# State v. Montgomery

> Supreme Court of North Carolina · June 25, 1992 · 331 N.C. 559

URL: https://www.frixlaw.com/law-library/cases/9580488

## Case

- **Full name:** State of North Carolina v. Rodney Lee Montgomery
- **Court:** Supreme Court of North Carolina
- **Decided:** June 25, 1992
- **Citations:** 331 N.C. 559; 417 S.E.2d 742; 1992 N.C. LEXIS 412
- **Precedential status:** Published
- **Opinion:** Dissent by Meyer
- **Judges:** Mitchell, Meyer, Frye, Exum, Whichard, Lake
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9580488

## How later opinions describe it (automated extraction)

- holding that trial court’s reasonable doubt instruction violated the requirements of the Due Process Clause as interpreted in Cage where the trial court “joined its definition of a reasonable doubt as an ‘honest, substantial misgiving’ with a requirement that to convict the ju…
- holding that a defendant's "written request for a particular instruction" met the requirements of the applicable appellate rule "and constituted a sufficient objection to the different instruction actually given to preserve" the issue despite the lack of an objection
- holding there was substantial evidence to allow jury to find defendant guilty under felony murder theory where pocketbook of victim’s roommate had been rifled through and money in pocketbook was missing
- stating “the use of a conjunctive in [a robbery with a dangerous weapon] indictment does not require the State to prove various alternative matters alleged”
- discussing the holding in Hudson, 331 N.C. 122, 415 S.E.2d 732, and stating that the instruction in Hudson “did not equate reasonable doubt with a ‘moral certainty’ ”

