{ "id": 8572298, "name": "STATE OF NORTH CAROLINA v. DONALD GENE PHILLIPS and MICHAEL JOEL PRESSLEY", "name_abbreviation": "State v. Phillips", "decision_date": "1979-07-12", "docket_number": "No. 85", "first_page": "600", "last_page": "607", "citations": [ { "type": "official", "cite": "297 N.C. 600" } ], "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": "N.C. Gen. Stat. \u00a7 14-58", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1977, "opinion_index": -1 }, { "cite": "134 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "13 N.C. App. 46", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550010 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/13/0046-01" ] }, { "cite": "45 S.E. 1033", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1903, "opinion_index": 0 }, { "cite": "133 N.C. 743", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659539 ], "year": 1903, "opinion_index": 0, "case_paths": [ "/nc/133/0743-01" ] }, { "cite": "307 So. 2d 587", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9638510 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/so2d/307/0587-01" ] }, { "cite": "127 Vt. 532", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4651381 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/vt/127/0532-01" ] }, { "cite": "345 N.E. 2d 899", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "370 Mass. 119", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 312587 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/mass/370/0119-01" ] }, { "cite": "413 F. 2d 992", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2184137 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/f2d/413/0992-01" ] }, { "cite": "456 F. 2d 404", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 738232 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/456/0404-01" ] }, { "cite": "505 F. 2d 139", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 119020 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/f2d/505/0139-01" ] }, { "cite": "70 N.C. 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685054 ], "year": 1874, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/nc/70/0088-01" ] }, { "cite": "55 S.E. 72", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1906, "opinion_index": 0 }, { "cite": "142 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652554 ], "year": 1906, "opinion_index": 0, "case_paths": [ "/nc/142/0577-01" ] }, { "cite": "27 S.E. 2d 623", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "223 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614264 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/223/0610-01" ] }, { "cite": "100 S.E. 2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1957, "opinion_index": 0 }, { "cite": "247 N.C. 260", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626550 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/247/0260-01" ] }, { "cite": "138 S.E. 2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569084 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0506-01" ] }, { "cite": "42 S.E. 2d 663", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1947, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "227 N.C. 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626211 ], "year": 1947, "pin_cites": [ { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0517-01" ] }, { "cite": "92 S.E. 2d 401", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1956, "pin_cites": [ { "page": "402" } ], "opinion_index": 0 }, { "cite": "244 N.C. 53", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219541 ], "year": 1956, "pin_cites": [ { "page": "54-55" } ], "opinion_index": 0, "case_paths": [ "/nc/244/0053-01" ] } ], "analysis": { "cardinality": 811, "char_count": 15359, "ocr_confidence": 0.758, "pagerank": { "raw": 9.87718218875633e-08, "percentile": 0.5348555070199074 }, "sha256": "2ac87afc9ff6e5fb1e46d5ec9450f09675ad72ee67d6e535b521a905edeb81bf", "simhash": "1:3a33aa243a2fcc57", "word_count": 2586 }, "last_updated": "2023-07-14T15:00:46.792762+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BROCK took no part in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. DONALD GENE PHILLIPS and MICHAEL JOEL PRESSLEY" ], "opinions": [ { "text": "SHARP, Chief Justice.\nAt the conclusion of the evidence defendants moved to dismiss the case on the grounds that the indictment against them was based solely on the perjured testimony of the State\u2019s witness Joe Bill Deyton. The trial court\u2019s denial of this motion constitutes defendants\u2019 first assignment of error. Whether an indictment would ever be subject to dismissal on the foregoing grounds and, if so, under what circumstances, is a question we need not now explore since (1) there is no evidence that perjury was actually committed and (2) defendants\u2019 motion to dismiss was untimely.