{ "id": 4718407, "name": "STATE OF NORTH CAROLINA v. JIMMY LEE MARTIN", "name_abbreviation": "State v. Martin", "decision_date": "1986-02-18", "docket_number": "No. 472A84", "first_page": "667", "last_page": "688", "citations": [ { "type": "official", "cite": "315 N.C. 667" } ], "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": "144 S.E. 2d 619", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576177 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0546-01" ] }, { "cite": "287 N.C. 303", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562627 ], "year": 1975, "pin_cites": [ { "page": "318-19" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0303-01" ] }, { "cite": "245 S.E. 2d 754", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "295 N.C. 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563021 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/295/0309-01" ] }, { "cite": "286 S.E. 2d 535", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "305 N.C. 106", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566171 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/305/0106-01" ] }, { "cite": "64 L.Ed. 2d 795", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "446 U.S. 941", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6277664, 6275708, 6276260, 6274984, 6278350, 6275343, 6278644, 6279286, 6278967, 6277367, 6276539, 6275996, 6278014 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0941-08", "/us/446/0941-03", "/us/446/0941-05", "/us/446/0941-01", "/us/446/0941-10", "/us/446/0941-02", "/us/446/0941-11", "/us/446/0941-13", "/us/446/0941-12", "/us/446/0941-07", "/us/446/0941-06", "/us/446/0941-04", "/us/446/0941-09" ] }, { "cite": "259 S.E. 2d 843", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572489 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0380-01" ] }, { "cite": "438 U.S. 154", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1769234 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "155-56" }, { "page": "672" } ], "opinion_index": 0, "case_paths": [ "/us/438/0154-01" ] }, { "cite": "229 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "31 N.C. App. 335", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549362 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc-app/31/0335-01" ] }, { "cite": "237 S.E. 2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "218 Va. 294", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2130582 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/va/218/0294-01" ] }, { "cite": "278 N.E. 2d 462", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 470", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2835510, 2842910 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0470-01", "/ill-app-3d/3/0470-02" ] }, { "cite": "457 F. 2d 1231", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 733734 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/f2d/457/1231-01" ] }, { "cite": "47 L.Ed. 2d 324", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "424 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12033570, 12033804, 12033966, 12033487, 12033615, 12033681, 12033727, 12033907, 12033651, 12033588, 12033851, 12033535 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/424/0918-03", "/us/424/0918-09", "/us/424/0918-12", "/us/424/0918-01", "/us/424/0918-05", "/us/424/0918-07", "/us/424/0918-08", "/us/424/0918-11", "/us/424/0918-06", "/us/424/0918-04", "/us/424/0918-10", "/us/424/0918-02" ] }, { "cite": "522 F. 2d 160", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1111938 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/f2d/522/0160-01" ] }, { "cite": "399 U.S. 42", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168334 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/399/0042-01" ] }, { "cite": "466 U.S. 727", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6205246 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0727-01" ] }, { "cite": "283 S.E. 2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "304 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567490 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/304/0293-01" ] }, { "cite": "322 S.E. 2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "146" } ], "opinion_index": 0 }, { "cite": "312 N.C. 251", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4750239 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "262" } ], "opinion_index": 0, "case_paths": [ "/nc/312/0251-01" ] }, { "cite": "187 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1972, "pin_cites": [ { "page": "710", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "281 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573594 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0001-01" ] }, { "cite": "64 L.Ed. 2d 796", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "257 S.E. 2d 551", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 86", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568503 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0086-01" ] }, { "cite": "231 S.E. 2d 644", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "291 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558765 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nc/291/0528-01" ] }, { "cite": "212 S.E. 2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 509", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569066 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0509-01" ] }, { "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": "268 S.E. 2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "463" } ], "opinion_index": 0 }, { "cite": "300 N.C. 578", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564096 ], "year": 1980, "pin_cites": [ { "page": "584" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0578-01" ] }, { "cite": "305 S.E. 2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "capacity to consent to search" } ], "opinion_index": 0 }, { "cite": "309 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762828 ], "year": 1983, "pin_cites": [ { "parenthetical": "capacity to consent to search" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0001-01" ] }, { "cite": "49 L.Ed. 2d 1213", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1976, "opinion_index": 0 }, { "cite": "428 U.S. 908", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6188931, 6188550, 6188244, 6188023, 6188766 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/428/0908-05", "/us/428/0908-03", "/us/428/0908-02", "/us/428/0908-01", "/us/428/0908-04" ] }, { "cite": "214 S.E. 2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "752" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1520, "char_count": 46394, "ocr_confidence": 0.81, "pagerank": { "raw": 1.2377043856863053e-07, "percentile": 0.607125164440089 }, "sha256": "fbf49106071a9d2be480342aca9a1621db4dfc89a5a6eaf6d73dbb85be7bc68c", "simhash": "1:b38b75f26652a8d6", "word_count": 7894 }, "last_updated": "2023-07-14T15:13:08.433452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Justice BILLINGS did not participate in the consideration or decision of this case." ], "parties": [ "STATE OF NORTH CAROLINA v. JIMMY LEE MARTIN" ], "opinions": [ { "text": "FRYE, Justice.