{ "id": 8523316, "name": "STATE OF NORTH CAROLINA v. DAVID STEVEN HARPER", "name_abbreviation": "State v. Harper", "decision_date": "1993-11-16", "docket_number": "No. 935SC21", "first_page": "636", "last_page": "639", "citations": [ { "type": "official", "cite": "112 N.C. App. 636" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "434 S.E.2d 588", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "parenthetical": "citing Bryant with approval" } ], "opinion_index": 0 }, { "cite": "334 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532051 ], "year": 1993, "pin_cites": [ { "parenthetical": "citing Bryant with approval" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0440-01" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "378" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "432 S.E.2d 291", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1993, "pin_cites": [ { "page": "339" }, { "page": "295" }, { "page": "295" } ], "opinion_index": 0 }, { "cite": "334 N.C. 333", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2530961 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0333-01" ] }, { "cite": "417 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2501748 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0559-01" ] }, { "cite": "498 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217574 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" } ], "opinion_index": 0, "case_paths": [ "/us/498/0039-01" ] } ], "analysis": { "cardinality": 519, "char_count": 8187, "ocr_confidence": 0.722, "pagerank": { "raw": 2.5916105598991863e-07, "percentile": 0.8184110347746143 }, "sha256": "dd45c15db8090af5fc3a8dc67efc3ba1daddb28a6aa6cb44ef532fdedf53f354", "simhash": "1:0e3f237255194f09", "word_count": 1406 }, "last_updated": "2023-07-14T15:48:17.524906+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and JOHN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DAVID STEVEN HARPER" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nDefendant\u2019s first assignment of error is that the trial court erred in its instructions on reasonable doubt. The trial court\u2019s instructions on reasonable doubt were as follows:\nA reasonable doubt is not a vain, imaginary or fanciful doubt. It is a sane, rational doubt arising out of the evidence or the lack of evidence or from the deficiency of the evidence, as the case may be.\nWhen it is said that the jury must be satisfied of the defendant\u2019s guilt beyond a reasonable doubt, it is meant that they must be fully satisfied or entirely convinced or satisfied to a moral certainty of the truth of the charge.\nIf after considering, comparing and weighing all of the evidence the minds of the jurors are left in such a condition that they cannot say that they have an abiding faith to a moral certainty in the defendant\u2019s guilt,- then they have a reasonable doubt. Otherwise not.\nA reasonable doubt, as that term is employed in the administration of criminal law, is an honest, substantial misgiving generated by an insufficiency of proof, an insufficiency which fails to convince your judgment and conscience and satisfy your reasoning as to the guilt of the accused.\nIt is not a doubt suggested by the ingenuity of lawyers or by the jury\u2019s own ingenuity which is not legitimately warranted by the testimony. It is not a doubt born of merciful inclination or disposition to permit the defendant to escape the penalty of the law or prompted by sympathy for a defendant or those who may be connected with him.\n(Emphasis added.) Defendant equates the trial court\u2019s instruction on reasonable doubt to the instruction given in State v. Montgomery, in which the majority held that the trial court\u2019s reasonable doubt instruction violated the requirements of the Due Process Clause as interpreted by the United States Supreme Court in Cage v. Louisiana, 498 U.S. 39, 112 L.Ed.2d 339 (1990) (per curiam). State v. Montgomery, 331 N.C. 559, 417 S.E.2d 742 (1992). The trial court in Montgomery used the terms \u201csubstantial misgiving\u201d and \u201cmoral certainty\u201d in combination with its reasonable doubt instruction, thereby suggesting a higher degree of doubt than is required for acquittal under the reasonable doubt standard. Id. Although the defendant in Montgomery failed to object to the instruction, the Court nevertheless held that the issue was properly preserved for appellate review because defendant\u2019s written request for the pattern jury instruction on reasonable doubt, N.C.P.I. \u2014Crim. 101.10 (1974), met the requirements of Appellate Rule 10(b)(2). Id.\nThis issue has since been addressed again by our Supreme Court in State v. Bryant, 334 N.C. 333, 432 S.E.2d 291 (1993). Recognizing that only two Justices in the majority reached the issue of the constitutionality of the reasonable doubt instruction, the Court did not consider Montgomery to be binding precedent. Id. The Court nevertheless held that the trial court\u2019s instruction, which was essentially identical to the reasonable doubt instruction in Montgomery, violated Cage. Id. Like defendant in the case at bar, however, the defendant in Bryant failed to object to the instruction at trial; therefore, the State argued that the alleged infirmity in the instruction must be addressed in terms of \u201cplain error.