State v. Robertson

291 S.E.2d 302 (1982)

STATE of North Carolina v. Gregory Powell ROBERTSON.

No. 8110SC1147.

Court of Appeals of North Carolina.

May 18, 1982.

*303 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Robert L. Hillman, Raleigh, for the State.

Appellate Defender Adam Stein by Asst. Appellate Defender Nora B. Henry, Raleigh, for defendant-appellant.

VAUGHN, Judge.

During the course of defendant's trial, Detective Brinson was allowed to testify about statements defendant made to him after his arrest. According to Brinson's testimony, he had made "sketchy" notes during the earlier conversation. When defendant requested at trial to see the notes, the State objected and the trial court, observing that Brinson had not used the notes during his testimony, denied the request.

Defendant now argues that the denial of his request to see the notes violated his right to confront witnesses against him, as guaranteed by the sixth amendment to the United States Constitution, made applicable to the states by the fourteenth amendment. Defendant's argument comes too late. Generally, for an appellant to assert a constitutional or statutory right in the appellate court, the right must have been asserted and the issue raised before the trial court. State v. Jones, 295 N.C. 345, 245 S.E.2d 711 (1978). The record discloses that, while defendant requested at trial to see the notes, he did not set forth his reasons for seeing them. The trial court, in *304 denying the request, apparently relied upon the rule set forth in State v. Jackson, 302 N.C. 101, 273 S.E.2d 666 (1981), that, where a witness does not use or attempt to use the writings sought to be produced, opposing counsel cannot compel their production, even though the writings are under the witness' control. In the present case, the defendant failed to raise the constitutional issue at trial and cannot now allege error by the lower court. In passing, we would point out that, immediately after the denial of his request to see Brinson's notes, the defendant determined that the notes would not have differed from the detective's testimony. Defendant's first assignment of error is overruled.

Next, defendant contends that the trial court erred in admitting, and instructing on, evidence "that defendant exercised his right to remain silent...." A review of the record reveals that the portions of evidence to which defendant now takes exception pertained, for the most part, to statements defendant made to Detective Brinson. Furthermore, the defendant failed to object to the introduction of such evidence and has, therefore, waived his right to argue error now. State v. Burnett, 39 N.C.App. 605, 251 S.E.2d 717, application for further rev. denied 297 N.C. 302, 254 S.E.2d 924 (1979); 1 Stansbury's North Carolina Evidence § 27 (Brandis Rev. 1973). The trial court's instructions to the jury accurately reflected the evidence of the extent of defendant's conversation with Brinson and did not constitute error.

As his third assignment of error, defendant contends that the trial court's jury instructions regarding flight of the defendant violated G.S. 15A-1232. Part of the instruction to which defendant excepted was the following paragraph:

The state contends that the defendant's failure to appear for his first appearance... in court on July the 24, 1980, amounted to his flight from custody and responsibility to the court.

Defendant's argument is that there was insufficient evidence to support this statement, that there was conflicting testimony by defendant as to his understanding of when he was to appear and that there was evidence tending to show that Brinson was unable to locate defendant because he was using an erroneous address. In State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977), the Supreme Court stated:

So long as there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged, the instruction is properly given. The fact that there may be other reasonable explanations for defendant's conduct does not render the instruction improper.

In view of this and the testimony of Brinson that defendant failed to appear for his first appearance and also failed to meet him the day after defendant's arrest, we find no error in the trial court's instructions.

Finally, defendant assigns as error the failure of the trial court to instruct the jury that a reasonable doubt could arise from the lack of evidence presented by the State. Defendant relies on State v. Hammonds, 241 N.C. 226, 85 S.E.2d 133 (1954), where the Supreme Court held that, once the trial judge undertakes to define the term "reasonable doubt" with the expression "a doubt arising out of the evidence in the case" or "growing out of the evidence in the case," he must add "or from the lack or insufficiency of the evidence." The Supreme Court emphasized that whether an error in the reasonable doubt instruction will be considered sufficiently prejudicial to warrant a new trial is determined by the evidence involved. In finding no error, the Court determined in that case that the State's evidence was direct and amply sufficient to support the verdict; that there could not have been any doubt as to the sufficiency of the State's evidence, if believed, to warrant a conviction; and that the only question before the jury was whether to accept the State's version of the facts or the facts as set forth by the defendant.

We believe that, in the instant case, the defendant has failed to show prejudicial error. As in Hammonds, the State's evidence was amply sufficient to support the verdict. There was substantial evidence that Hartsfield's apartment was broken *305 into; that stereo equipment and televisions were removed from the apartment; and that the defendant, who was in the apartment complex at all relevant times, had possession of the goods shortly after their removal. The ultimate question before the jury was whether to believe the State's version of the facts or the defendant's evidence that he first saw the stolen items when his cousin showed them to him in some bushes. Obviously, the jury accepted the State's version. Based on this, we fail to find prejudicial error in the trial court's instructions.

In defendant's trial, we find

No error.

ROBERT M. MARTIN and ARNOLD, JJ., concur.