\nDefendant was charged in separate bills of indictment, filed 20 February 1984, with first degree murder, armed robbery, conspiracy to commit armed robbery, assault with a deadly weapon with intent to kill inflicting serious injury, and conspiracy to commit first degree murder. A jury found defendant guilty of all charges except armed robbery and recommended a sentence of life imprisonment. The trial judge sentenced defendant to life imprisonment for the murder conviction followed by the presumptive sentences for the remaining convictions. Defendant appealed his conviction for first degree murder to this Court as a matter of right pursuant to N.C.G.S. \u00a7 7A-27(a). Defendant\u2019s motion to bypass the Court of Appeals on the lesser offenses was granted 14 August 1984.\nDefendant presents four issues for this Court\u2019s consideration:\n1) whether his confession should have been suppressed;\n2) whether the weapons discovered as the result of the confession should have been suppressed;\n3) whether the trial judge should have limited the prosecutor\u2019s argument ex mero motu, or, alternatively, should have allowed defendant\u2019s request for a curative instruction; and\n4) whether defendant had a right to re-poll the jury during the sentencing phase of the trial as to its verdict in the guilt or innocence phase.\nWe answer all four questions in the negative and find no error in defendant\u2019s trial.\nBetty Foley Peeler was killed on the evening of \u00cd0 November 1983. At the time of her death, she suffered from a heart condition, had undergone a colostomy, and had been hospitalized on various occasions for different ailments. She lived with her eighty-three-year-old father, Thomas T. Foley, in his home on Lee Street in Greensboro.\nAt defendant\u2019s trial, Tom Foley said that he and his daughter were at home watching television on the evening she was killed. Sometime before eight o\u2019clock, Ms. Peeler went to answer a knock on the door and returned with two young men. Foley and his daughter knew one of the men, one Willie Mast\u00edn, but not the other. Mast\u00edn said that the two had run out of gas and asked to use the telephone. When he finished his call, he said, \u201cThey are on their way with the gas.\u201d Foley asked Mast\u00edn where he was working and Mast\u00edn replied that he didn\u2019t know. Foley then asked who Mastin\u2019s friend was, and Mast\u00edn again replied that he did not know. Mast\u00edn eventually said that they also needed some oil and would go to a store up the street to get some.\nWhen Mast\u00edn and the stranger returned, Mast\u00edn asked if his friend could use the bathroom. Betty Peeler offered to show him where it was. She and the stranger left the room. Foley then saw the stranger grab Ms. Peeler and pull her into the bathroom. She screamed, and Foley tried to go to her assistance. Mast\u00edn tried to dissuade him by saying that the noise was only Foley\u2019s dog. Foley got up nevertheless and met his daughter\u2019s assailant in the doorway. The young man was holding a knife. He stabbed Foley through the jawbone, cutting his tongue, and struck him between the eyes. Foley fell backwards over a wood stove in a corner of the room. He got up, grabbed a stick of wood, and struck his attacker. Mast\u00edn and the stranger both ran away.\nFoley checked his daughter\u2019s pulse but found none. He went next door and asked the neighbors to call the police. By the time Foley returned to his house, police and ambulance were already there. Willie Mast\u00edn ran up, and Foley heard him tell the police some story about chasing the man who had stabbed Foley\u2019s daughter.\nFoley had to be hospitalized for his .injuries. He lost three teeth and a considerable amount of blood, needed stitches, and had a sore mouth for several days.\nHe was unable to identify defendant at trial as Mastin\u2019s friend. He explained his inability by saying that the stranger had kept his head down and not said anything the entire time he was in Foley\u2019s house.\nWhen the police arrived at Foley\u2019s residence, they found Ms. Peeler already dead. The autopsy later disclosed that she had been stabbed eight times, twice in her neck, twice in her back, twice in her chest, and once in her left wrist and her right hand. The hand and wrist injuries were \u201cdefense-type\u201d injuries that were probably the result of holding her hands in front of her to protect herself. One of the neck injuries pierced the carotid artery. Of the back injuries, one went through a rib and punctured a lung. One of the chest injuries penetrated her breastbone and punctured the aorta. These last two injuries, according to testimony at trial, required the use of considerable force.\nThe police officers on the scene at Foley\u2019s house interviewed Willie Mast\u00edn upon his return. After hearing his account of the killing, they requested him to accompany them to the police station to talk to a detective. Mast\u00edn agreed. Detective Scott interviewed him there at about 10:00 or 11:00 p.m. Scott had spoken briefly to Foley at the hospital earlier that night, and Foley had told him that he did not know the name of his daughter\u2019s killer but that Willie Mast\u00edn had been there. Foley thought Mast\u00edn was \u201cinvolved.\u201d The account of the killing Mast\u00edn gave Scott was essentially the same as the one that he had earlier given the officers at Foley\u2019s house. Mast\u00edn said that he had been hitchhiking home from work when he was picked up by a white man, with black hair and a mustache, driving a blue 1970 or 1971 Fiat. The Fiat had a cut in the covering of the passenger\u2019s seat. Mast\u00edn did not know the man, who introduced himself only as \u201cJames.\u201d The Fiat ran out of gas near the intersection of Lee and Tate Streets. The two men went to Foley\u2019s house, which was nearby, to call for gas. There was no answer at the place Mast\u00edn called. \u201cJames\u201d then remembered that he had a gas can in his car. The two returned to the car, got the can, bought some gas, and filled the car. \u201cJames\u201d suggested returning to Foley\u2019s. When they got there, he asked if he could use the bathroom. From this point on, Mastin\u2019s account was similar to the story Foley told at trial, except that Mast\u00edn added that when he left, he chased \u201cJames\u201d down the nearby railroad tracks. He saw \u201cJames\u201d throw something into some bushes, but was unable to catch him, and so returned to Foley\u2019s to see whether Foley and his daughter were badly hurt.