\u201d Id. at 339, 432 S.E.2d at 295. The plain error rule as set forth in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983) states:\n[T]he plain error rule ... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \"fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nId. at 660, 300 S.E.2d at 378 (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982). (footnotes omitted) (emphasis in original)). In light of the plain error analysis with regard to the reasonable doubt instruction at issue, the Court stated that \u201cCape error is fundamental error. A jury verdict rendered in violation of Cage is not a jury verdict within the meaning of the Sixth Amendment. Sullivan v. Louisiana, \u2014 U.S. at \u2014, 124 L.Ed.2d at 188. Clearly, convicting a person of first-degree murder in violation of Cage meets the test of plain error.\u201d Bryant, 334 N.C. at 340, 432 S.E.2d at 295. The defendant therefore was entitled to a new trial based on the Cage error. See also, State v. Williams, 334 N.C. 440, 434 S.E.2d 588 (1993) (citing Bryant with approval).\nThe reasonable doubt instruction stated above is virtually identical to the instructions given in Bryant, Montgomery and Cage. And even though defendant failed to object to the instruction, we are bound by these cases and must say, according to our Supreme Court, that there is plain error, and defendant is entitled to a new trial.\nNew Trial.\nJudges WYNN and JOHN concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Assistant Attorney General D. David Steinbock, for the State.", "Nora Henry Hargrove for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID STEVEN HARPER\nNo. 935SC21\n(Filed 16 November 1993)\nCriminal Law \u00a7 762 (NCI4th|\u2014 reasonable doubt instruction \u2014 moral certainty \u2014 honest, substantial misgiving \u2014 error\nThe trial court\u2019s instructions on reasonable doubt amounted to plain error entitling defendant to a new trial where the court used the terms \u201cmoral certainty\u201d and \u201chonest, substantial misgiving\u201d in its instructions, since those terms suggested a higher degree of doubt than was required for acquittal under the reasonable doubt standard.\nAm Jur 2d, Trial \u00a7 832.\nAppeal by defendant from judgments entered 11 August 1992 by Judge William C. Griffin in New Hanover County Superior Court. Heard in the Court of Appeals 4 October 1993.\nDefendant was convicted of first degree burglary, first degree rape and first degree sex offense. The jury found defendant guilty of all charges, and he was sentenced to two consecutive life sentences plus fifty years for the burglary conviction.\nThe State\u2019s evidence showed the following. The victim testified that in the early morning hours of 2 August 1991 she and her two year old son were in bed together asleep. She woke up at approximately 1:30 or 2:00 a.m. because someone was on top of her. When the victim tried to push the person off, he began beating her in the head. She yelled for help and was told to shut up. The person asked if she had any money, and when she responded that she had only three or four dollars, he began beating her in the head again. He then took off her underwear and performed oral sex on her and forced her to perform oral sex on him.\nThe victim\u2019s son woke up and started crying. The assailant hit the victim again and told her to make her son be quiet or he would kill her. She asked him if she could fix a bottle so that her son would go back to sleep. The assailant held her arms behind her, and she felt a cold object against her head. He told her if she screamed or anything \u201cI will blow your head off.\u201d\nAfter fixing her son\u2019s bottle, the victim laid on the couch with him. The assailant came up behind her and hit her in the head again. She turned as he threatened her again and saw his face. Hitting her again, he told her to turn around or he would kill her.\nHer son was still crying, so the victim took him back to his room and laid on the floor with him. The assailant performed oral sex on her for a second time and had intercourse with her. Then he put a sheet over her and her son and told her not to move. After a few minutes had passed, she got up and drove to the hospital. She received stitches in several places on her head and was given one or two shots. She stayed in the emergency room for approximately four hours.\nAttorney General Michael F. Easley, by Assistant Attorney General D. David Steinbock, for the State.\nNora Henry Hargrove for defendant-appellant." }, "file_name": "0636-01", "first_page_order": 666, "last_page_order": 669 }