WELLS, Judge.
Defendant brings forth three assignments of error contending that (1) the trial court improperly admitted irrelevant evidence impeaching defendant’s exculpatory statement to the police and instructing the jury that it could use that evidence to find that defendant had a consciousness of guilt, (2) the trial court erred in denying defendant’s motion for a change of venue, and (3) [655]*655the prosecutor’s closing argument created reversible error. We find no error in defendant’s trial.
Defendant first argues that the trial court erred in admitting Dr. Love’s testimony that defendant was not in his office on the morning of 21 February 1975 which contradicted defendant’s statement to investigating authorities that he had two teeth extracted and two filled on the morning of that date. Defendant contends that because the state’s theory of Ms. Hennessee’s murder was based on defendant returning to the victim’s rondette at approximately 3:00 p.m. and leaving the rondette at approximately 4:30 p.m. contradiction of defendant’s whereabouts on the morning of the homicide was irrelevant.
Our supreme court fully outlined the law of this state on showing consciousness of guilt by contradiction of an accused’s statements in defendant’s appeal from his first trial:
It is established by our decisions that false, contradictory or conflicting statements made by an accused concerning the commission of a crime may be considered as a circumstance tending to reflect the mental processes of ‘a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [himself].’ . . . The probative force of such evidence is that it tends to show consciousness of guilt. . . .
Our research discloses that ‘consciousness of guilt’ may be established, inter alia, by evidence of flight on the part of an accused. We are of the opinion that the rules of law governing flight which show consciousness of guilt are equally applicable to evidence of falsehood. . . .
In North Carolina, evidence of flight does not create a presumption of guilt but is some evidence which may be considered with other facts and circumstances in determining guilt. However, proof of flight, standing alone, is never sufficient to establish guilt. . . . Further, evidence of flight may not be considered as tending to show premeditation or deliberation. . . .
In instant case, we find the challenged instruction erroneous because it permitted the jury to roam at will without [656]*656making it clear that the falsehood did not create a presumption of guilt or that, standing alone, such evidence was not sufficient to establish guilt. Neither did the trial judge inform the jury that such evidence could not be considered as tending to show premeditation and deliberation. Furthermore, the statements referred to in the instruction under scrutiny were completely irrelevant since the alleged falsehood referred to defendant’s whereabouts during the morning hours of 21 February 1975 and all the evidence was to the effect that the crime occurred in the afternoon of that day.
State v. Myers, supra (citations omitted) (footnotes omitted) (emphasis in original). While the issue presented in Myers was the correctness of the trial court’s instruction to the jury, we conclude for the purposes of the case before us that defendant’s statement as to his appointment with Dr. Love on the morning of 21 February 1975 and the clearly contradictory evidence were irrelevant to the issue of defendant’s guilt. Defense counsel repeatedly objected to admission of this evidence, based on the supreme court’s holding in Myers.
Recognizing that defendant's statement as to his appointment with Dr. Love and Dr. Love’s contradictory testimony were irrelevant, the question is whether defendant was so prejudiced by admission of the testimony that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.” N.C. Gen. Stat. § 15A-1443(a) (1983). Defendant’s statements to investigating authorities were contradicted in three aspects; (1) his appointment with Dr. Love (contradicted by Dr. Love), (2) his statement that Alphonzo Pearcy had wanted to go to Harry McQueen’s and the latter paid defendant $1 for taking him there (contradicted by Pearcy) and (3) he had not returned to the rondette on the afternoon of Ms. Hennessee’s murder (contradicted by Toreson). Defendant does not contend that admission of the evidence of contradiction in the latter two areas was error. The evidence of defendant’s whereabouts on the morning of 21 February 1975 was a relatively minor feature of the case against defendant. The evidence tending to establish defendant’s guilt, especially the testimony of the four Craggy State Prison inmates, was so strong that the admission of the objected to evidence as to defendant’s whereabouts on the morning of 21 February 1975 did not establish a [657]*657reasonable possibility that a different result would have been reached had such evidence been excluded. This assignment of error is overruled.
