Filed 28 August 1984
Criminal Law 163 — failure to object to instructions at trial — waiver of appellant review — no "plain error" Defendant waived appellate review of instructions in a prosecution for first-degree sexual offenses by failing to object at trial, and no "plain error" appeared in the detailed explanation of the elements of first-degree sexual offense.
APPEAL from judgments of Judge Hal H. Walker at the 30 August 1982 Criminal Session of GUILFORD Superior Court after defendant was found guilty by a jury of six charges of first degree sexual offense. The judgments imposed a sentence of life imprisonment for each conviction. Defendant appeals pursuant to N.C. Gen. Stat. 7A-27 (a).
Rufus L. Edmisten, Attorney General, by Richard L. Kucharski, Assistant Attorney General, for the State.
Locke T. Clifford and Michael R. Nash, for defendant appellant.
Justice EXUM dissenting.
Justice MEYER concurring.
Justice MITCHELL and Justice MARTIN join in this concurring opinion.
The principal question presented by this appeal is whether the trial court clearly instructed the jury on the applicable law so that the verdicts were the result of proper application of that law to the facts as the jury found them.
We believe that the answer to that question must be determined on the basis of whether or not Judge Walker committed "plain error" in the jury charge. We conclude that he made no such "plain error."
The State relied principally upon the evidence of Danny Pruitt who was in an eight-man cell in the Greensboro jail on 1 April 1982. Pruitt had originally been imprisoned for breaking and entering and larceny on 21 May 1981, but was charged with escape when he failed to report after work release on 13 November 1981. After the escape charge was resolved he was sent to the Greensboro jail to await transfer to a prison camp. In the cell with Pruitt were defendant; defendant's brother, Jerry Moore; Sammy Buchanan; James Hodge; Curtis Davis; Sylvester Barnes; and Clifford Belo. All these men were awaiting transfer to various prison facilities.
Witnesses for the State included Pruitt, the victim; Hodge; Davis; Belo; and Barnes. Defendant testified in his own behalf as did his brother. Jerry. The State's evidence and defendant's evidence were in extreme conflict. There is even some conflict among the versions of events given by the State's witnesses.
Pruitt testified that on the evening of 4 April 1982 the following events occurred in the jail cell where the men were placed: Defendant and his brother, Jerry, began pushing him and beating him with their fists while he was playing solitaire. Defendant, Jerry Moore, and Buchanan, each in turn and aided by the others, forcibly and against Pruitt's will, engaged in anal intercourse with Pruitt. Pruitt was then allowed to use the bathroom. Then defendant and Jerry Moore, each in turn and aided by the other, forcibly made Pruitt engage in fellatio with them by threatening to stab Pruitt in the ear with an ink pen. They then permitted Pruitt to take a shower.
The other witnesses gave various versions of the testimony previously related.
Defendant testified he never engaged in any sexual activity with Pruitt. Jerry Moore, brother of this defendant, admitted having pled guilty to six second degree sex offenses against Pruitt and having received a total prison sentence of forty years.
The crucial issues in this case are whether defendant has waived appellate review of the instructions given by Judge Walker by failing to object at trial and, if not, whether the instructions to the jury were proper. We conclude, by failing to object at trial, appellate review has been waived.
In North Carolina Rule of Appellate Procedure 10 (b)(2) the following requirement for appellate review is set forth:
(2) Jury Instructions; Findings and Conclusions of Judge. No party may 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 the 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 jury.
This requirement was effective for trials beginning on and after 1 October 1981.
Specifically, North Carolina Rule of Appellate Procedure 10 (b)(2) prevents a party from assigning "as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict. . . ." Because of the rule's technical exclusionary effect, we mitigated the harshness of the rule in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). In Odom, we did this by adopting the "plain error" rule which permits review of a very narrow range of errors notwithstanding a defendant's failure to object at trial to the jury charge. Even as we adopted the "plain error" rule, however, we cautioned that:
(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.'
Id. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted) (emphasis original). In contemplation of these definitions, we must conclude that no plain error appears.
