{ "id": 8565645, "name": "STATE OF NORTH CAROLINA v. LEE THOMAS CARELOCK", "name_abbreviation": "State v. Carelock", "decision_date": "1977-11-11", "docket_number": "No. 54", "first_page": "577", "last_page": "581", "citations": [ { "type": "official", "cite": "293 N.C. 577" } ], "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": "195 S.E. 2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558344 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0227-01" ] }, { "cite": "208 S.E. 2d 696", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 735", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569859 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0735-01" ] }, { "cite": "226 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "290 N.C. 313", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561442 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/290/0313-01" ] }, { "cite": "18 A.L.R. 3d 1335", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1976, "opinion_index": 0 }, { "cite": "193 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567109 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0572-01" ] }, { "cite": "138 S.E. 2d 629", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 753", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571931 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0753-01" ] }, { "cite": "165 S.E. 2d 230", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 69", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557792 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0069-01" ] }, { "cite": "180 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560629 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0449-01" ] }, { "cite": "178 S.E. 2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559611 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0042-01" ] }, { "cite": "223 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571077 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0540-01" ] }, { "cite": "170 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "275 N.C. 625", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559741 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc/275/0625-01" ] }, { "cite": "185 S.E. 2d 683", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 264", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571065 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0264-01" ] }, { "cite": "155 S.E. 2d 269", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "270 N.C. 588", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569694 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/270/0588-01" ] }, { "cite": "158 S.E. 2d 25", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "272 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571742 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/272/0160-01" ] }, { "cite": "223 S.E. 2d 311", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "289 N.C. 531", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571014 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/289/0531-01" ] } ], "analysis": { "cardinality": 559, "char_count": 9149, "ocr_confidence": 0.811, "pagerank": { "raw": 8.36498122658177e-08, "percentile": 0.48153791977833454 }, "sha256": "ad81fdc633209ae2336aca505eed634c595cbc018cf1a4c19585c4c6d1fe6532", "simhash": "1:e32b4d2674be1854", "word_count": 1556 }, "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. LEE THOMAS CARELOCK" ], "opinions": [ { "text": "HUSKINS, Justice.\nWe overrule defendant\u2019s first assignment of error based on denial of his motion to dismiss the charge of first degree burglary because no \u201cbreaking\u201d had been shown. Opening a closed but unlocked door is a sufficient breaking. State v. Wilson, 289 N.C. 531, 223 S.E. 2d 311 (1976); State v. Craddock, 272 N.C. 160, 158 S.E. 2d 25 (1967); State v. Tippett, 270 N.C. 588, 155 S.E. 2d 269 (1967). Mrs. Lovelace testified that all outside doors were closed. In his incriminating statement offered in evidence by the State, defendant said the back door was open. The conflict in the State\u2019s evidence presented a question for the jury.\nLikewise, defendant\u2019s second assignment is overruled. The language of the trial court, characterizing defendant\u2019s statement to SBI Agent Richardson as a \u201cconfession,\u201d was not an expression of opinion in violation of G.S. 1-180. State v. Bailey, 280 N.C. 264, 185 S.E. 2d 683 (1972).\nThe court\u2019s charge delineating the elements of first degree burglary, while not technically correct in every isolated portion, when construed contextually as a whole and in the same connected way in which it was given, is free from prejudicial error. The isolated slip of the tongue when the court said \u201cbreaking or entering\u201d instead of \u201cbreaking and entering\u201d was harmless. State v. Gatling, 275 N.C. 625, 170 S.E. 2d 593 (1969). The jury was not misled. Defendant\u2019s third assignment is overruled.\nDefendant\u2019s fourth assignment is based on the following excerpt from the charge:\n\u201cThe defendant by his silence denies each and every allegation of these charged [sic] against him and every element of the crimes charged against him. That is what some by his silence tends to show and what it does show, if anything, is also for you to say and determine.\u201d\nDefendant argues that the quoted portion of the charge permits the jury to roam at large in its consideration of defendant\u2019s failure to testify and interpret such failure either favorably or unfavorably, for or against him, as the jury may determine. This argument is sound.\nExamination of the entire charge reveals that the court had previously instructed the jury as follows:\n\u201cThe defendant in this case has not testified. The law of North Carolina gives him this privilege. This same law also assures him his decision not to testify creates no presumption against him. Therefore, his silence is not to influence your decision in any way.\u201d\nOur decisions uniformly establish that where, as here, the court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part. State v. Cousins, 289 N.C. 540, 223 S.E. 2d 338 (1976); State v. Ingland, 278 N.C. 42, 178 S.E. 2d 577 (1971); State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971). \u201cA new trial must also result when ambiguity in the charge affords an opportunity for the jury to act upon a permissible but incorrect interpretation.\u201d State v. Parrish, 275 N.C. 69, 165 S.E. 2d 230 (1969). The jury cannot be expected to know which of two conflicting instructions is correct. State v. Holloway, 262 N.C. 753, 138 S.E. 2d 629 (1964).