State v. Willis

206 S.E.2d 729 (1974) 22 N.C. App. 465

STATE of North Carolina
v.
Henry WILLIS, Jr., and Tyrone Williams.

No. 7426SC495.

Court of Appeals of North Carolina.

July 17, 1974.

Atty. Gen. Robert Morgan by Associate Atty. John R. Morgan, Raleigh, for the State.

Arthur Goodman, Jr., and Howard J. Greenwald, Charlotte, for defendant Willis.

J. Reid Potter, Charlotte, for defendant Williams.

MORRIS, Judge.

Both defendants assign error to the above quoted portion of the court's instruction to the jury. It is elementary that the law is that the jury is not to infer guilt from the fact that the defendant neither testifies nor presents evidence. G.S. § 8-54. Whether by error of the reporter or inadvertence of the court, the record before us clearly shows an erroneous instruction that,

"The fact that neither Willis nor Williams offered testimony is to be regarded to their prejudice in any respect."

The court further instructed that, "The burden is on the State of North Carolina from the beginning to the end of this trial." The court had previously instructed that the defendants were not obligated to offer testimony or to establish their innocence. He further instructed that defendants were presumed innocent, and they could elect whether to take the stand.

Thus, it appears that the erroneous instruction was a mere slip of the tongue, and that the court intended to say, "(the failure to testify) is not to be regarded to their prejudice." A lapsus linguae in the instruction will not be held to be prejudicial error if not called to the attention of the court and if it does not appear that the jury could have been prejudiced thereby. State v. Gray, 268 N.C. 69, 150 S.E.2d 1 (1966), cert. denied, 386 U.S. 911, 87 S. Ct. 860, 17 L. Ed. 2d 784.

"The charge to the jury must be considered as a whole, in the same way connected as given to the jury with the presumption that the jury did not overlook any portion of it and if, when so construed, it presents the law fairly and correctly, there is no ground for reversal, although some of the expressions, when standing alone, may be regarded as erroneous." State v. Humphrey, 13 N.C. App. 138, 142, 184 S.E.2d 902, 904 (1971).

Defendants further contend that it was error for the court to instruct—absent request—on their failure to testify. While it is the better practice to give no instruction in such a case, there is no error in giving an unrequested instruction if it correctly states the law. State v. Potter, 20 N.C. App. 292, 201 S.E.2d 205 (1973).

We cannot sustain defendant Willis' contention that his motion for nonsuit should have been granted on the ground that no competent evidence tended to show that he was one of the robbers. This position is grounded on the uncertainty of Wilbert Brown's identification of Willis. On voir dire the court made findings of fact based on competent evidence and ruled that the identification was not tainted. Defendant Willis brings forward no exception to this ruling. The testimony of Brown that he did not see the features of Willis' face and that he was not able to identify Willis without the aid of a jacket and a hat bears only on the weight, not the admissibility of the testimony. State v. Bridges, 266 N.C. 354, 146 S.E.2d 107 (1966). Under the well-established test for nonsuit, the evidence against defendant Willis was ample for the jury.

Defendant Willis assigns error to the denial of his motion for mistrial. It is his contention that he was prejudiced by an extra-judicial statement of a young girl to Mrs. Wibert Brown that, "She had a baby by Henry Willis and she said her mother knew my husband and she wanted him to call her." Defendant contends that without this testimony, the jury would have a reasonable doubt as to the guilt of Willis. As we have stated, the testimony of Wilbert Brown identifying Willis as his assailant is sufficient for submission to the jury. The extra-judicial statement does not strengthen the State's position relative to the sufficiency of the evidence. Even if the admission of this evidence be error, defendant has not shown that he was prejudiced. This assignment of error is therefore overruled.

Defendant Williams likewise assigns error to the denial of his motion for mistrial. He contends that he was prejudiced by the fact that the jury was allowed to hear another jury render its verdict in a previous case. Defendant has neither shown prejudice nor offered authority. We therefore overrule this assignment of error.

No error.

BRITT and BALEY, JJ., concur.