STATE OF NORTH CAROLINA
v
.
Washington County
No. 04 CRS 50240
SHERRI JONES ANTHONY
Attorney General Roy Cooper, by Special Deputy Attorney
General, Fred Lamar, for the State.
Cheshire, Parker, Schneider, Bryan & Vitale, by John Keating
Wiles, for defendant.
LEVINSON, Judge.
Sherri Jones Anthony (defendant) was indicted 23 August 2004
for second degree murder arising from the death of Antonia
Wrighton (Wrighton). She appeals judgment entered upon her
conviction for voluntary manslaughter. We find no error.
The pertinent facts may be summarized as follows: Brandi
Barnes, defendant's upstairs neighbor, testified that she was
awoken by the sound of an argument emanating from defendant's
apartment during the evening of 6 April 2004. Barnes went outside
and observed through the open door of defendant's apartment that
defendant was “fussing at [Wrighton] and hitting him on the head.”
Barnes further testified that Wrighton, defendant's boyfriend, was“bent down, covering up his face and walking away.” Additionally,
she overheard defendant tell Wrighton, “one of us is going to die
today” and “I'm going to kill you.” Barnes went to look for
defendant's cousin, Shameka Williams, across the street, in hopes
that she would calm defendant. However, before Barnes contacted
Williams, she observed defendant in the parking lot, and noticed
that she “looked normal with no markings on her face or body.”
Barnes inquired as to the whereabouts of Wrighton, and defendant
replied, “I stabbed the b[----].” Barnes went to Wrighton, who was
across the driveway in the parking lot lying down on his stomach
and “going in and out.” After lifting up his shirt, Barnes noticed
a one to two inch wound on Wrighton's chest. Barnes testified that
Wrighton stated, “I can't believe she did this s[---].” Ebony Lacy
lived directly above defendant's apartment. Lacy observed
defendant and Wrighton enter the apartment complex earlier in the
day. She later overheard doors being slammed and objects being
thrown against the wall.
Defendant testified. She argued with Wrighton in her
apartment during the evening of 6 April 2004 approximately ten
minutes after they arrived in her apartment. Wrighton began
“fussing a lot” at her and accused her of “cheatin[g] on [him].”
“[Wrighton] hit me, and I rocked back [and] he hit me again” and my
glasses broke. In a later statement to police, defendant stated
that Wrighton was “beating her like a man.” After Wrighton pushed
her over a piece of furniture, he went into the kitchen, retrieved
a knife and attempted to stab her. She fell to the ground and sawWrighton “coming straight at [her] like he was going to stab
[her].” She attempted to “[hold] him, trying to keep him off of
[her].” The knife fell to the ground and it was at this juncture
that defendant grabbed the knife and “stabbed [Wrighton] once.”
Officers Lewis Hellickson, Brandon Wynne, and Corporal John
Sawyer of the Plymouth Police Department responded to a domestic
disturbance call at the apartment complex at approximately 6:20
p.m. Hellickson observed people gathering around Wrighton.
Hellickson later located defendant across the parking lot and asked
her what happened, defendant stated that Wrighton “was beating her
like a man and she stabbed him to get him off of her.” When asked
where the knife was, defendant responded that it was “in the house,
[she] guess[ed].” Wynne and Sawyer retrieved an “average” kitchen
knife in defendant's apartment near sliding glass doors.
Hellickson did not see any noticeable marks, abrasions or bruises
on defendant's face.
Captain Willie Williams of the Plymouth Police Department
testified as a rebuttal witness for the State. Williams testified
that he had known Wrighton for several years and was “familiar with
[his] reputation in the community specifically for peacefulness.”
Williams testified that Wrighton “had a good reputation [in the
community].” In addition, Williams testified that, in his opinion,
Wrighton “was a peaceful person.”
A jury convicted defendant of voluntary manslaughter.