\nThe sole witness before the grand jury was Joe Deyton, the arson victim. At the trial Deyton testified on direct examination that there were some \u201cinaccuracies\u201d in the statements he had made to the SBI agent who investigated the fire. He told the agent he saw defedants get into a 1966 Chevrolet which came by the motel after the fire began and that Dickie Phillips (Richard Godfrey Phillips) was the driver. Deyton explained that he had assumed Richard Phillips was the driver because Phillips had driven up to the store at Deyton\u2019s motel many times in just such a car; and that, although he thought he had seen him, he couldn\u2019t be sure. He also testified that he had assumed that the two defendants, both of whom he had seen running from the scene of the fire, were passengers in the car. On the morning of the trial Deyton told the district attorney about these assumptions and advised him that there would be a discrepancy between his trial testimony and his former statements.\nDeyton admitted on cross-examination, over the State\u2019s objection, that his testimony before the grand jury and at the preliminary hearing contained the same inaccuracies. He explained that his former testimony was based on assumptions he had made at the time of the fire, and. that he reported those assumptions as fact because \u201che was so upset and so tore up\u201d by the shock .of his family\u2019s narrow escape from death and the loss of his home and possessions.\nThese facts fall far short of establishing perjury. The com-monlaw definition of perjury-is \u201ca false statement under oath, knowingly, willfully and designedly made in a proceeding in a court of competent jurisdiction ... as to some matter material to the issue or point in qu\u00e9stion.\u201d State v. Lucas, 244 N.C. 53, 54-55, 92 S.E. 2d 401, 402 (1956). There is nothing in Deyton\u2019s testimony which suggests that the inaccuracies in his grand jury testimony were wilfull or designedly made. An unintentional misstatement of the facts is not perjurious.\nFurthermore, we note that Richard Phillips\u2019 testimony at trial fully verified the accuracy of Deyton\u2019s assumptions. Phillips swore that he was in fact the driver of the car Deyton saw and that the two defendants did indeed get into the car after the fire began.\nWe also n\u00f3te that Deyton testified, both at trial and before the grand jury, that he saw two men running away from the fire carrying a gasoline can and recognized them as the defendants. This testimony, standing alone, provided ample cause for the grand jury to believe defendants were involved in the arson.\nFinally, we call attention to the public policy of this State against allowing a defendant to' cross-examine the witnesses before the grand jury in order to show the nature and character of the evidence upon which the bill of indictment \u2022 was founded. State v. Blanton, 227 N.C. 517, 523-24, 42 S.E. 2d 663, 667 (1947). This policy is now codified in G.S. 15A-623(e). which states that \u201cGrand jury proceedings are secret \u00bfnd, except as .expressly provided in this Article, members of .the grand jury and all persons present during its sessions shall keep its secrets.\u201d See also G.S. 11-11. We agree with the trial judge that-the evidence elicited on cross-examination concerning Deyton\u2019s grand jury appearance was not a proper subject for consideration on a motion to dismiss the indictment.\nUnder G.S. 15A-952(c) a motion to dismiss the indictment pursuant to G.S. 15A-955 \u201cmust be made at or before the time of arraignment if arraignment is held prior to the session of court for which the trial is calendared.\u201d If arraignment is held during the session, the motion must be filed \u201con or before five o\u2019clock p.m. on the Wednesday prior to the session when trial of the case begins.\u201d A failure to make the motion in apt time constitutes a \u201cwaiver.\u201d G.S. 15A-952(e). The trial judge, however, has the power to \u201cgrant relief from any waiver except failure to move to dismiss for improper venue.\u201d Id.\nOther than specifying, arraignment as the proper time for making the motion, these statutory rules substantially follow common-law practice. Under the common law of this State a motion to quash the indictment could be made as of right only up to the time the defendant entered his plea. Thereafter, the motion was addressed to the sound discretion of the trial judge. State v. Colson, 262 N.C. 506, 138 S.E. 2d 121 (1964). See also, State v. Ballenger, 247 N.C. 260, 100 S.E. 2d 845 (1957); State v. Suddreth, 223 N.C. 610, 27 S.E. 2d 623 (1943); State v. Burnett, 142 N.C. 577, 55 S.E. 72 (1906); State v. Eason, 70 N.C. 88, 90 (1874).\nDefendants\u2019 motion to dismiss came at the conclusion of the evidence. Under either common-law practice or G.S. 15A-952, the motion was untimely and was therefore addressed to the discretion of the trial judge. State v. Ballenger, supra; State v. Suddreth, supra; G.S. 15A-952(e). His exercise of that discretion in refusing to hear the motion is not reviewable on appeal. State v. Colson, supra; State v. Ballenger, supra.\nIn their second assignment of error defendants argue that the trial court erred in charging the jury that Richard Godfrey Phillips had testified under a grant of immunity. Defendants contend that the order dated April 24, 1978, granting immunity was ineffective because Phillips never formally asserted his privilege against self-incrimination as required by G.S. 15A-1051(b).