\nDetective Scott did not believe this account and said so. He continued to question Mast\u00edn. Mast\u00edn stuck to his story until about 2:50 a.m. when he modified it. His new account was substantially the same as his previous one, except that he admitted that he knew the other man. Instead of an unknown \u201cJames\u201d who picked him up in a blue Fiat, Ms. Peeler\u2019s killer was a friend of his named Jimmy Martin who lived in the trailer park where Mas-tin lived.\nDetective Scott still did not believe that Mast\u00edn was an innocent bystander, but he did believe the identification. Accordingly, he sent Officer Brown to obtain a warrant for defendant\u2019s arrest. Brown told the magistrate that there had been a killing in which the victim was stabbed to death, and that a witness had named defendant as the perpetrator. The magistrate issued the warrant.\nThe officers sent to arrest defendant found him in the trailer next door to his home. They found no indications that defendant had been taking drugs or alcohol. The officers verbally gave defendant his Miranda rights and took him back to Detective Scott at the police station.\nDetective Scott in turn read defendant a Statement of Rights form and a Waiver of Rights form, pausing after each right to ask if defendant understood. Defendant indicated each time that he did, except for once asking about the meaning of the word \u201csubsequent.\u201d He signed the waiver form.\nScott told defendant that Mast\u00edn had implicated him in the killing. Defendant then confessed to stabbing Ms. Peeler. Detective Scott took the following statement from him:\nOn 11/10/83, Thursday afternoon, at about 4:30 P.M., I went over to Willie Mastin\u2019s trailer. We talked for a while and Willie said, \u201cI know where we can get some money.\u201d He said, \u201cIt\u2019s worth going and getting.\u201d He then said, \u201cyou know Betty and Tom?\u201d He said, \u201cThe plan is we go to the house,\u201d and he said, \u201cwe\u2019re going to stay for a few minutes, and this is what I want you to do. I want you to ask Betty to use the bathroom, and when she gets into the bathroom, hold her mouth and hit her in the back a couple of times with a knife.\u201d He said, \u201cThen flush the toilet to let Tom know you used the bathroom. Shut the door behind, go to the living room and tell me (Willie) that Betty has something to show him.\u201d The plan was to leave the knife on the sink and Willie would get the knife and go back where Tom was and hit Tom with it, and he might need my help because he was big. After we stabbed Tom we were to cut out the porch light and living room light, leave the TV on, and get the money. We were to leave out the back door, and we were going to go down the tracks and use the phone to call a cab and then go home. The plan was to kill both Tom and Betty and not have any witnesses. At the trailer park, Willie showed me the knife. It belonged to him. It was a lock blade type and Willie carried it to the house where Betty and Tom lived. We left the trailer park sometime after 5 P.M., walking up to Patterson Avenue (Patton Avenue) to the railroad tracks and walked the tracks to Goodwill on Eugene Street and onto Lee Street. We got to the house, Tom and Betty\u2019s, and saw two girls walking. We crossed the street so no one would see us go in. We waited and as they passed Willie knocked on the door. Betty came to the door and she said, \u201cCome on in,\u201d because she knew Willie. He introduced me to Tom and Betty and we talked and watched TV for about 30 minutes. Willie got up and said, \u201cWe\u2019re going to the store and we will be back in a few minutes.\u201d We went in and I got a pack of cigarettes, Winstons. We went around the store and talked for a few minutes about the plan, and I told him I did not want to do it, that I was afraid and I did not want to kill anyone; but he said, \u201cCome on, man, it\u2019s easy and no one will know that we done it if we don\u2019t leave any witnesses.\u201d We went back, sat down for a few minutes, left again and told them we were going outside to the store and buy some oil for a car that needed some oil. We went back to the Ma-Jik market but did not buy anything.\nWillie asked if I was ready, and I said, \u201cNo,\u201d and he said this was our only chance. We went back in, sat down and talked for a few minutes, and that\u2019s when I got up enough nerve to ask Betty to use the bathroom, and she said, \u201cI\u2019ll show you where it\u2019s at.\u201d I followed Betty to the bathroom. She opened the door, reached for the light, that\u2019s when I grabbed her from behind, put my hand over her mouth, and stabbed her two times with a knife that I had in my right hand. She hollered, \u201cTom,\u201d two or three times, and Tom and Willie came in. I pushed Tom out of the way into the stove, and Willie and me ran out the front door, down Lee Street, to the railroad tracks. Willie said, \u201cThrow the knife down.\u201d I threw it into some bushes. Willie said, \u201cLet\u2019s go back,\u201d cause he wanted to see where Tom was because he could identify us, and he also said he thought Betty was dead. He told me to wait 30 or 45 minutes and if he didn\u2019t return, to go home. He didn\u2019t come back, and I ran home. I have not seen Willie since.\nDetective Scott testified that he took this statement from defendant word for word, except for very minor points such as adding \u201cp.m.\u201d to times and inserting \u201cPatton Avenue\u201d in parentheses.\nAs a result of defendant\u2019s statement, the police discovered two knives that defendant identified as the ones Willie Mast\u00edn gave him. One was the murder weapon.\nDefendant moved to suppress both the statement and the knives. The trial judge held a voir dire on the motion to suppress the statement. The various police officers involved in the investigation of Ms. Peeler\u2019s killing testified to their activities as previously described. Defendant\u2019s evidence tended to show that he was mentally retarded, with an I.Q. of 66, was easily led, functioned on a twelve-year, eight-month-old level, comprehended oral statements on a second grade level, and read on a third grade level. He completed very little of the ninth grade. All three of defendant\u2019s expert witnesses stated in essence that in their opinions, defendant was not capable of making the statement attributed to him in the form in which was written. Nor did these experts believe that defendant understood the Statement and Waiver of Rights forms at an adult level or that he could understand the consequences of his waiver. The trial judge, after making findings of fact and conclusions of law, denied defendant\u2019s motions.