Opinion
No. COA08-876.
Filed June 16, 2009.
Caswell County Nos. 07 CRS 50165-166.
Appeal by defendant from judgments entered 29 April 2008 by Judge W. Osmond Smith, III, in Caswell County Superior Court. Heard in the Court of Appeals 25 March 2009.
Attorney General Roy Cooper, by Assistant Attorney General Joan M. Cunningham, for the State. Michael J. Reece, for defendant.
Darrell Karea Poole ("defendant") appeals from judgments entered pursuant to jury verdicts finding him guilty of felony participating in dog fighting as a spectator and misdemeanor resisting, delaying, or obstructing a public officer. The trial court sentenced defendant to an active term of eighteen to twenty-two months imprisonment on the felony dog fighting conviction and sixty days imprisonment on the misdemeanor conviction. Defendant gave notice of appeal in open court. After careful review, we find no error. Defendant's sole argument on appeal is that the trial court erred in failing to give an instruction to the jury regarding the testimony of witnesses against defendant who may have received immunity, a reduction in a pending criminal charge, or recommendation for a sentence reduction in exchange for their testimony. We disagree.
Defendant is also known as Darryl Kerrea Poole.
It is well established that a trial court must instruct the jury on testimony received in exchange for a grant of immunity, offer of a reduction of charges, or sentence recommendation only when the evidence supports the instruction. State v. Bare, 309 N.C. 122, 127, 305 S.E.2d 513, 517 (1983); see also N.C. Gen. Stat. § 15A-1052 (c) (2007) ("In a jury trial the judge must inform the jury of the grant of immunity and the order to testify prior to the testimony of the witness under the grant of immunity. During the charge to the jury, the judge must instruct the jury as in the case of interested witnesses."). However, a trial court does not err in refusing a defendant's request for a special instruction pursuant to N.C. Gen. Stat. § 15A-1052 (c), where "[t]he uncontroverted evidence at trial was that there was no `understanding or agreement'" regarding immunity, a reduction in charges, or a sentence recommendation. Bare, 309 N.C. at 127-28, 305 S.E.2d at 517 (quotation omitted); See N.C. Gen. Stat. § 15A-1054 (a) (2007).
Here, defendant did not request a specific instruction regarding witnesses testifying with immunity; rather, the trial court asked defense counsel and the State if the instruction should be given. Defense counsel asserted at that time that the instruction was proper and the State claimed it was not. Defendant did not object to the trial court's decision not to give the instruction, nor did he object to the instruction actually given.
A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury. N.C. R.App. P. 10(b)(2) (emphasis added). However, we will review this assignment of error under the plain error standard of review. State v. Hardy, 353 N.C. 122, 131, 540 S.E.2d 334, 342 (2000), cert. denied, 534 U.S. 840, 151 L. Ed. 2d 56 (2001).
[T]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a " fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done," or "where [the error] is grave error which amounts to a denial of a fundamental right of the accused," or the error has "`resulted in a miscarriage of justice or in the denial to appellant of a fair trial'" or where the error is such as to "seriously affect the fairness, integrity or public reputation of judicial proceedings" or where it can be fairly said "the instructional mistake had a probable impact on the jury's finding that the defendant was guilty."
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d 513 (1982)). "In deciding whether a defect in the jury instruction constitutes `plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." Id. at 661, 300 S.E.2d at 378-79 (citing United States v. Jackson, 569 F.2d 1003 (7th Cir.), cert. denied, 437 U.S. 907, 57 L. Ed. 2d 1137 (1978)).
At trial, two of the State's witnesses, Anthony Williamson ("Williamson") and Roderick Johnson ("Johnson"), testified that defendant was present at the dog fight. The witnesses were apprehended by deputies who broke up the dog fight, although defendant was not arrested at the scene. Williamson testified that he saw defendant at the pit where the dog fight was held, but did not see defendant flee when the Sheriff's deputies arrived at the pit. Johnson also testified that he saw defendant at the pit and that he saw defendant flee when the deputies arrived. Both witnesses were facing charges for their participation in the dog fight and were questioned at trial as to whether they received any offers or concessions from the State in return for their testimony. Both witnesses replied that the State had not offered anything in return for their testimony, although Williamson testified that he made statements to the investigating offices "assum[ing] that it would look favorable for [him]" and Johnson received word that he had been offered a plea agreement the morning of the trial.
There was no evidence that Johnson had in fact reached an agreement with the State. "Unless a witness has been formally granted immunity there is no statutory requirement for any such cautionary instruction prior to testimony." State v. Murray, 310 N.C. 541, 546, 313 S.E.2d 523, 528 (1984) (emphasis added), overruled on other grounds, State v. White, 322 N.C. 506, 518, 369 S.E.2d 813, 819 (1988). There was no formal "understanding or agreement" "to reduce any charges or to recommend any sentence concessions" to either Williamson or Jones. Bare, 309 N.C. at 127, 305 S.E.2d at 517; N.C. Gen. Stat. § 15A-1054 (a).
As indicated supra, neither the State nor defendant submitted any written requests for instructions to the jury. The trial court sua sponte raised the question of whether it would be appropriate to give an instruction pursuant to the North Carolina Pattern Jury Instruction regarding testimony of witnesses with immunity or quasi-immunity, which provides:
There is evidence which tends to show that a witness was testifying [under a grant of immunity] [under an agreement with the prosecutor for a charge reduction in exchange for the testimony] [under an agreement with the prosecutor for a recommendation for sentence concession in exchange for the testimony]. If you find that the witness testified in whole or in part for this reason you should examine this testimony with great care and caution in deciding whether or not to believe it. If, after doing so, you believe the testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
1 N.C.P.I. — Crim. 104.21 (2005). After hearing arguments from defense counsel and the State, the trial court declined to give an instruction pursuant to N.C.P.I. — Crim. 104.21 and gave instructions only as to testimony of an interested witness and accomplice testimony. The relevant portion of the charge to the jury regarding the testimony of the witnesses was as follows:
You may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take the witness's interest into account. If after doing so you believe the testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
There is evidence which tends to show that witnesses were accomplices in the commission of a crime charged in this case. An accomplice is a person who joins with another in the commission of a crime. An accomplice is considered by the law to have an interest in the outcome of the case. You should examine every part of the testimony of such witness with the greatest care and caution. If after doing so you believe his testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
In sum, contrary to defendant's arguments, there is no evidence to support his belief that Williamson and Johnson testified for the State in exchange for some offered reduction in the charges against them or a sentencing recommendation. Further, the instructions given to the jury charged them with reviewing the testimony of Williamson and Johnson with the "greatest of care and caution," which is identical to the charge at issue which instructs the jury to examine testimony with "great care and caution ." Accordingly, the trial court did not err, let alone commit plain error, in not instructing the jury regarding testimony of witnesses with immunity or quasi-immunity. See State v. Mewborn, 178 N.C. App. 281, 291-93, 631 S.E.2d 224, 231-32 (holding the trial court's instruction that the jury should review a witnesses testimony "with care and caution," substantively reflected the concept the defendant wished to convey to the jury through his request for an instruction pursuant to N.C.P.I. — Crim. 104.21), appeal dismissed and disc. review denied, 360 N.C. 652, 637 S.E.2d 187 (2006). This assignment of error is without merit.
No error.
Judges CALABRIA and HUNTER, ROBERT N., JR., concur.
Report per Rule 30(e).