State v. Brooks

293 S.E.2d 653, 58 N.C. App. 407, 1982 N.C. App. LEXIS 2776

• Court: Court of Appeals of North Carolina
• Decided: July 20, 1982
• Docket: No. 811SC1366
• Status: Published

Opinion

MARTIN (Robert M.), Judge.

Defendant first contends that the trial court committed prejudicial error in “making preliminary remarks to the prospective jurors.” The assignment of error is based on the following dialogue.

COURT: Members of the Jury, in this case the State is the plaintiff, and Clinton Brooks is the defendant. Clinton Brooks sit over here at the counsel table on your left, in the blue shirt. He is represented in this case by Mr. William T. Davis, a member of the Pasquotank County Bar, some people may know him as Tim Davis. The State is represented by Mr. Michael Johnson, a member of the staff of the District Attorney. There are two charges against the defendant, they have been consolidated for trial as a matter of convenience —

Mr. JOHNSON: Your Honor, we do not intend to consolidate the two charges, we are just calling the burning case.

COURT: Oh, I’m sorry, I was given two files, and I didn’t know. There is one charge against the defendant, disregard my statement to you that there was a second charge, that should have no bearing on your decision in this case.

No objection or exception was taken to the “remarks.” Assignments of error must be based upon exceptions duly noted in the record in order for the issue to be preserved for consideration on appeal. State v. Lampkins, 283 N.C. 520, 196 S.E. 2d 697 (1973). In addition to this procedural deficiency, we find that the trial judge’s curative instructions fully protected the defendant against any consideration the jury might have given to the remarks. State v. Siler, 292 N.C. 543, 234 S.E. 2d 733 (1977). Defendant has failed to show that the effect of the remarks affected the outcome of his trial. State v. Young, 302 N.C. 385, 275 S.E. 2d 429 (1981).

At the close of the State’s evidence, defendant moved for a dismissal. Defendant assigns as error the denial of this motion, arguing that there was no direct evidence that he was responsible for setting the fire. “Circumstantial evidence, or evidence of facts from which other matters may be fairly and sensibly deduced, is competent evidence, and is properly considered in passing on a motion for nonsuit.” State v. Snead, 295 N.C. 615, 618, 247 S.E. 2d 893, 895 (1978). We find the evidence, albeit circumstantial, was sufficient to take the case to the jury. Id.

Finally, defendant argues that the court erred in failing to instruct on defendant’s failure to testify. Defendant did not request the instruction and absent a special request, the court is not required to so instruct. State v. Warren, 292 N.C. 235, 232 S.E. 2d 419 (1977).

No error.

Chief Judge MORRIS and Judge BECTON concur.