\nI.\nDefendant primarily assigns as error the trial judge\u2019s denial of his motion to suppress the statement taken by Detective Scott. He advances four arguments to support this assignment.\nFirst, he contends that there was no probable cause to support issuance of a warrant.\nDeterminations of probable cause have often been the subject of comment by this Court. In State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972), Justice Branch, now Chief Justice, speaking for the Court, stated:\nThe Fourth Amendment requirement that no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the persons or things to be seized, applies to arrest warrants as well as to search warrants. The judicial officer issuing such warrant must be supplied with sufficient information to support an independent judgment that there is probable cause for issuing the arrest warrant. The same probable cause standards under the Fourth and Fourteenth Amendments apply to both federal and state warrants.\n281 N.C. at 6, 187 S.E. 2d at 710 (citations omitted). The standard applied to determinations of probable cause is not a technical one. As the Court said recently in State v. Zuniga, 312 N.C. 251, 322 S.E. 2d 140 (1984), \u201cProbable cause is a flexible, common-sense standard. It does not demand any showing that such a belief be correct or more likely true than false. A practical, nontechnical probability is all that is required.\u201d 312 N.C. at 262, 322 S.E. 2d at 146. At minimum, a supporting affidavit for an arrest warrant must show enough for a reasonable person to conclude that an offense has been committed and that the person to be arrested was the perpetrator. State v. Sturdivant, 304 N.C. 293, 283 S.E. 2d 719 (1981). Moreover, as the United States Supreme Court reminded the legal community in Massachusetts v. Upton, 466 U.S. 727, 80 L.Ed. 2d 721 (1984), an appellate court reviewing the decision of a magistrate to issue a warrant does not decide the question of probable cause de novo; rather, the question for the appellate court\u2019s consideration is whether the evidence viewed as a whole provided a sufficient basis for the magistrate\u2019s finding.\nIn light of the considerations outlined above, a review of the evidence reveals that the facts presented to the magistrate were sufficient to support a determination of probable cause to arrest defendant. Officer Brown testified in essence that he told the magistrate about the physical details of the crime and the identification of defendant as the perpetrator by Willie Mast\u00edn, an eyewitness who knew defendant.\nDefendant attacks only the sufficiency of Mastin\u2019s statement to support a finding that defendant was the perpetrator. He notes that no other evidence connected him with the crime; that Foley did not know him; and that he had no criminal record of any kind. Defendant argues that Mastin\u2019s credibility was therefore crucial and the magistrate had insufficient information to judge it, since the magistrate was not told that Mast\u00edn had made a prior inconsistent statement or that Detective Scott disbelieved the rest of his account. While these items might have been more properly mentioned than omitted, neither omission was material in this case. First, Mast\u00edn had earlier said that he did not know the identity of the perpetrator; he had not named some other identifiable person and then changed his story to name defendant. His earlier story is consistent with a normal desire not to squeal on a buddy. Second, Detective Scott\u2019s suspicions about Mastin\u2019s own involvement would not negate Mastin\u2019s identification of defendant in light of Tom Foley\u2019s statement that Mast\u00edn and another man had been present and that the other man had actually done the stabbing. Therefore, in this instance, Detective Scott\u2019s disbelief in the rest of Mastin\u2019s story is not material to a finding of probable cause to believe that defendant was the actual perpetrator.\nDefendant urges, nevertheless, that the standards applicable to determining the reliability of paid police informers should apply to Mastin\u2019s statement. We reject this contention. Mast\u00edn was not a paid police informant. Had he been telling the whole truth, and Officer Scott incorrect in his beliefs, Mast\u00edn would have been an ordinary eyewitness. Several jurisdictions, acting on implied approval from the United States Supreme Court in Chambers v. Maroney, 399 U.S. 42, 26 L.Ed. 2d 419 (1970), see W. Lafave and J. Israel, Criminal Procedure, \u00a7 3.3(d) (1984), have declined to apply the same standards used for paid police informants to information obtained from witnesses and victims. See, e.g., United States v. Rollins, 522 F. 2d 160 (2nd Cir. 1975), cert. denied, 424 U.S. 918, 47 L.Ed. 2d 324 (1976); United States v. Bell, 457 F. 2d 1231 (5th Cir. 1972); People v. Thompson, 3 Ill. App. 3d 470, 278 N.E. 2d 462 (1972); Saunders v. Commonwealth, 218 Va. 294, 237 S.E. 2d 150 (1977). North Carolina has previously accepted a victim\u2019s description as sufficient identification to establish probable cause. See State v. Sturdivant, 304 N.C. 293, 283 S.E. 2d 719. In fact, Detective Scott\u2019s suspicions were valid. The result is the same; our Court of Appeals has held that identification by a codefendant is a sufficient identification to establish probable cause. See State v. Freeman, 31 N.C. App. 335, 229 S.E. 2d 238 (1976).\nDefendant argues further that the arrest warrant was defective because it was not based upon a truthful showing under the rules of Franks v. Delaware, 438 U.S. 154, 57 L.Ed. 2d 667 (1978). In Franks, the United States Supreme Court said:\n[WJhere the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant\u2019s request. In the event that at the hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit\u2019s false material set to one side, the affidavit\u2019s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.\nId. at 155-56, 57 L.Ed. 2d at 672.\nThe misconduct relied upon by defendant is not that of Officer Brown who actually obtained the arrest warrant, but of Detective Scott. Defendant alleged that Detective Scott \u201cknowingly and intentionally or with reckless disregard for the truth\u201d presented the magistrate, through Officer Brown, false information in that he deliberately omitted material facts from the information he gave Officer Brown by not telling him he disbelieved Mastin\u2019s story.