Defendant argues that the trial court erred in instructing the jury that it could use the irrelevant evidence of defendant’s contradicted statement as to his dental appointment to show a guilty conscience. The trial judge did instruct the jury that it could consider the evidence contradicting defendant’s statements as to the dental appointment in the morning and defendant’s activities in the afternoon. The rule in this state is that:
No party may assign as error any portion of the jury charge . . . 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 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 the jury. . . .
Rule 10(b)(2) of the Rules of Appellate Procedure. The trial court held a recorded jury conference in which he specifically advised counsel of his intent to give an instruction on defendant’s false, contradictory, or conflicting statements:
The instruction probably will be something like this, in case it will help you, that the State has offered evidence which it contends tends to show that the Defendant made a statement which was false in whole or in part with regard to his whereabouts on February 21st, and that they may consider such evidence, if they believe it, in determining whether the combined circumstances amount to a show of consciousness of guilt; but even if they do believe it and believe it beyond a reasonable doubt, it creates no presumption of guilt, and in fact, standing alone, it is insufficient to establish guilt; and that it cannot, in all events, be considered with respect to the issue of premeditation and deliberation.
Defense counsel did not object to the proposed instruction during .the instruction conference. The trial court instructed the jury as indicated, and defense counsel did not object to the instruction in an unrecorded conference held after the trial court instructed the jury. Having failed to timely object to the trial court’s instruction, defendant is precluded from raising the issue on appeal.
[658]*658In oral argument before this court, counsel asserted that defendant’s pretrial motion
Free access — add to your briefcase to read the full text and ask questions with AI
WELLS, Judge.
Defendant brings forth three assignments of error contending that (1) the trial court improperly admitted irrelevant evidence impeaching defendant’s exculpatory statement to the police and instructing the jury that it could use that evidence to find that defendant had a consciousness of guilt, (2) the trial court erred in denying defendant’s motion for a change of venue, and (3) [655]*655the prosecutor’s closing argument created reversible error. We find no error in defendant’s trial.
Defendant first argues that the trial court erred in admitting Dr. Love’s testimony that defendant was not in his office on the morning of 21 February 1975 which contradicted defendant’s statement to investigating authorities that he had two teeth extracted and two filled on the morning of that date. Defendant contends that because the state’s theory of Ms. Hennessee’s murder was based on defendant returning to the victim’s rondette at approximately 3:00 p.m. and leaving the rondette at approximately 4:30 p.m. contradiction of defendant’s whereabouts on the morning of the homicide was irrelevant.
Our supreme court fully outlined the law of this state on showing consciousness of guilt by contradiction of an accused’s statements in defendant’s appeal from his first trial:
It is established by our decisions that false, contradictory or conflicting statements made by an accused concerning the commission of a crime may be considered as a circumstance tending to reflect the mental processes of ‘a person possessed of a guilty conscience seeking to divert suspicion and to exculpate [himself].’ . . . The probative force of such evidence is that it tends to show consciousness of guilt. . . .
Our research discloses that ‘consciousness of guilt’ may be established, inter alia, by evidence of flight on the part of an accused. We are of the opinion that the rules of law governing flight which show consciousness of guilt are equally applicable to evidence of falsehood. . . .
In North Carolina, evidence of flight does not create a presumption of guilt but is some evidence which may be considered with other facts and circumstances in determining guilt. However, proof of flight, standing alone, is never sufficient to establish guilt. . . . Further, evidence of flight may not be considered as tending to show premeditation or deliberation. . . .
In instant case, we find the challenged instruction erroneous because it permitted the jury to roam at will without [656]*656making it clear that the falsehood did not create a presumption of guilt or that, standing alone, such evidence was not sufficient to establish guilt. Neither did the trial judge inform the jury that such evidence could not be considered as tending to show premeditation and deliberation. Furthermore, the statements referred to in the instruction under scrutiny were completely irrelevant since the alleged falsehood referred to defendant’s whereabouts during the morning hours of 21 February 1975 and all the evidence was to the effect that the crime occurred in the afternoon of that day.
