{ "id": 8525657, "name": "STATE OF NORTH CAROLINA v. EMERY A. BRADLEY", "name_abbreviation": "State v. Bradley", "decision_date": "1984-03-06", "docket_number": "No. 8327SC58", "first_page": "81", "last_page": "88", "citations": [ { "type": "official", "cite": "67 N.C. App. 81" } ], "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": "221 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "defendant might have \"provoked\" remarks" } ], "opinion_index": 0 }, { "cite": "289 N.C. 223", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567692 ], "year": 1976, "pin_cites": [ { "parenthetical": "defendant might have \"provoked\" remarks" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0223-01" ] }, { "cite": "100 S.Ct. 2971", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "64 L.Ed. 2d 844", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1980, "opinion_index": 0 }, { "cite": "446 U.S. 986", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6358336, 6357641, 6356970, 6358187, 6357901, 6357165, 6358541, 6356442, 6357394, 6356756, 6356094, 6356606, 6356255 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/446/0986-12", "/us/446/0986-09", "/us/446/0986-06", "/us/446/0986-11", "/us/446/0986-10", "/us/446/0986-07", "/us/446/0986-13", "/us/446/0986-03", "/us/446/0986-08", "/us/446/0986-05", "/us/446/0986-01", "/us/446/0986-04", "/us/446/0986-02" ] }, { "cite": "261 S.E. 2d 827", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "837" } ], "opinion_index": 0 }, { "cite": "299 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574181 ], "year": 1980, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0191-01" ] }, { "cite": "297 S.E. 2d 393", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "307 N.C. 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561451 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/307/0258-01" ] }, { "cite": "176 S.E. 2d 765", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "277 N.C. 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563764 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/277/0205-01" ] }, { "cite": "124 S.E. 2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1962, "pin_cites": [ { "page": "177" } ], "opinion_index": 0 }, { "cite": "256 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573532 ], "year": 1962, "pin_cites": [ { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/nc/256/0487-01" ] }, { "cite": "68 S.E. 2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "851" } ], "opinion_index": 0 }, { "cite": "234 N.C. 716", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625810 ], "year": 1952, "pin_cites": [ { "page": "726-27" } ], "opinion_index": 0, "case_paths": [ "/nc/234/0716-01" ] }, { "cite": "197 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1973, "pin_cites": [ { "page": "518" }, { "page": "625" }, { "page": "519" } ], "opinion_index": 0 }, { "cite": "283 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559688 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0617-01" ] }, { "cite": "250 S.E. 2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 388", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566270 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0388-01" ] } ], "analysis": { "cardinality": 721, "char_count": 18103, "ocr_confidence": 0.806, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20555657878123396 }, "sha256": "c413f5b581ae7ccbdb0f019b3361f1b6164f9a642b98f48582f7ad7cdee0392a", "simhash": "1:ee79202a774018d0", "word_count": 3009 }, "last_updated": "2023-07-14T17:10:21.361774+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Becton and Braswell concur." ], "parties": [ "STATE OF NORTH CAROLINA v. EMERY A. BRADLEY" ], "opinions": [ { "text": "JOHNSON, Judge.\nDefendant assigns error to the jury charge and to statements by the prosecutor in his argument to the jury.\nFirst, defendant assigns error to that portion of the charge regarding the defense of alibi. Defendant submitted a timely written request for an instruction on alibi, however, the court\u2019s instruction was not a verbatim recitation of defendant\u2019s requested instruction. Defendant argues that the following portion of his requested instruction was omitted from the instruction actually given by the trial court and that this omission constitutes prejudicial error.\nThe defendant\u2019s contention that he was not present and did not participate is simply a denial of facts essential to the State\u2019s case.\nTherefore, I charge that if, upon considering all the evidence with respect to alibi, you have a reasonable doubt as to the defendant\u2019s presence at or participation in the crime charged, you must find him not guilty.\nIn response to defendant\u2019s request for instruction, the trial court instructed the jury as follows:\nThe defendant relies upon the defense of alibi. The defendant contends that he was at some other place at the time of the formulation of the plan to commit the robbery and at the time of the robbery. The word alibi simply means somewhere else. The burden of proving alibi does not rest upon the defendant. [T]o establish the defendant\u2019s guilt, [t]he State must prove beyond a reasonable doubt that the defendant counseled, commanded, or procured, or knowingly aided [Shaw and] Henderson in the commission of the armed robbery even if he was not at the scene when the events occurred. If the State fails to meet the burden, you shall find the defendant not guilty.