\nDefendant had his hearing as mandated by Franks. The trial judge conducted a voir dire on defendant\u2019s motion to suppress, wherein defendant raised these issues, and after making findings of fact substantially similar to the facts described herein, concluded that probable cause had existed. The trial judge was correct in reaching this conclusion. Defendant completely failed to support his allegation of misconduct on the part of Detective Scott because, as discussed previously in this opinion, Scott\u2019s failure to tell Officer Brown about his disbelief in the remainder of Mastin\u2019s story was not material in this instance.\nDefendant\u2019s second argument for suppressing the statement taken by Detective Scott is that he was not taken before a magistrate without \u201cunnecessary delay.\u201d N.C.G.S. \u00a7 15A-511(a) requires that a police officer take an arrested person to a magistrate without unnecessary delay. N.C.G.S. \u00a7 15A-511(a) (1984). Defendant was arrested at about 3:15 a.m. and taken directly to the police station. He was not taken before a magistrate until about 5:00 a.m. Defendant argues that this delay was unnecessary, due to the proximity of the magistrate\u2019s office to the police station. He argues further that it was a substantial violation in that the delay was for the sole purpose of obtaining a confession. N.C.G.S. \u00a7 15A-974 provides that, upon a timely motion, evidence obtained as the result of a substantial violation of a provision of Chapter 15A must be suppressed. N.C.G.S. \u00a7 15A-974 (1984). Defendant contends that since his motion was timely, his confession therefore should have been suppressed.\nWe do not agree with defendant\u2019s contention. N.C.G.S. \u00a7 15A-511 does not prescribe mandatory procedures affecting the validity of a trial. State v. Reynolds, 298 N.C. 380, 259 S.E. 2d 843 (1979), cert. denied, 446 U.S. 941, 64 L.Ed. 2d 795 (1980). For a violation to be substantial, defendant must show that the delay in some way prejudiced him, for example, by causing a violation of his constitutional rights, id., or by resulting in a confession that would not have been obtained but for the delay, State v. Hunter, 305 N.C. 106, 286 S.E. 2d 535 (1981). Defendant here has shown no prejudice. He alleges no violation of a constitutional right in connection with the delay. The delay itself was less than two hours, and this Court has previously declined to find a four and one-half hour delay inherently unreasonable. See State v. Richardson, 295 N.C. 309, 245 S.E. 2d 754 (1978). More importantly, defendant has failed to show that he would not otherwise have confessed.\nDefendant\u2019s third argument for suppressing the statement taken by Detective Scott is that he was tricked into making it. Defendant\u2019s contention that he was tricked into confessing is based on the following exchange which occurred upon cross-examination by defense counsel of Officer Poole who was present when Detective Scott interrogated defendant:\nQ. And was he told that Mr. Mast\u00edn had implicated him?\nA. Yes, sir, he was.\nQ. All right. Was he told that Mr. Mast\u00edn had confessed and implicated him in the crime?\nA. Yes, sir.\nQ. Okay. And what did he say when \u2014 did you tell him or did Mr. Scott tell him Mr. Mast\u00edn confessed?\nA. Detective Scott.\nQ. And when Detective Scott told him that Mr. Mast\u00edn had confessed, what did Mr. Martin say?\nA. First he began to cry; and then he stated, \u201cYes, I will tell you all about it.\u201d\nBased upon this exchange alone, defendant now argues that he was tricked into believing that Willie Mast\u00edn had confessed when in fact Mastin\u2019s second statement was largely exculpatory.\nThere is no merit in this argument. We first note that the bulk of the testimony given by police officers at the voir dire was basically that Detective Scott told defendant that Willie Mast\u00edn had made a statement that implicated defendant. Defendant then began to cry and confessed forthwith. The only evidence that Officer Scott told defendant that Mast\u00edn had \u201cconfessed\u201d was the testimony of Officer Poole on cross-examination as indicated above. The word \u201cconfessed\u201d was suggested by defense counsel rather than by either witness. Whether Officer Scott told defendant that Mast\u00edn had \u201cimplicated\u201d defendant or had \u201cconfessed and implicated\u201d defendant cannot be determined from the record. The trial judge simply found that defendant \u201cwas not threatened, intimidated or coerced . ...\u201d We are not convinced that Officer Poole meant to say that defendant was told Mast\u00edn had made a full confession; rather, he was responding to the sense of defense counsel\u2019s question and affirming that defendant was told Mast\u00edn had implicated him. Considering Mastin\u2019s differing accounts of what happened on the night in question, his admission to being present at the time his friend committed the offense, and the overall testimony of the witnesses at voir dire, we are unable to say that defendant was tricked by the officers into making a statement.\nFinally, defendant argues that the statement obtained by Detective Scott should have been suppressed because defendant had not voluntarily, knowingly, and intelligently waived his Fifth Amendment rights against self-incrimination. Defendant\u2019s argument here is essentially that his waiver was not knowing and intelligent due to his incapacity to understand the Statement and Waiver of Rights forms.\nA subnormal mentality, standing alone, will not render a confession incompetent if it is in all other respects voluntarily and understandingly made. If a person has the mental capacity to testify and to understand the meaning and effect of statements made by him, he possesses sufficient mentality to confess. Nevertheless, lack of mental capacity is a factor to consider in determining the involuntariness of a confession. State v. Thompson, 287 N.C. 303, 318-19, 214 S.E. 2d 742, 752 (1975), death sentence vacated, 428 U.S. 908, 49 L.Ed. 2d 1213 (1976); cf. State v. Fincher, 309 N.C. 1, 305 S.E. 2d 685 (1983) (capacity to consent to search).\nWhile defendant\u2019s evidence tended to show that he was unlikely to have understood the Miranda warnings given him, the State presented evidence from which the trial judge could have concluded otherwise. \u201cWhen the voir dire evidence is conflicting . . . the trial judge must weigh the credibility of the witnesses, resolve the crucial conflicts and make appropriate findings of fact. When supported by competent evidence, his findings are conclusive on appeal.\u201d State v. Jenkins, 300 N.C. 578, 584, 268 S.E. 2d 458, 463 (1980). Here, the trial judge found that defendant verbally indicated that he understood his rights, that he was not intoxicated and was alert and responsive during questioning, that he responded rationally and understandingly to questions, and that he understood the Statement and Waiver of Rights forms. These findings were based upon competent evidence. The police officers testified that defendant appeared alert and that there were no signs that he was drunk or drugged. Detective Scott read the Statement and Waiver of Rights forms slowly, pausing after each right to ask whether defendant understood. Defendant repeatedly replied that he did. Finally, there was evidence that defendant had the capacity to ask for enlightenment when he did not understand: he asked the meaning of the word, \u201csubsequent.