NO. COA02-678
Appeal by defendant from judgments entered 5 December 2001 by
Judge Lindsay R. Davis, Jr. in Forsyth County Superior Court.
Heard in the Court of Appeals 20 January 2003.
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen S. Edwards, for the State.
James L. Goldsmith, Jr. for defendant-appellant.
TYSON, Judge.
Roderick Young Curry, Jr. (“defendant”) was charged with two
counts of possession of a firearm by a convicted felon, three
counts of robbery with a dangerous weapon, and having attained the
status of habitual felon.
I. Background
These charges arose out of the 10 and 13 May 2001 robberies of
two Winston-Salem restaurants. The charges were joined for trial,
and this matter was tried before a jury during the 3 December 2001
criminal session of Forsyth County Superior Court. Three
eyewitnesses to the robberies identified defendant as one of the
robbers of their respective restaurants on 10 and 13 May 2001. Afingerprint expert with the Winston-Salem Police Department also
testified that he processed two latent fingerprints lifted from one
of the restaurant's menus, and concluded that those fingerprints
matched the defendant's fingerprints. The State also presented the
testimony of another Winston-Salem police officer who, upon the
search of defendant's residence, recovered several items that
matched the description of items taken during the 13 May 2001
restaurant robbery.
Defendant presented the testimony of two friends to establish
an alibi for defendant at the time of the 10 and 13 May 2001
restaurant robberies. These witnesses could not, however, testify
as to the exact time they saw defendant on the dates in question.
After a presentation of the evidence, Judge Davis charged the
jury, and the jury retired to await the verdict sheets. Contrary
to the judge's instruction, the jury may have begun deliberations
prior to receipt of the verdict sheets. Upon receipt of a written
question from the jury, Judge Davis returned the jury to the
courtroom and stated:
The first thing I would like to do, and I
don't think it's a major thing, but a gentle
remonstrance, if you will, I asked you not to
begin any deliberations until you received the
verdict form. The question that you sent out
indicates that you may have begun some
deliberations.
The judge continued, in answer to the jury's question regarding
“acting in concert,” and reinstructed the jury on that particular
point of law. Defendant did not object to the jury's possible
premature deliberations. The jury deliberated and found defendantguilty of all of the substantive charges. Defendant thereafter
pled guilty to the charge of being a habitual felon. Defendant was
sentenced to a total of four consecutive terms of 116-149 months
imprisonment for his convictions. Defendant appeals.
II. Issues
By the sole assignment of error argued on appeal, defendant
argues that the commencement of jury deliberations prior to
receiving the verdict sheet in contradiction of the trial court's
instructions deprived him of a fair trial. Defendant has failed to
bring forth his remaining assignments of error on appeal, and they
are therefore taken as abandoned. N.C.R. App. P. 28(a) (2002).
III. Plain Error
Defendant concedes that he did not object to the jury's
premature deliberations, and “urges this Court to undertake []
review of the issue under the plain error doctrine.” We note that
defendant has failed to “specifically and distinctly” contend that
the instant error amounted to plain error as required by N.C.R.
App. P. 10(c)(4). Plain error analysis does not appear to be
applicable in this case.
See State v. Greene, 351 N.C. 562, 566,
528 S.E.2d 575, 578 (2000)(reiterating that plain error review is
applicable only to jury instructions and evidentiary matters).
Presuming this issue was properly before this Court, defendant has
not presented any argument to show the jury's premature
deliberations prejudiced him.
See State v. Davis, 251 N.C. 93, 94,
110 S.E.2d 614, 615 (1959)(“To be entitled to a new trial defendant
must show prejudice.”);
see e.g., N.C. Gen. Stat. § 15A-1443(2001)(providing that in order to show prejudice by errors relating
to rights arising other than under the United States Constitution,
a defendant must show that there is a “reasonable possibility that,
had the error in question not been committed, a different result
would have been reached at the trial”);
State v. Keel, 337 N.C.
469, 485, 447 S.E.2d 748, 757 (1994)(providing that in order to
show error under the plain error doctrine the defendant must show
that “absent the error the jury probably would have reached a
different verdict”),
cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147
(1995). We do not perceive any prejudice.
IV. Conclusion
We conclude that defendant is not entitled to relief. The
evidence of defendant's guilt is overwhelming: (1) eye witness
identification by three persons present during the robberies, (2)
a fingerprint match from a restaurant menu, and (3) defendant's
possession of items taken from one of the robberies. The testimony
of defendant's two alibi witnesses is less than persuasive.
Neither witness had a clear recollection of the time they allegedly
saw defendant on the days of the 10 May and 13 May 2001 robberies.
Both admitted to being personal friends of defendant. This
assignment of error is overruled.
No error.
Judges TIMMONS-GOODSON and BRYANT concur.
Report per Rule 30(e).
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