59 N.C. App. 190 | N.C. Ct. App. | 1982
Defendant’s motion for nonsuit was properly denied. The evidence for the State and the inferences therefrom were sufficient to take the case to the jury on the charged crimes. State v. Bell, 285 N.C. 746, 208 S.E. 2d 506 (1974); State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967); State v. Marr, 26 N.C. App. 286, 215 S.E. 2d 866 (1975).
The defendant also contends the trial court erred in refusing to hear any evidence of jury misconduct. Defendant’s motion for appropriate relief was accompanied by affidavits of four of the jurors which stated that during deliberation they used information related to them by juror Raylas concerning the degree of lighting which he observed on a visit to the scene of the crime at 3:30 a.m., 15 September 1981.
“After the jury has dispersed, the testimony of a juror may be received to impeach the verdict of the jury on which he served . . . only when it concerns: (1) Matters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant’s constitutional right to confront the witness against him.”
There was considerable testimony as to visibility during the commission of the offenses which occurred on 9 July 1981. Officer Douglass testified:
“As I have said, there is a clear shot from that corner to where I observed Mr. Hawkins. When I spotted Mr. Hawkins, he was walking away. At that point, I called out to him, when I first spotted him. I called for him to stop. I identified myself. What my exact words were, I do not know.
At this point, he began running. I did not lose sight of him during my chase, for a second, even as he passed trees or shrubs. I did not notice any other fleeing figures in the area. There is a clear scan of that area. The street light would illuminate any shadows or people. At this time, I did scan the area, but did not make an exhaustive search. I characterized it as a scan. It was a complete scan. It was easy to stand at the corner and look at the area.
I did not spot any person emerging from that hole in the back wall, either before -or after my chase.
When I saw this figure inside the building, when I drove up, I had time to take at least a second to look at him. There was enough time to identify him.”
The court entered the following order:
This Cause coming on for hearing before the undersigned Judge of the Superior Court on September 18, 1981, upon a Motion for appropriate relief filed 18 September, 1981, and the Court having examined the record and having heard the attorneys representing each side finds the facts as follows:
*194 1. That the petitioner was convicted of felonious breaking and entering, possession of implements of housebreaking, and attempted safecracking on 15 September, 1981;
2. That the petitioner admitted at trial that he was at the scene of the crimes;
3. That the police testified as to the lighting conditions at the scene of the crimes;
4. That the scene of the crime is located at one of the most heavily travelled intersections in New Hanover County;
5. That the evidence against petitioner was overwhelming;
6. That no prejudice to the Defendant has been shown.
Based upon the foregoing, the Court finds and concludes as a matter of law as follows:
1. That no matter not in evidence came to the attention of one or more jurors under circumstances which would violate the defendant’s constitutional right to confront the witnesses against him;
2. That none of the petitioner’s constitutional rights have been violated.
It Is Therefore Ordered, Adjudged And Decreed that the prayer of the petitioner be and the same is Denied.
The findings of the court are amply supported by the evidence, and the affidavits of four jurors did not contain additional or different matters not in evidence at the trial.
We hold that the court correctly concluded that none of petitioner’s constitutional rights were violated.
No error.
