{ "id": 8561476, "name": "STATE OF NORTH CAROLINA v. RICHARD MARTIN BISHOP", "name_abbreviation": "State v. Bishop", "decision_date": "1977-06-13", "docket_number": "No. 89", "first_page": "84", "last_page": "91", "citations": [ { "type": "official", "cite": "293 N.C. 84" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "400 U.S. 946", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12104866, 12105030, 12104936, 12105002, 12105261, 12105230, 12104976, 12105170, 12105043, 12104916, 12105202, 12104889, 12104954 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0946-01", "/us/400/0946-08", "/us/400/0946-04", "/us/400/0946-07", "/us/400/0946-13", "/us/400/0946-12", "/us/400/0946-06", "/us/400/0946-10", "/us/400/0946-09", "/us/400/0946-03", "/us/400/0946-11", "/us/400/0946-02", "/us/400/0946-05" ] }, { "cite": "174 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "541" } ], "opinion_index": 0 }, { "cite": "276 N.C. 714", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563418 ], "year": 1970, "pin_cites": [ { "page": "724" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0714-01" ] }, { "cite": "196 S.E. 2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558806 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0344-01" ] }, { "cite": "200 S.E. 2d 782", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "284 N.C. 259", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561660 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/284/0259-01" ] }, { "cite": "160 S.E. 2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "273 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575701 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/273/0509-01" ] }, { "cite": "172 S.E. 2d 28", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 217", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560837 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0217-01" ] }, { "cite": "194 S.E. 2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 33", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557615 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0033-01" ] }, { "cite": "186 S.E. 2d 384", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572439 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0435-01" ] }, { "cite": "96 S.Ct. 3205", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "203 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561675 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0042-01" ] }, { "cite": "96 S.Ct. 3207", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 }, { "cite": "213 S.E. 2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 681", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570119 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0681-01" ] }, { "cite": "233 S.E. 2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "292 N.C. 270", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569542 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/292/0270-01" ] }, { "cite": "42 A.L.R. 2d 854", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "213 S.E. 2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "287 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561457 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/287/0243-01" ] }, { "cite": "172 S.E. 186", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1934, "opinion_index": 0 }, { "cite": "205 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630703 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/nc/205/0640-01" ] }, { "cite": "32 S.E. 2d 352", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 722", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613378 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0722-01" ] }, { "cite": "193 S.E. 2d 108", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "282 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565178 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0357-01" ] }, { "cite": "201 S.E. 2d 884", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "284 N.C. 515", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562970 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/284/0515-01" ] }, { "cite": "226 S.E. 2d 487", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561659 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0431-01" ] }, { "cite": "142 U.S. 450", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3557440 ], "year": 1892, "opinion_index": 0, "case_paths": [ "/us/142/0450-01" ] }, { "cite": "81 S.E. 2d 364", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1954, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "240 N.C. 171", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8596105 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/nc/240/0171-01" ] } ], "analysis": { "cardinality": 751, "char_count": 15908, "ocr_confidence": 0.811, "pagerank": { "raw": 7.594363458599485e-08, "percentile": 0.4498901287295128 }, "sha256": "89abaa8a6204bb9cb6af1ee0c0e2c5a33312b4cd608ab7f6a92102ff34c042d9", "simhash": "1:672dd262451a7c5b", "word_count": 2659 }, "last_updated": "2023-07-14T16:59:49.379337+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. RICHARD MARTIN BISHOP" ], "opinions": [ { "text": "EXUM, Justice.\nDefendant was tried and convicted of first degree burglary and armed robbery. He was sentenced to consecutive terms of life imprisonment on the burglary charge and 20 years on the armed robbery charge.