/nc/325/0229-02", "/nc/325/0229-04" ] }, { "cite": "378 S.E.2d 545", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "550", "parenthetical": "quoting 1 H. Brandis, Brandis on North Carolina Evidence \u00a7 52, at 243 (3d ed. 1988)" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 380", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528053 ], "year": 1989, "pin_cites": [ { "page": "387", "parenthetical": "quoting 1 H. Brandis, Brandis on North Carolina Evidence \u00a7 52, at 243 (3d ed. 1988)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0380-01" ] }, { "cite": "15 S.E. 936", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1892, "pin_cites": [ { "page": "937", "parenthetical": "trial court may admit corroboration in anticipation of contradiction of the witness" } ], "opinion_index": 0 }, { "cite": "111 N.C. 74", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650578 ], "year": 1892, "pin_cites": [ { "page": "77", "parenthetical": "trial court may admit corroboration in anticipation of contradiction of the witness" } ], "opinion_index": 0, "case_paths": [ "/nc/111/0074-01" ] }, { "cite": "377 S.E.2d 789", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "794", "parenthetical": "findings required before admitting or excluding evidence under both Rules 803 or 804" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528005 ], "year": 1989, "pin_cites": [ { "page": "278", "parenthetical": "findings required before admitting or excluding evidence under both Rules 803 or 804" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0269-01" ] }, { "cite": "352 S.E.2d 428", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "432", "parenthetical": "impressions sometimes admitted as shorthand statements of fact" } ], "opinion_index": 0 }, { "cite": "319 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748383 ], "year": 1987, "pin_cites": [ { "page": "78", "parenthetical": "impressions sometimes admitted as shorthand statements of fact" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0073-01" ] } ], "analysis": { "cardinality": 578, "char_count": 10810, "ocr_confidence": 0.757, "pagerank": { "raw": 2.1745173883153088e-07, "percentile": 0.7715973016187431 }, "sha256": "b943e17ab2f75329bb8f53b6bdee5276d55e81d2caac2e902de54381e4bd1784", "simhash": "1:866bf00124aa3c4f", "word_count": 1767 }, "last_updated": "2023-07-14T22:38:52.620321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ORR and LEWIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. PERRY ANGELO SHERRILL" ], "opinions": [ { "text": "GREENE, Judge.\nThe defendant, Perry Angelo Sherrill, was convicted at a jury trial of three counts of robbery with a dangerous weapon. Defendant appeals.\nThe State\u2019s evidence tends to show that on 28 July 1988 at approximately 9:30 p.m. William Lindsey, Eric Bush and James Staton went to Earle Village housing development to meet some girls by arrangement with an acquaintance, Jody Wright. Two men approached the three young visitors as they stood by their car in the Village parking lot waiting for Wright\u2019s return. The defendant approached first and asked the men if they had cigarettes or rolling papers. The second man, identity still unknown, then pulled a gun and pointed it at the visitors, demanding their valuables. The defendant then walked around them and stated: \u201cWe\u2019re going to show you what Earle Village is about.\u201d The defendant then took a substantial amount of gold jewelry from the visitors, put some in his pocket and held some in his hand. The gunman then told the three visitors to run away without looking back. They ran, but two of them looked back and saw the defendant and the gunman walking away together between some apartment buildings.\nThe defendant testified that he was a resident of Earle Village, and on the evening of 28 July 1988 he and Jody Wright discussed a drug deal. The defendant stated, \u201cwe was waiting on Eric Bush, his beeper code name is Sterling, and we beeped him to bring us a package [of cocaine].\u201d The defendant waited alone in the Village parking lot for about thirty minutes. A car containing three young men and Jody Wright arrived, and Wright approached the defendant and told him to wait. Wright left the scene. A few minutes later the unknown gunman arrived and robbed the defendant of $110.00. The gunman then instructed the defendant to go toward the three visitors. The defendant tried to get their attention by asking for cigarettes, and then the gunman shoved him toward them and said \u201ceverybody give them up.