{
  "id": 8570028,
  "name": "STATE OF NORTH CAROLINA v. JAMES F. DUKES, JR.",
  "name_abbreviation": "State v. Dukes",
  "decision_date": "1982-03-30",
  "docket_number": "No. 171A81",
  "first_page": "387",
  "last_page": "390",
  "citations": [
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      "cite": "305 N.C. 387"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "231 S.E. 2d 585",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1977,
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    {
      "cite": "291 N.C. 687",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1977,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T14:52:50.465071+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "STATE OF NORTH CAROLINA v. JAMES F. DUKES, JR."
    ],
    "opinions": [
      {
        "text": "CARLTON, Justice.\nI.\nOn 16 February 1981, at approximately 6:20 p.m., defendant and an accomplice entered the Athletic World store in the Westwood Shopping Center in Fayetteville. The store was empty except for two clerks, Daniel Hinds (Daniel) and his brother, Sidney Hinds (Sidney). Defendant walked toward the counter, pulled a double-barreled, sawed-off shotgun from his coat, and said, \u201cAll right, boys, this is it. This is the real thing.\u201d Defendant then walked over to Sidney, pointed the gun in his face, and said, \u201cOpen the cash register.\u201d Defendant\u2019s accomplice, one Owens, went behind the counter and forced Daniel to open the cash register. Owens then removed all the money except for the dimes, nickels and pennies. He also took Daniel\u2019s wallet and a watch belonging to the daughter of the storeowner. Owens left the store while defendant ordered the clerks to walk toward the back of the store. Daniel heard the jangle of clothes hangers being pulled off a rack and turned and saw defendant fleeing the store with several warm-up suits in hand. Daniel ran toward the front of the store. Defendant turned, saw Daniel and shot his shotgun through the pocket of his coat. Daniel grabbed a pistol from underneath the counter. He heard a second shotgun blast and ran outside the store to chase defendant, who fled across the parking lot toward Shoney\u2019s Restaurant. Hinds yelled for help, and Captain Kershaw, who had just exited Shoney\u2019s, heard the shouts and saw defendant running toward him. Defendant dropped the shotgun as he was running and Kershaw picked it up. He chased defendant around the back of Shoney\u2019s to a grassy knoll where he caught defendant. Kershaw held defendant on the ground until help arrived.\nII.\nDefendant first assigns error to the trial court\u2019s denial of his motion to quash the bill of indictment because the witness who was sworn and examined before the grand jury was indicated with a \u201ccheck mark\u201d on the indictment and not with an \u201cX\u201d as stated in the foreman\u2019s certification. This assignment is patently without merit. G.S. 15A-623(c) provides that \u201c[t]he foreman must indicate on each bill of indictment . . . the witness or witnesses sworn and examined before the grand jury.\u201d That provision, however, is merely directory and \u201c[failure to comply with [it] does not vitiate a bill of indictment . . . .\u201d G.S. \u00a7 15A-623(c) (1978). The foreman is not required to indicate which witness or witnesses were heard in any particular manner. Here, the witness who appeared before the grand jury was indicated, albeit with a checkmark and not with an \u201cX\u201d as stated in the foreman\u2019s certification. Even had there been no indication, however, the indictment would not, by virtue of G.S. 15A-623(c), be subject to quashal. The indication of which witness was heard by a checkmark and not an \u201cX\u201d is not grounds for quashal.\nIII.\nBy his second and third assignments, defendant contends that the trial court erred in denying his motion for a mistrial made during trial and renewed after the verdict. During direct examination by the State, Daniel Hinds testified without objection that he had identified defendant and his accomplice in a book of photographs given him by the police. He had been given two books of photographs and picked out pictures of defendant and his accomplice from the first book, which was about two inches thick. Defendant fully cross-examined Daniel on his observation of defendant during the crime and on the pretrial identification procedure. After Daniel left the stand defendant moved for mistrial for the district attorney\u2019s failure to disclose the pretrial identification procedure during discovery. The failure to apprise the defendant of this information was apparently inadvertent. The trial judge denied defendant\u2019s motion, noting that no objection was entered or voir dire requested when this information came out on direct and that defendant had cross-examined Hinds on the pretrial procedure.