State v. Fennell

297 S.E.2d 393 (1982)

STATE of North Carolina
v.
Harley Lewis FENNELL.

No. 384A82.

Supreme Court of North Carolina.

December 7, 1982.

Rufus L. Edmisten, Atty. Gen. by Thomas H. Davis, Jr., Asst. Atty. Gen., Raleigh, for the State.

James H. Gold, Asst. Appellate Defender, Office of the Appellate Defender, Raleigh, for defendant-appellant.

MEYER, Justice.

It is defendant's contention that he is entitled to a new trial for the trial judge's failure to specify in his charge to the jury which of the several acts of fellatio the jury was to consider in determining his guilt. Defendant did not object to the instructions as given. Rule 10(b)(2) of the North Carolina Rules of Appellate Procedure, in effect at the time of defendant's trial, provides:

Jury Instructions; Findings and Conclusions of Judge. No party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury and, on request of any party, out of the presence of the jury. In the record on appeal an exception to instructions given the jury shall identify the portion in question by setting it within brackets or by any other clear means of reference. An exception to the failure to give particular instructions to the jury, or to make a particular finding of fact or conclusion of law which finding or conclusion was not specifically requested of the trial judge, shall identify the omitted instruction, finding or conclusion by setting out its substance immediately following the instructions given, or findings or conclusions made. A separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error.

Defendant would first have us overlook his failure to comply with this rule because, he contends, the record does not disclose that the trial court complied with Rule 21 of the General Rules of Practice for the superior and district courts in that the instruction conference was not recorded. Rule 21 requires a jury instruction conference for all trials occurring after 15 September 1981, and provides that

[a]t the close of the evidence (or at such earlier time as the judge may reasonably direct) in every jury trial, civil and criminal, in the superior and district courts, the trial judge shall conduct a conference on instructions with the attorneys of record (or party, if not represented by counsel). Such conference shall be out of the presence of the jury, and shall be held for the purpose of discussing the proposed instructions to be given to the jury. An opportunity must be given to the attorneys (or party if not represented by counsel) to request any additional instructions or to object to any of those instructions proposed by the judge.

(Emphasis added).

Defendant did not request a recorded conference pursuant to G.S. § 15A-1231. Defendant concedes, and the record confirms, that an instruction conference was held at the close of all the evidence. The conference was held in chambers and because it was not recorded defendant argues that there is no way to determine whether the trial judge tendered his proposed charge so that counsel could read it over and determine if he had any objections. We find the argument unpersuasive. Rule 21 of our General Rules of Practice does not require that the instruction conference be recorded or that the judge's proposed charge be reduced to writing and submitted to counsel. By the very wording of the rule itself, it is clear that the instruction conference contemplated by Rule 21 shall be held "for the purpose of discussing the proposed instructions" and providing an opportunity for counsel to object to any of the instructions proposed by the judge or to request additional instructions.

Where the record is silent upon a particular point, it will be presumed that the trial court acted correctly in performing his judicial acts and duties. See State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971); State v. Gaiten, 277 N.C. 236, 176 S.E.2d 778 (1970). We therefore conclude, in the absence of any evidence whatsoever to the contrary, that the trial judge fully complied with Rule 21 in conducting the instruction conference.

Rule 10(b)(2) of our Rules of Appellate Procedure requiring objection to the charge before the jury retires is mandatory and not merely directory. The reason for the rules was succinctly stated by Justice Stacy in Pruitt v. Wood, 199 N.C. 788, 789-90, 156 S.E. 126, 127 (1930):

[T]he rules of this Court, governing appeals, are mandatory and not directory. They may not be disregarded or set at naught (1) by act of the Legislature, (2) by order of the judge of the Superior Court, (3) by consent of litigants or counsel. The Court has not only found it necessary to adopt them, but equally necessary to enforce them and to enforce them uniformly.

... The work of the Court is constantly increasing, and, if it is to keep up with its docket, which it is earnestly striving to do, an orderly procedure, marked by a due observance of the rules, must be maintained. When litigants resort to the judiciary for the settlement of their disputes, they are invoking a public agency, and they should not forget that rules of procedure are necessary, and must be observed, in order to enable the courts properly to discharge their duties.

(Citations omitted).

In the absence of error so fundamental that we would invoke our Rule 2 power to suspend the rules and consider defendant's assignment of error, we, too, are bound by the Rules of Appellate Procedure, and will not review matters not properly before us.

Defendant, however, contends that the error alleged is so "fundamental" that a new trial is required despite defense counsel's failure to lodge a contemporaneous objection. We disagree. In view of defendant's life sentence, we have carefully reviewed the judge's charge and find no error so "plain" or "fundamental" as to require a new trial. In the context of the instructions given, including the summary of the evidence and the statement of applicable law, we find that the judge's charge sufficiently apprised the jury of which act of fellatio they were to consider in determining defendant's guilt.

Defendant brings forth no other assignment of error; nevertheless, we have carefully reviewed the record on appeal and conclude that defendant received a fair trial free of prejudicial error.

There is substantial evidence of each essential element of the offense charged and of defendant's being the perpetrator of the offense. Thus, the evidence was sufficient, as a matter of law, to go to the jury. State v. Woods, ___ N.C. ___, 297 S.E.2d 574 (1982); State v. Earnhardt, 307 N.C. 63, 296 S.E.2d 649 (1982); State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).

NO ERROR.