\nFor the error noted in the charge there must be a new trial and it is so ordered. It is appropriate to note, in passing, that absent a special request the judge is not required to instruct the jury that a defendant\u2019s failure to testify creates no presumption against him. State v. Rankin, 282 N.C. 572, 193 S.E. 2d 740 (1973). \u201cOrdinarily, it would seem better to give no instruction concerning a defendant\u2019s failure to testify unless such an instruction is requested by defendant.\u201d State v. Barbour, supra. Absent a request such an instruction is said by some jurisdictions to accentuate the significance of a defendant\u2019s silence and thus impinge upon his unfettered right to testify or not at his option. See An-not., 18 A.L.R. 3d 1335, and cases cited. Accord State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Baxter, 285 N.C. 735, 208 S.E. 2d 696 (1974); State v. Bryant, 283 N.C. 227, 195 S.E. 2d 509 (1973).\nThe remaining assignments are not discussed since the matters giving rise to them are unlikely to recur at the next trial.\nNew trial.", "type": "majority", "author": "HUSKINS, Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General; David S. Crump, Assistant Attorney General, for the State of North Carolina.", "Henry T. Drake, attorney for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. LEE THOMAS CARELOCK\nNo. 54\n(Filed 11 November 1977)\n1. Burglary and Unlawful Breakings \u00a7 5.8\u2014 breaking \u2014 doors of house closed-sufficiency of evidence\nThe trial court did not err in denying defendant\u2019s motion to dismiss the charge of first degree burglary on the ground that no \u201cbreaking\u201d had been shown since the victim testified that all outside doors to her home were closed, and opening a closed but unlocked door is a sufficient breaking.\n2. Criminal Law \u00a7 114.2\u2014 jury instruction on defendant\u2019s statement \u2014 no expression of opinion\nThe language of the trial court characterizing defendant\u2019s statement to an SBI agent as a \u201cconfession\u201d was not an expression of opinion in violation of G.S. 1-180.\n3. Burglary and Unlawful Breakings \u00a7 6.4\u2014 breaking or entering \u2014 jury instructions not prejudicial\nIn a prosecution for first degree burglary, the trial court\u2019s slip of the tongue when it said \u201cbreaking or entering\u201d instead of \u201cbreaking and entering\u201d was harmless, and the jury was not misled.\n4. Criminal Law \u00a7\u00a7 116, 168.8\u2014 defendant\u2019s failure to testify \u2014 correct and incorrect instructions \u2014 new trial\nWhere the trial court charges correctly at one point and incorrectly at another, a new trial is necessary because the jury may have acted upon the incorrect part; therefore, defendant who did not take the stand is entitled to a new trial where the court gave both incorrect and correct instructions with respect to defendant\u2019s failure to testify.\n5. Criminal Law \u00a7 116\u2014 defendant\u2019s failure to testify \u2014 no instruction absent request\nAbsent a special request the judge is not required to instruct the jury that a defendant\u2019s failure to testify creates no presumption against him.\nDEFENDANT appeals from judgments of Collier, J., 14 February 1977 Criminal Session, ANSON Superior Court.\nIn separate bills of indictment defendant was charged with first degree burglary and first degree rape. The cases were consolidated for trial.\nMyrtle Lovelace, fifty-nine-year-old widow, testified that she lived alone one mile south of Wadesboro. On the night of 11 September 1976 she went to bed around 9 p.m. Both outside doors to her home were closed. She awakened about 3 a.m. and noticed a black boy standing at the foot of her bed going through her pocketbook. She sat up in bed, screamed, and asked, \u201cWhat are you doing here?\u201d The intruder immediately ran to her, put a butcher knife to her throat, and threatened to kill her if she screamed. He then forced her to unbutton her gown and lie on the bed while he raped her, all the while keeping the knife near her neck. He told her he intended to kill her before he left.\nMrs. Lovelace further testified that defendant remained in her home about one hour. He became very nervous when cars were passing. Finally, the man who delivered the morning newspapers entered the street below the Lovelace house and his car lights shone on the window. When defendant went to the window to look out, Mrs. Lovelace jerked the back door open and escaped. She told the paper man what had happened and then went into her neighbor\u2019s house to call the police. Defendant ran from the house following her and was later apprehended nearby.\nOfficer Feagin arrived at the Lovelace home about 5:15 a.m. On the way there he saw defendant \u201ctrotting across the road,\u201d apprehended him and carried him back to the Lovelace home. Mrs. Lovelace then and there positively identified defendant as the man who raped her. Officer Feagin found a butcher knife (State\u2019s Exhibit 11) on the lawn a short distance from the kitchen door and Mrs. Lovelace identified it as the knife defendant had used when he raped her.\nSBI Agent Richardson testified that he gave defendant the full Miranda warnings in the presence of Officer Marvin Clark, following which defendant said . he understood his rights and signed a written waiver. Defendant then made a statement to the officers that he went to Mrs. Lovelace\u2019s place intending to \u201cget something off her car.\u201d When he arrived he saw the back door standing open so he entered the house looking for a pocketbook to get money. When Mrs. Lovelace discovered him, he showed her the knife and told her to be quiet or he would kill her. He then told her to unsnap her gown, which she did, and he had sexual relations with her by force and against her will. Sometime later he heard the paper man arrive, went to the window to peep out, and Mrs. Lovelace ran out the back door. He ran behind her, threw the knife at her and thought he had struck her in the back. Defendant stated he was seventeen years of age.\nDefendant offered no evidence.\nThe jury convicted defendant of first degree burglary and first degree rape. A life sentence was imposed in each case and defendant appealed assigning errors.\nRufus L. Edmisten, Attorney General; David S. Crump, Assistant Attorney General, for the State of North Carolina.\nHenry T. Drake, attorney for defendant appellant." }, "file_name": "0577-01", "first_page_order": 611, "last_page_order": 615 }