“Where trial.counsel fails to object to the trial court’s instructions in response to a question from the jury seeking clarification, we review for plain error.”
How later courts described this case
- “Where trial.counsel fails to object to the trial court’s instructions in response to a question from the jury seeking clarification, we review for plain error.”
- “Where trial counsel fails to object to the trial court’s instructions in response to -10- a question from the jury seeking clarification, we review for plain error.”
Written by the judges who cited it.
The opinion
BEASLEY, Judge
concurs with separate opinion.
While I concur in the majority opinion, because Defendant’s argument regarding admissibility of check number 52630 which was deposited at Wachovia Bank is npt irrelevant as the majority suggests, I write separately.
The majority rightly asserts that the trial court admitted this check number 52630 for impeachment purposes. Defendant argues that the trial court erred by admitting the check for impeachment purposes, pursuant to N.C. Gen. Stat. § 8C-1, Rule 608 (2011). The State however, on appeal argues that the “evidence of the Wachovia check is admissible because it is used to impeach evidence, not a witness, and because it is both relevant and serves a permissible purpose.” (emphasis added). I would therefore hold that the trial court erred by admitting check number 52630 for impeachment purposes, but the error was not prejudicial error.
N.C. Gen. Stat. § 8C-1, Rule 608(a) (2011) states:
(a) Opinion and reputation evidence of character. — The credibility of a witness may be attached or supported by evidence in the form of reputation or opinion as provided in Rule 405(a), but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
When Defendant objected to the admissibility of the Wachovia check, the trial court overruled the objection after a bench conference. During jury deliberations, the jury inquired, “if the information about the check that was deposited at Wachovia was admissible, ‘was’ is underlined. Parentheses, ‘(confusion about objection,’ dash, ‘sustained or overruled and if so, what date was that check deposited?’ ” After the trial court, the assistant district attorney, and the defense attorney recollected the court’s ruling, the trial court recalled that it overruled Defendant’s objection to the admission of the Wachovia check. The trial court noted “[a]nd I concluded it was in the nature of an impeachment question because — or an impeachment of evidence *63 because it was inconsistent with or diametrically different from the statements, . . . the defendant made to the officer during the investigation.” Since Defendant did not testify, he correctly argues that the trial court erred by admitting check number 52630 for impeachment purposes as only witnesses can be impeached.
Defendant on appeal also argues that check number 52630 was not admissible under N.C. Gen. Stat. § 8C-1, Rule 404(b) (2009) because it could not be offered to attack his credibility. While established that because Defendant did not testify and therefore his credibility could not be attacked, the trial court could have admitted check number 52630 under Rule 404(b) to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.” Rule 404(b). Furthermore, because there was substantial evidence, in addition to the Wachovia check, as outlined in the majority opinion, to demonstrate that Defendant presented a check to Suntrust Bank from an account held by Allied Concrete Forming & Associates, Inc. for which he did not have authorization, the trial court’s error was not prejudicial to Defendant.