State v. Robinson

253 S.E.2d 311 (1979) 40 N.C. App. 514

STATE of North Carolina
v.
Michael Edward ROBINSON.

No. 7815SC1074.

Court of Appeals of North Carolina.

April 3, 1979.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Jo Anne Sanford, Raleigh, for the State.

Grady Joseph Wheeler, Jr., Graham, for defendant appellant.

MORRIS, Chief Judge.

Defendant's first argument brought forward on appeal assigns error to the trial court's summary of the evidence. He alleges that the trial judge failed to state any contentions of the defendant with respect to his summary of evidence applying to the charges of assault on an officer. It is apparent to this Court that the trial court did not summarize the evidence in the form of contentions of the State and contentions of the defendant. The summary of the evidence is brief and reviews evidence which is essentially uncontroverted by either party. The State accurately points out that the court's brief summary of the evidence omitted evidence favorable to the State just as it omitted evidence favorable to the defendant. The evidence omitted favorable to the State included that relating to the general uncooperative conduct of the defendant and the abusive language used toward Officer Pryor. Similarly, the trial court failed to underscore certain testimony that the officer had clamped the handcuffs on so tightly as to hurt defendant, and that this pain precipitated the affray.

It has long been the accepted practice in this State, and appropriately so, that when counsel is unsatisfied with the summary of the evidence or contentions of the parties, in order to preserve the error, he must bring this to the court's attention before the jury is sent to deliberate on the issues. This affords the trial court the opportunity to correct any misstatements or to expand on its summary when this is deemed necessary. See State v. Hewett, 295 N.C. 640, 247 S.E.2d 886 (1978); State v. Watson, 294 N.C. 159, 240 S.E.2d 440 (1978). There are, nevertheless, circumstances where no objection is required in order to preserve the error on appeal. See e. g., State v. Moore, 31 N.C.App. 536, 230 S.E.2d 184 (1976) (misstatement of material point including assumption of evidence entirely unsupported by the evidence); State v. Hewett, supra (trial court states fully contentions of State but fails to state any contentions of defendant). The summary of the evidence was unquestionably brief. However, G.S. 1-180 (now G.S. 15A-1232) only requires that the trial court state the evidence to the extent necessary to explain the application of the law to the evidence. It is incumbent upon defense counsel who desires more extensive instructions on the evidence to request them at trial. State v. Watson, supra; State v. Ford, 266 N.C. 743, 147 S.E.2d 198 (1966).

The defendant next contends that the trial court erred in failing to instruct the jury on the issue of self-defense. We do not disagree with defendant's argument that when there is sufficient evidence to present the question of self-defense the trial court must instruct the jury on that defense even in the absence of a request to do so. State v. Berry, 35 N.C.App. 128, 240 S.E.2d 633 (1978).

Similarly, there is no question that "where there is evidence tending to show the use of . . . excessive force by the law officer, the trial court should instruct the jury that the assault by the defendant upon the law officer was justified or excused if the assault was limited to the use of reasonable force by the defendant in defending himself from that excessive force." State v. Mensch, 34 N.C.App. 572, 575, 239 S.E.2d 297, 299 (1977), cert. denied, 294 N.C. 443, 241 S.E.2d 845 (1978). The trial court instructed the jury that the officers have the right to use only reasonable force to arrest a suspect and to protect themselves or another officer. He also instructed the jury that they must find beyond a reasonable doubt that defendant intentionally and without justification or excuse assaulted the officers. As in State v. Mensch, supra, the trial court instructed the jury in effect that if the officers used excessive force in effecting the arrest that defendant should be found not guilty. Judge Clark's comments on the instructions in the Mensch case are equally applicable here:

"These instructions were favorable to defendant, even more so than a general charge on self-defense which would have restricted defendant to the use of reasonable force under the circumstances." 34 N.C.App. at 574, 239 S.E.2d at 299.

In our opinion, the charge to the jury was more favorable to defendant than a specific self-defense charge. Furthermore, the traditional rule in assault cases is that the right to self-defense is not available to a person who aggressively and willfully enters into a fight unless he first abandons the fight, withdraws from it, and gives notice to his adversary he has done so. State v. Marsh, 293 N.C. 353, 237 S.E.2d 745 (1977). It is not contested that Officer Pryor had the authority to place defendant under arrest and use handcuffs to maintain custody. See generally G.S. 15A-401. Therefore, defendant was not justified in objecting to, or resisting, being handcuffed. This resistance precipitated the conflict, and he may not now avail himself of the right to defend himself from acts he brought upon himself. See generally Anno., 77 A.L.R. 3d 281 (1977).

