State v. Robinson

349 S.E.2d 317 (1986)

STATE of North Carolina
v.
Carlous R. ROBINSON.

No. 864SC390.

Court of Appeals of North Carolina.

October 21, 1986.

Atty. Gen. Lacy H. Thornburg by Sp. Deputy Atty. Gen. Guy A. Hamlin, Asheville, for the State.

Billy G. Sandlin, Jacksonville, for defendant-appellant.

ARNOLD, Judge.

Defendant contends the trial court erred in denying his request for a transcript of his sister's trial. We disagree.

It is established that all defendants, including indigent parties, are entitled to transcripts when appealing to a higher court or upon retrial when necessary for an effective defense. See State v. Reid, 312 N.C. 322, 321 S.E.2d 880 (1984); State v. Rankin, 306 N.C. 712, 295 S.E.2d 416 (1982); State v. McNeill, 33 N.C.App. 317, 235 S.E.2d 274 (1977). Defendant, however, is asking for the transcript of another. There is no statute or precedent which requires that a defendant be given a transcript of another's trial, regardless of the fact that the other party is a codefendant. We decline to establish such a rule.

Defendant next contends that the trial court erred in instructing the jury on acting in concert. Before the court can instruct the jury on the doctrine of acting in concert, the State must present evidence tending to show two factors: (1) that defendant was present at the scene of the crime, and (2) that he acted together with another who did acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime. State v. Joyner, 297 N.C. 349, 255 S.E.2d 390 (1979); State v. Woods, 77 N.C.App. 622, 336 S.E.2d 1 (1985). Defendant was with the deceased from the beginning of the "ceremony" until he was declared dead by the rescue squad. Therefore, the first requirement is satisfied.

Defendant argues that the second requirement is not met because there can be no common plan or scheme to commit a culpably negligent act. We disagree.

There was evidence that defendant and his sister choked Dennis James Taylor, Jr. until he was crying out and vomiting. These acts constitute culpable negligence. Defendant and his sister committed these culpably negligent acts pursuant to the common purpose of ridding the child of demons. The second requirement is satisfied. Because both requirements were met in the case sub judice, the trial court properly instructed the jury on acting in concert.

Defendant next argues that the trial court erred in denying his request that the jury be instructed that Dennis James Taylor, Sr. was an interested witness. We disagree.

The trial court instructed the jury in the following manner:

You may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take the interest of the witness into account. If after doing so you believe the testimony of the witness in whole or in part, you will treat that which you believe the same as any other believable evidence.

We find no error in the judge's instruction on this matter.

Defendant lastly contends that the trial court erred in not allowing defendant's motion for judgment as of nonsuit or to dismiss the charges at the close of the State's evidence and at the close of all evidence and by denying defendant's motion to set aside the verdict. We have reviewed the contentions above and find them to be without merit.

No error.

HEDRICK, C.J., and ORR, J., concur.