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North Carolina v. Erby

Filed: March 16, 1982.

STATE OF NORTH CAROLINA
v.
LARRY DARNELL ERBY



Appeal by defendant from Davis, Judge. Judgment entered 19 February 1981 in Superior Court, Gaston County. Heard in the Court of Appeals 2 March 1982.

Martin (Harry C.), Judge.

Martin

Defendant is entitled to a new trial. Of numerous assignments of error raised on appeal, all of which have merit, we will limit our discussion to those evidencing obvious error and prejudice to the defendant.

On direct examination of the defendant, he was asked the following question in an effort to offer an explanation as to why he was carrying a gun on the night of the shooting:

Q. All right, and how did it [the gun] come to be in your right front pocket?

A. The night before, we had some trouble down there. Some guys was shooting --

District Attorney: Objection.

Court: Sustained. Members of the jury, you will not consider the last statement made by the defendant about anything that may have happened the night before.

On cross-examination defendant was asked why he was carrying a gun on that night and he stated, "Because we had some trouble down there where I live." The testimony was allowed. The district attorney, however, chose not to pursue this line of questioning.

Defendant, on redirect examination, again attempted to explain the circumstances that led him to carry the gun:

Q. The district attorney also asked you why you came to have the gun in your pocket on that ...


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