\nDefendant presents four arguments upon this appeal. Of most interest is his contention that the trial court erred in allowing certain testimony concerning defendant\u2019s alleged participation in a subsequent break-in at another location some eight days after the incident for which he was tried in this case. By this testimony the state sought to show defendant\u2019s possession of a gun allegedly stolen from one of the victims of the crime charged. We hold the evidence was properly allowed. Defendant\u2019s remaining arguments are of no merit.\nThe state\u2019s evidence tends to show that in the late evening of 14 May 1974, Emmett Z. Tucker and his wife and daughter were at their home on Ritters Lake Road in Greensboro. When Mr. Tucker stepped out of his back door to check the weather, he was rushed by a man crouched over with a, gun which he pressed to Mr. Tucker\u2019s breast. The two men wrestled, but the fight was ended abruptly when two other men approached. While one of these entered the house, the other hit Mr. Tucker with his gun barrel, knocking him down.\nThe first assailant, whom Mr. Tucker called \u201cNo. 1,\u201d took his billfold and removed about $600.00 from it. Then \u201cNo. 1\u201d helped Mr. Tucker into the house where his wife and daughter, both bloody, were tied up with television antenna wire. Mr. Tucker was likewise restrained. Two of the men searched the house while the third remained with the Tuckers. The three men finally left and the family managed to untie themselves. Mr. Tucker went for help.\nBesides the money and some other items a .380 Remington automatic pistol, which Mr. Tucker had owned since the 1930\u2019s, was found to be missing. Mr. Tucker could not identify any of the three men. He said \u201cNo. 3\u201d had a stocking over his head. Numbers 1 and 2 wore something over their faces and both had hair that was neither very long nor short.\nTwo witnesses, Charles Frederick (Red) Rice and Allen Odell. Smith, gave essentially identical testimony tending to establish that they had perpetrated the crime at the Tucker residence with defendant, and that defendant was the man called \u201cNo. 1\u201d by Mr. Tucker. They testified that Mrs. Tucker had in her possession at the time a .380 automatic pistol which was taken from her by Smith during the robbery and burglary and that defendant Bishop had been given the pistol afterward.\nA .380 automatic \u201csqueezer\u201d pistol with a worn handle was offered in evidence and identified as having been recovered from the spot where defendant fell after having been wounded in a break-in at Pegram-West Builders Supply on 22 May 1974. This gun was identified by Mr. and Mrs. Tucker as that which was taken from their home on 14 May.\nDefendant sought to establish an alibi defense.\nBy several assignments of error presented in his first argument, defendant challenges the admissibility of evidence relating to the Pegram-West break-in on 22 May 1974.\nIt has long been recognized that, notwithstanding the general rule of exclusion of evidence of other crimes in a criminal prosecution, the commission of another crime may be shown if the evidence presented tends to prove any relevant fact other than the character of the accused or his disposition to commit the crime charged. 1 Stansbury\u2019s North Carolina Evidence, \u00a7 91 (Brandis Rev. 1973).\nThis Court listed several exceptions to the rule of exclusion in State v. McClain, 240 N.C. 171, 81 S.E. 2d 364 (1954). One of these was: \u201cWhere the accused is not definitely identified as the perpetrator of the crime charged and the circumstances tend to show that the crime charged and another offense were committed by the same person, evidence that the accused committed the other offense is admissible to identify him as the perpetrator of the crime charged.\u201d Id. at 175, 81 S.E. 2d at 367. See also Boyd v. United States, 142 U.S. 450 (1892); State v. Thompson, 290 N.C. 431, 226 S.E. 2d 487 (1976); State v. Tuggle, 284 N.C. 515, 201 S.E. 2d 884 (1974); State v. McClain, 282 N.C. 357, 193 S.E. 2d 108 (1972); State v. Biggs, 224 N.C. 722, 32 S.E. 2d 352 (1944); State v. Ferrell, 205 N.C. 640, 172 S.E. 186 (1934).\nIn State v. Grace, 287 N.C. 243, 213 S.E. 2d 717 (1975), the state introduced evidence of three previous robberies in which defendant had used a pistol identical to that used in the crime charged. Defendant sought to prove alibi. We held the evidence competent on the issue of identity. See Annotation, Robbery \u2014 Evidence of Other Robberies, 42 A.L.R. 2d 854.\nIn this case there is plenary. evidence that the gun found where defendant fell near the scene of the Pegram-West incident was that taken from the Tucker\u2019s home eight days earlier. Mr. Tucker testified, \u201cI would say in all honesty that is my gun.\u201d Mrs. Tucker definitely identified it, as did defendant\u2019s alleged accomplices who testified the gun was given to Bishop. There is also ample evidence to show defendant\u2019s possession of the gun during the 22 May 1974 break-in at Pegram-West. It was found by police at the spot where defendant fell on that occasion. Although it was not recovered until daylight, some hours after defendant\u2019s apprehension, defendant himself acknowledged that the gun recovered and introduced into evidence was that used by himself in the Pegram-West incident. His testimony that he had bought the gun from Rice simply produced a conflict in the evidence which the jury evidently resolved in favor of the state.