STATE OF NORTH CAROLINA
v. Forsyth County
No. 01 CRS 56075
GARY JOSEPH GASTON
Attorney General Roy Cooper, by Special Deputy Attorney
General William P. Hart, and Assistant Attorney General Robert
C. Montgomery, for the State.
Charns & Charns, by Diane Tucker Charns, for defendant-
appellant.
CALABRIA, Judge.
Gary Joseph Gaston (“defendant”) was found guilty of robbery
with a dangerous weapon and conspiracy to commit robbery with a
dangerous weapon. The convictions were consolidated, and defendant
was sentenced to a minimum term of 103 months and a maximum term of
133 months in the custody of the North Carolina Department of
Correction.
The State presented evidence tending to show that on the
evening of 30 May 2001, Jeremiah Wood, a delivery person for
Domino's Pizza, delivered pizza to 2813 South Main Street in
Winston-Salem. A man answered his knock on the door, asked him for
the cost, and went back inside the residence. Two men wearingmasks then came from around the house. The two men placed guns to
Wood's head and side and ordered him to lie down. The two men
searched through Wood's pockets and took all of his money. The two
men then fled.
Fayon Moore and Matthew Watlington testified for the State
that they and defendant were at Watlington's home, located at 2813
South Main Street in Winston-Salem, on the evening of 30 May 2001.
The three of them devised a plan to lure a pizza delivery person to
the residence for the purpose of robbing him/her. Moore placed the
call for pizza delivery to the residence. When the delivery person
arrived at the house, Watlington answered the door. Meanwhile,
defendant and Moore, wearing face coverings, came around from a
side exit door. Defendant placed a gun to the delivery person's
side. Moore took money from the delivery person's pockets.
Defendant and Moore left the scene. Defendant and Watlington
subsequently met Moore at Moore's girlfriend's residence. Moore
gave defendant the money he had taken from the pizza delivery
person.
Defendant's sole contention is that the court erred by
refusing to instruct the jury in accordance with N.C.P.I._Crim.
104.21 (1986). This instruction states:
There is evidence which tends to show that a
witness was testifying [under a grant of
immunity][under an agreement with the
prosecutor for a charge reduction in exchange
for his testimony][under an agreement with the
prosecutor for a recommendation for sentence
concession in exchange for his testimony]. If
you find that he testified in whole or in part
for this reason you should examine his
testimony with great care and caution indeciding whether or not to believe it. If,
after doing so, you believe his testimony in
whole or in part, you should treat what you
believe the same as any other believable
evidence.
N.C.P.I._Crim. 104.21 (1986). As a general principle, a court is
required to give a requested instruction, at least in substance,
when the instruction is a correct statement of law and is supported
by evidence. State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600,
605-06 (1988). Moreover, a judge is required by statute, with
regard to a witness who is testifying under grant of immunity, to
inform the jury of this fact and to instruct during the charge to
the jury “as in the case of interested witnesses.” N.C. Gen. Stat.
§ 15A-1052(c) (2001). This duty to instruct applies, however, only
when there is evidence of a formal grant of immunity, of an
understanding or agreement not to prosecute, or of an understanding
or agreement to reduce charges or to recommend sentence
concessions. State v. Bare, 309 N.C. 122, 126-27, 305 S.E.2d 513,
516-17 (1983).
The present record contains no evidence of any formal grant of
immunity or agreement or understanding other than the hopes of
Watlington and Moore for leniency. Even if the witnesses' hope of
possible leniency mandated the giving of the instruction, the court
gave it in substance by instructing the jury to consider the
testimony of an accomplice to the crime as that of one with an
interest in the outcome and to “examine every part of the testimony
of an accomplice with the greatest care and caution.” State v.
Cuevas, 121 N.C. App. 553, 560-61, 468 S.E.2d 425, 430 (1996). By not discussing in his brief the other assignment of error
listed in the record on appeal, defendant is deemed to have
abandoned it. N.C. R. App. P. 28(a).
We hold defendant received a fair trial, free of prejudicial
error.
No error.
Judges MARTIN and McCULLOUGH concur.
Report per Rule 30(e).
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