Appeal and Error--plain error doctrine--cumulative application
There was no plain error in a prosecution for first-degree statutory sexual offense where
defendant did not object to the admissibility of eight unrelated pieces of evidence but argued that
they were cumulatively plain error. The plain error doctrine will not be applied on a cumulative
basis where defendant is assigning error to unrelated admissions of evidence to which he did not
object and on which the trial court made no affirmative ruling.
Attorney General Michael F. Easley, by Assistant Attorney
General Margaret A. Force, for the State.
Jeffrey S. Lisson for defendant-appellant.
HUNTER, Judge.
Arnold Gene Holbrook (“defendant”) appeals his conviction of
first degree statutory sexual offense with a child under the age of
thirteen, defendant's step-daughter, (“victim”). Defendant asserts
error as to the admissibility of eight unrelated portions of
evidence; however, he did not object to any of this evidence at
trial. Defendant argues that cumulatively, the admission of this
evidence by the trial court was plain error. We disagree, holding
that there is no error.
Briefly, the State's evidence at trial tended to show that
defendant, his wife Mary Ann Holbrook, and her daughters, victim
and her sister (“sister”), either lived in hotels in Winston-Salem,
North Carolina or stayed in their car during part of 1996. Attrial, victim and sister both testified that during this time,
defendant and their mother molested them on several occasions by
fondling their “private parts,” and putting their fingers up into
their vaginas. Both testified that their mother and defendant used
drugs, including heroin and cocaine. Victim testified that
defendant also put his “private part” in her “private part.”
Victim's and sister's testimonies were corroborated by other
witnesses including police officers, their father, a psychologist
and social workers. Defendant was convicted of first degree
statutory sexual offense with victim, and was sentenced to a
minimum prison term of 336 months and a maximum of 413 months.
Defendant subsequently gave notice of appeal to this Court.
Defendant brings forward eight assignments of error, and
admits that the evidence he complains of was not objected to at
trial. Therefore, he asks this Court to invoke the plain error
doctrine. Plain error is error “so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have reached.”
State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987),
cert. denied, 485 U.S. 1036, 99 L. Ed. 2d 912 (1988). Our Supreme
Court has stated 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 [theerror] 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, 660, 300 S.E.2d 375, 378 (1983)
(quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.
1982) (footnotes omitted) (emphasis in original)). “In criminal
cases, a question which was not preserved by objection noted at
trial and which is not deemed preserved by rule or law without any
such action, nevertheless may be made the basis of an assignment of
error where the judicial action questioned is specifically and
distinctly contended to amount to plain error.” N.C.R. App. P.
10(c)(4) (emphasis added). The North Carolina Supreme Court has
chosen to review such “unpreserved issues for plain error when
. . . the issue involves either errors in the trial judge's
instructions to the jury or rulings on the admissibility of
evidence.” State v. Cummings, 346 N.C. 291, 313-14, 488 S.E.2d
550, 563 (1997), cert. denied, 522 U.S. 1092, 139 L. Ed. 2d 873
(1998).
Defendant admits that each assignment of error he brings
before this Court, individually, does not rise to the level of
plain error; however, he argues that altogether, their cumulative
effect amounts to plain error, and directs this Court to the
holding in State v. White, 331 N.C. 604, 616, 419 S.E.2d 557, 564
(1992), appeal after remand, 343 N.C. 378, 471 S.E.2d 593, cert.
denied, 519 U.S. 936, 136 L. Ed. 2d 229 (1996). In State v. White,
our Supreme Court held that defendant failed to show that any ofthe court's rulings, considered individually, were sufficiently
prejudicial to require a new trial, but their cumulative effect may
have deprived him of his fundamental right to a fair trial. Id.
However, State v. White is distinguishable from the present case
because the defendant in that case did not rely on the plain error
rule. In that case, the trial court ruled on the objections by
defendant, which were, in turn, the subject of the defendant's
assignments of error before the appellate court.
In the present case, defendant admits that he made no
objection to, and thus the trial court did not affirmatively rule
on, any issue which he now asks this Court to review. Thus, there
was no judicial action as required for plain error to apply by Rule
10(c)(4) of the North Carolina Rules of Appellate Procedure.
Additionally, the present case does not involve the cumulative
effect of a single, blatant error, such as admission of testimony
on one issue, but rather involves the cumulative effect of numerous
pieces of evidence. As we have noted, the essence of the plain
error rule is that it be obvious and apparent that the error
affected defendant's substantial rights. If we were to adopt
defendant's proposition that the plain error rule may apply
cumulatively to several unrelated portions of evidence where the
trial judge was not asked to, and did not, make any affirmative
ruling, we would be departing from the fundamental requirements of
the plain error rule of obviousness and apparentness of error. A
trial judge would be required to review all evidence cumulatively
for errors of admissibility even though defendant had made noobjections to any evidence during trial. We agree with the State
that under such a holding, a trial judge would be required to be
omniscient. A defendant could fail to make any objection to the
admission of evidence at trial, but could then require this Court
to cumulatively review the evidence for possible errors amounting
to plain error. Such rule would be in contradiction of our Rules
of Civil Procedure and Rules of Appellate Procedure, and the plain
error doctrine as defined by the North Carolina Supreme Court. See
State v. Bagley, 321 N.C. 201, 362 S.E.2d 244; State v. Odom, 307
N.C. 655, 300 S.E.2d 375; State v. Cummings, 346 N.C. 291, 488
S.E.2d 550; State v. White, 331 N.C. 604, 419 S.E.2d 557.
Based on the foregoing, we refuse to apply the plain error
doctrine on a cumulative basis when defendant is assigning error to
unrelated admissions of evidence to which he did not object, and
the trial court made no affirmative ruling on the admissibility of
any of them. Because defendant asserts plain error but concedes
that each of his assignments of error do not rise to the standard
required by the plain error doctrine, we hold that each error
complained of does not meet the standard required by State v. Odom,
307 N.C. 655, 300 S.E.2d 375, and hold that the trial court did not
commit plain error.
No error.
Judges WYNN and MARTIN concur.
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