State v. Moore

245 S.E.2d 898, 37 N.C. App. 248, 1978 N.C. App. LEXIS 2732
CourtCourt of Appeals of North Carolina
DecidedJuly 18, 1978
DocketNo. 7818SC242
StatusPublished
Cited by2 cases

This text of 245 S.E.2d 898 (State v. Moore) 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. Moore, 245 S.E.2d 898, 37 N.C. App. 248, 1978 N.C. App. LEXIS 2732 (N.C. Ct. App. 1978).

Opinion

PARKER, Judge.

I.

We consider first the questions raised by both defendants on this appeal. Before the trial began and before a jury was impaneled, the trial judge made a preliminary statement to a group of prospective jurors. In this statement the judge identified the defendants and their attorneys, briefly described the charges, and explained the process of jury selection. He also stated that the State has the burden of proving the defendants’ guilt “by the greater weight of the evidence.” Defendants assign error to this statement by the judge regarding the State’s burden of proof.

The State must, of course, prove a defendant’s guilt beyond a reasonable doubt, and the judge’s statement to the contrary was clearly erroneous. However, we fail to see how this misstatement could have been prejudicial to defendants. The misstatement occurred before the trial began and before a jury was impaneled. Neither defendant objected to the incorrect statement, and the judge correctly instructed on and defined reasonable doubt in his final charge to the jury.

We are aware of cases holding that an erroneous instruction on a material aspect of the case must be held prejudicial even though the particular point is later instructed upon correctly. E.g., State v. Parks, 290 N.C. 748, 228 S.E. 2d 248 (1976). “Moreover, an erroneous instruction on the burden of proof is not ordinarily corrected by subsequent correct instructions upon the point.” State v. Harris, 289 N.C. 275, 280, 221 S.E. 2d 343, 347 (1976). In each of those cases, the erroneous instruction occurred during the judge’s final charge to the jury. In the present case, the error occurred before any evidence was presented and before [251]*251a jury was impaneled to hear the case. Under these circumstances, we conclude that the correct instruction on the State’s burden of proof in the charge to the jury was sufficient to overcome any possible prejudice caused by the earlier incorrect statement. Therefore, this assignment of error is overruled.

Defendants next contend that the trial judge committed error by expressing an opinion on the evidence during the trial and in charging the jury. First, defendants complain of the following, which occurred during trial while defense counsel was cross-examining Jackson, the complaining witness:

Mr. Lee: Q. Do you recall, Mr. Jackson, saying to any one of the individuals that were on that parking lot that night that you would give somebody some money if they would give you some directions?
WITNESS: [Jackson] A. No, sir.
Mr. LEE: Q. You don’t recall saying that?
WITNESS: A. No, sir.
Mr. Lee: Q. Do you recall offering to fight these gentlemen one at a time to get your directions?
WITNESS: A. No, sir.
The COURT: Did you ask him if he was going to fight these people to get directions?
Mr. Lee: Yes, sir.
The COURT: Maybe I misunderstood that. Do you want to ask it again?
Mr. Lee: No, sir, I believe he understood it. The jury heard it.

We find no expression of opinion prohibited by G.S. 1-180 (now G.S. Í5A-1222 and -1232) in the judge’s questions. The judge’s questions were directed to an attorney rather than a witness, and they were simply aimed at clarifying a question. The judge’s questions did not cast doubt upon the credibility of any witness and did not amount to an opinion on the facts.

[252]*252Defendants also complain of portions of the judge’s charge to the jury defining the elements of armed robbery and common law robbery. The State had presented evidence that the criminal acts were committed by various persons acting in concert, and the judge instructed the jury that a guilty verdict could be returned as to a particular defendant only upon a finding that that defendant “and those acting in concert with him” had committed each element of the offense. Defendants contend that this method of instructing the jury amounted to an opinion that the defendants and others were acting in concert. We do not agree. The judge had previously defined acting in concert, and his instructions made it clear that whether defendants were acting in concert was for the jury to decide. These instructions placed the burden of proof regarding acting in concert on the State and did not amount to an opinion regarding either defendant’s participation. Consequently, this assignment of error is overruled.

II.

The preceding discussion disposes of all but one of the questions raised by defendant Moore. Moore’s final contention is that the trial judge failed to properly submit his contentions to the jury. The judge instructed the jury that the State contended that a verdict of guilty should be returned and the defendant contended that the verdict should be not guilty. Moore argues that this charge is inadequate “in that it conveyed to the jury that defendant’s plea was not guilty without an explanation as to what defendant was pleading not guilty to.” This contention is without merit. Defendant pled not guilty before trial, and that plea applied to all charges included in the indictment for armed robbery, including common law robbery and assault. Defendant admitted that it was he who cut the prosecuting witness, but at no time did he change his plea of not guilty. This assignment of error is overruled.

III.

The remaining assignments of error pertain only to the appeal of defendant James. He contends that the trial court improperly limited his cross-examination of the prosecuting witness during the following exchange:

[253]*253Mr. COMER: You were cut from the center of your left hand downward toward the crotch of your thumb and first finger, is that correct?
WITNESS: [Jackson] Yes, with a small one here.
Mr. COMER: Would you let me see that one?
THE COURT: Let’s not have any conversation up there that we don’t all hear.
Mr. COMER: I’m sorry. I was trying to describe for the jury and the record.
THE COURT: There will be no conversation between you and the witness.

Contrary to James’s contention, the judge’s intervention did not limit his cross-examination of the witness. Although the judge’s direction that there be no conversation between defense counsel and the witness could have been phrased more carefully, it is clear that the judge was merely telling counsel and the witness to speak louder.

Defendant James next assigns error to the denial of his motions for nonsuit. This assignment of error cannot be sustained. The essential elements of the offense of armed robbery set forth in G.S. 14-87 are “(1) the unlawful taking or attempted taking of personal property from another; (2) the possession, use or threatened use of ‘firearms or other dangerous weapon, implement, or means’; and (3) danger or threat to the life of the victim.” State v. Joyner, 295 N.C. 55, 63, 243 S.E. 2d 367, 373 (1978).

The State’s evidence showed that when Jackson, the complaining witness, walked up to the group of men at the Pic-n-Pay store, “James pushed at him and his watch fell off and he picked it up. . . .

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Related

State v. Chambers
280 S.E.2d 636 (Court of Appeals of North Carolina, 1981)
State v. Harris
264 S.E.2d 790 (Court of Appeals of North Carolina, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
245 S.E.2d 898, 37 N.C. App. 248, 1978 N.C. App. LEXIS 2732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moore-ncctapp-1978.