\nThere was testimony by two witnesses that defendant had asked for and kept Mr. Tucker\u2019s pistol on the night of the crime charged; the same gun was used by defendant in the second crime within a short time and in the same city; in both crimes defendant operated with one companion at least and in both, defendant was the first to accost the victim. The evidence of defendant\u2019s participation and use of the Tucker pistol in the Pegram-West incident is relevant to establish his identity as one of the perpetrators of the robbery and burglary in which it was stolen.\nDefendant next argues that the court should not have given a charge on the doctrine of recent possession relative to the pistol solely upon the ground that the gun was insufficiently identified both as that stolen from the Tuckers and as that used by defendant at Pegram-West. This contention is frivolous. As we have already observed, the identity of the gun was well established by the testimony of a number of witnesses, including defendant himself. It is true that some of the witnesses were less than absolutely certain in their testimony. Mr. Tucker originally said that the weapon exhibited was his gun \u201cas far as [he] could tell\u201d and Rice testified that \u201cthis is the weapon or an identical weapon that came out of the Tucker home the night of the burglary and armed robbery.\u201d Such identifications are adequate to allow its admission into evidence even without the abundance of other more definite testimony found in this record to establish the identity of the gun. State v. Gray, 292 N.C. 270, 233 S.E. 2d 905 (1977); State v. Simmons, 286 N.C. 681, 213 S.E. 2d 280 (1975), death sentence vacated, 96 S.Ct. 3207 (1976); State v. Crowder, 285 N.C. 42, 203 S.E. 2d 38 (1974), death sentence vacated, 96 S.Ct. 3205 (1976); State v. Bass, 280 N.C. 435, 186 S.E. 2d 384 (1972).\nDefendant next argues that the court erred in failing to charge the jury on the discrepancy in the testimony of various state\u2019s witnesses as to the length of defendant\u2019s hair. This argument is without merit. The record is not altogether clear as to the substance of the testimony involved. One witness told defense counsel on cross-examination that defendant\u2019s hair was \u201cnbt quite as long as your hair,\u201d at the time of the Tucker crime, while another said his hair on the night of the PegramWest incident was \u201capproximately the length that it is now.\u201d Mr. Tucker said \u201cNo. 1\u201d \u2019s hair was neither very long nor short. The length indicated by each of these references is nowhere specified and remains a mystery to us. In any case, the court referred specifically to hair length three times in the charge to the jury. He recounted defendant\u2019s testimony that his hair was \u201cdown to his chest\u201d on 14 May. The judge also reminded the jury that the witness Smith \u201ctestified about his hair length, and you will recall that.\u201d Since none of the identifications of defendant were grounded upon the length of his hair and there was testimony that he had a stocking tied around his head, which presumably might alter the appearance of his hair, we can find no error, nor can we conceive of any prejudice to defendant in the court\u2019s summary of the evidence on this point. The court recapitulated the evidence and the parties\u2019 contentions with reasonable accuracy. State v. Gaines, 283 N.C. 33, 194 S.E. 2d 839 (1973). Defendant made no objection to these portions of the charge and requested no further instruction. Objections to these portions of the charge are, therefore, deemed waived. State v. Virgil, 276 N.C. 217, 172 S.E. 2d 28 (1970); State v. Goines, 273 N.C. 509, 160 S.E. 2d 469 (1968).\nDefendant next contends the court erred in allowing the state\u2019s cross-examination of defendant to continue when the district attorney, as defendant claims, was simply \u201cbadgering\u201d and \u201chumiliating\u201d defendant. Defendant\u2019s objection is that the district attorney continued to question defendant about his criminal activities after- defendant had admitted a lengthy criminal record. We find no merit in this contention.\nBy testifying in his own behalf, defendant subjected him-' self to impeachment by questions pertaining to prior instances of specific misconduct. State v. Foster, 284 N.C. 259, 200 S.E. 2d 782 (1973); State v. Black, 283 N.C. 344, 196 S.E. 2d 225 (1973). We note defendant answered negatively to many of the questions objected to by his counsel. \u201cWhether the cross-examination goes too far or is unfair is a matter for determination of the trial judge and rests largely in his sole discretion.\u201d State v. Blackwell, 276 N.C. 714, 724, 174 S.E. 2d 534, 541, cert. denied, 400 U.S. 946 (1970); see State v. Black, supra. There is no indication in this record of bad faith on the part of the state nor of any attempt to badger or humiliate defendant.\nFinally, defendant argues that the court erred to his prejudice in limiting his cross-examination of the witness Rice as to his prior acts of misconduct. Rice was an accomplice in the crimes for which defendant was tried, and testified after a grant of immunity as to charges pending against him in Guilford County. This witness seemed to have a rather sophisticated knowledge of the law and recognized his vulnerability to charges in other counties. Thus in response to one of defense counsel\u2019s queries as to his participation in criminal activities outside Guilford County, Rice refused to answer, obviously upon the grounds of his Fifth Amendment right against self-incrimination. A conference with Rice\u2019s counsel ensued and Rice answered the question in the negative. The court sustained the state\u2019s objections to further questions as to that particular incident and as to \u201cany other burglaries in South Carolina ...