Opinion
No. COA11–1308.
2012-05-15
STATE of North Carolina v. Wesley Joseph CREWS, Jr., Defendant.
Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Russell J. Hollers III for defendant-appellant.
Appeal by defendant from judgment entered 11 January 2011 by Judge Henry W. Hight, Jr. in Vance County Superior Court. Heard in the Court of Appeals 1 May 2012. Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Russell J. Hollers III for defendant-appellant.
STEELMAN, Judge.
It was not plain error for the trial court to refer to the person shot and killed by defendant as “the victim” in its jury instructions.
I. Factual & Procedural Background
On 19 September 2007, Patrick Sydney arranged for Lonnie Yancey to pick up Wesley J. Crews, Jr. (“defendant”) and Antwan Myers and drive them to the Food Lion parking lot in Henderson, North Carolina for the purpose of a drug transaction. Myers had agreed to purchase three pounds of marijuana from Sydney at $700 per pound. However, Myers did not bring enough money, and he called Sydney to warn him to bring his rifle. Upon arriving, Sydney had a rifle hanging out of the car window, which pointed at defendant and Myers. An argument ensued during which Sydney was shot by defendant multiple times, and died. On 13 November 2007, defendant was indicted for murder.
Prior to trial, defendant filed a motion in limine seeking to prohibit the prosecutor, the trial court, or the State's witnesses from characterizing Sydney as “the victim.” Defendant argued that “the characterization of Patrick Sydney Jr[.] as ‘victim’ is argumentative and subverts the Defendant's presumption of innocence.” The trial court denied the motion.
On 10 January 2011, a jury found defendant guilty of voluntary manslaughter. The trial court sentenced defendant to 64 to 86 months imprisonment.
Defendant appeals.
II. Reference to Sydney as the “Victim” in Jury Instructions
In his only argument, defendant contends that the trial court erred in referring to Sydney as “the victim” in its instructions to the jury. We disagree.
A. Standard of Review
We initially note that a motion in limine does not preserve a question for appellate review in the absence of the renewal of the objection at trial. State v. Tutt, 171 N.C.App. 518, 520, 615 S .E.2d 688, 690 (2005); see also State v. Oglesby, 361 N.C. 550, 554, 648 S.E.2d 819, 821 (2007). Defendant did not object to the trial court's instructions to the jury now complained of. Therefore, our review is limited to plain error.
Plain error arises when the error is “ ‘so basic, so prejudicial, so lacking in its elements that justice cannot have been done.’ “ State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.1982)). Our Supreme Court has held that a trial court's references to a prosecuting witness as “the victim” does not constitute plain error. See State v. McCarroll, 336 N.C. 559, 566, 445 S.E.2d 18, 22 (1994) (“We cannot hold that the reference to the prosecuting witness as the victim was an error so basic and lacking in its elements that justice could not have been done.”).
As in McCarroll, defendant has made no other argument that the trial court expressed any opinion on the evidence, and the trial court properly placed the burden of proof on the State. Furthermore, the trial court specifically instructed the jury:
The law, as indeed it should, requires that the presiding judge be impartial. You're not to draw any inference from any ruling that I have made or any inflection in my voice, or expression on my face, or any question I may have asked a witness or from anything else that I may have said or done during this trial. You should not infer that I even have an opinion, or have intimated an opinion as to whether any part of the evidence should be believed or disbelieved, as to whether any fact has or has not been proved, or as to what your verdict or findings ought to be. It is your exclusive province to find the true facts in this case, and to render a verdict reflecting the truth as you find the truth to be.
NO ERROR. Chief Judge MARTIN and Judge THIGPEN concur.
Report per Rule 30(e).