State v. Eatman

MARTIN, Judge. Defendant’s counsel contends that the trial court erred in denying his motion for continuance and thereby deprived defendant of an opportunity fairly to prepare and present her defense in violation of the Federal and State Constitutions. Specifically, counsel argues that he requested the continuance in order to locate a crucial witness whom he had previously attempted to locate without success. It is a well recognized rule that the Sixth Amendment right of confrontation carries with it the opportunity fairly to prepare and present one’s defense and the right to face one’s accuser and witnesses with other testimony. N.C. Const. Art.. I, § 23 (1971); State v. Smathers, 287 N.C. 226, 214 S.E. 2d 112 (1975); State v. Rigsbee, 285 N.C. 708, 208 S.E. 2d 656 (1974). If defendant’s motion for continuance was in fact based on a right guaranteed by the Federal and State Constitutions, the decision of the trial court is reviewable as a question of law without a prior determination of gross abuse of discretion. State v. Harrill, 289 N.C. 186, 221 S.E. 2d 325 (1976). However, under the facts of this case, we do not believe any substantial issue concerning these constitutional guarantees is involved. Counsel’s statement to the court in support of his motion to continue because of the absence of witnesses was lacking in specificity and unsatisfactory. See State v. Rigsbee, supra. The substance of the testimony the witnesses [668] were expected to give was not divulged; in fact, the only information imparted was that the witnesses were defendant’s husband— whose attendance at trial was “no problem” —and defendant’s brother — a transient who “probably” would be called as a witness. Additionally, defendant’s counsel admitted that these witnesses had not been subpoenaed, notwithstanding thirty days had transpired since defendant’s probable cause hearing. We conclude that defendant has established no violation of her constitutional rights nor shown abuse of discretion. Defendant’s first assignment of error is overruled. Defendant next assigns as error the denial of her motions for nonsuit made at the close of the State’s evidence and at the close of all the evidence. This assignment of error is without merit. The record on appeal reveals that the victim, Mrs. Dorothy Parker, testified on several occasions — during direct and cross-examination — that one of the robbers had a “little, short” gun and it was pointed in her face during the incident. Moreover, State’s witness Janice Batts testified to the same effect. Thus, with regards to whether the robbery was committed with a firearm, we hold that the evidence, viewed in the light most favorable to the State, was sufficient to submit the case to the jury on the charge of armed robbery. Defendant contends in her third argument that the court erred in charging the jury relative to the unanimous verdict requirement. The challenged instructions are as follows: “As you well know, this is a criminal case, and in a criminal case, we require any verdict which you jurors return be a unanimous verdict. Defendant’s Exception No. 23 That means, of course, that if and when you agree, then all twelve of you must agree in that verdict. In no event, will this Court accept a majority verdict.” Defendant argues that this instruction is confusing in that it could have led the jury to think that a minority must yield to a majority; and that the court failed to accurately explain the concept to the jury and did not inform them that they did not have to recede from their positions if all could not agree on the same verdict. We disagree. [669] It is the law of North Carolina that no person can be finally convicted of any crime except by the unanimous consent of twelve jurors who have been duly impaneled to try his case. State v. Hudson, 280 N.C. 74, 185 S.E. 2d 189 (1971), cert. denied, 414 U.S. 1160, 39 L.Ed. 2d 112, 94 S.Ct. 920 (1974). In State v. Parker, 29 N.C. App. 413, 224 S.E. 2d 280 (1976), this Court found the following instruction to erroneously convey the impression that when a vote is taken and there is a majority — either for conviction or acquittal — the minority must then cast their vote with the majority and make the verdict unanimous, before returning the verdict in open court: “ ‘. . . before you return your verdict it must be unanimous. You cannot return a verdict without a majority vote. That does not mean that your verdict must be unanimous when you retire. It means that it must be unanimous when you return to open court to announce it, because the jury is a deliberative body. You are to sit together, discuss the evidence, recall and review it all and remember it all; then after you have deliberated together return an unanimous verdict to open court.’ ” For a decision in accord, see State v. Cumber, 32 N.C. App. 329, 232 S.E. 2d 291 (1977). We do not think the challenged instruction in the instant case is susceptible to a similar interpretation. The defendant failed to include in her exception, although included in her argument, that portion of the instruction in which the trial court explains the first sentence of the challenged instruction by stating “That means, of course, that if and when you agree, then all twelve of you must agree in that verdict.” (Emphasis added.) Viewing this language in light of the rule that the charge of the court must be read contextually, and isolated portions will not be held prejudicial when the charge as a whole is correct, State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970), we are unable to find error in the subject charge. In defendant’s fourth assignment of error, she contends that the court erred in commenting on the testimony of a State’s witness favorably, thus invading the province of the jury. Defendant’s argument is based on the following portion of the charge: [670] “Now, there was also some evidence, again take your recollection, but as I remember it, there was also some evidence which tended to show that at some earlier time, Dorothy Parker and Janice Carolyn Batts made some statements to Officer John Moore which was consistent with their testimony here in the courtroom DEFENDANT’S EXCEPTION NO. 25 or which you might find was consistent with their testimony here in the courtroom, but you must not consider those earlier statements, if you should find that they were made, as evidence of the truth of what was said at the earlier time, because those statements, if you find that they were made, were not made under oath here in the courtroom. But, if you find that those earlier statements were made, and that those statements were consistent with the testimony of Miss Batts, and Mrs. Parker here in the courtroom, then you can consider that, together with all other facts and circumstances, which you find might bear upon Mrs. Parker’s and Miss Batts’ truthfulness in deciding whether or not you will believe their testimony.” It is well established that G.S. 1-180 does not allow a trial court to directly or indirectly indicate what impression the evidence has made on its mind or what deductions it thinks should be drawn thereform. State v. Belk, 268 N.C. 320, 150 S.E. 2d 481 (1966). However, it is equally established that the charge of the court will be construed contextually, and segregated portions will not be held prejudicial error when the charge as a whole is free from objection. State v. Lee, supra; State v. Blackmon, 6 N.C. App. 66, 169 S.E. 2d 472 (1969); State v. Phillips, 5 N.C. App. 353, 168 S.E. 2d 704 (1969). Thus, considering the entire portion of the charge relative to the statements made by Dorothy Parker and Janice Batts to Officer Moore, we find no expression of opinion by the trial court as to whether such statements were “consistent” with their testimony; in fact, the court admonished the jury that they were not to consider these out-of-court statements if they were not consistent with the witnesses’ in-court testimony. This assignment is overruled. In defendant’s fifth assignment of error, she contends that the court erred in failing to submit to the jury a charge on the lesser included offense of common law robbery. [671] The trial judge is not required to charge the jury upon a lesser degree of the crime charged when there is no evidence to sustain a verdict of defendant’s guilt of such lesser degree, and when there is no conflicting evidence relating to the elements of the crime charged, no instruction is required. State v. Lee, 282 N.C. 566, 193 S.E. 2d 705 (1973). In the case at bar, the evidence showed the use of a gun in the crime and there was no conflicting evidence with respect to the element of the use of a firearm. Defendant’s fifth assignment is without merit and is overruled. Defendant’s sixth assignment of error is without merit. In the trial we find no prejudicial error. No error. Chief-Judge Brock and Judge Clark concur.