\nBecause the privilege against self-incrimination is a personal one, the short answer to defendants\u2019 second assignment is simply that they have no standing to challenge either the propriety or the effectiveness of a grant of immunity to a witness testifying against them. United States v. Braasch, 505 F. 2d 139 (7th Cir. 1974); United States v. Lewis, 456 F. 2d 404 (3d Cir. 1972); Lopez v. Burke, 413 F. 2d 992 (7th Cir. 1969); Commonwealth v. Simpson, 370 Mass. 119, 345 N.E. 2d 899 (1976); State v. Reed, 127 Vt. 532, 253 A. 2d 227 (1969). Furthermore, even if the grant of immunity were ineffective and the judge\u2019s charge therefore superfluous, we fail to see how defendants could be prejudiced by an instruction telling the jury that Richard Phillips had been granted immunity and cautioning the jury to \u201cscan and scrutinize [his] testimony with care before accepting it.\u201d\nUpon oral argument defendants expressly abandoned their two final assignments of error: (1) that the trial judge erred in granting a change of venue (a move they themselves requested), and (2) that they were denied the effective assistance of counsel. Notwithstanding, we have examined both of these assignments and find no merit in either.\nOur careful review of the record discloses a trial free from prejudicial error.\nNo error.\nJustice BROCK took no part in the consideration or decision of this case.\n. The admission of this testimony is not assigned as error and the question whether a witness\u2019s grand jury testimony is admissible to impeach his testimony at trial is not at issue here. But see N.C. Gen. Stat. \u00a7 15A-623(e) (1978) and \u00a7 11-11 (1969). See also State v. Ivey, - - - La. - - -, 307 So. 2d 587 (1975).\n. See, e.g., State v. Morgan, 133 N.C. 743, 45 S.E. 1033 (1903); State v. Smith, 13 N.C. App. 46, 134 S.E. 2d 906 (1971).", "type": "majority", "author": "SHARP, Chief Justice." } ], "attorneys": [ "Rufus L. Edmisten, Attorney General, and George J. Oliver, Assistant Attorney General, for the State.", "Noland, Holt & Campbell by Edward Campbell for defendants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DONALD GENE PHILLIPS and MICHAEL JOEL PRESSLEY\nNo. 85\n(Filed 12 July 1979)\n1. Indictment and Warrant \u00a7\u00a7 14, 15; Perjury \u00a7 1\u2014 inaccurate testimony before grand jury \u2014 no perjury \u2014 motion to dismiss indictment \u2014 timeliness\nThe trial court in a prosecution for arson did not err in denying defendants\u2019 motion to dismiss on the ground that the indictment against them was based solely on the perjured testimony of the witness whose motel and residence were burned, since: (1) there was no evidence that perjury was actually committed, as assumptions made by the witness in his grand jury testimony did not amount to perjury but only to an unintentional misstatement of the facts and the accuracy of those assumptions was fully verified by another witness at trial; and (2) defendants\u2019 motion to dismiss the indictment, which was made at the conclusion of the evidence, was not timely. 6.S. 15A-952(c).\n2. Grand Jury \u00a7 2\u2014 proceedings secret \u2014 cross-examination of witness improper\nEvidence elicited on cross-examination concerning an arson victim\u2019s grand jury appearance was not a proper subject for consideration on a motion to dismiss the indictment, since it is the policy of the State that grand jury proceedings should be secret. G.S. 15A-623(e).\n3. Criminal Law \u00a7 117.3\u2014 jury instructions \u2014 witness testifying under immunity\nDefendants had no standing to challenge either the propriety or the effectiveness of a grant of immunity to a witness testifying against them, since the privilege against self-incrimination is a personal one; furthermore, even if the grant of immunity in question were ineffective, defendants were not prejudiced by the court\u2019s instruction that the witness had been granted immunity-and cautioning the jury to scrutinize his testimony with care before accepting it.\nJustice Brock took no part in the consideration or decision of this case.\nAPPEAL by defendants from the judgment of (Harry C.) Martin, J., at the 24 April 1978 Session of HAYWOOD Superior Court, docketed and argued at the Fall Term 1978 as Case No. 107.\nDefendants were tried and convicted of arson. Sentences of life imprisonment were imposed under N.C. Gen. Stat. \u00a7 14-58 (Cum. Supp. 1977), and both defendants appealed. Evidence for the State tended to show:\nOn 15 May 1977 Joe Bill Deyton and his wife were the owners of a motel located on Lake Santeetlah, one mile outside of Robbinsville, North Carolina. The complex which housed the motel also contained the Deytons\u2019 living quarters. Around 2:00 a.m. that morning, after waiting up for some late-arriving motel guests, Deyton went to his residence, where his wife, daughter, and niece were already asleep. As he sat at the kitchen table drinking a cup of coffee, he heard his dog barking and went outside to investigate. When he stepped out the front door he \u201cheard something go shush-boom!