\u201d On the gunman\u2019s instructions, the defendant took from the visitors jewelry, two bags of cocaine and a beeper, and gave all of it to the gunman. The defendant ran away when the gunman told him and the visitors to do so. The defendant did not report the robbery.\nThe trial court allowed the defendant to introduce hearsay testimony through Bruce McDonald, an investigator with the district attorney\u2019s office, relating to portions of a telephone conversation he had with a Benny Whitney a week before trial. The defendant had subpoenaed Mr. Whitney, but Whitney did not appear. The trial court allowed McDonald to relate to the jury that Whitney claimed to have witnessed the incident in the Earle Village parking lot. Whitney said he saw the defendant and an unidentified man with a gun approach the three black males. Whitney saw the defendant hand the gunman some items taken from the three men, and then the defendant ran off in a different direction from that of the gunman. However, the trial court did not allow McDonald to provide hearsay testimony on Whitney\u2019s opinion, rising from an intangible \u201cfeeling,\u201d that the defendant was a victim rather \u25a0than a perpetrator of the robbery.\nThe trial court also refused to admit McDonald\u2019s hearsay testimony of Whitney\u2019s statement that the defendant had told Whitney that he thought the gunman would shoot him.\nDuring cross-examination of the defendant, the district attorney asked the defendant:\nQ. Have you sold anything that looks like cocaine?\nA. No, sir.\nOn rebuttal, the prosecution called Officer E. L. Kirtchen, who testified that on 14 September 1988, over a month after the offense at issue, defendant attempted to sell him a substance purported to be cocaine, which in fact was not cocaine. The defendant objected to Officer Kirtchen\u2019s testimony, arguing that the testimony was not admissible because he had been asked: \u201cdid you ever sell anything that looked like cocaine, not did you ever attempt to sell anything that looked like cocaine.\u201d\nThe issues presented are (I) whether the trial court erred in failing to admit hearsay testimony of a robbery witness\u2019s impression or \u201cfeeling\u201d that the defendant was a victim rather than perpetrator of the crime; (II) whether the trial court erred in failing to admit hearsay testimony relating to an alleged prior consistent statement of the defendant; and (III) whether the trial court erred in admitting extrinsic evidence of specific conduct of the defendant to attack his credibility.\nI\nThe defendant argues that the trial court erred in failing to allow McDonald\u2019s testimony as to Whitney\u2019s impression or feeling about the defendant\u2019s role in the robbery. The defendant asserts that Whitney\u2019s opinion, albeit based on an intangible feeling or impression, was admissible by N.C.G.S. \u00a7 8C-1, Rule 701, which allows non-expert testimony as to certain opinions or inferences. Rule 701 may allow such testimony by Whitney. See State v. Williams, 319 N.C. 73, 78, 352 S.E.2d 428, 432 (1987) (impressions sometimes admitted as shorthand statements of fact).\nHowever, the trial court here was faced with the issue of whether Whitney\u2019s opinion should be allowed as hearsay testimony from McDonald. Rule 701 does not allow hearsay testimony, and the defendant does not assert any other grounds for admissibility either in his assignment of error or in his brief. Therefore, this assignment of error is overruled.\nWhile we do not reach the issue, we note the trial court failed to make required findings to support the exclusion of this hearsay testimony. See State v. Purdie, 93 N.C. App. 269, 278, 377 S.E.2d 789, 794 (1989) (findings required before admitting or excluding evidence under both Rules 803 or 804).\nII\nThe defendant next argues that the trial court erred in failing to allow McDonald to provide hearsay testimony as to Whitney\u2019s relation of statements made to Whitney by the defendant which the defendant argues tended to corroborate the defendant\u2019s testimony at trial. The defendant supposedly told Whitney that he was afraid the gunman would shoot him (defendant). Later in the trial the defendant in essence testified that he participated in the robbery only because he was compelled at gunpoint. See Gregg v. Mallett, 111 N.C. 74, 77, 15 S.E. 936, 937 (1892) (trial court may admit corroboration in anticipation of contradiction of the witness). However, the hearsay testimony offered by McDonald in corroboration of the defendant was not a prior consistent statement of the defendant, but rather was a hearsay statement of Whitney. This statement is not admissible since it is an \u201c \u2018extra-judicial declaration of someone [Whitney] other than the witness [defendant] purportedly being corroborated.