# State v. Person

> Court of Appeals of North Carolina · December 18, 2007 · 187 N.C. App. 512

URL: https://www.frixlaw.com/law-library/cases/9626808

## Case

- **Full name:** STATE OF NORTH CAROLINA v. DEVOZEO PERSON, Defendant
- **Court:** Court of Appeals of North Carolina
- **Decided:** December 18, 2007
- **Citations:** 187 N.C. App. 512; 653 S.E.2d 560; 2007 N.C. App. LEXIS 2574
- **Precedential status:** Published
- **Opinion:** Concurring in part by Jackson
- **Judges:** Geer, Calabria, Jackson
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed in part, on other grounds by State v. Person, 362 N.C. 340 (2008).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9626808

## How later opinions describe it (automated extraction)

- concluding trial court did not improperly consider defendant’s decision to go to trial when court mentioned defendant’s recent refusal to accept plea offer, but additional remarks indicated that court, in referencing that rejection, was questioning sincerity of defendant’s com…

## Opinion text

JACKSON, Judge,
concurring in part, concurring in result only in part and dissenting in part.
I concur with sections I, III, and IV of the majority’s opinion, and concur only in the result of section V. However, for the reasons stated *532 below, I must respectfully dissent from Part II of the majority’s opinion which concludes that defendant is entitled to a new trial on the charge of first degree rape by acting in concert with someone else. I would hold no plain error.
Although I agree that the majority’s reliance on State v. Graham, 145 N.C. App. 483, 487 , 549 S.E.2d 908, 911 (2001), is appropriate inasmuch as it holds that the pattern jury instruction on acting in concert leaves open the possibility that defendant is being convicted twice for the same conduct, I disagree with the majority’s contention that because Graham labeled this error “fundamental,” whether or not the error is harmless is immaterial.
The North Carolina Supreme Court adopted the plain error rule in State v. Odom, 307 N.C. 655, 660 , 300 S.E.2d 375, 378 (1983), stating that
the 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 a “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.”
Id. (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018 , 74 L. Ed. 2d 513 (1982) (footnotes omitted) (emphasis in original)). Odom continued, “In deciding whether a defect in the jury instruction constitutes ‘plain error,’ the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury’s finding of guilt.” Odom, 307 N.C. at 661 , 300 S.E.2d at 378 -79 (citing United States v. Jackson, 569 F.2d 1003 (7th Cir.), cert. denied, 437 U.S. 907 , 57 L. Ed. 2d 1137 (1978)). That is, “[b]efore deciding that an error by the trial court amounts to ‘plain error,’ the appellate 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) (citing Odom, 307 N.C. at 661 , 300 S.E.2d at 378-79 ).
*533 Merely labeling an error as “fundamental” does not relieve this Court of the obligation to review the error for harmlessness. The United States Supreme Court has applied harmless error analysis to a myraid of constitutional errors affecting “fundamental” rights. See Arizona v. Fulminante, 499 U.S. 279, 306 , 113 L. Ed. 2d 302, 329 (1991). In Fulminante , the Supreme Court listed the following exemplary cases:
Clemons v. Mississippi, 494 U.S. 738, 752-754 (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v. Texas, 486 U.S. 249 (1988) (admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause); Carella v. California, 491 U.S. 263, 266 (1989) (jury instruction containing an erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497, 501-504 (1987) (jury instruction misstating an element of the offense); Rose v. Clark, 478 U.S. 570 (1986) (jury instruction containing an erroneous rebuttable presumption); Crane v. Kentucky, 476 U.S. 683, 691 (1986) (erroneous exclusion of defendant’s testimony regarding the circumstances of his confession); Delaware v. Van Arsdall, 475 U.S. 673 (1986) (restriction on a defendant’s right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 117-118 , and n. 2 (1983) (denial of a defendant’s right to be present at trial); United States v. Hasting, 461 U.S. 499 (1983) (improper comment on defendant’s silence at trial, in violation of the Fifth Amendment Self-Incrimination Clause); Hopper v. Evans, 456 U.S. 605 (1982) (statute improperly forbidding trial court’s giving a jury instruction on a lesser included offense in a capital case in violation of the Due Process Clause); Kentucky v. Whorton, 441 U.S. 786 (1979) (failure to instruct the jury on the presumption of innocence); Moore v. Illinois, 434 U.S. 220, 232 (1977) (admission of identification evidence in violation of the Sixth Amendment Confrontation Clause); Brown v. United States, 411 U.S. 223, 231-232 (1973) (admission of the out-of-court statement of a nontestifying code-fendant in violation of the Sixth Amendment Confrontation Clause); Milton v. Wainwright, 407 U.S. 371 (1972) (confession obtained in violation of Massiah v. United States, 377 U.S. 201 (1964)); Chambers v. Maroney, 399 U.S. 42, 52-53 (1970) (admission of evidence obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399 U.S. 1, 10-11 (1970) (denial of counsel *534 at a preliminary hearing in violation of the Sixth Amendment Counsel Clause).