\nDefendant first argues that the trial court erred by omitting that portion of his requested instruction reprinted above and by substituting for it a detailed factual statement of what the State must nevertheless prove. Defendant contends that the omitted portion of the alibi instruction was critical since it is the portion which makes it clear to the jury that if the evidence with respect to alibi considered together with all the other evidence raises a reasonable doubt that defendant participated in the crime, he should be found not guilty. Further, that the placement of an instruction on the law arising on the State\u2019s evidence in the very middle of the instructions on the law arising on the defendant\u2019s evidence had the practical effect of nullifying the effect of the alibi instruction.\nWhen a defendant in apt time specifically requests an instruction on alibi evidence which has been introduced, he is entitled to such an instruction. State v. Cox, 296 N.C. 388, 250 S.E. 2d 259 (1979); State v. Hunt, 283 N.C. 617, 197 S.E. 2d 513 (1973). Moreover, in State v. Hunt, the Supreme Court stated that when an instruction as to the legal effect of alibi evidence is given, whether by the court of its own motion or in response to a request, such statement must be correct, and the substance of the alibi instruction must accord with that approved in State v. Minton, 234 N.C. 716, 726-27, 68 S.E. 2d 844, 851 (1952) and State v. Spencer, 256 N.C. 487, 489, 124 S.E. 2d 175, 177 (1962). The approved charge is as follows:\nAn accused, who relies on an alibi, does not have the burden of proving it. It is incumbent upon the State to satisfy the jury beyond a reasonable doubt on the whole evidence that such accused is guilty. If the evidence of alibi, in connection with all the other testimony in the case, leaves the jury with a reasonable doubt of the guilt of the accused, the State fails to carry the burden of proof imposed upon it by law, and the accused is entitled to an acquittal.\n\u201cAlibi\u201d is simply evidence contradictory of the State\u2019s evidence that defendant committed the alleged crime where presence is necessary for conviction. In such a case, evidence that defendant was at another place, if it raised a reasonable doubt in the minds of the jurors, would properly result in an acquittal under the reasonable doubt instruction. State v. Hunt, supra at 624, 197 S.E. 2d at 518. It is essential that the jury understand that a reasonable doubt may arise out of the defense testimony as well as the State\u2019s. Id. at 625, 197 S.E. 2d at 519. Hence, the approved instruction contains a statement substantially similar to the sentence omitted from the instructions request in this case, that \u201cif, upon considering all the evidence with respect to alibi, you have a reasonable doubt as to the defendant\u2019s presence at or participation in the crime charged, you must find him not guilty.\u201d\nWe agree with defendant that he was entitled to the omitted portion of the alibi instruction, pursuant to his request, under State v. Cox, supra and State v. Hunt, supra. Furthermore, we agree that the placement of a detailed statement of the State\u2019s theory that defendant was involved in the offense but had left the scene before the crime was committed, in the middle of an instruction as to the legal effect of alibi evidence, was potentially confusing to the jury. However, these errors cannot be considered prejudicial in this case.\nWith regard to the omitted sentence, the trial court had earlier in the charge adequately instructed the jury on the defendant\u2019s contentions that he was present at his home at all times during the perpetration of the robbery and that Henderson returned the defendant\u2019s car at some time later during the morning of the robbery and at that point gave defendant a ring. In addition, the trial court, in the course of the charge made it clear that the burden remained on the State, when all the evidence was considered, to prove each element of the offense beyond a reasonable doubt. In this respect, the charge read as a whole and construed contextually, contained no prejudicial error. State v. Lee, 277 N.C. 205, 176 S.E. 2d 765 (1970).\nDefendant\u2019s argument regarding the juxtaposition of an incomplete alibi instruction and a statement regarding the State\u2019s theory of aiding and abetting is more problematic. In a related argument, defendant contends that the trial court erred in the alibi instruction when it included the words \u201ceven if he was not at the scene when the events occurred\u201d because there was no evidence to support a conviction on the theory that defendant was involved in the planning of the offense but was not actually or constructively present at the mall in Gastonia or in the vicinity thereof. Defendant contends that the statement suggested to the jury a theory not supported by any evidence, to wit: that defendant planned or procured the commission of the offense either sometime prior to the morning of 30 April 1982 or at the time defendant loaned the car to Shaw and Henderson while they were at his house that morning.\nThe record shows that Shaw, on direct examination, testified expressly that defendant and another man had in effect coerced him and Henderson into committing the robbery once they were all together in defendant\u2019s car approaching Gastonia. The defendant\u2019s evidence, on the other hand, showed that defendant was home in bed at the time according to Shaw, that the robbery was allegedly planned and perpetrated, and that he had simply loaned his car to the perpetrators earlier that morning with no knowledge of their intentions. Therefore, it was crucial to the defense that the jury be adequately instructed as to the way in which defendant\u2019s alibi evidence tended to contradict the State\u2019s factual contention that defendant planned the robbery and procured Shaw and Henderson to perpetrate the crime while he was with them in Gastonia that morning.