\u201d The trial judge\u2019s findings will therefore not be disturbed.\nDefendant also argues in this context that the State failed to show that the statement taken by Detective Scott was accurate. Defendant\u2019s experts testified that he could not have made the statement attributed to him in the form in which it was written. While defendant strongly argues that Detective Scott\u2019s repeated assertion that he had taken the statement from defendant word-for-word is not very credible, nevertheless, there was no showing that the facts as disclosed were inaccurate.\nFor all of the above reasons, we find that the trial judge did not err in denying defendant\u2019s motion to suppress.\nII.\nDefendant argues next that the knives discovered as a result of his confession should also have been suppressed. Since the trial judge did not err in denying the motion to suppress defendant\u2019s confession, there was no error in denying his motion to suppress the knives.\nIII.\nFor his third assignment of error, defendant argues that the prosecutor in his closing argument \u201cviolated the rules of fair debate and propriety\u201d to defendant\u2019s prejudice to such an extent that the trial judge should have either acted ex mero motu to correct the prosecutor or granted defendant\u2019s motion for a supplemental corrective instruction. Defendant excepts to two portions of the prosecutor\u2019s argument. Early in his argument the prosecutor said:\nI will get to the point real quickly, real quickly. Ladies and gentlemen, for you to come back in this courtroom and find the Defendant guilty of second degree murder is going to violate the oath that you took on this Bible ....\nSomewhat later, he said the following:\nBut that would not be right; it would not be following your oath as jurors in this case if you took \u2014 I will tell you ladies and gentlemen the oath that you took is as important to our system as the oath I take as a prosecutor, the oath that the Judge takes as the Judge, and the oath that Mr. Cooke and Mr. North must take as attorneys in this State \u2014 and they are both good attorneys. The only problem I have with anything that\u2019s occurred by any attorney is the fact that Mr. North has asked you, because the boy is not a bad boy, to find him guilty of second degree murder, to ignore your duties, to find the evidence, to find the facts and apply those facts to the law, because if you do that duty, I would argue to you there is no way that you could find the Defendant guilty of second degree murder. There is no way that you can find from the evidence if you believed the confession for \u2014 And if you don\u2019t believe the confession, then it should be a not guilty. But if you believe that confession, there is no way, I would argue to you, that you can find that they didn\u2019t plan, did not have premeditation, or that it was committed or was not committed during the course of a robbery. So, I would ask you to abide by your oath.\nDefendant made no objections at the time but after the jury had retired to deliberate, he requested a supplemental curative instruction. The trial judge denied this request. Defendant contends that both of the passages recited above were improper and prejudicial.\nTaken in context, the prosecutor\u2019s remarks in his closing argument do not reveal any impropriety. Following the first passage to which defendant excepts, the prosecutor continued:\nWhat Mr. North has asked you to do is to come in here and find somebody not guilty of first degree murder, because he has never done it before and because he runs errands for old people, which I commend him for.\nBut, ladies and gentlemen, the evidence of character is admissible in a criminal court as to decide whether or not that man did the acts that the State of North Carolina has accused him of; but his character in no way, absolutely none, will excuse first degree murder to second degree murder. Not guilty by way of character, not guilty by way of cooperation, that has no place in the laws of the State of North Carolina.\nYou took an oath; the judge will tell you the law, and all I\u2019m asking is that you follow that law as you said you would.\nTaken in context, then, the prosecutor was, correctly, telling the jurors the law on the use of character evidence and reminding them that their oaths were to apply the law as it exists. The prosecutor is entitled to argue relevant law. State v. Covington, 290 N.C. 313, 226 S.E. 2d 629 (1976); State v. Monk, 286 N.C. 509, 212 S.E. 2d 125 (1975).\nAn examination of the second passage to which defendant excepts reveals the same situation as the first. There, the prosecutor argued to the jurors that defendant\u2019s confession revealed premeditation and deliberation. Counsel has a right to argue reasonable inferences from the evidence. State v. Britt, 291 N.C. 528, 231 S.E. 2d 644 (1976). The prosecutor also repeated to the jury part of the law on the use of character evidence, telling the jurors in essence that if they found premeditation and deliberation they could not use defendant\u2019s hitherto blameless character to reduce his conviction to second degree murder.\nSince there was no impropriety in the prosecutor\u2019s remarks, the trial judge therefore had no duty to censor the argument on his own motion and no duty to grant defendant\u2019s motion for a curative instruction.\nIV.\nDefendant argues lastly that the trial court erred in denying his request to repoll the jury.\nAfter the jury returned its verdicts finding defendant guilty of first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, conspiracy to commit armed robbery and conspiracy to commit murder, defendant requested that the jury be polled. Accordingly, the clerk polled the jury. Each juror assented to the verdicts as read. As read, the verdicts included a finding that defendant was guilty of first degree murder on theories of premeditation and deliberation and also felony murder. During the next recess, however, the clerk noticed that the written verdicts found defendant not guilty of felony murder. The clerk brought this discrepancy to the judge\u2019s attention. The judge inquired of the jury when the recess was over which finding was correct, and the jury agreed that the written verdict was the correct one. The judge asked defendant if he wanted the jury re-polled, and defendant declined. Later, during the penalty phase of the trial, the forelady of the jury approached the judge and told him that she wished to change her vote to find defendant guilty of second degree murder rather than first. Defendant moved to repoll the jury. The trial judge denied the motion.