State v. Ross

395 S.E.2d 148, 100 N.C. App. 207, 1990 N.C. App. LEXIS 926
CourtCourt of Appeals of North Carolina
DecidedSeptember 4, 1990
Docket8929SC1143
StatusPublished
Cited by4 cases

This text of 395 S.E.2d 148 (State v. Ross) 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. Ross, 395 S.E.2d 148, 100 N.C. App. 207, 1990 N.C. App. LEXIS 926 (N.C. Ct. App. 1990).

Opinions

LEWIS, Judge.'

I.

Defendant first argues that the trial court erred in requiring defendant to file with the court a written notice of intent to rely upon self-defense and by telling the jury venire of defendant’s intent to rely upon this defense. Defendant did not object to the written statement of intent relative to self-defense. No North Carolina statute requires a defendant to give notice of an intent to assert “self-defense” as a defense. {See, e.g., G.S. § 15A-959 which requires defendants to file notice of reliance upon an insanity defense.) The defendant argues that by telling the jury venire that he had filed an affirmative defense of self-defense, the trial judge irreparably prejudiced his case because it implied that he admitted responsibility for the deaths of the two victims. However, defendant made no objection to the trial judge’s preliminary comments. Rule 10 of the North Carolina Rules of Appellate Procedure requires a party to present a timely objection in order for the question to [211]*211be preserved for appeal. Further, defense counsel’s opening statement immediately following jury selection contained the following:

That Jim Ross left the room for a few minutes and when he came back into the room these boys had Jim’s .9 millimeter automatic handgun and they had it on, and they not only threatened him, but they tried to kill him.
I would also contend that they had his axe which was there in the same room over by the wood stove. They threatened him with that axe and tried to kill him with that. And that Jim had no alternative. He could not retreat. That the only thing he could do is protect himself in self-defense and save his own life.

Having failed to preserve this issue for appeal, we must decide whether, under the circumstances before us, the trial court committed “plain error.” N.C.R. App. P. 10(c)(4).

After carefully reviewing the record in this case we conclude that the trial court did not commit plain error when it required defense counsel to submit a written notice of intent to rely upon self-defense. While there is no statutory requirement for such notice, neither is there any prohibition against it. While we strongly caution against such methods as standard practice without legislative enactment, we hold that under the unique circumstances of this particular case, it was not plain error to require the defense to file notice of intent to rely upon self-defense.

We also conclude that it was not plain error for the trial judge to inform the jury venire of counsel’s intent to rely upon self-defense. See G.S. § 15A-1213; State v. Hart, 44 N.C. App. 479, 261 S.E.2d 250 (1980). Had the defendant objected or moved for mistrial, the trial court’s actions may well have been error. It is manifestly clear from the record that the defense was prepared to present self-defense as its only possible theory of the case. It is likewise apparent from the record that counsel for the defendant failed to object or move for a mistrial based upon the court’s remarks, and that such remarks were at least tacitly approved by counsel’s silence. Furthermore, if counsel had chosen not to place any evidence before the jury of self-defense, the judge could have instructed the jury at the close of the evidence not to consider self-defense in its deliberations. Id. Our standard is “plain error” and [212]*212under these unique circumstances we find no plain error in the court’s remarks.

II.

The defendant argues in his second assignment of error that the trial court erred in allowing the testimony of a teenage boy about homosexual activities the defendant engaged in with him and the two victims on previous occasions. The State’s theory in this case was that the defendant killed the two victims, also teenage boys, after they threatened to expose the defendant’s sexual orientation and his activities to the community unless they were paid by him to keep quiet. Specifically, the State sought to prove that one of the victims was shot while performing a sexual act with the defendant.

We hold that this evidence was highly relevant and that its relevance substantially outweighed any danger of unfair prejudice, confusion or misleading of the jury. The witness was previously in the presence of the defendant with the victims and he observed the victims engaging in homosexual acts with the defendant. This testimony was used to show motive and a pattern of conduct toward the victims consistent with the State’s theory of the case. It was properly admitted. See G.S. § 8C-1, Rule 404(b) (1988).

III.

Defendant also argues that the court erred in admitting evidence of a conviction which was more than ten years old. The evidence was that the defendant had been convicted on 18 May 1970 of a felony of forced carnal knowledge of a male of eleven years of age. Prior to the evidentiary portion of the trial, the trial court conducted a voir dire examination regarding prior convictions. Judge Sitton ruled that the conviction had probative value as to veracity and that the prosecution would be allowed to cross-examine the defendant as to this felony. Defendant argues that the judge failed to detail the specific facts and circumstances which supported its finding that the probative value of admitting the conviction justified waiving Rule 609(b)’s general prohibition against admitting convictions more than ten years old. G.S. § 8C-1, Rule 609; State v. Hensley, 77 N.C. App. 192, 195, 334 S.E.2d 783, 785 (1985), disc. rev. denied, 315 N.C. 393, 338 S.E.2d 882 (1986).

Even if the trial court did err by ruling that the State would be permitted to cross-examine the defendant about his 1970 convic[213]*213tion, this objection was waived when the defendant himself testified as to the convictions on direct examination:

Where one party introduces evidence as to a particular fact or transaction, the other party is entitled to introduce evidence in explanation or rebuttal thereof, even though such latter evidence could be incompetent or irrelevant had it been offered initially.

State v. Albert, 303 N.C. 173, 177, 277 S.E.2d 439, 441 (1981). (Citations omitted.) The defendant himself “opened the door” to cross-examination on his prior convictions.

IV.

Defendant next contends that the State was impermissibly allowed to cross-examine the defendant about “bad acts” of the defendant which did not relate to the defendant’s character for truthfulness. Most of the questions objected to related to alleged homosexual activities of the defendant. On direct examination the defendant admitted that he was a bisexual (but that most of his relationships had been with men), that he had a prior conviction for a sexual offense involving a young boy, and that he had been engaged in an ongoing homosexual relationship with one of the victims, a fifteen-year-old teenage boy. The questions asked by the State relating to the defendant’s activities with other persons not connected to this case were objected to by defense counsel and sustained by the trial court.

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Related

State v. Hinton
573 S.E.2d 609 (Court of Appeals of North Carolina, 2002)
State v. Ross
405 S.E.2d 158 (Supreme Court of North Carolina, 1991)
State v. Ross
395 S.E.2d 148 (Court of Appeals of North Carolina, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
395 S.E.2d 148, 100 N.C. App. 207, 1990 N.C. App. LEXIS 926, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ross-ncctapp-1990.