\u201d\nThe judge in this case apparently decided to limit further examination as to foreign crimes in response to the witness\u2019 assertion of his constitutional right against self-incrimination. There is no indication that the court\u2019s ruling deprived defendant of any opportunity for material cross-examination. The questions to which the state\u2019s objections were sustained had nothing to do with Rice\u2019s testimony on direct examination. One question was repetitive, being directed toward Rice\u2019s participation in a crime which he had already denied. As to that crime, it was within the trial court\u2019s discretion to prohibit further questioning. State v. Blackwell, supra. The second question concerned other crimes allegedly committed in South Carolina. This witness had already testified at length acknowledging his very substantial involvement in criminal activities. That testimony occupies six to seven pages of the record. He testified, moreover, as an accomplice in the crime charged. It appears most improbable that his response to defendant\u2019s inquiry as to his involvement in any crime in South Carolina would have added any weight to defendant\u2019s assertions of his incredibility as a witness. Nor is there any contention that an affirmative answer would have shown any bias or interest on the part of this witness.\nWe find no error prejudicial to defendant in the court\u2019s rulings on this phase of the case.\nWe find that defendant was accorded a fair trial in which there was\nNo error.", "type": "majority", "author": "EXUM, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, by Roy A. Giles, Jr., Assistant Attorney General, for the State.", "E. L. Alston, Jr., attorney for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. RICHARD MARTIN BISHOP\nNo. 89\n(Filed 13 June 1977)\n1. Criminal Law \u00a7 34.5\u2014 other offense \u2014 admissibility to show identity\nEvidence that a gun stolen during a robbery and burglary was used by defendant in a break-in at another location some eight days later was relevant to establish defendant\u2019s identity as one of the perpetrators of the robbery and burglary in which it was stolen.\n2. Criminal Law \u00a7 42.4\u2014 stolen gun \u2014 sufficiency of identification\nA burglary and robbery victim\u2019s testimony that a weapon was a gun stolen from him \u201cas far as [he] could tell\u201d and testimony by defendant\u2019s accomplice that \u201cthis is the weapon or an identical weapon that came out of the Tucker home the night of the burglary and armed robbery\u201d constituted sufficient identification of the gun to allow its admission into evidence even without the abundance of other more definite testimony presented at the trial to establish the identity of the gun.\n3. Criminal Law \u00a7 113.3\u2014 recapitulation of testimony \u2014 length of defendant\u2019s hair\nDefendant was not prejudiced by the court\u2019s recapitulation of the evidence and contentions as to the length of defendant\u2019s hair on the date of the crimes charged where the court referred specifically to hair length three times in the charge and recounted defendant\u2019s testimony concerning the length of his hair, and where none of the identifications of defendant were grounded upon the length of his hair and there was testimony that he had a stocking tied around his head, which presumably might alter the appearance of his hair.\n4. Criminal Law \u00a7 86.3\u2014 cross-examination of defendant \u2014 other criminal activities\nThe trial court did not err in permitting the district attorney to continue cross-examination of defendant about his criminal activities after defendant had admitted a lengthy criminal record where there is no indication in the record of bad faith on the part of the State or of any attempt to badger or humiliate defendant.\n5. Criminal Law \u00a7 88.2\u2014 limiting cross-examination of accomplice \u2014 right against self-incrimination\nThe trial court did not err in limiting defendant\u2019s cross-examination of a State\u2019s witness concerning his participation in crimes in South Carolina in response to the witness\u2019s assertion of his constitutional right against self-incrimination where the witness testified as an accomplice in the crime charged and had already testified at length acknowledging his substantial involvement in criminal activities, and it is improbable that his response to defendant\u2019s inquiry as to his involvement in any crime in South Carolina would have added weight to defendant\u2019s assertions as to his incredibility as a witness or would have shown any bias or interest.\nOn defendant\u2019s appeal under General Statute 7A-27(a) from Wood, J., presiding at the 6 February 1976 Criminal Session of GUILFORD Superior Court. This case was docketed and argued as Case No. 140, Fall Term 1976.\nRufus L. Edmisten, Attorney General, by Roy A. Giles, Jr., Assistant Attorney General, for the State.\nE. L. Alston, Jr., attorney for the defendant." }, "file_name": "0084-01", "first_page_order": 118, "last_page_order": 125 }