NO. COA04-543

NORTH CAROLINA COURT OF APPEALS

Filed: 19 April 2005

    Appeal by defendant from judgment entered 20 October 2003 by Judge L. Todd Burke in Rockingham County Superior Court. Heard in the Court of Appeals 1 February 2005.

    Attorney General Roy Cooper, by Assistant Attorney General Robert C. Montgomery, for the State.

    Brian Michael Aus, for the defendant-appellant.

    STEELMAN, Judge.

    On 16 March 2002, Sergeant Lee Edmonds of the Reidsville Police Department responded to a burglar alarm at Lawsonville Elementary School, and observed that the door to the cafeteria had been pried open. Sergeant Edmonds exited the building and, while waiting for backup, took a position where he could see most of the building. As backup was about to arrive, he saw defendant crouched
outside the building behind a wall. He identified himself, but defendant ran. Chris Loye, an officer with the Reidsville PoliceDepartment, responded to assist Sergeant Edmonds. When he arrived, he saw defendant running from Sergeant Edmonds. He pursued and, subdued defendant.
    A crowbar and a blue flashlight were found under defendant. It was later determined that there was damage to the exterior door leading into the cafeteria and also to an interior door leading into the speech therapist's room.
    Thomas Trochum, a forensic firearm and tool examiner with the
State Bureau of Investigation, examined the pry bar taken from defendant and the two brass door strike plates taken from the school doors. He found that the strike plate from the exterior door had marks on it made by the pry bar. The other strike plate had marks that could have been made by the pry bar.
    On 7 April 2003, defendant was indicted for the felonies of breaking or entering a building in violation of N.C. Gen. Stat. § 14-54 and possession of implements of housebreaking in violation of N.C. Gen. Stat. § 14-55. On the same date, defendant was also indicted for having attained habitual felon status. On 14 October 2003 a jury found defendant guilty of breaking or entering a building and possession of implements of housebreaking. Defendant subsequently pled guilty to habitual felon status. The trial court found that defendant had seventeen prior record points and was a prior record level V. The trial court found as an aggravatingfactor that defendant committed the offenses while on pretrial release on another charge and found as mitigating factors that defendant supports his family and has a support system in the community. The trial court announced in open court that it found the mitigating factors outweighed the aggravating factor. In accordance with that finding, the trial court entered judgment consolidating the offenses and sentencing defendant to an active sentence from the mitigated range of 96 to 125 months. Defendant appeals.
    In his first argument, based on his first assignment of error, the defendant contends that the trial court committed plain error in improperly informing the jury of the defendant's case as required by N.C. Gen. Stat. § 15A-1213 (2004). We disagree.
    “Plain error . . . only applies to jury instructions and evidentiary matters in criminal cases.” State v. Freeman, 164 N.C. App. 673, 677, 596 S.E.2d 319, 322 (2004); see also State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109-10 (1998)(Supreme Court declined expanding plain error analysis to cover trial court's failure to give an instruction during jury voir dire).
    Despite the absence of an objection at trial, defendant further attempts to argue that the trial court violated N.C. Gen. Stat. § 15A-1213 by making a comment indicating defendant had charges pending against him other than those in the instant case. There is nothing in N.C. Gen. Stat. § 15A-1213 that makes it relevant to the error alleged by defendant. Because defendant did not object to the comment by the trial court at trial, and because he did not assign the comment as error in the record, he has not preserved this issue for appeal. N.C. R. App. P. 10(b)(1); N.C. R. App. P. 10(a); State v. Flippen, 349 N.C. 264, 274-75, 506 S.E.2d 702, 709 (1998). This argument is without merit.
    In his second argument, based on his third assignment of error, defendant contends that the trial court committed plain error by giving an incomplete instruction on defendant's decision not to testify. We disagree.
        Under a plain error analysis, defendant is entitled to a new trial only if the error was so fundamental that, absent the error, the jury probably would have reached a different result. “[E]ven when the 'plain error' rule is applied, '[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'”

