State v. Grigsby

517 S.E.2d 195, 134 N.C. App. 315, 1999 N.C. App. LEXIS 742
CourtCourt of Appeals of North Carolina
DecidedJuly 20, 1999
DocketNo. COA98-944
StatusPublished
Cited by2 cases

This text of 517 S.E.2d 195 (State v. Grigsby) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Grigsby, 517 S.E.2d 195, 134 N.C. App. 315, 1999 N.C. App. LEXIS 742 (N.C. Ct. App. 1999).

Opinion

LEWIS, Judge.

Defendant was tried at the 27 October 1997 Session of New Hanover County Superior Court for the 10 January 1996 attempted robbery of TGI Friday’s and assault on the manager, David Love. Charges of assault with a deadly weapon with intent to kill inflicting serious injury, assault with a deadly weapon inflicting serious injury, and attempted robbery with a dangerous weapon were submitted to the jury. The jury convicted defendant of assault with a deadly weapon with intent to kill inflicting serious injury and attempted robbery with a dangerous weapon; defendant appeals.

[317]*317Defendant first contends that the trial court erroneously allowed the prosecution to amend the indictment on the first day of the trial to correct the spelling of defendant’s last name. Defendant contends that this action was in violation of N.C. Gen. Stat. § 15A-923(e) (1997), which prohibits amendment of indictments. Defendant claims that the amendment changed his defense “from ‘that is not me’ to something else.” We find this argument unpersuasive.

It is well established that amendments “ ‘which would substantially alter the charge set forth in the indictment’ ” are prohibited. State v. Price, 310 N.C. 596, 598, 313 S.E.2d 556, 558 (1984) (quoting State v. Carrington, 35 N.C. App. 53, 58, 240 S.E.2d 475, 478, disc. review denied, 294 N.C. 737, 244 S.E.2d 155 (1978)). See also State v. Brinson, 337 N.C. 764, 767, 448 S.E.2d 822, 824 (1994); State v. Colvin, 92 N.C. App. 152, 156, 374 S.E.2d 126, 130 (1988), disc. review denied, 324 N.C. 249, 377 S.E.2d 758 (1989). A change in the spelling of defendant’s last name is a mere clerical correction of the truest kind; defendant cannot seriously argue that he was unaware of the charges against him because one letter was missing from his last name. See Colvin, id. Although defendant’s defense was that he was not the perpetrator of the crime, he did not claim that the perpetrator was a man named Craig Grisby, as his name was spelled on the indictment. Defendant was identified at trial by witnesses as the man who discussed robbing the store and as the man who indeed assaulted David Love; defendant was aware that he was the man on trial for the crimes charged. Although a change in the name of the victim is a substantial change, see State v. Abraham, 338 N.C. 315, 340, 451 S.E.2d 131, 144 (1994), a change in the spelling of defendant’s name, adding one letter, is not such a substantial alteration. “We conclude the amendment to the indictment was permissible because it did not substantially alter the charge in the original indictment.” Brinson, 337 N.C. at 767, 448 S.E.2d at 824. This assignment of error is overruled.

Defendant next argues that he should have been allowed to cross-examine Raymond Bates, a witness for the State, regarding Bates’s dismissal from employment at TGI Friday’s. The testimony was as follows:

Q: And Mr. Bates, you were fired for stealing ribs, is that right, sir?
Ms. Edwards: Objection, Your Honor.
[318]*318The Witness: Allegedly.
The Court: Sustained.
Ms. Edwards: Move to strike.
The Court: Motion to strike is allowed. Disregard the last question from counsel, please.

Rule 608(b) allows cross-examination regarding specific acts of misconduct if the purpose of such questions is to show conduct indicating character for truthfulness, the questions in fact are probative of truthfulness, the act did not result in a criminal conviction, and the acts are not too remote in time. See State v. Bell, 338 N.C. 363, 382, 450 S.E.2d 710, 720 (1994), cert. denied, 515 U.S. 1163, 132 L. Ed. 2d 861 (1995). “[I]t is within the trial court’s discretion to allow or disallow cross-examination of a witness about his specific acts if the acts are relevant to his character for truthfulness or untruthfulness.” State v. Hunt, 339 N.C. 622, 658, 457 S.E.2d 276, 297 (1994), reconsideration denied, 339 N.C. 741, 457 S.E.2d 304 (1995). Our Supreme Court has held that questions regarding alleged larceny and conspiracy to commit larceny “without more, are not necessarily probative of [the witness’s] propensity for truthfulness.” Bell, 338 N.C. at 382-83, 450 S.E.2d at 721.

The trial court did not abuse its discretion in preventing defendant from cross-examining Bates about any alleged theft of ribs. Defendant had cross-examined Bates and impeached him with evidence that Bates waited four months before admitting he knew about the robbery, experienced a messy break-up with defendant’s sister, and had “bad blood” with defendant. Defendant concedes in his brief that the ribs-related questions were designed “to further impeach Bates” (emphasis added). As such, he indicates that the jury had evidence before it with which to evaluate Bates’ credibility. See id. at 383, 450 S.E.2d at 721. The trial court properly exercised its broad discretion in limiting the scope of cross-examination. See State v. Call, 349 N.C. 382, 411, 508 S.E.2d 496, 514 (1998). This assignment of error is overruled.

Defendant next argues that the instructions given to the jury lessened the State’s burden of proof. Defendant objected to the italicized portions of the following instructions:

Now, I charge that for you to find the defendant guilty of assault with a deadly weapon with intent to kill, inflicting serious injury, [319]*319the state must prove four things, beyond a reasonable doubt: First, that the defendant assaulted the victim by stabbing him or intentionally causing him to be cut. Second, that the defendant used a deadly weapon. A deadly weapon is a weapon which is likely to cause death or serious bodily injury. . . . Third, the state must prove that the defendant had the specific intent to kill the victim.
Fourth, ladies and gentlemen, the state must prove that the defendant inflicted serious injury upon the victim.
So I charge you that if you find from the evidence, beyond a reasonable doubt, that on or about the alleged date, the defendant intentionally stabbed or caused the victim to be cut with a knife and that the knife was a deadly weapon and that the defendant intended to kill the victim and did seriously injure him, it would be your duty to return a verdict of guilty of assault with a deadly weapon with the intent to kill, inflicting serious injury; however, if you do not so find, or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty... and you must consider whether the defendant is guilty of assault with a deadly weapon inflicting serious injury.

(Emphasis added).

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Related

State v. McNair
554 S.E.2d 665 (Court of Appeals of North Carolina, 2001)
State v. Grigsby
526 S.E.2d 460 (Supreme Court of North Carolina, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
517 S.E.2d 195, 134 N.C. App. 315, 1999 N.C. App. LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-grigsby-ncctapp-1999.