\nFailure to provide discovery is governed by G.S. 15A-910. That statute provides that a court, upon determining during the course of proceedings that a party has failed to provide the required discovery, may, in addition, to exercising its contempt powers: \u201c(1) Order the party to permit the discovery or inspection, or (2) Grant a continuance or recess, or (3) Prohibit the party from introducing evidence not disclosed, or (4) Enter other appropriate orders.\u201d This statute, however, is permissive and not mandatory, and the remedy for failure to provide discovery rests within the trial court\u2019s discretion. As such, its ruling is not reviewable on appeal absent an abuse of discretion. E.g., State v. Thomas, 291 N.C. 687, 231 S.E. 2d 585 (1977). Where, as here, the failure to provide discovery was inadvertent, no objection was made when defense counsel learned of the failure to provide discovery and defense counsel fully cross-examined the witness concerning the information not discovered, we are unable to find an abuse of discretion. Additionally, we note that defendant has made no contention that the pretrial identification was imper-missibly suggestive or that it tainted the in-court identification.\nGiven the unlikelihood that the pretrial procedure had any impact on the in-court identification, the failure immediately to object and the full cross-examination, we can find no abuse of discretion in the trial court\u2019s denial of defendant\u2019s motions for mistrial.\nIV.\nFor the reasons stated above we find in defendant\u2019s trial and conviction\nNo error.\n. On the bill of indictment, after the statement of the charge, appeared the following:\nWitnesses:\nS. Stankiewiez\nMr-J-r-PMlips, FPD\nThe witnesses marked \u201cX\u201d were sworn by the undersigned foreman and examined before the Grand Jury, and this bill was found to be X, a true bill with twelve or more jurors concurring.\nThis 30th day of March, 1981.\nS/CONNIE M. MANGUM\nGrand Jury Foreman",
        "type": "majority",
        "author": "CARLTON, Justice."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Assistant Attorneys General Robert R. Reilly and Thomas G. Meacham, Jr., for the State.",
      "Blackwell, Thompson, Swaringer, Johnson & Thompson, P.A., by E. Lynn Johnson, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JAMES F. DUKES, JR.\nNo. 171A81\n(Filed 30 March 1982)\n1. Indictment and Warrant \u00a75 \u2014 irregularity in return of bill of indictment by grand jury\nThe trial court properly denied defendant\u2019s motion to quash the bill of indictment because a witness who appeared before the grand jury was indicated with a checkmark and not with an \u201cX\u201d as stated in the foreman\u2019s certification since, under G.S. 15A-623(c), the indictment would not be subject to quashal even if there had not been any indication at all.\n2. Constitutional Law \u00a7 30\u2014 failure to disclose pretrial identification procedure during discovery \u2014 no abuse of discretion\nThe trial court did not abuse its discretion in denying defendant\u2019s motion for a mistrial for the district attorney\u2019s failure to disclose the pretrial identification procedure during discovery. The failure to provide discovery was inadvertent, no objection was made when defense counsel learned of the failure to provide discovery and defense counsel fully cross-examined the witness concerning the information not discovered.\nOn appeal from judgment imposed by Braswell, Judge, at the 13 July 1981 Criminal Session of Superior Court, CUMBERLAND County.\nDefendant was charged in an indictment, proper in form, with armed robbery, a violation of G.S. 14-87. He was tried before a jury and found guilty as charged. From a sentence of life imprisonment, he appeals to this Court as of right pursuant to G.S. 7A-27(a).\nAttorney General Rufus L. Edmisten, by Assistant Attorneys General Robert R. Reilly and Thomas G. Meacham, Jr., for the State.\nBlackwell, Thompson, Swaringer, Johnson & Thompson, P.A., by E. Lynn Johnson, for defendant."
  },
  "file_name": "0387-01",
  "first_page_order": 419,
  "last_page_order": 422
}