\u201d Glancing up, he saw that \u201cthe whole end of [the] motel porch was on fire.\u201d At the same time Deyton saw two men running from the direction of the motel. They were carrying what appeared to be a five-gallon gasoline can. By the light of the fire and four motel floodlights he recognized the men as the defendants, Donald Gene Phillips and Michael Joel Pressley. He had known these two men \u201call of his life.\u201d\nThe bedroom of Deyton\u2019s daughter was directly under the motel porch which was on fire. He immediately ran back into the residence to awaken his family and get them out of the burning building. This accomplished, he directed his wife to call the fire department. He then ran back outside and tried unsuccessfully to put out the fire with a garden hose. While thus engaged he saw a white 1966 Chevrolet pass by the motel headed toward Rob-binsville. This car was \u201csimilar\u201d to the 1966 Chevrolet he knew to be owned by Richard Godfrey Phillips, the nephew of defendant Michael Phillips.\nThe fire department never responded to the call and the building was totally destroyed.\nRichard Phillips, who was indicted for arson along with the defendants, testified for the State under a grant of immunity. His evidence, summarized except when quoted, tended to show:\nRichard Phillips returned to Graham County on 20 April 1977 after having worked in Chicago for approximately thirteen weeks. Upon his return he set up a campsite on Massey Branch Road near Lake Santeetlah. From 20 April 1977 until May 15th, the morning of the fire, he lived there with several other persons, including defendant Michael Pressley.\nOn Saturday, May 14, Richard Phillips made several trips away from the campsite. On one of these trips, accompanied by the defendants Pressley and Donald Phillips, he drove to Cherokee County to purchase liquor. After consuming two fifths of whiskey they returned to the campsite around 4:00 p.m. Around 11:00 p.m. defendants and their companions decided to go to a party at Cheoah Point, ten miles north of Robbinsville. Everyone was \u201cpretty drunk by this time.\u201d Richard Phillips was driving his own car, a white 1966 Chevrolet. He was accompanied by the defendants and by Tony and James Phillips. When they reached Cheoah Point, they failed to find the party and headed back toward Robbinsville. On the way they passed the motel owned by Joe Deyton and his wife.\nAs they drove by the motel, Richard Phillips said, \u201cWe ought to set some nails under his [Joe Deyton\u2019s] tires.\u201d After Richard Phillips made this remark, James Phillips said, \u201cLet\u2019s just burn him out.\u201d The suggestions \u201cseemed like the most popular thing to do and everybody said, okay, we\u2019ll do it.\u201d Richard Phillips explained that he had nothing personally against Mr. Deyton; that he just \u201cwanted to do something evil.\u201d\nThe five men then returned to the campsite where they obtained a five-gallon gasoline can. After considering methods of destroying the motel, the group decided as a part of their plan to disable the fire trucks at the Robbinsville Fire Department. Both defendants participated in the discussion. All of them then proceeded in Richard Phillips\u2019 Chevrolet to the home of Susan Costerolos, where they siphoned gas out of a car parked in front of her trailer and told her of their intention \u201cto burn up Joe Bill Deyton.\u201d Despite her pleas and efforts to dissuade them they left for the motel. En route they stopped at the Graham County Rescue Squad Building and disabled the two fire trucks they found inside by throwing away the keys and tearing out the distributor wires.\nWhen the group reached the Deytons\u2019 motel, Richard Phillips drove the car slowly past the building to be sure no one was outside. He then parked beside a dumpster approximately a quarter of a mile away. Michael Pressley and Donald Philips left the car, gasoline in hand, and headed toward the motel, saying they \u201cwere going to burn that motel down.\u201d\nA short time later defendants ran back to the car from the direction of the motel. At that time the \u201cwhole area was lit up\u201d by the burning building. As they got in the car, Donald Phillips said, \u201c[LJet\u2019s get out of here . . . it\u2019s a blazing.\u201d Richard Phillips drove for approximately a half mile with his headlights turned off and then returned with his passengers to the Costerolos trailer.\nDefendants presented evidence tending to show that they were at the trailer at the time the fire began, and that they knew nothing about the motel being burned until someone came to the trailer and told them about it.\nRufus L. Edmisten, Attorney General, and George J. Oliver, Assistant Attorney General, for the State.\nNoland, Holt & Campbell by Edward Campbell for defendants." }, "file_name": "0600-01", "first_page_order": 632, "last_page_order": 639 }