State v. Andrews , 131 N.C. App. 370 ( 1998 )

507 S.E.2d 305 (1998)

STATE of North Carolina
v.
Ricky Dean ANDREWS.

No. COA98-107.

Court of Appeals of North Carolina.

November 17, 1998.

Attorney General Michael F. Easley by Assistant Attorney General John G. Barnwell, for the State.

Paul Pooley, Durham, for defendant-appellant.

HORTON, Judge.

Defendant contends the trial court erred in: (I) finding Kori competent to testify; (II) admitting the testimony of Reverend Knight; and (III) failing to properly instruct the jury.

I.

Kori was born on 4 September 1992. She was four years old at the time of the incident and almost five years old at the time of trial. After a voir dire hearing, Kori was allowed to testify concerning her recollection of the incidents on 12 October 1996. Defendant did not object to her competency as a witness at trial.

Determining whether a child is competent to testify is a matter within the sound discretion of the trial court. State v. Jenkins, 83 N.C.App. 616, 621, 351 S.E.2d 299, 302 (1986), cert. denied, 319 N.C. 675, 356 S.E.2d 791 (1987). Furthermore, the trial court's decision will not be reversed on appeal unless it is shown that it could not have been the result of a reasoned decision. State v. Spaugh, 321 N.C. 550, 554, 364 S.E.2d 368, 371 (1988). When exercising its discretion, the trial court "must rely on [its] personal observation of the child's demeanor and responses to inquiry on voir dire examination." State v. Fearing, 315 N.C. 167, 174, 337 S.E.2d 551, 555 (1985). "[T]he vast majority of cases in which a child witness' competency has been addressed have resulted in the finding, pursuant to an informal voir dire examination of the child before the trial judge, that the child was competent to testify." Jenkins, 83 N.C.App. at 621, 351 S.E.2d at 302-03.

N.C. Gen.Stat. § 8C-1, Rule 601(b) (1992) provides that "[a] person is disqualified to testify as a witness when the court determines that [she] is ... (2) incapable of understanding the duty of a witness to tell the truth." In State v. Jones, 310 N.C. 716, 722, 314 S.E.2d 529, 533 (1984), the North Carolina Supreme Court cited as evidence of competency that the child knew that if she did not tell the truth she would get a spanking.

In the instant case, the trial court determined during a voir dire hearing that Kori was competent to testify. During voir dire, Kori stated she would tell the truth, but then seemed confused and said it was not good to tell the truth. Thereafter, the prosecutor asked additional questions to determine whether Kori knew what it meant to tell the truth. The prosecutor asked Kori if it was true to say her blue dress was red, and she responded that it was not the truth. Additionally, she said she knew she would get a spanking if she did something wrong and she knew it was wrong to tell a lie. Furthermore, Kori told the prosecutor that she knew she was in court to talk about defendant shooting her mother and she wanted to tell the truth about the incident. Thus, the trial court was correct when it concluded that Kori was competent to testify.

II.

In addition, defendant contends the trial court, on its own motion, should have refused to allow the testimony of Reverend Knight, minister of the First Pentecostal Holiness Church in Lexington and the chaplain for the sheriff's office. The sheriff's office paged Reverend Knight to come to the jail to counsel defendant. Defendant contends the admission of the testimony was plain error.

The plain error rule requires defendant to show that he would not have been convicted if the error had not been made or that a miscarriage of justice would result if the error is not corrected. State v. Odom, 307 N.C. 655, 660-61, 300 S.E.2d 375, 378 (1983). In the instant case, defendant has not met his burden.

Our Supreme Court has held that the wording of N.C. Gen.Stat. § 8-53.2 has two requirements for the clergyman privilege to apply, including: (1) defendant must be seeking the counsel and advice of his minister; and (2) the information must be entrusted to the minister as a confidential communication. State v. West, 317 N.C. 219, 223, 345 S.E.2d 186, 189 (1986). In West, the minister was a personal friend of defendant and initiated contact with defendant instead of defendant seeking the advice of the minister. Thus, the Supreme Court concluded the privilege did not apply.