## Opinion text

Justice Meyer
dissenting.
I dissent from the result reached by the plurality regarding the instruction on reasonable doubt tendered by the trial court in the instant case. It is a fundamental tenet of our procedural law that a party must object to an allegedly improper jury instruc *578 tion if the party is to preserve the objection for appellate review. Appellate Rule 10(b)(2) states this in explicit terms: “A party may not 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 . . . .” N.C. R. App. P. 10(b)(2). Here, as noted in the main opinion, it is apparent that defense counsel made a written request to the court that the pattern jury instruction on reasonable doubt be used. Nowhere in the record does there appear any indication that the court denied this request. However, at the charge conference, the following colloquy occurred:
THE COURT: .... Now, as to reasonable doubt, I will give a definition of reasonable doubt from State vs. Williams in 308 North Carolina Reporter. There are two Williams cases, but I will be glad to show it to you if you’ll approach the bench.
(Conference at the Bench)
The COURT: Anything else, gentlemen, as far as the precharge conference or requested instructions?
Mr. WOLFE: Nothing from the State, Your Honor.
MR. HOWERTON: No, sir.
As is apparent from the above discussion, defense counsel related that he had no objection to the court’s announced intention to use the Williams instruction, rather than the pattern jury instruction. Therefore, defendant’s assignment of error in this regard should be deemed waived, and a “plain error” analysis should prevail.
Attempting to reconcile this glaring reality, the main opinion argues that somehow defendant here complied with Rule 10(b)(2) and does so on the basis of our opinions in State v. Smith, 311 N.C. 287, 290 , 316 S.E.2d 73, 75 (1984), and State v. Pakulski, 319 N.C. 562, 575 , 356 S.E.2d 319, 327 (1987). Smith is clearly not apposite because Smith dealt with a failure to object, whereas here, we have an affirmative waiver by an announcement that defendant had no objection to the use of the Williams instruction. Pakulski is similarly inapposite. In Pakulski , the defendants argued that the trial court erred in failing to give a requested instruction on prior inconsistent statements of a witness. During the instruction conference, defense counsel asked the court to give the pattern jury instruction on prior inconsistent statements. The trial judge *579 then stated, “If I overlook that, call it to my attention. I don’t think I will.” Id. at 574 , 356 S.E.2d at 327 . Nevertheless, the court failed to provide the requested instruction; apparently, no objection was thereafter made by the defendant. Id. at 574-75 , 356 S.E.2d at 327 . The instant case presents a far different factual background. Here, as noted above, after announcing its intent to provide the Williams reasonable doubt instruction the trial court expressly asked counsel whether they took issue with the Williams instruction. This inquiry was answered in the negative by defense counsel. Under the circumstances, defendant’s failure to object when presented with an opportunity to do so amounted to a waiver of this potential assignment of error. Therefore, defendant’s argument should be addressed in terms of “plain error” analysis.
In deciding whether an assignment of error amounts to “plain error,” we have traditionally employed an exacting standard.
“[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 fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,’ or ‘where [the error] is grave error which amounts to a denial of a fundamental right of the accused,’ or the error has ‘ “resulted in a miscarriage of justice or in the denial to appellant of a fair trial” ’ or where the error is such as to ‘seriously affect the fairness, integrity or public reputation of judicial proceedings’ or where it can be fairly said ‘the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.’ ”
State v. Odom, 307 N.C. 655, 660 , 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982) (footnotes omitted)). Before deciding that an error by the trial court amounts to “plain error,” the reviewing court must be convinced that absent the error, the jury probably would have reached a different verdict. State v. Walker, 316 N.C. 33, 39 , 340 S.E.2d 80, 83 (1986). “In other words, the appellate court must determine that the error in question ‘tilted the scales’ and caused the jury to convict the defendant.” Id. (citing State v. Black, 308 N.C. 736, 741 , 303 S.E.2d 804, 807 (1983)). In the case sub judice, a review of the whole record reveals that the reasonable doubt instruction did not amount to plain error. As noted in the main opinion, there was “substantial evidence to support findings that the defendant *580 killed the victim with premeditation and deliberation and that he killed her during the course of one of the underlying felonies.” The existence of defendant’s fingerprint on the victim’s glasses, defendant’s presence in the parking lot shortly before the murder, the presence in the victim’s apartment of pubic hairs consistent with that of defendant, and the location of the murder weapon near the defendant’s residence made any error in the court’s instruction pale in significance. In the face of this overwhelming evidence, so characterized and exhaustively set out in the main opinion, defendant is unable to show that the instruction had a “probable impact” on the jury’s verdict.
Moreover, assuming arguendo that defendant did not waive his objection in this regard, Cage does not dictate that we find reversible error in the instant case. In Cage, the Supreme Court found error in the Louisiana trial court’s reasonable doubt instruction, stating:
The charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a “grave uncertainty” and an “actual substantial doubt,” and stated that what was required was a “moral certainty” that the defendant was guilty. It is plain to us that the words “substantial” and “grave,” as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to “moral certainty,” rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.
Cage v. Louisiana, --- U.S. ---, ---, 112 L. Ed. 2d 339, 342 (1990).
Only recently, in State v. Hudson, 331 N.C. 122 , 415 S.E.2d 732 (1992), we had occasion to interpret the Court’s holding in Cage . In Hudson , we stated that Cage was to be read narrowly and emphasized that the Cage Court condemned a combination of three terms: “grave uncertainty,” “actual substantial doubt,” and “moral certainty.” Id. at 142, 415 S.E.2d at 742 . Therefore, because none of the terms condemned in Cage appeared in the Hudson instruction, we upheld the trial court’s instruction. Id. at 142-43 , 415 S.E.2d at 742-43 .
