State v Merritt, (03-1503) 07/06/2004

Appeal by defendant from judgment entered 4 June 2003 by Judge Ernest B. Fullwood in Carteret County Superior Court. Heard in the Court of Appeals 28 June 2004.

Attorney General Roy Cooper, by Assistant Attorney General Scott K. Beaver, for the State.

Sue Genrich Berry for defendant-appellant.

STEELMAN, Judge.

    Defendant John William Merritt was charged with two counts of assault with a deadly weapon inflicting serious injury. The State's evidence tended to show that on the night of 15 November 2002, Karla Lupton was tending bar at the Handle Bar, in Beaufort, North Carolina. The Handle Bar had a jukebox, dance floor, pool table and karaoke. Defendant and his wife and daughter were customers at the Handle Bar the night of 15 November. After a regular customer named “Nicole” finished singing karaoke, defendant made an obscene comment to her. Lupton asked defendant to either stop making that type of comment or leave the bar. Defendant made another obscene comment and Lupton told him to leave.     Defendant subsequently picked up two beers and walked towards the front door. Someone brought it to Lupton's attention that defendant had poured beer on the pool table. While Lupton retrieved a towel from the bar area, she overheard an argument between Nicole and defendant. Defendant then threw his beer on Nicole. Defendant told Nicole, “I'll kick your ass” and pushed her into a pool table. As Lupton and other patrons attempted to remove defendant from the bar, defendant swung a lamp and a pool stick. Defendant's wife was knocked down during the altercation. Once defendant was pushed out the door, defendant's wife was helped up off the floor. Defendant came back into the bar with a broken beer bottle and stabbed patron Shelly Wilson in the neck and arm. When defendant came at Wilson again, Lupton stepped between defendant and Wilson and Lupton was stabbed near her eye with the beer bottle. Defendant was subsequently pushed back out of the bar and the door locked. Defendant's wife remained inside the bar. The injuries to Lupton's face were treated at a local hospital. Wilson received stitches to her arm and neck.
    Defendant presented evidence. Defendant and his wife testified that defendant and Nicole exchanged remarks while Nicole was on stage and that Nicole came up to defendant afterwards and threw beer on him. Defendant and his wife also testified that defendant threw the two beers on Nicole when she confronted him as they were leaving. Defendant's wife testified that she was pushed to the floor during the altercation that ensued. Defendant's wife further testified that she called for defendant and that Wilson andLupton were injured while blocking defendant from reaching her. Defendant admitted swinging the broken beer bottle and that he might have cut one of the two women. Defendant testified that his intention was to rescue his wife, not to hurt anyone.
    A jury found defendant guilty on both charges. The trial court consolidated the charges for judgment and sentenced defendant to thirty-four to fifty months imprisonment. Defendant appeals.
    In defendant's first assignment of error, he contends he is entitled to a new trial because the prosecutor committed prejudicial error while he was questioning defendant. We disagree.
    During the cross-examination of defendant, the following exchange took place:
        Q. Now, this communicating threats, you told somebody, Johnny Riggs, you were going to get my gun. I am going to kill that black SOB.

        [DEFENSE COUNSEL]: Objection.

        THE COURT: Sustained.

    Defendant argues that the prosecutor's question contained language attributed to defendant which was too prejudicial to be cured by the trial court properly sustaining his objection. Essentially, defendant argues that the mere asking of this question was sufficiently prejudicial to warrant a new trial. In State v. Whisenant, 308 N.C. 791, 794, 303 S.E.2d 784, 786 (1983) Our Supreme Court denied the defendant's contention that he was:
        entitled to a new trial because during the cross-examination of one of the defense witnesses, the prosecutor asked the witness whether he knew that defendant was a 'convicted felon.' We note, however, that the trial court sustained defendant's objection tothis question. In essence, then, defendant argues that the mere asking of this question alone was sufficiently prejudicial to warrant a new trial.

    Even assuming arguendo that the trial court erred in this matter, defendant has not carried his burden of showing that there is a reasonable possibility a different result would have been reached at trial had the error not been committed. N.C. Gen. Stat. § 15A-1443(a)(2003). Lupton and Wilson both testified that defendant stabbed them with a broken beer bottle and defendant does not deny swinging the beer bottle at them. There was substantial evidence of defendant's guilt, making it unlikely that the jury relied on the prosecutors question rather than on the substantive evidence of defendant's guilt. Defendant has failed to show any reasonable possibility a different result would have been reached at trial had the error not been committed. This assignment of error is without merit.
    Defendant also contends the trial court erred by referring to Shelly Marie Wilson and Carla Flood Lupton as the “victim” or “victims” throughout the jury charge. Defendant did not object to the jury instructions and therefore asks this Court to examine the instructions under the plain error standard. Plain error arises when the error is “'so basic, so prejudicial, so lacking in its elements that justice cannot have been done....'” 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), cert. denied, 459 U.S. 1018, 74 L. Ed. 2d. 513 (1982)).
    Defendant asks this Court to reconsider its decisions holdingthat the use of the word “victim” in jury instructions does not rise to the level of plain error, State v. Henderson, 155 N.C. App. 719, 722, 574 S.E.2d 700, 703 (2003) disc. review denied, 357 N.C. 64, 579 S.E.2d 569 (2003); State v. Hatfield, 128 N.C. App. 294, 299, 495 S.E.2d 163, 165-6 (1998), cert. denied, 525 U.S. 887, 142 L. Ed. 2d 165 (1998). We decline to reconsider our previous holdings on this issue.
    NO ERROR.
    Judges HUDSON and THORNBURG concur.
    Report per Rule 30(e).

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