Opinion
No. COA10-1099
Filed 19 April 2011 This case not for publication
Appeal by defendant from judgment entered 7 April 2010 by Judge William Z. Wood, Jr., in Forsyth County Superior Court. Heard in the Court of Appeals 11 April 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Russell J. Hollers III, for defendant-appellant.
Forsyth County Nos. 08 CRS 60567-69.
Andre J. Robinson ("defendant") appeals from a judgment entered upon jury verdicts finding him guilty of three counts of attempted robbery with a dangerous weapon. We find no error.
On 8 September 2008, defendant approached three high school students. Defendant was wearing a bandana and brandishing what appeared to be a handgun. Defendant ordered the three students to put their hands on a table while he searched their pockets and belongings. When defendant discovered the students possessed nothing valuable, he left.
Detective Kerry Dean Israel ("Det. Israel") of the Winston-Salem Police Department investigated the attempted robbery. As part of his investigation, Det. Israel interviewed defendant. Defendant initially denied his involvement in the robbery, but subsequently confessed to using a BB pistol to attempt to rob the students.
On 12 January 2009, defendant was indicted on three counts of attempted robbery with a dangerous weapon. Beginning 5 April 2010, defendant was tried by a jury in Forsyth County Superior Court. Following the presentation of evidence, and after the jury retired to deliberate, the jury sent a note to the judge requesting a "written copy of the law presented in the courtroom related to the four elements the State must prove and the definition of attempted robbery with a firearm." Initially, defendant did not object to sending a written copy of the instructions to the jury. However, after discussion of the matter with the judge and the prosecutor, defendant changed his position and lodged an objection. Nevertheless, the trial court allowed the jury's request. The written instructions were subsequently transported to the jury room by the court bailiff.
On 7 April 2010, the jury returned verdicts finding defendant guilty of all charges. The trial court sentenced defendant to a minimum of forty-eight months to a maximum of sixty-seven months in the North Carolina Department of Correction. Defendant appeals.
Defendant's sole argument on appeal is the trial court violated N.C. Gen. Stat. § 15A-1234(d) by failing to deliver additional instructions to the jury in open court, rather than instructing the bailiff to deliver the written instructions. We disagree.
N.C. Gen. Stat. `15A-1234 states, in relevant part:
(a) After the jury retires for deliberation, the judge may give appropriate additional instructions to:
(1) Respond to an inquiry of the jury made in open court;
. . . .
(c) Before the judge gives additional instructions, he must inform the parties generally of the instructions he intends to give and afford them an opportunity to be heard. The parties upon request must be permitted additional argument to the jury if the additional instructions change, by restriction or enlargement, the permissible verdicts of the jury. Otherwise, the allowance of additional argument is within the discretion of the judge.
(d) All additional instructions must be given in open court and must be made a part of the record.
N.C. Gen. Stat. § 15A-1234 (2009).
However, "where instructions given do not add substantively to previous instructions, the latter instructions are not `additional Instructions' as that term is contemplated in section [15A-1234]. . . ." State v. Smith, 188 N.C. App. 207, 211, 654 S.E.2d 730, 734 (internal quotations and citation omitted), appeal dismissed, disc. review denied, 362 N.C. 479, 667 S.E.2d 274 (2008); see also State v. Williamson, 122 N.C. App. 229, 236, 468 S.E.2d 840, 845, cert. denied, 344 N.C. 637, 477 S.E.2d 54 (1996) (holding that where a trial court is simply repeating or clarifying instructions in response to a jury's question, such comments are not "additional instructions"). In the instant case, the transcript makes clear that the trial court did not give the jury any additional instructions, but instead merely restated in written form the exact same instructions it had previously given to the jury. Therefore, because the trial court's instructions to the jury were not "additional instructions" as contemplated by N.C. Gen. Stat. § 15A-1234, they were not required to be given in open court. This argument is overruled.
No error.
Judges STEELMAN and STROUD concur.
Report per Rule 30(e).