For purposes of guidance during closing arguments by the attorneys and during the trial court's jury instructions, Judge Walker distributed to each of the jurors copies of the six verdict sheets specifying the specific six charges against the defendant. Each verdict sheet bearing the numbered charge included a brief explanation as to the defendant's role as principal or aider and abettor, as well as the specific sexual offense committed and the person victimized. The following information was before the jury:
VERDICT (82CRS27312): Principal Anal Sex Pruitt
VERDICT (82CRS27313): Principal Oral Sex Pruitt
VERDICT (82CRS15754): Aiding and abetting Jerry Moore Anal Sex Pruitt
VERDICT (82CRS15755): Aiding and abetting Jerry Moore Anal Sex Pruitt
VERDICT (82CRS15756): Aiding and abetting Jerry Moore Oral Sex Pruitt
VERDICT (82CRS15757): Aiding and abetting Sammy Buchanan Anal Sex Pruitt
Having distributed the foregoing to each juror he instructed them in pertinent part as follows:
Now, in these six cases, members of the Jury, and you may use those copies if you want along in this charge, I want to tell you first that you will treat each case separate. By that, I mean that you may find the Defendant not guilty in all six cases, you may find him guilty in all six cases, you may find him guilty of one of the two offenses for which you will render a verdict in part of the cases, and not guilty in part of the others, and so I want to, at the beginning, tell you that you will treat each case separately even though, in my recapitulation, I will group them together for that purpose. But when I charge you as to the law and what the law is, please bear in mind through your deliberations and during my presentation to you of the law that you must consider each case on its own and render a separate verdict in each particular case.
Now, . . . you will find at the top of 27312, that the Defendant is charged with the principal of committing anal sex on the prosecuting witness. Danny Pruitt. You will also find that in 82CRS27313, the Defendant, Michael Moore, is charged as a principal in the commission — alleged commission of oral sex on the prosecuting witness, Danny Pruitt. The other four cases, 15754, the Defendant stands charged with aiding and abetting Jerry Moore in the commission of anal sex between Jerry Moore and Danny Pruitt; and 82CRS15755, he is charged with the commission of aiding and abetting Jerry Moore in another charge of the commission of anal sex between Jerry Moore and Danny Pruitt; in 82CRS15756, the charge is aiding and abetting Jerry Moore in the commission of an act of oral sex with Danny Pruitt; and in the last case, 82CRS15757, the commission of aiding and abetting Sammy Buchanan in the commission of an anal sex act with Danny Pruitt. You will notice that the possible verdicts are the same in each case. There are three possible verdicts, guilty of first degree sexual offense, or guilty of second degree sexual offense — and I will tell you the difference — or not guilty. . . .
Now, members of the Jury, in each of these cases, the Defendant, Michael Moore, has been accused of first degree sexual offense, the first possible verdict on each one. I charge you that for you to find the Defendant in each case guilty of first degree sexual offense, the State of North Carolina must prove four things beyond a reasonable doubt.
First, that the Defendant, Michael Moore, engaged in the particular sexual act that you are considering, whether it be the charge of an anal act or an oral act, between the Defendant and Danny Pruitt. . . .
Secondly, that the Defendant, Michael Moore, did or threatened to use force sufficient to overcome any resistance that Danny Pruitt might make.
Third, that Danny Pruitt, the alleged victim, did not consent to an act of sexual activity such as the particular one that you are considering at the time, and that it was against his will. . . .
Fourth, that the Defendant, Michael Moore, employed or displayed a dangerous or deadly weapon. . . .
Now, . . . serious injury means that if a person is injured to the extent that treatment and/or hospitalization is required or medical attention, then you may consider that in determining whether or not there is serious injury existing in the case, or, members of the Jury, if you find that the Defendant committed any of these acts, the particular act that you are considering, and if he was aided and abetted by one or more other persons.