\nDefendant argues that he was entitled to have the jury polled again under the provisions of N.C.G.S. \u00a7 15A-1238. This section provides as follows:\n\u00a7 15A-1238. Polling the jury.\nUpon the motion of any party made after a verdict has been returned and before the jury has dispersed, the jury must be polled. The judge may also upon his own motion require the polling of the jury. The poll may be conducted by the judge or by the clerk by asking each juror individually whether the verdict announced is his verdict; If upon the poll there is not unanimous concurrence, the jury must be directed to retire for further deliberations.\nN.C.G.S. \u00a7 15A-1238 (1983). Defendant argues that the jury had not yet been \u201cdispersed.\u201d\nThe statute on which defendant relies gives him a right to poll the jury. N.C.G.S. \u00a7 15A-1238 (1983). It does not give defendant a right to an unlimited number of polls. Defendant exercised his right once when the jury first returned its verdicts. The trial judge properly offered defendant a second opportunity to poll the jury after the discrepancy between the oral and written verdicts was discovered and clarified. Defendant declined and thereby waived any right to repoll the jury on account of the discrepancy. The event which occasioned defendant\u2019s request for a repolling was the attempt of the forelady to change her vote based on testimony presented at the sentencing phase of the trial. The trial judge correctly refused to allow her to do so; a juror may not impeach the verdict of the jury after it has been rendered and received in open court. State v. Cherry, 298 N.C. 86, 257 S.E. 2d 551 (1979), cert. denied, 446 U.S. 941, 64 L.Ed. 2d 796 (1980). A juror\u2019s dissent is effectual at polling but not afterwards. State v. Webb, 265 N.C. 546, 144 S.E. 2d 619 (1965). Defendant\u2019s request to repoll the jury amounted to an attempt to impeach the jury\u2019s verdict, and the trial judge properly denied it.\nV.\nOn 4 April 1985, defendant filed with this Court a motion for appropriate relief seeking a new trial on the grounds that he had obtained additional evidence not previously obtainable which had a direct and material bearing upon his guilt or innocence. This new evidence was another statement by Mast\u00edn.\nIn a sworn affidavit, Mast\u00edn said that Tom Foley had tried to hire him to kill Betty Peeler for $3,000. Foley\u2019s reason was that he was tired of his daughter\u2019s ailments; he \u201cwanted to put her out of misery [sic].\u201d Mast\u00edn first tried to trick defendant into committing the murder. He said that he later changed his mind and decided not to become involved. Nevertheless, he took defendant to Foley\u2019s house. When they left the first time, defendant told Mast\u00edn that he was not going to do it. Upon their return to Foley\u2019s, Mast\u00edn accordingly relayed their refusal. When defendant asked to use the bathroom, Foley himself stabbed his daughter. Defendant asked, \u201cWhat\u2019s going on?\u201d Foley told defendant that he, defendant, had stabbed Foley\u2019s daughter twice. Defendant ran out of the house. Mast\u00edn himself \u201ccut\u201d Foley when Foley came at him with a knife. Mast\u00edn then fled. When he caught up with defendant, defendant said that he did not remember anything and that he was scared. Mast\u00edn had gotten each of them some Quaaludes earlier that evening. Defendant said that he wished he had never taken the Quaaludes. He then ran off.\nIn his affidavit, Mast\u00edn said that he had told his sister this story while he was in jail and would take a lie detector test if asked.\nThis Court remanded defendant\u2019s motion for appropriate relief to the Superior Court, Guilford County, for an evidentiary hearing. The hearing was held 1 August 1985. After some preliminary findings, the presiding judge found as facts:\n[A]fter the trial of the defendant, Jimmy Lee Martin, the said Arthur William Mast\u00edn did enter pleas of guilty to second degree murder and assault with a deadly weapon with intent to kill inflicting serious injury, and was sentenced to a substantial term of imprisonment; that upon being examined under oath and in open court, he stated orally and on his transcript of plea that he, the said Mast\u00edn, was guilty of those offenses and was satisfied with his attorneys and did freely, knowingly and voluntarily, of his own choice, enter the said pleas. That in the course of Mastin\u2019s trial preparation and trials, he at no time stated to his attorneys that Tom Foley had killed Betty Foley Peeler, nor that he had cut and stabbed Tom Foley in self defense; that the first time he made a statement to that effect was after he was confined to the Polk Youth Center with the defendant, Jimmy Lee Martin, when he first told a sister and later told the defendant Jimmy Lee Martin\u2019s attorneys; that in all pre-trial statements made by Arthur William Mast\u00edn, the defendant Jimmy Lee Martin was named as that person who stabbed Betty Foley Peeler to death and he did thus describe the killing in each of his statements made to the investigating officers; that at all times the said Arthur William Mast\u00edn stated to his trial attorneys that the killing was done by Jimmy Lee Martin at a time while the said Mast\u00edn was in the livingroom [sic] with Tom Foley; that Tom Foley was a very elderly, ill and frail person who has since the trial passed away and is thus unable to testify.\nThe trial judge found in addition:\nThat the interview statement of Arthur William Mast\u00edn on November 12, 1983 and the interview statement of the said Mast\u00edn made on November 11, 1983 and the confession of the defendant, Jimmy Lee Martin, offered at trial are basically consistent with the testimony of Tom Foley offered at the trial and with each other, and fully support the conviction of the defendant Jimmy Lee Martin on each of the offenses and are totally inconsistent with the Affidavit and statement of Arthur William Mast\u00edn made on or about February 13, 1985 while incarcerated at the Polk Youth Center.\nBased on these facts, the judge concluded that Mastin\u2019s most recent story was unbelievable and denied defendant\u2019s motion for a new trial. No exceptions to these findings or to the judgment on the motion for appropriate relief have been filed with this Court. Thus, further proceedings in this Court will be dismissed.