State v. Locklear

298 S.E.2d 766 (1983)

STATE of North Carolina v. Joe Junior LOCKLEAR.

No. 8216SC600.

Court of Appeals of North Carolina.

January 18, 1983.

*767 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. John R.B. Matthis and Asst. Atty. Gen. Alan S. Hirsch, Raleigh, for the State.

Smith & Jobe by Bruce F. Jobe, Lumberton, for defendant-appellant.

ARNOLD, Judge.

Defendant first argues that the redirect examination of James Strickland by the prosecutor was erroneous and prejudicial because it did not clarify direct examination and was not related to anything brought out on cross-examination. The testimony objected to involved the identification of the defendant in the neighborhood of the alleged crime after it occurred.

The redirect examination here was not erroneous. Although the rule is that redirect examination cannot be used to repeat direct testimony or to introduce an entirely new matter, the trial judge has discretion to permit counsel to introduce relevant evidence which could have been, but was not brought out on direct. State v. Branch, 288 N.C. 514, 526, 220 S.E.2d 495, 504 (1975), cert. denied, 433 U.S. 907, 97 S. Ct. 2971, 53 L. Ed. 2d 1091 (1977); 1 Brandis, N.C. Evidence § 36 (2d rev. ed. 1982) and cases cited therein. We find no abuse of that discretion here where the subject of the redirect examination was the identification of the defendant by James Strickland, which was discussed on both direct and cross-examination. Even if some new matter were the subject of redirect, any error here would not be prejudicial given the heavy weight of the evidence against the defendant.

Defendant's other assignment of error attacks the jury instruction on what constitutes a taking and carrying away as an element of felonious larceny. He objects to the judge's instruction that

This statement followed the trial judge's verbatim recitation of the jury instruction submitted by the defendant on the taking and carrying away element of larceny. We find no error on this point.

As defendant states in his brief, G.S. 15A-1232 makes it the duty of the trial judge in instructing the jury to declare and explain the law arising on the evidence in the case. It is sufficient if a trial judge gives a requested instruction in substance, and not the exact words requested by the defendant, when the instruction is proper based on the evidence. State v. Sledge, 297 N.C. 227, 254 S.E.2d 579 (1979). The defendant's requested instruction was given even though the trial judge added a statement. His application of the law to the facts was correct. When viewing the instructions contextually as a whole, as we must on appeal, State v. Rogers, 299 N.C. 597, 264 S.E.2d 89 (1980), we find no error.

No error.

JOHNSON and BRASWELL, JJ., concur.