State v. Hardy, 353 N.C. 122, 131, 540 S.E.2d 334, 342 (2000)(internal citations omitted).
    Defendant argues that the trial court committed plain error in failing to include the following language from N.C.P.I. Crim. 101.30 concerning his decision not to testify: “Therefore, his silence is not to influence your decision in any way.”        Our cases do not prescribe any mandatory formula [for instructing the jury on a defendant's decision not to testify] but instead look to see if the spirit of G.S. 8-54 has been complied with. Justice Lake, speaking for the Court in State v. Baxter, 285 N.C. 735, 208 S.E. 2d 696 (1974), stated the general rule that “. . . any instruction thereon is incomplete and prejudicially erroneous unless it makes clear to the jury that the defendant has the right to offer or to refrain from offering evidence as he sees fit and that his failure to testify should not be considered by the jury as basis for any inference adverse to him. . . .”

State v. Sanders, 288 N.C. 285, 301, 218 S.E.2d 352, 363 (1975). In the instant case, the trial court gave the following instruction: “The defendant in this case has not testified. The law of North Carolina gives him this privilege. This same law also assures him that his decision not to testify creates no presumption against him.” We hold that this instruction was sufficient, though the better practice is to give the entire pattern instruction. See State v. Covington, 290 N.C. 313, 332-33, 226 S.E.2d 629, 643 (1976); State v. Bryant, 283 N.C. 227, 233-34, 195 S.E.2d 509, 513 (1973). Even assuming arguendo that the charge was in error, that error does not rise to the level of plain error as there is no probability that absent it the jury would have reached a different result. This argument is without merit.    In his third argument, based on his fifth assignment of error, defendant contends that the trial court lacked jurisdiction to enter judgment against him. We disagree.
    After returning its verdicts, the jury was excused from the courtroom by the following statements from the trial court:
        THE COURT: All right. Ladies and gentlemen, in the event -- we may need your services for another matter. I am not certain yet. So if you want to take a -- how long are you going to need? About ten minutes maybe?

        MR. ETRINGER [defendant's counsel]: Yes, Your Honor.

        THE COURT: If you want to take a break, I would ask that you stay out of the courtroom during this period of time. You can either take your ten-minute break in the jury room or leave the jury room to walk around the courthouse. Do not come back in the courtroom until we say it's okay and we open the door.

The purpose of excusing the jury was so that counsel and the court could discuss how the court would proceed with defendant's habitual felon charge. The following discussion then occurred outside the presence of the jury:
        THE COURT: Is this a two-week session?
        MR. PANOSH [the prosecutor]: Yes, sir.
        MR. ETRINGER: Next week is a misdemeanor -- what they call misdemeanor.

        THE COURT: Is it a separate week?
        MR. PANOSH: It is a separate calendar.        THE COURT: We'll recess sine die then.
    Defendant contends that this exchange effectively terminated the then current session of court, and divested the trial court of jurisdiction to enter judgment or accept defendant's plea of guilty to habitual felon status. Defendant is correct that once a trial begins, judgments and orders affecting the rights of a defendant must be made in the same term and session of court in which the trial was commenced. State v. Boone, 310 N.C. 284, 287, 311 S.E.2d 552, 555 (1984). When a judge announces in open court that court is adjourned sine die, this announcement terminates the session of court. State v. Jones, 27 N.C. App. 636, 639, 219 S.E.2d 793, 795 (1975).
    In the instant case, however, we do not find that the judge adjourned the court sine die at the time he made the above statements. It is clear to this Court that there was no formal announcement that court was adjourned sine die. There was an informal discussion taking place, and within that discussion the trial judge acknowledged that when he ultimately adjourned court at the end of the proceedings, it would be sine die. This is clear both because the judge stated “We'll [i.e. we will] recess sine die then[,]” and because the judge called court back to order after a fifteen minute recess to conclude the unfinished matters of the case. Though the language used by the trial court could beinterpreted as defendant asserts, we refuse to do so against the weight of the evidence indicating that the judge was speaking of future events. This argument is without merit.
    NO ERROR
    Judges WYNN and HUDSON concur.
    Report per Rule 30(e).

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