{ "id": 8547907, "name": "STATE OF NORTH CAROLINA v. JOHN FRANCIS LEFFINGWELL", "name_abbreviation": "State v. Leffingwell", "decision_date": "1977-10-05", "docket_number": "No. 7712SC322", "first_page": "205", "last_page": "209", "citations": [ { "type": "official", "cite": "34 N.C. App. 205" } ], "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": "204 S.E. 2d 641", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "285 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563971 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc/285/0274-01" ] }, { "cite": "119 S.E. 2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "254 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626399 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/nc/254/0380-01" ] }, { "cite": "215 S.E. 2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564720 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0044-01" ] }, { "cite": "130 S.E. 848", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1925, "opinion_index": 0 }, { "cite": "190 N.C. 810", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615200 ], "year": 1925, "opinion_index": 0, "case_paths": [ "/nc/190/0810-01" ] }, { "cite": "23 S.E. 2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "opinion_index": 0 }, { "cite": "222 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631152 ], "year": 1943, "opinion_index": 0, "case_paths": [ "/nc/222/0520-01" ] }, { "cite": "177 S.E. 2d 389", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565057 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0345-01" ] }, { "cite": "18 U.S.C.A. \u00a7 3481", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1948, "opinion_index": 0 }, { "cite": "308 U.S. 287", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6139556 ], "weight": 6, "year": 1939, "pin_cites": [ { "page": "291" }, { "page": "292" }, { "page": "292-93" } ], "opinion_index": 0, "case_paths": [ "/us/308/0287-01" ] }, { "cite": "180 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 449", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560629 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0449-01" ] }, { "cite": "193 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "282 N.C. 572", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567109 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/282/0572-01" ] } ], "analysis": { "cardinality": 490, "char_count": 8018, "ocr_confidence": 0.825, "pagerank": { "raw": 5.918524435105418e-08, "percentile": 0.3697841071043138 }, "sha256": "870c3fa5af27087b88030506dcce6de74b5ede16b53ec668ed76e7ac5c83b496", "simhash": "1:5322392374b300df", "word_count": 1333 }, "last_updated": "2023-07-14T20:28:15.830309+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Parker and Arnold concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JOHN FRANCIS LEFFINGWELL" ], "opinions": [ { "text": "MARTIN, Judge.\nThe defendant assigns as error the refusal of the court, upon request, to charge the jury as follows: \u201cThe burden to overcome the presumption of innocence rests upon the government. The failure of any defendant to testify does not create any presumption of guilt against him. The defendant is never required to prove his innocence.\u201d The defendant offered evidence by several witnesses but he did not testify. Thus, this assignment of error raises the question of whether a non-testifying defendant has the indefeasible right, upon proper request, to have the court tell the jury in substance that his failure to take the witness stand and testify in his own behalf does not create any presumption against him. The briefs of the parties and our own research indicate that this question has not been presented to the appellate courts of this State. We note that the substantive right upon which defendant sought instruction relates to a subordinate feature of the case; failure to instruct on subordinate matters ordinarily will not be held for error unless a request for instructions has been made. State v. Rankin, 282 N.C. 572, 193 S.E. 2d 740 (1973); State v. Barbour, 278 N.C. 449, 180 S.E. 2d 115 (1971). In the case at bar, the defendant has requested the specific instruction and has done so in apt time. Upon the court\u2019s failure to charge on this circumstance, defendant preserved and now presents this question of first impression to the Court for determination.\nIn Bruno v. United States, 308 U.S. 287, 84 L.Ed. 257, 60 S.Ct. 198 (1939), the United States Supreme Court was faced with the same question. Some of Bruno\u2019s co-defendants took the witness stand. He did not. The trial court gave the following instruction:\n\u201c \u2018It is the privilege of a defendant to testify as a witness if, and only when, he so elects; and when he does testify his credibility is to be determined in the light of his interest, which usually is greater than that of any other witness, and is therefore a matter which may. seriously affect the credence that shall be given to his testimony.\u2019 \u201d 308 U.S. at 291.\nSimilar to defendant in the case at bar, defendant Bruno requested this additional instruction:\n\u201c \u2018The failure of any defendant to take the witness stand and testify in his own behalf does not create any presumption against him; the jury is charged that it must not permit that fact to weigh in the slightest degree against any such defendant, nor should this fact enter into the discussions or deliberations of the jury in any manner.\u2019 \u201d 308 U.S. at 292.\nThe trial judge declined this request, saying \u201cI feel that I\u2019ve already covered that.