Defendant next contends that the trial court improperly expressed an opinion on the evidence by defining assault in terms of the acts defendant allegedly committed. The instruction in question follows:

"Now an assault is simply an offer or an attempt to inflict an injury upon another, such offer or attempt being without the permission of the man to whom the offer is made. The striking of one person by another with the fist, the flinging of a person up against a wall, is in fact an assault, if you find it happened."

In our opinion, the trial court was properly following the mandate of G.S. 1-180 (now G.S. 15A-1232) in applying the law to the facts. Moreover, defendant does not himself deny "the flinging of a person (Officer Clemmons) up against a wall." His primary defense was that of self-defense as discussed above. This assignment of error is overruled.

Finally, defendant contends that the trial court committed error by instructing the jury on careless and reckless driving under G.S. 20-140(a). Defendant argues, and we agree, that the trial judge was required to charge defendant on the same offense of which he was convicted in the District Court, that being G.S. 20-140(c).

Defendant was charged in the District Court with drunken driving, G.S. 20-138, and convicted of the lesser included offense of reckless driving as the result of operating a vehicle while directly and visibly affected by the consumption of intoxicating liquor, G.S. 20-140(c). Upon trial de novo in the Superior Court, the court instructed the jury on the elements of reckless driving under G.S. 20-140(a). A jury verdict was returned finding defendant guilty of reckless driving. The judgment does not reflect under which section defendant was convicted, although it is clear from the record that the instructions did not apply to G.S. 20-140(c).

Reckless driving is a misdemeanor. G.S. 20-140; G.S. 20-176. The district court has original exclusive jurisdiction of misdemeanors except as otherwise provided by statute. G.S. 7A-272. The jurisdiction of the superior court to try misdemeanor cases is characterized as "derivative jurisdiction" and arises primarily upon appeal for trial de novo from the district court. G.S. 7A-271; State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973). Furthermore, our State Constitution provides in essence "`that the Superior Court has no jurisdiction to try an accused for a specific misdemeanor on the warrant of an inferior court unless he is first tried and convicted for such misdemeanor in the inferior court and appeals to the Superior Court from the sentence pronounced against him by the inferior court on his conviction for such misdemeanor.' "State v. Guffey, 283 N.C. at 96, 194 S.E.2d at 829 (quoting State v. Hall, 240 N.C. 109, 81 S.E.2d 189 (1954)). See also State v. Craig, 21 N.C.App. 51, 203 S.E.2d 401 (1974).

The offense of reckless driving under G.S. 20-140(c) should, in our opinion, be treated as a specific misdemeanor. The distinction between the types of reckless driving has been recognized by the legislature. In State v. Craig, supra, this Court determined that a conviction under the reckless driving statute which applied to the case under consideration did not constitute a lesser included offense of drunken driving under G.S. 20-138. Subsequently, the legislature amended G.S. 20-140 to add what is now subsection (c), and specifically provided that subsection (c) was to be considered a lesser included offense of drunken driving. The legislature did not, however, change the rule in State v. Craig that reckless driving under G.S. 20-140(a) is not a lesser included offense of drunken driving.

We hold that the Superior Court erred in instructing on G.S. 20-140(a), and should have instructed the jury on the elements of G.S. 20-140(c), the misdemeanor of which he was convicted in District Court. We cannot say that, because the sentence imposed in this case, 78CRS117, was to run concurrently with another, there has been no prejudice. A conviction for this offense results in the assessment of four points against defendant's driver's license. G.S. 20-16(c). Because of the court's failure properly to instruct the jury with respect to G.S. 20-140(c), there must be a new trial as to the charge of reckless driving.

North Carolina Rules of Appellate Procedure, Rule 28(b), provides that "appellant's brief in any appeal shall contain, . . . (2) A concise statement of the case. This shall indicate the nature of the case and summarize the course of proceedings up to the taking of the appeal before the court. It should additionally contain a short, nonargumentative summary of the essential facts underlying the matter in controversy where this will be helpful to an understanding of the questions presented for review." (Emphasis supplied.) The record in this case contained a narration of the testimony at trial. This narration consisted of 18½ pages. The appellant's brief also contained a narration of the evidence consisting of 11½ pages entitled "Statement of Case". The narration of testimony in the record was properly done and entirely sufficient for the Court to understand the evidence presented. The additional narration in the brief was completely unnecessary, but additional time of the Court was required in reading material which was neither necessary nor helpful in understanding the question presented for review. Counsel for defendant will be personally taxed with costs in the amount of $13.00 to cover the printing of a portion of the statement of case.

No. 77CRS17467—no error.

No. 77CRS17468—no error.

No. 78CRS117—new trial.

CLARK and ARNOLD, JJ., concur.