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State v. Davis12/21/2000
your foreperson write "no" [on the issues and recommendation form].
The jury did not find the (f)(1) circumstance to exist.
Defendant contends that the trial court's instruction improperly assumed that the State's evidence regarding alleged criminal conduct by defendant was true. Therefore, according to defendant, the trial court deprived the jury of the opportunity to determine whether the essential elements of the alleged crimes had been met and whether such alleged criminal conduct constituted a significant history of prior criminal activity. Defendant cites the proposition that "the trial court in charging a jury may not give an instruction which assumes as true the existence or nonexistence of any material fact in issue." State v. Cuthrell, 235 N.C. 173, 174, 69 S.E.2d 233, 234 (1952).
Defendant failed to object to the instruction at trial, thereby failing to preserve this argument for appeal. N.C. R. App. P. 10(b)(2). Moreover, defendant failed to "distinctly" contend in his assignment of error that the alleged error constituted plain error. Id. Nonetheless, we have examined defendant's argument, and we find no plain error.
"In order to rise to the level of plain error, the error in the trial court's instructions must be so fundamental that (i) absent the error, the jury would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected." State v. White, 340 N.C. 264, 299, 457 S.E.2d 841, 862, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 436 (1995).
Assuming arguendo that the trial court's instructions assumed that defendant engaged in the prior criminal activity, overwhelming evidence was presented that defendant engaged in the criminal activity listed. Several witnesses testified regarding defendant's assault of his girlfriend. Defendant's witness, Dr. Noble, testified regarding defendant's drug abuse and drug dealing, and defendant's witness, Orren Daugherty, testified that defendant won money by gambling.
The trial court did not assume the jury's duty to determine whether defendant's history was significant. Rather, the trial court listed defendant's prior criminal activity, which was supported by the evidence, and asked that the jury determine the significance of this activity.
Admittedly, the pattern jury instructions require the jury to determine whether a defendant has engaged in any prior criminal conduct as well as the significance of any such conduct: " ou would find this mitigating circumstance if you find that (describe all defendant's prior criminal activity) and that this is not a significant history of prior criminal activity." N.C.P.I.--Crim. 150.10(1); see also State v. Daniels, 337 N.C. 243, 271, 446 S.E.2d 298, 316 (1994) (the trial court properly instructed: "You would find this mitigating circumstance if you find that the defendant's prior criminal history is the conviction of driving while impaired, communicating threats, and simple assault, and that this was not a significant history of prior criminal activity"), cert. denied, 513 U.S. 1135, 130 L. Ed. 2d 895 (1995). However, we find no plain error in the instruction because the evidence of defendant's drug activity, assault, and gambling was overwhelming, and the jury was permitted to determine the significance of said conduct. This assignment of error is rejected.
In his eighteenth argument, defendant contends that the trial court erred in refusing to give peremptory instructions about the existence of four mitigating circumstances. Defendant contends that he was entitled to peremptory instructions on the non-statutory mitigating circumstance " hat the Defendant never had any permanen
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