State v. Myers, supra (citations omitted) (footnotes omitted) (emphasis in original). While the issue presented in Myers was the correctness of the trial court’s instruction to the jury, we conclude for the purposes of the case before us that defendant’s statement as to his appointment with Dr. Love on the morning of 21 February 1975 and the clearly contradictory evidence were irrelevant to the issue of defendant’s guilt. Defense counsel repeatedly objected to admission of this evidence, based on the supreme court’s holding in Myers.
Recognizing that defendant's statement as to his appointment with Dr. Love and Dr. Love’s contradictory testimony were irrelevant, the question is whether defendant was so prejudiced by admission of the testimony that “there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial.” N.C. Gen. Stat. § 15A-1443(a) (1983). Defendant’s statements to investigating authorities were contradicted in three aspects; (1) his appointment with Dr. Love (contradicted by Dr. Love), (2) his statement that Alphonzo Pearcy had wanted to go to Harry McQueen’s and the latter paid defendant $1 for taking him there (contradicted by Pearcy) and (3) he had not returned to the rondette on the afternoon of Ms. Hennessee’s murder (contradicted by Toreson). Defendant does not contend that admission of the evidence of contradiction in the latter two areas was error. The evidence of defendant’s whereabouts on the morning of 21 February 1975 was a relatively minor feature of the case against defendant. The evidence tending to establish defendant’s guilt, especially the testimony of the four Craggy State Prison inmates, was so strong that the admission of the objected to evidence as to defendant’s whereabouts on the morning of 21 February 1975 did not establish a [657]*657reasonable possibility that a different result would have been reached had such evidence been excluded. This assignment of error is overruled.
Defendant argues that the trial court erred in instructing the jury that it could use the irrelevant evidence of defendant’s contradicted statement as to his dental appointment to show a guilty conscience. The trial judge did instruct the jury that it could consider the evidence contradicting defendant’s statements as to the dental appointment in the morning and defendant’s activities in the afternoon. The rule in this state is that:
No party may assign as error any portion of the jury charge . . . 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 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 the jury. . . .
Rule 10(b)(2) of the Rules of Appellate Procedure. The trial court held a recorded jury conference in which he specifically advised counsel of his intent to give an instruction on defendant’s false, contradictory, or conflicting statements:
The instruction probably will be something like this, in case it will help you, that the State has offered evidence which it contends tends to show that the Defendant made a statement which was false in whole or in part with regard to his whereabouts on February 21st, and that they may consider such evidence, if they believe it, in determining whether the combined circumstances amount to a show of consciousness of guilt; but even if they do believe it and believe it beyond a reasonable doubt, it creates no presumption of guilt, and in fact, standing alone, it is insufficient to establish guilt; and that it cannot, in all events, be considered with respect to the issue of premeditation and deliberation.
Defense counsel did not object to the proposed instruction during .the instruction conference. The trial court instructed the jury as indicated, and defense counsel did not object to the instruction in an unrecorded conference held after the trial court instructed the jury. Having failed to timely object to the trial court’s instruction, defendant is precluded from raising the issue on appeal.
[658]*658In oral argument before this court, counsel asserted that defendant’s pretrial motion in limine to suppress the irrelevant evidence and objections made at the time of admission were sufficient to bring the questioned jury charge before this court. We reject this argument as we can find no authority to support the position and Rule 10(b)(2) clearly negates the argument. Defendant also argued that our supreme court’s dicta categorizing the contradictory evidence of defendant’s whereabouts on 21 February as “completely irrelevant” dictated that the trial court, in instructing on the irrelevant evidence, committed plain error. Our supreme court has stated:
[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 1fundamen-tal 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.’
State v. Odom, 307 N.C. 655, 300 S.E. 2d 375 (1983) (quoting United States v. McCaskill, 676 F. 2d 995 (4th Cir.), cert. denied, 459 U.S. 1018 (1982) (footnotes omitted) (emphasis in original). The Odom court discussed the interplay of the plain error rule and Rule 10(b)(2) in the context of improper jury instructions and concluded ‘[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.’ Id. (Quoting Henderson v. Kibbe, 431 U.S. 145 (1977).) We decline to invoke the “plain error” rule in this case, and this assignment is overruled.
