State v. Odom, 551A82

Citation300 S.E.2d 375,307 N.C. 655
Decision Date08 March 1983
Docket NumberNo. 551A82,551A82
CourtUnited States State Supreme Court of North Carolina
PartiesSTATE of North Carolina v. David Ambrose ODOM a/k/a Dawud Al-Amin Shabazz.

Rufus L. Edmisten, Atty. Gen. by Charles J. Murray, Sp. Deputy Atty. Gen., Raleigh, for the State.

Adam Stein, Appellate Defender by James H. Gold, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant contends that he should be granted a new trial due to the failure of the trial court to instruct the jury on the offense of simple assault. The defendant admits that he did not object to the instructions at trial and therefore waived his right to appeal on that ground. N.C.R.App.P. 10(b)(2). We agree with the defendant that the adoption of the "plain error" rule is appropriate in light of Rule 10(b)(2). While we adopt the "plain error" rule, when applying it to the defendant's case we find no "plain error" that would mandate a new trial.

The charges against the defendant arose out of an incident at the Galaxy Discount Beverage Store in Charlotte. William H. Streater testified that he owns the store and that he was operating it by himself between 10:00 and 10:30 a.m. on 25 April 1981. At that time Streater was also a patrol officer with the Charlotte Police Department. On the morning of 25 April 1981, Streater was in civilian clothes and was counting money when a man, later identified as the defendant, entered the store and purchased some beer. The defendant left, but immediately returned and purchased another item and left the store again. A moment later, the defendant returned and claimed that the drink machine outside of the store had taken his nickel. He asked for a nickel in exchange for five pennies. When Streater opened the register to get the change, the defendant produced a gun and told Streater to "move back." The defendant then ordered Streater to get down on his knees and, when he was on one knee, the defendant put the gun to Streater's neck and pulled the trigger, but the gun did not fire.

At this point, Streater grabbed at the gun and pushed the defendant. When the defendant fell back, Streater saw him raise his gun. Streater drew his own gun and fired at the defendant who was on the other side of the counter. The two men exchanged gunfire and finally Streater heard the footsteps of a person running out the door. Streater thought that he had hit the defendant with one of his shots, but he was not positive. A small amount of blood was found in the front of the store where the defendant was during the gunfire exchange.

Darryl Bernard, age fourteen, helped Streater work around the store. He was riding his bicycle to the store on 25 April 1981 when he heard someone hollering. He looked in the back door of the store and saw the defendant running out of the front door to a green car which appeared to be waiting. Bernard saw a gun in the defendant's hand. When Bernard entered the store he saw Streater who also had a gun in his hand.

Estella Blackwell was in the beauty salon adjacent to the Galaxy Discount Beverage Store on 25 April 1981. She heard two loud noises and then two or three shots from the beverage store. She and the other patrons got down on the floor and she saw someone get into a green Chevrolet and drive off. She called out the number from the license plate on the car to someone else in the store who recorded the number. She later identified the car that the defendant had rented and the police had impounded as the same car that she saw leaving the store after the shootout.

The police officers investigating the shooting found five bullets at the scene. Two of the bullets were taken from the wall of the building, including the wall adjoining the beauty salon. Later that evening, Streater discovered another bullet that had not been found in the initial search. The police examined Streater's gun and determined that it contained four spent cartridges and two live rounds. Investigating officers also discovered some blood on the floor near the ice cream cooler. The green car was searched and a bloody washcloth was found inside.

The State also presented evidence that a nearby Handy Pantry Food Store was robbed on 12 April 1981 by a man identified as the defendant.

The defendant testified on his own behalf. On the morning of 25 April 1981 he had an argument with his wife. He was driving a rented car because he was having problems with his own car. He decided to stop at the Galaxy Discount Beverage Store to buy a soft drink from the machine outside the store. When he put some coins in the machine, he did not get a drink or change. Frustrated, he pushed the machine against the wall. The man in the store, Streater, yelled, "Nigger, don't tear that box up." The defendant continued to push the machine and Streater came out of the store. Streater jerked the defendant around and the defendant hit him. The two men exchanged blows and Streater produced a gun from his pocket and fired at the defendant who took cover. Streater then told the defendant to come out because he was a police officer. Streater fired a few more shots and the defendant ran to his car, which he had left running, and drove off.

The defendant testified that he did not own a gun and that he did not have a weapon with him when he was at the store on 25 April 1981. He was not hit by any of the bullets and he testified that he felt that both he and Streater had overreacted. Following the encounter at the store, the defendant parked his car and went to play basketball. The defendant noticed police cars around his car and walked to his mother's house and borrowed her car. He drove to the bus station and called his wife who told him not to come home because "[t]hey say they are going to kill you." Following his conversation with his wife, the defendant got on a bus and left for New York.

The defendant admitted that he had been convicted of armed robbery about twenty years ago when he was in his early twenties. He had also been convicted of possession of heroin, disorderly conduct, assault on a police officer, breaking and entering, theft by taking and larceny. He had been convicted of common law robbery about one month before his trial. He was also convicted of the felony of possession of a firearm while he was in New York.

The defendant presented no other witnesses.

The defendant's only assignment of error is the failure of the trial court to instruct the jury on the misdemeanor of simple assault as well as the felony of attempted robbery with a firearm. The defendant did not submit a request for an instruction on simple assault nor did he object to the instructions as given. Assuming, without deciding, that simple assault is a lesser included offense of attempted robbery with a firearm, 1 we nevertheless find no error in the case sub judice that would require a new trial. We have held that "[w]hen there is conflicting evidence of the essential elements of the greater crime and evidence of a lesser included offense, the trial judge must instruct on the lesser included offense even where there is no specific request for such instruction." State v. Brown, 300 N.C. 41, 50, 265 S.E.2d 191, 197 (1980). However, that rule was recently altered by an amendment to the North Carolina Rules of Appellate Procedure. Rule 10(b)(2) now provides:

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 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.

The defendant admits that no objection to the instructions was made at trial and therefore Rule 10(b)(2) bars his assigning as error the court's failure to instruct on the possible verdict of guilty of simple assault. The defendant, however, urges this Court to adopt the "plain error" rule to allow for review of some assignments of error normally barred by waiver rules such as Rule 10(b)(2).

Rule 30 of the Federal Rules of Criminal Procedure is virtually the same as North Carolina's Rule 10(b)(2). The "plain error" rule is used by the federal courts pursuant to Rule 52(b) of the Federal Rules of Criminal Procedure which states that "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." The rule, as interpreted by several federal courts, is defined as follows:

[T]he plain error rule ... is always to be...

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