An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-624


Filed: 6 May 2003


v .                         Caldwell County
                            Nos. 99 CRS 6316, 6636

    Appeal by defendant from judgment entered 11 January 2002 by Judge Julius A. Rousseau, Jr. in Caldwell County Superior Court. Heard in the Court of Appeals 19 February 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Marc Bernstein, for the State.

    J. Clark Fischer, for defendant-appellant.

    CALABRIA, Judge.

    In the early morning of 14 August 1999, Howard Kevin Collins (“the victim”) died as a result of the infliction of four gunshot wounds to his abdomen and legs while he was being robbed. The robbery and shooting occurred while the victim was attempting to procure crack cocaine. Darron Lavell Jones (“defendant”) contended the crimes were committed by Paul Steven McClaine (“McClaine”), an acquaintance who was present with defendant, after an altercation between McClaine and the victim developed concerning the quantity of drugs to be purchased. Defendant was arrested on suspicion of murder, and on 23 August 1999, the Caldwell County Grand Jury returned a true bill of indictment charging defendant with firstdegree murder in violation of N.C. Gen. Stat. § 14-17 and robbery with a dangerous weapon in violation of N.C. Gen. Stat. § 14-87.
    This case came to trial in the Superior Court of Caldwell County on 8 January 2002, the Honorable Julius A. Rousseau, Jr. presiding. Prior to trial, defendant moved to sequester the witnesses based on “the wide range of [varied and contradictory] statements” by the witnesses and “the fact that some of the witnesses may indeed be suspects themselves[.]” The trial court denied defendant's motion. The jury returned a verdict of guilty of first degree murder under the first degree felony murder rule, rejecting a finding of malice, premeditation and deliberation. Defendant was also convicted of robbery with a dangerous weapon. The court entered judgment on the first degree murder conviction, sentencing defendant to life imprisonment without parole and arrested judgment on the robbery with a dangerous weapon conviction. Defendant appeals.
    Defendant asserts the trial court (I) abused its discretion when it denied the defendant's motion to sequester witnesses and (II) committed prejudicial error by denying some of defendant's requests regarding jury instructions.
I. Sequestration of Witnesses
    Defendant contends the trial court erred in denying the motion to sequester because the State's case rested on the testimony of lay witnesses rather than independent forensic evidence, and the witnesses might embellish their testimony based on the recollections of other witnesses. The trial court, after a hearingon the matter, denied the motion to sequester citing the availability of cross examination as well as time and space considerations.
    Both N.C. Gen. Stat. § 8C-1, Rule 615 (2001) and N.C. Gen. Stat. § 15A-1225 (2001) state that upon the request of a party, the trial court may order witnesses sequestered to prohibit them from hearing the testimony of other witnesses. “The aim of sequestration is two-fold: First, it acts as a restraint on witnesses tailoring their testimony to that of earlier witnesses, and second, it aids in detecting testimony that is less than candid.” State v. Harrell, 67 N.C. App. 57, 64, 312 S.E.2d 230, 236 (1984). “A motion to sequester witnesses is addressed to the sound discretion of the trial court, and the court's ruling on the motion will not be disturbed in the absence of a showing of abuse of that discretion.” State v. Batts, 93 N.C. App. 404, 410, 378 S.E.2d 211, 214 (1989). In order to show an abuse of discretion a party must prove “the ruling was so arbitrary that it could not have been the result of a reasoned decision.” State v. Ball, 344 N.C. 290, 305, 474 S.E.2d 345, 354 (1996).
    Frequently, in reviewing whether the trial court abused its discretion in denying a motion to sequester, the appellate court will review the record to determine whether there is evidence that a witness' testimony was different as a result of hearing the testimony of another. See generally, State v. Keaton, 61 N.C. App. 279, 282, 300 S.E.2d 471, 472-73 (1983) (holding “[b]ecause the record contains no evidence that the twelve-year-old's testimonywas different as a result of his hearing his mother testify, we find no abuse of discretion on the part of the trial court”); State v. Holmes, 109 N.C. App. 615, 428 S.E.2d 277 (1993) (finding no abuse of discretion where neither the record nor the defendant showed the testifying officers had conformed their testimony to that given by another officer earlier in the proceeding); State v. Jones, 337 N.C. 198, 446 S.E.2d 32 (1994) (refusing to find an abuse of discretion where there was no “significant distinction” between the testimony given by an officer on direct and later in the case when he had been recalled); State v. Wilds, 133 N.C. App. 195, 515 S.E.2d 446 (1999) (finding no abuse of discretion when a trial court refused to sequester witnesses despite the defendant's contention that the witnesses who offered hearsay testimony used the voir dire and trial testimony of those who came before them to educate themselves and strengthen their testimony).
