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State v. Penland7/31/1996
the sixth grade, the Sapp brothers admitted exactly what they had done when they were caught. On cross-examination Duncan admitted that he did not know the brothers' current reputation for truthfulness. The fact that Duncan's knowledge of the Sapp brothers' reputation for truthfulness related to a time six years earlier affected only weight, not admissibility. See State v. Syriani, 333 N.C. 350, 377, 428 S.E.2d 118, 132, cert. denied, ___ U.S. ___, 126 L. Ed. 2d 341 (1993). Further, given the inconsequential nature of this testimony, defendant has failed to demonstrate that the error, if any, in admitting it was prejudicial.
Defendant next assigns as error the trial court's refusal to instruct the jury that the State had the burden of proving beyond a reasonable doubt defendant's identity as the perpetrator. Asserting that there was no direct evidence that he killed the victim, defendant requested that the trial court instruct in accordance with N.C.P.I.--Crim. 104.90, which provides:
I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. That means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.
N.C.P.I.--Crim. 104.90 (1989). The trial court refused to give the instruction. Defendant argues that the main issue was whether he or one of the Sapp brothers killed the victim. He thus contends that he was entitled to have the substance of this instruction given.
So long as the requested instruction is given in substance, the trial court is not required to give it verbatim even when it is a correct statement of the law. State v. Dodd, 330 N.C. 747, 753, 412 S.E.2d 46, 49 (1992). The trial court did not err in refusing to give this instruction because defendant's identity as the perpetrator was not seriously in question. There was substantial evidence that defendant killed the victim: the Sapp brothers testified that defendant was the last person with the victim before they left the scene of the crimes; Larry testified that he observed defendant moving his arms in front of the victim; defendant admitted to the Sapp brothers that he had "iced the bitch" and that he had stabbed himself in the leg while he was stabbing the victim; defendant displayed his bloody knife to the Sapps; and both cigarette butts matching defendant's brand and a cowboy boot print were found at the crime scene. As Larry testified that defendant was the only one wearing cowboy boots, the discovery of the cowboy boot print at the crime scene refuted defendant's assertion that he was passed out in the truck at the time of the killing.
Even if identity of the perpetrator was an issue, the trial court instructed that the State "must prove . . . that the defendant is guilty beyond a reasonable doubt." In instructing on each of the offenses, the court indicated that the State was required to prove beyond a reasonable doubt that defendant committed their various elements. These instructions adequately informed the jury that the State had to prove that defendant was the perpetrator. See State v. Williams, 98 N.C. App. 68, 71-72, 389 S.E.2d 830, 832 (1990). Any error in the failure to give the requested instruction thus was harmless beyond a reasonable doubt. This assignment of error is overruled.
Defendant next argues that the prosecutors' guilt-innocence phase arguments contained misstatements of the law and the evidence, included statements of personal opinion and personal testimony, and were grossly improper. Although defendant did not object, he now contends that the re
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