Id. at 306-07, 113 L. Ed. 2d at 329-30 (parallel citations omitted). We need only look to this State’s recent examination of sentencing errors in violation of Blakely v. Washington, 542 U.S. 296 , 159 L. Ed. 2d 403 (2004), to realize that harmless error may be applied in this case. See State v. Blackwell, 361 N.C. 41 , 638 S.E.2d 452 (2006), cert. denied, 550 U.S. 948 , 167 L. Ed. 2d 1114 (2007) (holding the trial court’s, rather than the jury’s, finding of an aggravating factor was harmless beyond a reasonable doubt).
North Carolina appellate courts have denied harmless error review when the errors were deemed “structural,” i.e., resulting from a “defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Fulminante, 499 U.S. at 310 , 113 L. Ed. 2d at 331 .
The majority contends correctly that we are bound by North Carolina Supreme Court precedent establishing a bifurcated standard for plain error analysis. However, this bifurcated standard does not foreclose a determination of whether the error impacted the jury’s verdict in this case. As recently as 15 December 2006, our Supreme Court stated the following:
We find plain error “only in exceptional cases where, ‘after reviewing the entire record, it can be said the claimed error is a “fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.” ’ Thus, the appellate court must study the whole record to determine if the error had such an impact on the guilt deterrnination, therefore constituting plain error.” Accordingly, we must determine whether the jury would probably have reached a different verdict if [the error] had not [occurred].
State v. Hammett, 361 N.C. 92, 98 , 637 S.E.2d 518, 522 (2006) (citations omitted) (emphasis added). Clearly, bur precedents mandate review of the entire record in our determination as to whether there is a fundamental error that requires reversal for plain error.
Had Graham labeled the use of the unaltered pattern jury instruction for acting in concert which exposed the defendant to the possibility of being twice convicted for the same conduct a structural error, I would agree that a harmless error analysis is irrelevant; how *535 ever, this “fundamental” error is not “structural.” Therefore, I would apply harmless error analysis in this case.
Further, Graham held, “In this case, . . . fundamental error occurred.” Graham, 145 N.C. App. at 487 , 549 S.E.2d at 911 (emphasis added). I believe this holding was limited to the facts of Graham . In Graham , the State argued only that using pattern jury instructions to instruct the jury does not constitute plain error. The State did not argue that any error was harmless; therefore, this Court did not apply a harmless error analysis.
In the case sub judice, the court went to great lengths to make clear that one charge was for defendant’s own conduct, while the other was for acting in concert with Johnson. Although the evidence supported an acting in concert instruction with respect to defendant’s individual activity towards the victim, the trial judge elected not to give the instruction for the charge alleging defendant’s own conduct. The court proposed that the verdict sheet for first degree rape by acting in concert read “guilty of first degree rape by acting in concert with someone else.” After giving general jury instructions, the court went through each jury sheet, pointing out that there were two counts of first degree rape. “The second charge is file number 05-CRS-227172, it reads differently from the one I just read to you.” The court explained that the first verdict sheet “simply says guilty of first degree rape or not guilty,” while the second says, “guilty of first degree rape by acting in concert with someone else.” The court pointed out that “each legal instruction I give you relates only to that particular charge.” The court prefaced its instructions on the second rape charge — alleging acting in concert — “I’m going to give you the law, and it’s a little different.” The court then instructed the jury on first degree rape and acting in concert.
Notwithstanding the court’s erroneous instruction, as the State correctly argues, there was overwhelming evidence of defendant’s guilt as to both charges. The victim testified that defendant watched while Johnson raped her and that defendant also raped her. Defendant gave a taped confession in which he admitted that he watched Johnson rape and sexually assault the victim, then took Johnson up on his invitation to rape her himself. Defendant admitted that they both had intercourse with her against her will, and that she was in the same position when Johnson raped her as when he raped her. At trial, defendant testified that he remembered seeing Johnson have sex with her from behind. He testified that after Johnson had *536 sex with her, he “took [his] turn.” There was DNA evidence that defendant’s semen was found on swabs taken from both the victim’s vagina and anus, which defendant testified was there “probably cause I had sex with her.”
Given the evidence in this case, I would hold the erroneous jury instruction was harmless beyond a reasonable doubt and that the trial court’s use of the unmodified pattern jury instruction did not constitute plain error.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9626808. Public record. Not legal advice.