Now, a Defendant would be aided or abetted by another person if that person, whichever one you are considering, and the names are on there, was present at the time the sexual offense was committed and if that particular person allegedly involved knowingly advised or encouraged the Defendant or if they aided him to commit the particular alleged crime you are considering at the time, then the particular individual involved, if you find that he shares the Defendant's criminal purpose to the Defendant's knowledge, then you can find that the person was aiding, or was in a position to aid him at the time the alleged sexual offense was committed.
Now, members of the Jury, as to the aiding and abetting of the three cases charged against this Defendant, 15755 aiding and abetting Jerry Moore; 15756, aiding and abetting Jerry Moore, 55 being the alleged anal act and 56 being the alleged oral act; and 15757, again. aiding and abetting Buchanan in an anal act, the Court instructs you that a person, in this case, the Defendant, may be guilty of the crime that you are considering, the alleged crime, although he personally did not do any of the any of the acts which I have just finished telling you are necessary to constitute a sexual offense. A person who aids and abets another, in these particular cases you are considering either Jerry Moore or Buchanan, is guilty of that crime. You must clearly understand that if the Defendant, Michael Moore, does aid and abet within the meaning of the law, he is guilty of the act charged against the other person, a sexual offense act, just as if he personally had done all the acts necessary to constitute that crime.
So I charge you that for you to find the Defendant Michael Moore, guilty of a sexual offense in the three cases because of aiding and abetting, the State must prove beyond a reasonable doubt, first, that the sexual offense was committed by Jerry Moore as to those two cases in which his name appears on the copy, and Sammy Buchanan in 15757; that it was committed by that one that you are considering in each case. Secondly, that the Defendant Michael Moore, advised or encouraged or aided the particular party charged in that case and those other companion cases, either Jerry Moore or Buchanan when you are considering that, to commit that crime. . . .
So as to these three cases involving the alleged aiding and abetting of his brother, Jerry Moore, two in that case, and one with Sammy Buchanan, the Court charges you that if you find from the evidence and beyond a reasonable doubt that . . . Michael Moore did commit the act of sexual offense, and that with Jerry Moore when you are considering those two cases or Sammy Buchanan when you are considering that one, did knowingly encourage or aid Jerry Moore and Sammy Buchanan to commit the crime of sexual offense, it would be your duty to return a verdict of guilty of a sexual offense, one of the two sexual offenses in which you are considering; two as to Jerry Moore and one as to Sammy Buchanan. But if you do not so find or if you have a reasonable doubt as to one or more of these things that I have just enumerated to you, it would be your duty to return a verdict of not guilty.
Now, members of the Jury, as to the possible verdicts, again I charge you that if you find from the evidence and beyond a reasonable doubt that on or about the 5th of April, 1982, Michael Moore engaged in a sexual act, as I have defined that, with Danny Pruitt and that he did so as to these two substantive cases, 27312 and 27313, or in the other — Well, I said two cases against Jerry. There are three cases against Jerry, two anal charges and one oral charge; and one against Sammy Buchanan.
Again, I instruct you that if you find that the Defendant Michael Moore, did participate in and engage in and did meet the essentials and the requirements, as I have defined to you, with Danny Pruitt on this day in question and that he did so by actually having these sex acts with Pruitt; and as to the three cases involving Jerry Moore and the one allegedly involving Sammy Buchanan by aiding and abetting them, as I have defined that; . . . and the Court instructing you further that the State of North Carolina need not show a deadly weapon if you find beyond a reasonable doubt that the defendant. Michael Moore, was aided and abetted by the particular individual involved in the case you are considering beyond a reasonable doubt, that is all as to that number four essential that the State must prove. So then if you find that these existed beyond a reasonable doubt, all of the elements, it would be your duty to return a verdict in the case you are considering of guilty of first degree sexual offense, which is the first possible verdict on each one.
But if you do not so find or if you have a reasonable doubt as to one or more of the essentials and the elements that I have outlined to you, you would not return a verdict of guilty of first degree sexual offense, but would consider the second possible verdict in each case, which is as to whether or not the Defendant is guilty of second degree sexual offense. . . .