Defendant next argues that the trial court erred in denying his motion for a change of venue. He contends that the trial court applied an erroneous standard of review by concluding ‘defendant has not shown that it is impossible for him to get a fair and impartial trial.’ The trial court can grant a change of venue if “there [659]*659exists in the county in which the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial.” N.C. Gen. Stat. § 15A-957 (1983). The motion for change of venue:
[I]s addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed absent a showing of abuse of discretion. . . .
. . . the burden of proving that a fair and impartial trial cannot be received due to pretrial publicity falls on the defendant. . . . [T]he United States Supreme Court held that due process mandates that criminal defendants receive a trial by an impartial jury free from outside influences. The Court also held that where there is a reasonable likelihood that prejudicial pretrial publicity will prevent a fair trial, the trial court should remove the case to another county . . .
State v. Jerrett, 309 N.C. 239, 307 S.E. 2d 339 (1983) (citations omitted).
Defendant based his motion on three radio news broadcasts concerning defendant’s first trial and pending retrial aired by WWNC Radio on the morning of the retrial and one Asheville Citizen news story. We have carefully reviewed the contents of the radio broadcasts and find them to be factually informative and patently uninflammatory. The Asheville Citizen article was introduced into evidence but was not included in the record on appeal and, therefore, we have been unable to review it. The record before us does reveal that the article listed the names of witnesses from the first trial, recounted some of the facts presented in that trial, discussed the defendant’s criminal record, and cited testimony given before the grand jury. Defense counsel argued that because the Asheville Citizen was known to be read throughout Buncombe County it would be “impossible” for defendant to receive a fair trial. The voir dire of the venire reveals that several prospective jurors had read or heard about the case in 1975, but only one individual had heard the WWNC radio broadcast and one potential juror had seen something on television. The record is equally clear that defendant removed those venire who demonstrated a modicum of knowledge about the case.
[660]*660Based on the facts discussed above it is clear that defendant did not conclusively establish that he could not receive a fair and impartial trial in Buncombe County, and that the trial court did not abuse its discretion in denying defendant’s motion. This assignment of error is overruled.
Defendant’s final argument is that the prosecutor’s closing argument to the jury went beyond the record evidence, expressed personal belief as to the case, incorrectly argued that certain evidence was uncontradicted, and urged the jury to convict on a civic duty rather than on the evidence before them. Of the various portions of the prosecutor’s argument to the jury to which defendant assigns error, defendant only objected to one argument at trial. When the defendant fails to object to the closing argument, thereby giving the trial court an opportunity to correct any error prior to jury deliberations, the “standard of review is one of gross impropriety.” State v. Craig and State v. Anthony, 308 N.C. 446, 302 S.E. 2d 740, cert. denied, — U.S. —, 104 S.Ct. 263 (1983). We conclude from our review of those portions of the prosecutor’s arguments not objected to at trial that they do not rise to the level of gross impropriety. Defense counsel did object to the following argument and was overruled by the trial court:
I have no idea what Mr. Stoker is going to say. He might say Harry McQueen did it. Absolutely no evidence that Harry McQueen did this. In fact, Chief Hensley told you the investigation revealed that Harry McQueen was in Durham that day. It’s easy to go after a man after he’s dead. He wasn’t even enough of a suspect in this case to submit his fingerprints to the S.B.I.
The trial transcript reveals that Chief of Police Hensley testified that his investigation disclosed that Harry McQueen was in Durham, he was not fingerprinted, while some other suspects in the killing were, and McQueen died prior to retrial. Placing the prosecutor’s argument in context of the evidence produced at trial, we hold that the trial court did not abuse its discretion in overruling defendant’s objection. State v. Craig and State v. Anthony, supra; State v. Woods, 56 N.C. App. 193, 287 S.E. 2d 431, cert. denied, 305 N.C. 592, 292 S.E. 2d 13 (1982).
[661]*661We have thoroughly reviewed the record in this case and find that defendant received a fair trial in which we can find
No error.
Judge WHICHARD concurs.
Judge BECTON dissents.