\nTo summarize:\n1) the trial judge did not err in denying defendant\u2019s motion to suppress the statement taken by Detective Scott;\n2) consequently, there was no error in the denial of the motion to suppress the weapons recovered as a result of that statement;\n3) the trial judge did not err in refusing to censor the prosecutor\u2019s closing argument because it was not improper; and\n4) the trial judge properly denied defendant\u2019s request to re-poll the jury.\nFor the reasons discussed herein, we find no error in defendant\u2019s trial. Defendant\u2019s motion for appropriate relief will be dismissed.\nNo error.\nJustice BILLINGS did not participate in the consideration or decision of this case.\n. It should be noted that Foley appears to have been somewhat hard of hearing. He died in January of 1985.", "type": "majority", "author": "FRYE, Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State.", "A. Wayland Cooke and H. Davis North, III, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY LEE MARTIN\nNo. 472A84\n(Filed 18 February 1986)\n1. Indictment and Warrant \u00a7 6.2\u2014 homicide \u2014 evidence sufficient for arrest warrant\nThe facts presented to a magistrate were sufficient to support a determination of probable cause to arrest where an officer told the magistrate about the physical details of the crime and the identification of defendant as the perpetrator by an eyewitness who knew defendant. The omission of a prior inconsistent statement by the witness and the fact that the detective interrogating the witness did not believe the rest of his account was not material because the witness had earlier said that he did not know the identity of the perpetrator rather than naming some identifiable person and then changing his story to name defendant, and the detective\u2019s suspicions about the witness\u2019s involvement would not negate the witness\u2019s identification of defendant in light of the statement of one of the victims that the witness and another man had been present and that the other man had done the stabbing.\n2. Criminal Law \u00a7 75.1\u2014 delay of two hours in taking defendant before a magistrate \u2014 no error\nThere was no unnecessary delay in taking defendant before a magistrate where defendant was arrested at about 3:15 a.m. and taken directly to the police station but was not taken before a magistrate until about 5:00 a.m. Defendant showed no prejudice in that there was no violation of a constitutional right in connection with the delay, the delay was less than two hours, and defendant failed to show that he would not otherwise have confessed. N.C.G.S. 15A-511(a), N.C.G.S. 15A-974.\n3. Criminal Law \u00a7 75.3\u2014 defendant confronted by statement of accomplice \u2014 confession admissible\nDefendant was not tricked into making a statement to officers in that he believed an accomplice had confessed even though the accomplice\u2019s testimony was exculpatory where the word confessed was suggested by defense counsel; the bulk of the testimony by police officers at the voir dire was that a detective had told defendant that an accomplice had made a statement that implicated defendant; and, considering the witness\u2019s differing accounts of what happened on the night in question, his admission to being present at the time his friend committed the offense, and the overall testimony of the witnesses at the voir dire, it cannot be said that defendant was tricked by the officers into making a statement.\n4. Criminal Law \u00a7 75.14\u2014 admission of defendant\u2019s statement \u2014 mental capacity to waive rights \u2014 no error\nThe trial court did not err in a murder prosecution by refusing to suppress defendant\u2019s statement based on a lack of mental capacity to understand the statement and waiver of rights forms where the court found, based on competent evidence, that defendant verbally indicated that he understood his rights; that he was not intoxicated and was alert and responsive during questioning; that he responded rationally and understandingly to questions; and that he understood the statement and waiver of rights form.\n5. Criminal Law 8 102.3\u2014 prosecutor\u2019s closing argument \u2014 failure of court to correct ex mero motu or to give supplemental instruction \u2014 no error\nThe trial court did not err by failing to act ex mero motu in a murder prosecution to correct a prosecutor or to grant defendant\u2019s motion for a supplemental corrective instruction where, taken in context, the prosecutor in his closing argument was correctly telling the jurors the law on the use of character evidence and reminded them that their oath was to apply the law as it exists.\n6. Criminal Law 8 126.3\u2014 motion to re-poll jury denied \u2014 juror wishing to change vote \u2014 no error\nThe trial court did not err by denying defendant\u2019s motion to re-poll the jury where the clerk polled the jury at defendant\u2019s request and each juror assented to the verdicts as read; the verdicts as read included a finding that defendant was guilty of murder on theories of premeditation and deliberation and also felony murder; the written verdict found defendant not guilty of felony murder; the clerk brought the discrepancy to the court\u2019s attention and the court inquired about which verdict was correct; the jury agreed that the written' verdict was correct; defendant declined when the judge asked if he wanted the jury re-polled; the forelady of the jury approached the judge during the sentencing phase and said she wished to change her vote to guilty of second degree murder rather than first degree murder; and defendant moved to re-poll the jury. Defendant\u2019s request to re-poll the jury after the juror attempted to change her vote based on testimony presented during sentencing was an attempt to impeach the jury\u2019s verdict. N.C.G.S. 15A-1238 (1983).\n7. Criminal Law \u00a7 181.4\u2014 motion for appropriate relief \u2014 newly discovered evidence \u2014dismissed\nFurther proceedings in a murder prosecution were dismissed where defendant filed a motion for appropriate relief with the Supreme Court based on new evidence, the motion was remanded to the superior court for an evidentiary hearing, the superior court concluded that the new evidence was unbelievable and denied the motion, and no exceptions to those findings or to the judgment on the motion for appropriate relief were filed with the court.\nJustice Billings did not participate in the consideration or decision of this case.\nAppeal by defendant from judgments entered by Freeman, J., at the 7 May 1984 Criminal Session of Superior Court, GUILFORD County, Greensboro Division. Defendant also filed with this Court a motion for appropriate relief seeking a new trial.\nLacy H. Thornburg, Attorney General, by Ellen B. Scouten, Assistant Attorney General, for the State.\nA. Wayland Cooke and H. Davis North, III, for defendant-appellant." }, "file_name": "0667-01", "first_page_order": 695, "last_page_order": 716 }