subject: North Carolina Deadly Weapon Serious Injury Felony Convictions Assault Lawyers Attorneys [print this page] STATE OF NORTH CAROLINA v. NATHANIEL GRAHAM
COURT OF APPEALS OF NORTH CAROLINA
April 14, 2010, Heard in the Court of Appeals
September 21, 2010, Filed
Defendant Nathaniel Graham was convicted of assault with a deadly weapon with intent to kill inflicting serious injury on 29 April 2008 and was sentenced to an active term of 116 to 149 months.
Issues:
Whether the trial court erred in failing to instruct the jury regarding identification when identification was a central issue at trial?
Whether the trial court's rulings sustaining the State's objections unconstitutionally limited Defendant's cross-examination of the State's witnesses?
Whether the trial court erred by sentencing Defendant as a record level III when the record can only support a record level II?
Observation and Holding:
Defendant did not object to the jury instructions provided by the trial court, nor did he request that further instructions be given. "When defendant fails to object to a jury instruction at trial, the plain error standard is applied. Even assuming arguendo that the trial court erred by not providing instructions, ex mero motu, regarding the element of identification, we nevertheless conclude that Defendant has failed to show that the trial court's instructions amounted to plain error. First, the evidence against Defendantwas substantial. Two witnesses identified Defendant as the perpetrator of the crime. Defendant has failed to identity significant evidence from the record to show that the identifications made by the witnesses were inherently unreliable. Second, the trial court, in instructing the jury, made it clear that the State must prove to you the Defendant is guilty beyond a reasonable doubt" and then defined this standard for the jury. Given the evidence in this case, Defendant's opportunity to cross-examine the State's witnesses, and the instructions given by the trial court, we hold that Defendant has failed in his burden of proving that, absent the trial court's failure to instruct the jury ex mero motu regarding identification, the jury would have likely reached a different result at trial.
Because Defendant did not give the trial court the opportunity to rule on the constitutional question Defendant now attempts to argue on appeal, this issue has not been preserved.
Our review of the record indicates that Defendant's counsel's actions "constituted a stipulation" to Defendant's prior record level before sentencing. Therefore, Defendant has waived the right to argue issues concerning his prior record level on appeal. Defendant's counsel did not in any way contest the prior record level determination at the bench. In the case before us, not only did Defendant's counsel state that he had seen the prior record level worksheet, he discussed the worksheet with the trial court and the prosecutor, and did not object when the trial court thereafter asked him if he had anything else to say with regard to sentencing. We hold, being bound by Alexander and other cases cited, that Defendant stipulated to the prior record level used at sentencing and, therefore, Defendant's sentence "was imposed based upon a proper finding of Defendant's prior record level.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