\u2019 \u201d State v. Freeman, 93 N.C. App. 380, 387, 378 S.E.2d 545, 550, disc. rev. denied, 325 N.C. 229, 381 S.E.2d 787 (1989) (quoting 1 H. Brandis, Brandis on North Carolina Evidence \u00a7 52, at 243 (3d ed. 1988)); see also State v. McAdoo, 35 N.C. App. 364, 367, 241 S.E.2d 336, 338, disc. rev. denied, 295 N.C. 93, 244 S.E.2d 262 (1978).\nBecause the defendant has not assigned as error any failure to admit this testimony as an exception to the hearsay rule, we overrule this assignment of error.\nIll\nThe defendant last argues that the trial court erred in allowing into evidence Officer Kirtchen\u2019s testimony that defendant had been involved in an unrelated drug transaction \u201cbecause admission of such evidence violated the prohibition of Rule 608 against proving specific instances of misconduct by extrinsic evidence.\u201d\nAt trial, defendant argued only that Officer Kirtchen\u2019s testimony was not proper rebuttal evidence since it did not contradict the defendant\u2019s testimony on cross-examination. Since defendant does not now raise that issue on appeal, that issue is deemed abandoned. N.C.R. App. P. 28(b)(5) (exceptions deemed abandoned when \u201cno reasonable argument is stated or authority cited\u201d). Neither do we address the merits of defendant\u2019s Rule 608 argument since he did not raise this issue at trial. Rule 103(a)(1) of the Rules of Evidence requires that to preserve an error for appeal, the alleged error must be \u201cclearly presented\u201d to the trial court. N.C.G.S. \u00a7 8C-1, Rule 103(a)(1) (1986). The purpose of the rule is to \u201calert [the trial court] to the proper course of action and enable opposing counsel to take proper corrective measures.\u201d Rule 103, Commentary; see State v. West, 317 N.C. 219, 228, n.2, 345 S.E.2d 186, 192 (1986). Accordingly, defendant\u2019s specific objection at trial was ineffective to support an argument on appeal that the evidence was inadmissible under Rule 608. In any event, assuming admission of the evidence was error, given the strength of the State\u2019s evidence, we do not believe the error was prejudicial.\nNo error.\nJudges ORR and LEWIS concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by William F. Briley, Assistant Attorney General, for the State.", "Marc D. Towler, Assistant Public Defender, for the defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. PERRY ANGELO SHERRILL\nNo. 8926SC1095\n(Filed 17 July 1990)\n1. Criminal Law \u00a7 73 (NCI3d)\u2014 impressions of eyewitness told to investigator \u2014investigator\u2019s testimony inadmissible hearsay\nTestimony by an investigator with the district attorney\u2019s office as to the impressions or \u201cfeeling\u201d of an eyewitness that defendant was a victim rather than a perpetrator of the crime was inadmissible hearsay testimony.\nAm Jur 2d, Evidence \u00a7 500.\n2. Criminal Law \u00a7 73 (NCI3d) \u2014 statement by investigator inadmissible hearsay \u2014 no prior consistent statement of defendant\nThe trial court did not err in failing to allow an investigator with the district attorney\u2019s office to provide hearsay testimony as to an eyewitness\u2019s relation of statements made to the eyewitness by defendant, which defendant argued tended to corroborate defendant\u2019s testimony at trial, since the hearsay testimony of the investigator offered in corroboration of defendant was not a prior consistent statement of defendant, but rather was a hearsay statement of the eyewitness.\nAm Jur 2d, Witnesses \u00a7 653.\n3. Appeal and Error \u00a7 447 (NCI4th)\u2014 issue raised first on appeal-issue not considered by court\nDefendant could not argue on appeal that the trial court erred in allowing into evidence an officer\u2019s testimony that defendant had been involved in an unrelated drug transaction \u201cbecause admission of such evidence violated the prohibition of Rule 608 against proving specific instances of misconduct by extrinsic evidence,\u201d since defendant did not raise that issue in the trial court, and the issue which he did raise in the trial court he abandoned by not raising it on appeal.\nAm Jur 2d, Appeal and Error \u00a7\u00a7 601, 602.\nAPPEAL by defendant from judgment entered 11 April 1989 by Judge W. Terry Sherrill in MECKLENBURG County Superior Court. Heard in the Court of Appeals 30 May 1990.\nLacy H. Thornburg, Attorney General, by William F. Briley, Assistant Attorney General, for the State.\nMarc D. Towler, Assistant Public Defender, for the defendant-appellant." }, "file_name": "0540-01", "first_page_order": 570, "last_page_order": 574 }