State v. Bennett
| Decision Date | 31 May 1983 |
| Docket Number | No. 664PA82,664PA82 |
| Citation | 308 N.C. 530,302 S.E.2d 786 |
| Parties | STATE of North Carolina v. Robert Eugene BENNETT. |
| Court | North Carolina Supreme Court |
Rufus L. Edmisten, Atty. Gen. by Thomas H. Davis, Jr., and Thomas B. Wood, Asst. Attys. Gen., Raleigh, for the State.
Adam Stein, Appellate Defender by Marc D. Towler, Asst. Appellate Defender, Raleigh, for defendant-appellant.
The defendant's sole question before the Court of Appeals concerned the propriety of the trial court's unrequested jury instruction regarding the defendant's failure to testify at trial. The Court of Appeals found that the defendant had not preserved his right of appeal due to his failure to object to the instruction as given as required by Rules of Appellate Procedure [hereinafter "Rules"] 10(b)(2). The Court of Appeals held that Rule 21 of the General Rules of Practice for the Superior and District Courts [hereinafter "General Rules"] conflicted with G.S. 15A-1231(b) and, since both deal with trial rather than appellate practice and procedure, General Rule 21 must give way to the statute. For the reasons enumerated below, we hold that General Rule 21 does not conflict with G.S. 15A-1231(b). Nevertheless, we find that, pursuant to Rule 10(b)(2), the defendant waived his right to assert an assignment of error based on the jury instructions.
The defendant was charged with two counts of felonious possession of marijuana with the intent to sell and with two counts of felonious sale and delivery of marijuana. The charges arose out of an undercover operation by the Cleveland County Sheriff's Department. An officer testified that he purchased marijuana from the defendant on two occasions. The defendant did not testify or offer any evidence at trial. The jury found the defendant guilty of all four charges. He was sentenced to two years for each count, all but two years to run concurrent with each other with the remaining two years to run at the expiration of the other sentences. From this judgment, the defendant appealed to the Court of Appeals. The Court of Appeals, in an opinion by Judge Wells with Judge (now Chief Judge) Vaughn and Judge Whichard concurring, found no error in the defendant's trial. The defendant's motion for discretionary review was allowed by this Court.
The defendant assigns as error the trial court's instruction to the jury concerning the defendant's failure to testify at trial. The defendant did not request such an instruction and contends that the instruction given was inadequate and improper. The defendant admits that he did not object to the jury charge before the jury retired to consider its verdict as required by Rule 10(b)(2). He acknowledges that his failure would normally amount to a waiver of his right to assign as error any portion of the charge. However, he contends that his failure to object should be excused due to the trial court's failure to hold a jury instruction conference as required by General Rule 21. He also contends that he was not given the opportunity to make an objection out of the hearing of the jury as required before a waiver can be found under Rule 10(b)(2). Finally, the defendant argues that even if he is deemed to have waived his assignment of error, this Court should find plain error in the instructions.
The Court of Appeals compared the provisions of G.S. 15A-1231(b) with General Rule 21 and found that the rules conflicted. Article IV, Section 13(2) of the North Carolina Constitution vests in the Supreme Court the "exclusive authority to make rules of procedure and practice for the Appellate Division." That same section gives the General Assembly the power to make rules of practice and procedure for the Superior Court and District Court Divisions, but allows the General Assembly to delegate this authority to the Supreme Court. The General Assembly did in fact make such a delegation of power to the Supreme Court in G.S. 7A-34, but only to the extent that any rules promulgated under this grant of power are to be "supplementary to, and not inconsistent with, acts of the General Assembly." General Rule 21 imposes a requirement on the trial court to hold a jury instruction conference. As such, it is a rule of procedure and practice of the Superior Court and District Court Divisions and must fail if it is inconsistent with an act of the General Assembly.
G.S. 15A-1231(b) is as follows:
On request of either party, the judge must, before the arguments to the jury, hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of the trial materially prejudiced the case of the defendant.
General Rule 21, in pertinent part states:
At the close of the evidence (or at such earlier time as the judge may reasonably direct) in every jury trial, civil and criminal, in the superior and district courts, the trial judge shall conduct a conference on instructions with the attorneys of record (or party, if not represented by counsel). Such conference shall be out of the presence of the jury, and shall be held for the purpose of discussing the proposed instructions to be given to the jury. An opportunity must be given to the attorneys (or party if not represented by counsel) to request any additional instructions or to object to any of those instructions proposed by the judge. Such requests, objections and the rulings of the court thereon shall be placed in the record.
The Court of Appeals held that there was an inconsistency in the provisions of G.S. 15A-1231(b) and General Rule 21 and therefore only G.S. 15A-1231(b) could be given effect. The Court of Appeals ruled that an instruction conference must be held only upon the request of one of the parties. We disagree with the Court of Appeals' interpretation.
As indicated in G.S. 7A-34, the Supreme Court can prescribe rules of practice and procedure for the trial courts that are supplementary to the acts of the General Assembly as long as the rules are not inconsistent with such acts. If either party to the trial desires a recorded instruction conference, G.S. 15A-1231(b) requires that party to make such a request to the trial judge. Absent such a request, G.S. 15A-1231(b) is silent and General Rule 21 supplements the statute by requiring the trial court to hold an unrecorded conference. State v. Fennell, 307 N.C. 258, 297 S.E.2d 393 (1982).
Since General Rule 21 requires a conference without regard to whether it is requested by a party and G.S. 15A-1231(b) requires a recorded conference only at the request of either party, there is no conflict between the two provisions. Both may be given full effect. There is no indication in the record that either party requested a recorded conference, therefore the failure of the court to hold a recorded conference was clearly not erroneous.
The defendant argues further that there is nothing in the record to indicate that any instruction conference was held. It is true that the record is silent as to whether a conference was held, but the failure of the record on...
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