Defendant appeals. Defendant first contends that the trial court erred by
declining to give his requested special instructions to the jury.
We disagree.
Defendant requested the following instructions:
It is a defense theory that the
prosecution's investigation of this case was
negligent, purposefully distorted and/or not
done in good faith. For example, there has
been testimony about the collection,
preservation, and analysis of certain items of
evidence.
You are to assess the credibility of the
evidence in light of this evidence, together
with all of the other evidence.
Investigation which is thorough and
conducted in good faith may be more credible,
while an investigation which is incomplete,
negligent, or in bad faith, may be found to
have lesser value, or no value at all.
In deciding the credibility of the
witnesses and the weight of [sic] to give the
prosecution evidence, you may consider whether
the investigation was negligent and/or
conducted in bad faith.
Inadequate or incomplete investigation by
the prosecution may support an inference
adverse to the prosecution which may be
sufficient to leave you with a reasonable
doubt as to the defendant's guilt.
Defendant asserts that because the instructions provided a correct
statement of the law and were supported by the evidence, the trial
court was required to charge the jury in accordance with these
instructions.
“A defendant must object to the jury charge before the jury
retires to consider its verdict in order to preserve for appeal an
issue regarding jury instructions.” State v. Withers, __ N.C. App.__, __, 633 S.E.2d 863, 868 (2006) (applying N.C.R. App. P.
10(b)(2)). Because defendant failed to properly preserve this
issue for appeal by not objecting to the trial court's denial of
the requested instructions, we review for plain error. See State
v. Wolfe, 157 N.C. App. 22, 33, 577 S.E.2d 655, 663 (2003) (plain
error review available for errors in the admission of evidence and
jury instructions).
To establish plain error, a defendant must demonstrate “(i)
that a different result probably would have been reached but for
the error or (ii) that the error was so fundamental as to result in
a miscarriage of justice or denial of a fair trial.” State v.
Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997) (citations
omitted). We “'must examine the entire record and determine if the
. . . error had a probable impact on the jury's finding of guilt.'”
State v. Pullen, 163 N.C. App. 696, 701, 594 S.E.2d 248, 252 (2004)
(quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379
(1983)).
A request for special instructions to a jury
must be: “(1) In writing, (2) Entitled in the
cause, and (3) Signed by counsel submitting
them.” N.C. Gen. Stat. § 1-181(a) (2005).
“Where a requested instruction is not
submitted in writing and signed pursuant to
[N.C.] G.S. [§ ] 1-181, it is within the
discretion of the [trial] court to give or
refuse such instruction.” State v. Harris, 67
N.C. App. 97, 102, 312 S.E.2d 541, 544 (1984).
. . . It is well settled that “'if a request
be made for a special instruction, which is
correct in itself and supported by evidence,
the court must give the instruction at least
in substance.'” State v. Lamb, 321 N.C. 633,
644, 365 S.E.2d 600, 605-06 (1988)(quoting
State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d
690, 691 (1956)).
State v. Mewborn, __ N.C. App. __, __, 631 S.E.2d 224, 231, disc.
review denied, __ N.C. __, 637 S.E.2d 187 (2006).
In the present case, even assuming arguendo that the trial
court erred by not instructing the jury based upon the defendant's
two requested instructions, its ruling cannot be said to have
amounted to an error that was so fundamental as to result in a
miscarriage of justice, or that it had a probable impact on the
jury's finding of guilt. Here, there is substantial record
evidence tending to establish defendant's guilt. Barnes testified
that she overheard defendant say to Wrighton that “one of us is
going to die today” and “I'm going to kill you.” Barnes also
testified that when she asked defendant about Wrighton, defendant
replied, “I stabbed the b[----].” Defendant testified that while
she was on the ground with Wrighton, she grabbed the knife and
“stabbed [Wrighton] once.” Moreover, we observe that the jury was
essentially instructed to consider the gravamen of what the
requested instructions addressed, the thoroughness of the law
enforcement investigation. The trial court provided Patten Jury
Instructions for Burden of Proof and Reasonable Doubt, 101.10;
Credibility of Witness, 101.15; Weight of the Evidence, 101.20; and
Testimony of Interested Witness, 104.20. Furthermore, defense
counsel's examination of police officers questioned the
completeness of the law enforcement investigation. And there is no
assertion on appeal that counsel was prohibited from making closing
arguments that the investigation was incomplete or not thorough,
and that this should be considered in their deliberations indeciding what occurred. We conclude that the trial court's
decision to deny defendant's requested jury instructions would not
have impacted the outcome of the trial and did not constitute plain
error. This assignment of error is overruled.