*581 Notwithstanding our position in Hudson , the main opinion today finds unconstitutional the Williams reasonable doubt instruction, an instruction that contains only one of the phrases found objectionable by the Court in Cage (“moral certainty”). Disavowing our express intent to give Cage a “narrow reading,” the main opinion relates: “While the instruction given here was not identical to the instruction held unconstitutional in Cage , the trial court used a combination of terms so similar to the combination disapproved in Cage that there is a ‘reasonable likelihood’ that the jury applied the challenged instruction in a way that violated the Due Process Clause.” In reading Cage broadly, the main opinion deviates from the clear dictate of our own prior case law as well as from that of virtually every other appellate court in the land that has considered the matter. See Gaskins v. McKellar, --- U.S. ---, 114 L. Ed. 2d 728 (Stevens, J., concurring in denial of writ of certiorari and acknowledging that Cage is to be read narrowly and emphasizing the critical import of the “grave uncertainty” language), reh’g denied, --- U.S. ---, 115 L. Ed. 2d 1098 (1991); see also Ex parte White, 587 So. 2d 1236 (Ala. 1991) (finding permissible an instruction that failed to equate reasonable doubt with “grave uncertainty” and “actual substantial doubt” and that did not require jury to find guilt to a “moral certainty”), cert. denied, --- U.S. ---, 117 L. Ed. 2d 142 , reh’g denied, --- U.S. ---, 117 L. Ed. 2d 665 (1992); Smith v. State, 588 So. 2d 561 (Ala. Crim. App. 1991) (finding no error in use of terms “actual and substantial doubt” and “moral certainty”); Adams v. State, 587 So. 2d 1265 (Ala. Crim. App. 1991) (finding permissible use of terms “actual and substantial doubt” and “moral certainty”); Fells v. State, 587 So. 2d 1061 (Ala. Crim. App. 1991) (finding use of term “moral certainty” to be proper); People v. Jennings, 53 Cal. 3d 334 , 807 P.2d 1009 , 279 Cal. Rptr. 780 (same), cert. denied, --- U.S. ---, 116 L. Ed. 2d 462 (1991); Bradford v. State, 261 Ga. 833 , 412 S.E.2d 534 (1992) (instruction permissible when court used only “moral and reasonable certainty”); Potts v. State, 261 Ga. 716 , 410 S.E.2d 89 (1991) (instruction permissible when court did not equate reasonable doubt with “grave uncertainty” or “actual substantial doubt”), cert. denied, 120 L. Ed. 2d 908 (1992); State v. Rhoades, 121 Idaho 63 , 822 P.2d 960 , 977 (1991) (Johnson, J., concurring) (instruction permissible with “actual doubt”), petition for cert. filed, --- U.S. ---, --- L. Ed. 2d --- (No. 91-8010, filed 20 April 1992); Commonwealth v. Beldotti, 409 Mass. 553 , 567 N.E.2d 1219 (1991) (instruction permissible with “moral certain *582 ty” language); State v. Barnard, 820 S.W.2d 674 (Mo. Ct. App. 1991) (instruction permissible where no Cage language used); State v. Morley, 239 Neb. 141 , 474 N.W.2d 660 (1991) (instruction permissible when “moral uncertainty” and “actual and substantial doubt” used); Lee v. State, 107 Nev. 507 , 813 P.2d 1010 (1991) (instruction permissible with “actual and substantial doubt” language); Lord v. State, 107 Nev. 28 , 806 P.2d 548 (1991) (same); State v. Gonzalez, 822 P.2d 1214 (Utah App. 1991) (instruction proper when contains none of the language condemned in Cage).
Furthermore, and more specifically, I disagree with the main opinion’s assertion that the instruction here involved a “combination of terms that was nearly identical to the combination condemned in Cage" and that it was therefore improper. First, the majority concludes that the instruction here was improper because the term used here, “substantial misgiving,” is “nearly identical” to the “substantial doubt” and “grave uncertainty” language condemned in Cage . Second, according to the main opinion, the trial court improperly joined its definition of reasonable doubt as an “actual substantial misgiving” with a requirement that to convict, the jury must be convinced to a “moral certainty.”
As a threshold matter, the phrase, “honest, substantial misgiving,” in itself, is not improper in a reasonable doubt instruction. This much we concluded in Hudson, 331 N.C. at 142-43 , 415 S.E.2d at 742-43 . The main opinion here, however, exhibits its skillful hand at semantic sleight-of-hand and concludes that the phrase “honest, substantial misgiving” is the equivalent of the “substantial doubt” and “grave uncertainty” language condemned in Cage . This conclusion is contrary to Hudson and can only be considered specious. Thus, the majority’s holding, at bottom, is that the use in a reasonable doubt instruction of the term “moral certainty” alone violates due process. This view is plainly contrary to our view that Cage is to be read narrowly, and given that there exists in the challenged instruction only one of the phrases condemned in Cage , it is highly unlikely that there is a “reasonable likelihood” that the jury applied the instruction in a manner violative of the Due Process Clause. Moreover, the main opinion’s holding is contrary to the well-settled principle that a definition of reasonable doubt does not require exactitude. See State v. Watson, 294 N.C. 159, 167 , 240 S.E.2d 440, 446 (1978).
*583 As I read the opinions filed in this case, four votes do not exist to overrule Williams or to condemn its reasonable doubt instruction. Two members of the Court support the result of a new trial solely on the basis of a Cage violation, and three members solely on the basis of a Cofield violation. The majority vote in this case thus supports only the result reached in the main opinion and not its reasoning. The language in Williams that is condemned in the main opinion seems to have been preferred over the language of the pattern instructions by a number of our trial judges and, consequently, has been used frequently. We have no way of knowing how many hundreds of cases in which the trial judge employed the Williams language are in the appeal pipeline. Given the lack of any precedential value of the main opinion, it will have no effect on those cases.
In sum, I believe that the main opinion errs in its conclusion that the reasonable doubt instruction tendered by the trial court was unconstitutional.
I do not join the concurring-in-result opinion of Justice Frye, as I perceive no Cofield error in this case.
I respectfully dissent.
Justice LAKE joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9580488. Public record. Not legal advice.