An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-18


Filed: 18 February 2003


PATRICK LEGRANT GEDDIE                    

    Appeal by defendant from judgment entered 14 September 2001 by Judge James M. Webb in Moore County Superior Court. Heard in the Court of Appeals 20 January 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Staci Tolliver Meyer, for the State.

    Richard G. Roose for defendant-appellant.

    TYSON, Judge.

I. Background

    On 8 January 2001, defendant was indicted on a charge of robbery with a dangerous weapon. The case was tried at the 10 September 2001 Criminal Session of Moore County Superior Court.
    The State presented evidence at trial which tended to show the following: On 18 November 2001, Robert Eberhart and his girlfriend, Alicia Gilcrest, were living at Blue's Trailer Park in Vass, North Carolina, with their thirteen-month-old son Justin. Sometime that morning, Patrick Geddie (“defendant”) and Jaton Simpson knocked on Eberhart's front door. Simpson asked if “Jay” was home, and Eberhart informed him that Jay lived next door and was probably not home. Defendant and Simpson told Eberhart they were looking for marijuana, and Eberhart invited them into his home to join him in smoking a “blunt.” The three men all sat down onthe floor and smoked marijuana. The men were soon joined by two other men, companions of defendant and Simpson. Defendant soon stood up, indicating that he needed to use the bathroom. Eberhart told him where it was, and defendant pulled a gun out and put it in Eberhart's face. Simpson took a chain from around Eberhart's neck, and the men took $75 from his pocket. Meanwhile, Gilcrest entered the room to investigate the commotion and observed Eberhart lying on the floor. Defendant pointed a gun at Gilcrest and asked her for her necklace. Gilcrest gave defendant one of her necklaces, then asked to go get Justin because he was crying. Then the four men left.
    After the men left the house, Eberhart retrieved his gun and ran out the back door. Eberhart testified that as he came around the side of the house, he saw Simpson crouched by his car. When Simpson stood up, Eberhart shot him, fatally wounding him. Eberhart also shot at the other men as they fled in their car and pursued them in his car until he was forced to stop due to a flat tire. Eberhart then threw his gun into the woods, changed his tire, and went back home.
    Eberhart later picked defendant out of a photo array, and defendant was arrested. Defendant was interviewed by Detective Gregory Beard. Detective Beard reduced to writing a statement given to him by defendant, but defendant refused to sign the statement. Prior to trial, defendant moved to suppress the statement, arguing that he had not been advised of his Miranda rights. Detective Beard testified that he had orally adviseddefendant of his Miranda rights. The trial court denied defendant's motion to suppress based on Detective Beard's testimony that defendant had been advised of his Miranda rights.
    During the trial, defense counsel informed the court that he overheard Detective C.C. Ferguson tell the prosecutor that “he was not going to lie for anybody.” When counsel asked the prosecutor what Detective Ferguson was referring to, he was told it was “none of [his] business.” Detective Ferguson was called to the stand to testify on voir dire, and alleged that Detective Beard told him that he had failed to advise defendant of his rights prior to taking his statement. Additionally, a note written by Detective Ferguson was presented which stated that defendant was not advised of his rights. Detective Ferguson testified that he had passed the note onto the prosecutor and it was part of the case file. Based on this evidence, defendant moved to dismiss the charges, arguing that the defendant's constitutional rights were violated. The court denied the motion. The trial court did find that defendant's constitutional rights were violated, suppressed the defendant's statement, and barred Detective Beard from testifying.
    Defendant was convicted of robbery with a firearm and sentenced to a term of 120 to 153 months imprisonment. Defendant appeals.

II. Issues

    (1) Whether the indictment against defendant should have been dismissed because the State either intentionally or as the result of gross incompetence withheld evidence favorable to him at thehearing on the motion to suppress, and (2) whether the trial court erred in denying defendant's jury instruction.
III. Motion to Dismiss

    Defendant contends that the conduct by the prosecutor was a “'constitutional error of the first magnitude.'” Davis v. Alaska, 415 U.S. 308, 318, 39 L. Ed. 2d 347, 355 (1974)(quoting Brookhart v. Janis, 384 U.S. 1, 3, 16 L. Ed. 2d 314, 316 (1966); Smith v. Illinois, 390 U.S. 129, 131, 19 L. Ed. 2d 956, 959 (1968)). Defendant further argues that “no amount of showing of want of prejudice would cure” a constitutional violation of the “first magnitude.” Id.
    Where there has been a constitutional error of the first magnitude, there has been “a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” U.S. v. Cronic, 466 U.S. 648, 659, 80 L. Ed. 2d 657, 668 (1984). Thus, “no amount of showing of want of prejudice would cure it.” Davis, 415 U.S. at 318, 39 L. Ed. 2d at 355. For example, in Cronic, the defendant was denied his Sixth Amendment right to the effective assistance of counsel. Cronic, 466 U.S. at 659, 80 L. Ed. 2d at 668. In finding a constitutional violation of the first magnitude, the United States Supreme Court explained that “[t]he presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.” Id. In Davis, the defendant was denied his Sixth Amendment right “to be confronted with the witnesses against him.” Davis, 415 U.S. at 315, 39 L. Ed. 2d at353. The Court explained that “[c]ross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.” Id. Here, the error alleged by defendant did not make the adversarial process “presumptively unreliable.” The evidence sought to be suppressed by defendant was, in fact, suppressed and was never placed before the jury. Any possible violation of the defendant's rights was completely cured and without possible prejudice. This assignment of error is overruled.
IV. Requested Instructions

    Defendant requested the trial court to give the following jury instructions: (1) “deadly force is justified only to protect one's self or another from death or great bodily harm,” and that if the jury decided that Eberhart was “not justified in shooting Jaton Simpson, then you may consider such evidence in deciding whether Robert Eberhart has an interest in the outcome of this case;” and (2) Eberhart had pending criminal charges for possession of marijuana and cocaine and that the jury “may consider such charges in determining whether or not Robert Eberhart has an interest in the outcome of this case.”
    Defendant argues that the requested instructions were a correct statement of the law and were supported by the evidence. Defendant further contends that Eberhart's credibility was “absolutely critical” to the success of the case against defendant. Defendant argues that the refusal to grant the requested instructions constituted prejudicial error. We disagree.    This Court has stated:
        “[I]t is well established that a request for a specific instruction which is correct in law and supported by the evidence must be granted at least in substance.” This notwithstanding, “the trial judge is not required to give the requested instruction verbatim.”

State v. Lundy, 135 N.C. App. 13, 23, 519 S.E.2d 73, 81 (1999) (quoting State v. Williams, 98 N.C. App. 68, 71, 389 S.E.2d 830, 832 (1990)). Here, the defendant requested specific instructions that Eberhart had an interest in this case because of pending criminal charges. The trial court followed the pattern jury instruction on interested witnesses. Although the trial court's instruction was more general than defendant's requested instructions, it substantially conformed with defendant's request. Defendant was also allowed to cross-examine Eberhart regarding the pending criminal charges and was allowed to argue the point to the jury. Accordingly, we find no error.
V. Conclusion

    After careful review of the record, briefs, and contentions of the parties, we find no error.
    No error.
    Judges TIMMONS-GOODSON and BRYANT concur.
    Report per Rule 30(e).     

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