But if you do not so find or if you have a reasonable doubt as to one or more of the elements and essentials I have spelled out to you, it would be your duty to return in that case you are considering a verdict of not guilty.
We realize that in cases, such as this one, involving multiple defendants and multiple offenses, there exists the possibility of confusion among the jurors. In light of the situation, we believe Judge Walker adequately guided the jury on the appropriate legal principles necessary to their decision. The court provided the jury with a detailed explanation of the elements of first degree sexual offense. Included in that charge was a clarification of how the "aiding and abetting" element relates to the first degree sex offense, as well as an instruction with regard to the remaining charges against defendant involving aiding and abetting the co-defendants.
We do not believe as defendant contends that the trial judge's charge could have been interpreted by the jury as requiring it to find that the defendant personally engaged the victim in each of the six sexual offenses in order to find him guilty of each of those charges. The trial judge supplied each juror with a list of the charges against the defendant specifying in which cases the State sought to show that the defendant personally engaged in the sexual offense charged and those in which he acted as an aider and abettor. Even if it is assumed arguendo that the jury interpreted the charge as the defendant now argues, the error would seem to have been more favorable to the defendant, as it required the State to prove more than it was required by law to prove in order to sustain these convictions. When such an erroneous instruction is beneficial to the defendant, a new trial is not to be awarded. State v. Cox, 303 N.C. 75. 277 S.E.2d 376 (1981).
When stripped of artificial complexity, the evidence in this case presented the jury with a straightforward and simple choice. If the jury believed the testimony of the victim Pruitt and the other State's witnesses, then the jury was required to return verdicts of guilty on all charges against the defendant. On the other hand, if the jury believed the defendant and his brother and disbelieved the State's witnesses, then the jury was required to find the defendant not guilty. These would have been the choices the jury faced in any event without regard to the instruction. Clearly, the outcome of the trial rested upon the witnesses' credibility.
We recognize that the defendant was represented at trial by an able and experienced attorney, who has been practicing at the Bar of Guilford County and other counties of the State as well as in the Appellate Division for more than twenty-five years. Being experienced, he probably recognized that the real question for the jury was a simple question of the credibility of witnesses. Recognizing this fact, this able and experienced attorney certainly would have been justified in concluding that it would be a sound trial tactic not to object to the jury charge. Counsel certainly would have recognized that such a tactic could well have served the defendant's interests, since a lack of clarity in the jury instructions might very well have led to confusion, possibly resulting in a hung jury or an acquittal, even though the jury disbelieved the defendant and believed the State's witnesses.
Defendant raises additional assignments of error with regard to the trial court's charge to the jury. Again, we note that defendant did not bring these matters to the attention of the trial court during the trial. After close consideration of these issues, we find that the errors, if any, do not rise to the level of "plain error."
We must conclude that the instructions of the trial judge to the jury did not amount to fundamental error so prejudicial that justice could not have been done. Neither did the instructions amount to a denial of a fundamental right of defendant or result in a miscarriage of justice or the denial of a fair trial. We do not believe that any mistake in the instructions had a probable impact on the jury's finding that the defendant was guilty of the crimes charged. See: State v. Odom, 307 N.C. at 600, 300 S.E.2d at 378. Whether "letter perfect" instructions were given, or those that were actually given by Judge Walker, we believe the jury in this case would have reached the same result for or against the defendant based upon whether it believed Pruitt or believed the defendant.
Defendant finally challenges the trial court's refusal to allow him to ask the prosecuting witness certain questions with respect to a civil lawsuit the prosecuting witness intended to file. The record reveals that the trial court permitted defendant to make a reasonable inquiry into the prosecuting witness's pecuniary interest in the outcome of this case. The well-established rule is that trial judges have wide latitude in determining the questions allowed on cross-examination. Their rulings will not be held to be prejudicial error in the absence of a showing that the verdict was improperly influenced by his ruling. State v. Edwards, 305 N.C. 378, 289 S.E.2d 360 (1982). We hold that no prejudicial error resulted.
The trial and judgment in all respects is free from prejudicial error.