\u201d\nIn finding error in the trial judge\u2019s refusal to give the requested instruction, the Supreme Court stated that the Act of March 16, 1878, 20 Stat. at L. 30, Chap. 37, now 18 U.S.C.A. \u00a7 3481 (1948),\n\u201c... freed the accused in a federal prosecution from his common law disability as a witness. But Congress coupled his privilege to be a witness with the right to have a failure to exercise the privilege not tell against him.... The only way Congress could provide that abstention from testifying should not tell against an accused was by an implied direction to judges to exercise their traditional duty in guiding the jury by indicating th\u00e9 considerations relevant to the latter\u2019s verdict on the facts. [Citation omitted.] By legislating against the creation of any \u2018presumption\u2019 from a failure to testify, Congress could not have meant to legislate against the psychological operation of the jury\u2019s mind. It laid down canons of judicial administration for the trial judge to the extent that his instructions to the jury, certainly when appropriately invoked, might affect the behavior of jurors. Concededly the charge requested by Bruno was correct. The Act of March 16,1878, gave him the right to invoke it.\u201d 308 U.S. at 292-93.\nWe find the Supreme Court\u2019s interpretation of 18 U.S.C.A. \u00a7 3481 (1948) to be persuasive authority on the issue before this Court as the operative portion of the federal statute is almost identical to N.C. G.S. 8-54.\nThis Court is also guided by the authority of cases dealing with the right of the accused, upon proper request, to an instruction which calls upon the jury to scrutinize the testimony of a witness on the ground of interest or bias. This instruction is likewise related to a subordinate feature of the trial. State v. Vance, 277 N.C. 345, 177 S.E. 2d 389 (1970); State v. Reddick, 222 N.C. 520, 23 S.E. 2d 909 (1943); State v. Sauls, 190 N.C. 810, 130 S.E. 848 (1925).\nIn State v. White, 288 N.C. 44, 215 S.E. 2d 557 (1975), the defendant, in writing, requested an instruction bearing upon the testimony of an interested witness which the court refused to give because the instruction was in part erroneous. The Court stated:\n\u201cThe trial judge was not, however, relieved of his duty to give a correct accomplice testimony instruction, there being evidence to support it, merely because defendant\u2019s request was not altogether correct.\u201d\nSimilarly, in State v. Bailey, 254 N.C. 380, 119 S.E. 2d 165 (1961), the Court stated:\n\u201c... It is a well established rule with us that if a request is made for a specific instruction as to the rule of scrutiny in the event of an accomplice testifying for the prosecution, which is correct in itself and supported by evidence, the trial judge, while not required to parrot the instructions \u2018or to become a mere judicial phonograph for recording the exact and identical words of counsel,\u2019 must charge the jury in substantial conformity to th\u00e9 prayer. [Citations omitted.]\u201d\nRegarding the trial judge\u2019s duty in general upon a request for special instructions, our Supreme Court, in State v. Spicer, 285 N.C. 274, 204 S.E. 2d 641 (1974), said:\n\u201c \u2018While the court is not required to give the instruction in the exact language of the request, if request be made for a specific instruction, which is correct in itself and supported by evidence, the court must give the instruction at least in substance.\u2019 [Citations omitted.]\n* * *\n\u201cFailure to give the requested instructions when justified is reversible error. [Citations omitted.]\u201d\nIn the case sub judice, the subject charge was intermingled with requests for instructions governing nearly three pages of the record. In all probability the requests were handed to the judge just before he commenced his charge. The omission of the requested instructions can be easily understood. Nevertheless, the defendant was entitled to the special instructions and its omission from the charge constitutes prejudicial error for which the defendant is entitled to a new trial.\nNew trial.\nJudges Parker and Arnold concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Special Deputy Attorney General James L. Blackburn, for the State.", "Seavy A. Carroll, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JOHN FRANCIS LEFFINGWELL\nNo. 7712SC322\n(Filed 5 October 1977)\nCriminal Law \u00a7 116\u2014 defendant\u2019s failure to testify \u2014 jury instructions\nWhere defendant offered evidence by several witnesses but did not testify himself, he was entitled, upon proper request, to have the court tell the jury in substance that his failure to take the witness stand and testify in his own behalf did not create any presumption against him.\nAPPEAL by defendant from Hall, Judge. Judgment entered 2 December 1976 in Superior Court, CUMBERLAND County. Heard in the Court of Appeals 20 September 1977.\nDefendant was indicted for (1) possession of a controlled substance with intent to sell and deliver a controlled substance, lysergic acid diethylamide (Schedule I); (2) sale and delivery of a controlled substance, lysergic acid diethylamide (Schedule I) to Special Agent N. C. Mills of the State Bureau of Investigation for the price of $1,800.00. He pled not guilty.\nThe jury found defendant guilty of both offenses. The charges were consolidated for judgment, and defendant was sentenced for the term of not less than two years nor more than four years in the State\u2019s prison. Defendant appealed.\nAttorney General Edmisten, by Special Deputy Attorney General James L. Blackburn, for the State.\nSeavy A. Carroll, for the defendant." }, "file_name": "0205-01", "first_page_order": 233, "last_page_order": 237 }