    Defendant has failed to show an instance of embellishment or alteration of the testimony of the witnesses as a result of hearing a previous witness testify, nor can we find support for this proposition in the record.   (See footnote 1)  Further, the trial court correctly noted defendant was free to cross examine a witness concerning changes in testimony resulting from observing the testimony of previous witnesses. Defendant has shown no abuse of discretion inthe trial court's decision to deny defendant's motion to sequester the witnesses. Accordingly, we overrule this assignment of error.
II. Jury Instructions
    In his next assignment of error, defendant asserts the trial court erred in refusing to issue some of his requested jury instructions. These instructions involved the aim of every legal contest, circumstantial evidence, motive, and identification of the defendant. Because he failed to object to the instructions at trial, plain error applies.
    “A party may not assign as error any portion of the jury charge or omission therefore 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 . . . .” N.C. R. App. P. 10(b)(2) (2003). “The purpose of Rule 10(b)(2) is to encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial.” State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Nonetheless, errors or defects in jury instructions which affect a defendant's substantial rights may be addressed, even where such errors were not previously brought to the trial court's attention, pursuant to plain error review. Id.; State v. King, 342 N.C. 357, 364, 464 S.E.2d 288, 293 (1995).
    A review of the record before this Court reveals defendant has not asserted plain error. Rule 10(c)(4) provides:        Assigning Plain Error. 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) (2003).
        “[A] party must, prior to arguing the alleged error [which constitutes plain error] in his brief, (a) alert the appellate court that no action was taken by counsel at the trial level, and (b) establish his right to review by asserting in what manner the exception is preserved by rule or law or, when applicable, how the error amounted to a plain error or defect affecting a substantial right which may be noticed although not brought to the attention of the trial court. We caution that our review will be carefully limited to those errors.”
State v. Walker, 316 N.C. 33, 38, 340 S.E.2d 80, 82-83 (1986) (quoting State v. Oliver, 309 N.C. 326, 335, 307 S.E.2d 304, 312 (1983)). Defendant failed to assert the trial court's denial concerning these jury instructions amounted to plain error. Moreover, defendant neither sets forth nor applies plain error as the standard of review in his arguments to this Court or in the questions he asserts are presented to this Court. Accordingly, plain error review is not available.
    We note, however, even if plain error review was undertaken, we find no merit in defendant's arguments. “In deciding whether a defect in the jury instruction constitutes 'plain error,' the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.” Odom, 307 N.C. at 661, 300 S.E.2d at 378-79.     An instruction concerning identification of a defendant sets forth the State's burden of proving the identity of the defendant as the perpetrator of the crime beyond a reasonable doubt. Every eyewitness of the crime other than defendant identified defendant as the perpetrator of the crime. Qualiallo Hendricks further testified defendant confessed he “should have not shot that man, I told him to quit playing around.” Instructions concerning proof of motive would have little probable impact on the jury's verdict in light of the extensive testimony concerning the robbery of the victim and the actions of defendant on the night in question. Instructions on circumstantial evidence requested to attack the credibility of one of the State's eyewitnesses cannot be found to have a probable impact on the jury's verdict in light of the substantially identical testimony of the State's other eyewitness or the statement by defendant indicating he was the perpetrator. Finally, the instruction regarding the aim of every legal contest is merely a “general statement as to the jury's duties. It is not necessary to include it in a jury charge.” State v. Beamer, 339 N.C. 477, 483, 451 S.E.2d 190, 194 (1994). There is no reason to assume that the jury did not take its duties seriously or that it would have returned a different verdict had the instruction issued. For the foregoing reasons, this assignment of error is overruled. The trial of defendant was free of reversible error.
    No error.
    Judges McCULLOUGH and TYSON concur.
    Report per Rule 30(e).

Footnote: 1
    In fact, the record indicates the witnesses' testimony conflicted despite the refusal to sequester. In the motion for a directed verdict at the close of the State's evidence, counsel for defendant stated, “in taking all the witnesses in total . . . they have not shown with any consistency that [defendant] perpetrated any crime.” Counsel for defendant went on to characterize the testimony of two of the witnesses as “totally in conflict.”

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