\nIt is evident that the alibi instruction was confusing on precisely this point, that is, the relation between the State\u2019s theory of aiding and abetting (that defendant planned and procured the crime while he drove the perpetrators to the mall and then left the scene) and the defendant\u2019s theory that he was not present when the crime was planned and committed. The confusion was created by the juxtaposition of the two theories in the course of incomplete instruction on the legal effect of alibi evidence, and compounded by the addition of the phrase, \u201ceven if [defendant] was not at the scene when the events occurred.\u201d In short, the instruction as given tends to undermine the thrust of the defense that defendant was \u201csomewhere else.\u201d\nUnder G.S. 14-5.2 a defendant not actually or constructively present at the scene is guilty and punishable as a principal if it be shown that he counseled or procured or commanded the others to perpetrate the crime. Obviously, \u201cat the scene\u201d in this context would refer to defendant\u2019s not being at the jewelry store itself when Shaw and Henderson staged the robbery, nor waiting nearby with the car for them as he was supposed to be. In other words, \u201cscene\u201d would refer to the actual perpetration of the robbery. To that extent, the court\u2019s statement regarding defendant\u2019s whereabouts was not incorrect. However, under the facts of this case, the potential for confusing the jury was created by the fact that the jury could have understood the statement to refer to the defendant\u2019s contention that he was not present for the planning of the robbery either. In such a case, the defense of alibi would not be merely undermined, but rendered nugatory.\nA close reading of the entire charge, contextually and not in isolated portions, however, leads to the conclusion that the potential for prejudice to defendant was effectively neutralized. The trial court, in stating the factual contentions of the defendant, made it quite clear that defendant was relying upon the defense of alibi; contending that he was present at his home until after the time of the robbery; and that when Henderson returned the defendant\u2019s car on that morning after the robbery, he brought defendant a ring. Then, in the final mandate to the jury, the trial court instructed as to the several elements of the crime which the state must prove beyond a reasonable doubt. The court then instructed the jury:\nHowever, if you do not find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.\nTherefore, the unfortunate juxtaposition of instructions within the alibi portion of the charge cannot be considered to have prejudiced defendant.\nNext, defendant contends the trial court erroneously summarized the State\u2019s evidence and erred in its instructions on the element of \u201cintent to permanently deprive the victim of the property.\u201d Defendant\u2019s objections to these portions of the charge are made for the first time on appeal. Therefore, defendant has failed properly to preserve these exceptions for review. Rule 10(b)(2) of the Rules of Appellate Procedure provides in part:\nNo party may assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objections out of the hearing of the jury and, on request of any party, out of the presence of the jury.\nIn the present case, the record reveals that immediately after the court had concluded its instructions to the jury but before they retired to deliberate upon its verdict, defense counsel requested and was granted a conference at the bench, after which the court (apparently at defendant\u2019s request) gave additional instructions. Thus, defendant had ample opportunity to object to these portions of the charge to which he now complains. The Rules of Appellate Procedure are mandatory and preclude review of these assignments of error in the absence of error so fundamental that we would invoke the power under Rule 2 to suspend the rules and consider these assignments of error. State v. Fennell, 307 N.C. 258, 297 S.E. 2d 393 (1982).\nDefendant, however, contends that these alleged errors are so \u201cfundamental\u201d that a new trial is required despite defense counsel\u2019s failure to lodge a contemporaneous objection. We disagree. Nonetheless, we have reviewed the entire charge in considering defendant\u2019s first assignment of error and find no error so \u201cplain\u201d or \u201cfundamental\u201d as to require a new trial. We find that the trial judge\u2019s summary of the evidence was supported by substantial evidence, and that the trial judge\u2019s instruction sufficiently and properly apprised the jury of all elements of the crime.\nDefendant\u2019s final assignment of error regards statements by the prosecutor in his argument to the jury. The court had suppressed evidence that defendant had given a statement indicating that he regularly received shoplifted goods. Nevertheless, the prosecutor brought the matter up in argument. However, defendant again failed to object; \u201cWhen counsel makes an improper remark in his argument to the jury, an exception must be taken before verdict or the alleged impropriety is waived.