However, the instant case is distinguishable from the West case because the sheriff's office called Reverend Knight to talk to defendant because of the possibility of defendant being suicidal. Based on the potential conflict of interest because Reverend Knight worked for the sheriff's office, the privilege would be applicable to protect defendant. Reverend Knight, as the chaplain for the sheriff's office, was aware of defendant's privilege and asked defendant whether the Reverend could divulge the information to the officers. Defendant talked to Reverend Knight and agreed afterwards to allow Reverend Knight to share the information with the officers.

At trial, defense counsel initially objected to Reverend Knight being able to testify based on privilege, but withdrew his objection after defendant stated he waived that privilege. The trial court questioned defendant to make sure he understood that he possibly had a privilege. The trial court specifically asked defendant whether he understood that the Reverend was paged by the sheriff's department to come talk to defendant, which could possibly keep it from being admissible. Defendant said he understood and still wanted to waive his privilege. N.C. Gen.Stat. § 8-53.2 (1986) provides that the statute "shall not apply where communicant in open court waives the privilege conferred." Therefore, the trial court did not err when it allowed Reverend Knight to testify.

III.

Finally, defendant contends the trial court failed to properly instruct the jury: (A) on the circumstances from which it could infer premeditation and deliberation; and (B) on false, contradictory, and conflicting statements. Defendant failed to object to these instructions at trial. Thus, the plain error rule requires defendant to show that he would not have been convicted if the error had not been made or that a miscarriage of justice would result if the error is not corrected. Odom, 307 N.C. at 660-61, 300 S.E.2d at 378.

(A)

Defendant claims the trial court committed plain error in the jury instructions when it allowed examples of circumstances from which premeditation and deliberation may be inferred, which were not supported by the evidence. For example, defendant claims the facts of this case do not disclose a "vicious and brutal" killing, and there is no showing that defendant used excessive force. However, our Supreme Court has already stated that these examples are offered only for illustrative purposes. State v. Leach, 340 N.C. 236, 241, 456 S.E.2d 785, 789 (1995). Thus, these examples did not amount to plain error.

Further, defendant claims the trial court committed plain error when it said "lack of provocation by the defendant" rather than "lack of provocation by the victim" in the jury instructions. However, "the trial court's charge to the jury must be construed contextually and isolated portions of it will not be held prejudicial error when the charge as a whole is correct." State v. Boykin, 310 N.C. 118, 125, 310 S.E.2d 315, 319 (1984). In fact, a "mere slip of the tongue by the trial judge in his charge to the jury which is not called to the court's attention at the time it is made will not constitute prejudicial error when it is apparent from the record that the jury was not misled thereby." State v. Simpson, 303 N.C. 439, 450, 279 S.E.2d 542, 549 (1981). A review of the record in the instant case shows that the trial court had a mere lapsus linguae, and the jury was not misled thereby. Thus, this assignment of error is overruled.

(B)

In addition, defendant argues the trial court committed plain error in its jury instructions regarding false, contradictory, and conflicting statements. The trial court gave the following instruction:

Now, the State contends and, of course, the defendant denies that the defendant made false, contradictory and conflicting statements. If you find that the defendant made such statements, they may be considered by you with the circumstances tending to reflect the mental process the person possessed of a guilty conscience seeking to divert suspicion or to exculpate himself, and you shall consider this evidence along with all other believable evidence in this case.

If, however, you find the defendant made such statements and they do not create a presumption of guilt and such evidence standing alone is not sufficient to establish guilt, such evidence may not be considered as tending to show premeditation and deliberation.

As already noted, the jury instructions must be construed contextually. Boykin, 310 N.C. at 125, 310 S.E.2d at 319. A review of this instruction shows the trial court essentially conveyed the appropriate pattern jury instruction. The given instruction enabled the jury to determine that the statements do not create a presumption of guilt and that the contradictory statements alone are not sufficient to show guilt. Defendant has not met his burden of showing there would have been a different result in the outcome of this case by merely pointing out in the transcript that appropriate punctuation marks for the instructions are missing. Thus, this assignment of error is overruled.

For the foregoing reasons, the trial court's decision was free from prejudicial error.

No error.

JOHN C. MARTIN and TIMMONS-GOODSON, JJ., concur.