State v. Davis12/21/2000
This Court has applied the plain error analysis only to instructions to the jury and evidentiary matters.'" McNeil, 350 N.C. at 674, 518 S.E.2d at 497 (quoting State v. Atkins, 349 N.C. 62, 81, 505 S.E.2d 97, 109 (1998), cert. denied, 526 U.S. 1147, 143 L. Ed. 2d 1036 (1999)). Here, defendant assigns error to statements by the prosecutor during jury selection to which he failed to object. Therefore, defendant has waived appellate review of this issue. This argument is rejected.
In his twenty-third argument, defendant contends that the trial court unconstitutionally chilled his right to testify.
The trial court addressed defendant as follows:
COURT: Mr. Davis, I just want to make an inquiry on the record. Have you had an opportunity to discuss with your lawyers about testifying in this matter?
DEFENDANT: Yes, sir.
COURT: You understand you have the right to testify, and if you do testify, that you'll be subject to being cross- examined on a variety of subject matters limited only by my discretion of what's relevant. Do you understand that?
DEFENDANT: Yes, sir.
COURT: As long as you've had that explained to you by your lawyers and you've been advised about your right, that's all I need to make an inquiry about.
Defendant argues that the trial court's instructions were erroneous in that they did not give more specific details about the rules that guide cross-examination.
We hold that the trial court properly instructed defendant since the trial court "did not attempt to give defendant detailed instructions concerning the scope of cross-examination and did not give an instruction inconsistent with any of the Rules of Evidence." State v. Davis, 349 N.C. 1, 31, 506 S.E.2d 455, 471 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). Furthermore, the exchange above indicates that defendant had discussed the consequences of testifying with his counsel. See Id.
Accordingly, we conclude that the trial court's instructions were not erroneous and, therefore, did not impermissibly chill defendant's right to testify. This argument is without merit.
In his twenty-fourth and twenty-fifth arguments, defendant contends that the trial court erred in denying his motion to dismiss both charges of first-degree murder on the grounds that the indictments: (1) failed to charge the elements of first-degree murder, (2) failed to allege facts to increase the maximum penalty for the crime, and (3) failed to allege capital aggravating circumstances.
Defendant recognizes that this Court has held for many years that the "short-form" murder indictment under N.C.G.S. § 15-144 is sufficient to allege first-degree murder under theories of both premeditation and deliberation and felony murder. See State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990); Brown, 320 N.C. at 191, 358 S.E.2d at 11; State v. Avery, 315 N.C. 1, 14, 337 S.E.2d 786, 793 (1985). However, defendant contends that the decision in Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999), brings our prior case law on short-form indictments into question. We disagree.
We addressed in full and rejected this argument in State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___, 69 U.S.L.W. 3364 (2000), and reaffirmed our position in State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000). In Braxton, this Court examined the validity of short-form indictments in light of Jones, 526 U.S. 227, 143 L. Ed. 2d 311, and Apprendi v. New Jersey, ___ U.S. ___, 147 L. Ed. 2d 435 (2000), and held that nothing in either
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