\u201d State v. Morgan, 299 N.C. 191, 207, 261 S.E. 2d 827, 837, cert. denied, 446 U.S. 986, 64 L.Ed. 2d 844, 100 S.Ct. 2971 (1980). Even if defendant had made a timely objection, the record indicates that he himself first brought the matter up, apparently realizing that defendant\u2019s activities could be easily inferred from other admissible evidence. In this context, we find no prejudice in the remarks, nor error in the court\u2019s failure to take action ex mero motu. See State v. Taylor, 289 N.C. 223, 221 S.E. 2d 359 (1976) (defendant might have \u201cprovoked\u201d remarks).\nWe conclude that defendant received a fair trial, free from prejudicial error.\nNo error.\nJudges Becton and Braswell concur.", "type": "majority", "author": "JOHNSON, Judge." } ], "attorneys": [ "Attorney General Edmisten, by Assistant Attorney General Thomas G. Meacham, Jr., for the State.", "Appellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. EMERY A. BRADLEY\nNo. 8327SC58\n(Filed 6 March 1984)\n1. Criminal Law \u00a7 112.7\u2014 requested instruction on alibi \u2014 harmless error in failure to give\nThe trial court erred in failing to give defendant\u2019s requested instruction that \u201cif, upon considering all the evidence with respect to alibi, you have a reasonable doubt as to the defendant\u2019s presence at or participation in the crime charged, you must find him not guilty,\u201d but such error was not prejudicial to defendant where the trial court adequately instructed the jury on the defendant\u2019s contention that he was present at his home at all times during the perpetration of the robbery in question and made it clear that the burden remained on the State, when all the evidence was considered, to prove each element of the offense beyond a reasonable doubt.\n2. Criminal Law \u00a7 112.7\u2014 confusing instructions on State\u2019s theory and alibi \u2014 no prejudicial error\nAlthough there was potential confusion from the court\u2019s placement of a detailed statement of the State\u2019s theory that defendant planned and procured a robbery but had left the scene before the robbery was committed in the middle of an instruction on the legal effect of alibi evidence, which included the words \u201ceven if defendant was not at the scene when the events occurred,\u201d any possible prejudice to defendant was neutralized when the court, in stating defendant\u2019s contentions, made it clear that defendant relied on alibi evidence and contended that he was at his home until after the time of the robbery and took no part in either the planning or the commission of the robbery.\n3. Criminal Law \u00a7 163\u2014 failure to object to instructions \u2014 no plain error\nThe trial court\u2019s summary of the State\u2019s evidence in an armed robbery case and its instructions on the element of intent permanently to deprive the victim of the property did not constitute \u201cplain error\u201d which would require a new trial despite defense counsel\u2019s failure to lodge a contemporaneous objection at trial. App. R. 10(b)(2).\n4. Criminal Law \u00a7 102.10\u2014 jury argument \u2014 no prejudicial error\nThe prosecutor\u2019s jury argument in a robbery case concerning defendant\u2019s regular receipt of shoplifted goods was not prejudicial error, notwithstanding the court had suppressed defendant\u2019s statement relating thereto, where defendant failed to object to the argument, and where defense counsel first brought up the matter, apparently realizing that defendant\u2019s activities could easily be inferred from other admissible evidence.\nAPPEAL by defendant from Saunders, Judge. Judgment entered 10 September 1982 in Superior Court, GASTON County. Heard in the Court of Appeals 28 September 1983.\nDefendant was tried on a single indictment for armed robbery. The State\u2019s evidence tended to show the following: Robert Shaw, Wade Henderson and defendant, Emery Bradley, were acquaintances. On 30 April 1982, defendant picked up Shaw and Henderson and drove them from Charlotte to a shopping mall in Gastonia. There he talked with Shaw and Henderson about making some money. Defendant supplied them with pistols and pillow cases and told them he would shoot them if they did not rob a jewelry store in the mall. After showing Shaw and Henderson where he would wait for them, defendant dropped them off. Shaw and Henderson entered the store twice, committing an armed robbery the second time. Henderson escaped with some $48,000 worth of jewelry; Shaw ran the wrong way and arrived at the designated spot after the defendant had driven off. Police captured Shaw shortly thereafter, and arrested defendant three days later. A ring identified by the store owner as one exactly like the rings stolen from the store was found on the defendant\u2019s dresser at the time of his arrest.\nDefendant did not testify but presented alibi evidence from his girlfriend and another who lived at his house that they had been at the house with defendant at the time of the commission of the crime and had not seen him leave. Defendant\u2019s girlfriend testified that Henderson had borrowed defendant\u2019s car and returned it several hours later.\nThe jury found defendant guilty, and he received a sentence of 14 years imprisonment. From the verdict and judgment imposed, defendant appeals.\nAttorney General Edmisten, by Assistant Attorney General Thomas G. Meacham, Jr., for the State.\nAppellate Defender Adam Stein, by Assistant Appellate Defender Marc D. Towler, for defendant appellant." }, "file_name": "0081-01", "first_page_order": 113, "last_page_order": 120 }