Defendant next argues that the trial court erred by permitting
Captain Williams to testify as a character witness for Wrighton.
With respect to this argument, however, defendant has failed to
comply with
N.C.R. App. P. 10(c)(1)
:
[e]ach assignment of error shall, so far as
practicable, be confined to a single issue of
law; and shall state plainly, concisely and
without argumentation the legal basis upon
which error is assigned. An assignment of
error is sufficient if it directs the
attention of the appellate court to the
particular error about which the question is
made[.] . . .
“'Rule 10 allows our appellate courts to fairly and
expeditiously review the assignments of error without making a
voyage of discovery through the record in order to determine the
legal questions involved.'” Walker v. Walker, 174 N.C. App. 778,
780, 624 S.E.2d 639, 640-41 (2005) (quoting Rogers v. Colpitts, 129
N.C. App. 421, 422, 499 S.E.2d 789, 790 (1998)), disc. review
denied, 360 N.C. 491, 632 S.E.2d 774 (2006) (internal quotation
marks omitted). “Our courts have been clear to articulate that
absent a specific legal basis, an assignment of error is deemed
abandoned. The legal basis need not be particularly polished; it
need only put the appellee and this Court on notice of the legal
issues that will be contested on appeal.” Collins v. St. George
Physical Therapy, 141 N.C. App. 82, 89, 539 S.E.2d 356, 361-62(2000) (citations omitted). “[A]ssignments of error [that are]. .
. broad, vague, and unspecific . . . do not comply with the North
Carolina Rules of Appellate Procedure[.]” In re Appeal of Lane
Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002).
In the instant case, defendant assigned as error the
following:
The court erred when it overruled the
Defendant's objection to the State's question
to Captain Williams about whether he was
familiar with Tony Wrighton's reputation in
the community.
This assignment of error fails to articulate a particular
rationale for why the trial court's actions were in error.
Although we deem this assignment of error abandoned, we nonetheless
observe that defendant's argument must fail. Defendant's central
argument is not that Williams' testimony violated certain rules of
evidence, but that Williams should not have been permitted to give
testimony about Wrighton's reputation for peacefulness because it
presented a “conflict of interest” for him. Defendant reasons
that, because Williams was a law enforcement officer who is
responsible for the impartial execution of investigative duties, he
should not have been permitted to provide his “subjective” opinion
about an individual's reputation. The trial court, according to
defendant, should have required the State to find a lay witness
other than a law enforcement officer to testify about Wrighton's
reputation for peacefulness. Defendant cites only Coley v. Garris,
87 N.C. App. 493, 361 S.E.2d 427 (1987), and Tyndall v. Harvey C.
Hines Co., 226 N.C. 620, 39 S.E.2d 828 (1946), civil casesconcerning law enforcement officers' testimony about the speed of
vehicles when they did not observe the vehicles moving, for this
argument. See N.C. Gen. Stat. § 8C-1, Rule 701 (2005)(“Opinion
testimony by lay witness”). No fair reading of these authorities
supports defendant's essential argument that Williams' opinion
testimony was not proper, and these authorities do not support
defendant's novel argument that a “conflict of interest” makes
otherwise admissible testimony inadmissible.
No error.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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