State v. Moore, 637A82
| Decision Date | 28 August 1984 |
| Docket Number | No. 637A82,637A82 |
| Citation | 319 S.E.2d 150,311 N.C. 442 |
| Parties | STATE of North Carolina v. Michael Wayne MOORE. |
| Court | North Carolina Supreme Court |
Rufus L. Edmisten, Atty. Gen. by Richard L. Kucharski, Asst. Atty. Gen., Raleigh, for the State.
Locke T. Clifford and Michael R. Nash, Greensboro, for defendant-appellant.
The principal question presented by this appeal is whether the trial court clearly instructed the jury on the applicable law so that the verdicts were the result of proper application of that law to the facts as the jury found them.
We believe that the answer to that question must be determined on the basis of whether or not Judge Walker committed "plain error" in the jury charge. We conclude that he made no such "plain error."
The State relied principally upon the evidence of Danny Pruitt who was in an eight-man cell in the Greensboro jail on 1 April 1982. Pruitt had originally been imprisoned for breaking and entering and larceny on 21 May 1981, but was charged with escape when he failed to report after work release on 13 November 1981. After the escape charge was resolved he was sent to the Greensboro jail to await transfer to a prison camp. In the cell with Pruitt were defendant; defendant's brother, Jerry Moore; Sammy Buchanan; James Hodge; Curtis Davis; Sylvester Barnes; and Clifford Belo. All these men were awaiting transfer to various prison facilities.
Witnesses for the State included Pruitt, the victim; Hodge; Davis; Belo; and Barnes. Defendant testified in his own behalf as did his brother, Jerry. The State's evidence and defendant's evidence were in extreme conflict. There is even some conflict among the versions of events given by the State's witnesses.
Pruitt testified that on the evening of 4 April 1982 the following events occurred in the jail cell where the men were placed: Defendant and his brother, Jerry, began pushing him and beating him with their fists while he was playing solitaire. Defendant Jerry Moore, and Buchanan, each in turn and aided by the others, forcibly and against Pruitt's will, engaged in anal intercourse with Pruitt. Pruitt was then allowed to use the bathroom. Then defendant and Jerry Moore, each in turn and aided by the other, forcibly made Pruitt engage in fellatio with them by threatening to stab Pruitt in the ear with an ink pen. They then permitted Pruitt to take a shower.
The other witnesses gave various versions of the testimony previously related.
Defendant testified he never engaged in any sexual activity with Pruitt. Jerry Moore, brother of this defendant, admitted having pled guilty to six second degree sex offenses against Pruitt and having received a total prison sentence of forty years.
The crucial issues in this case are whether defendant has waived appellate review of the instructions given by Judge Walker by failing to object at trial and, if not, whether the instructions to the jury were proper. We conclude, by failing to object at trial, appellate review has been waived.
In North Carolina Rule of Appellate Procedure 10(b)(2) the following requirement for appellate review is set forth:
(2) Jury Instructions; Findings and Conclusions of Judge. No party may assign as error any portion of the jury charge or omission therefrom 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 the 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.
This requirement was effective for trials beginning on and after 1 October 1981.
Specifically, North Carolina Rule of Appellate Procedure 10(b)(2) prevents a party from assigning "as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict...." Because of the rule's technical exclusionary effect, we mitigated the harshness of the rule in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). In Odom, we did this by adopting the "plain error" rule which permits review of a very narrow range of errors notwithstanding a defendant's failure to object at trial to the jury charge. Even as we adopted the "plain error" rule, however, we cautioned that:
(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 "fundamental 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."
Id. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982) (footnotes omitted) (emphasis original). In contemplation of these definitions, we must conclude that no plain error appears.
For purposes of guidance during closing arguments by the attorneys and during the trial court's jury instructions, Judge Walker distributed to each of the jurors copies of the six verdict sheets specifying the specific six charges against the defendant. Each verdict sheet bearing the numbered charge included a brief explanation as to the defendant's role as principal or aider and abetter, as well as the specific sexual offense committed and the person victimized. The following information was before the jury:
Sammy Buchanan
Anal Sex
Pruitt Having distributed the foregoing to each juror he instructed them in pertinent part as follows:
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