61 N.C. App. 342 | N.C. Ct. App. | 1983
G.S. 15A-1232 provides, in pertinent part: “In instructing the jury, the judge must declare and explain the law arising on the evidence. He is not required to state the evidence except to the extent necessary to explain the application of the law [thereto].” Defendant argues that the court here failed to give any summary of the evidence and that “no summary of the evidence at all is insufficient to explain the application of the law [thereto].”
Defendant, however, did not object to this omission before the jury retired. He thus has waived his right to assign error thereto. Rule 10(b)(2), Rules of Appellate Procedure.
He argues, nevertheless, that “[bjecause [he] was not provided sufficient opportunity to make such an objection at trial, . . . the waiver rule should not be applied . . . .” While the record establishes that defense counsel responded in the negative when asked if he had further requests for instructions, defendant argues that this opportunity to object “was apparently given while the jury was present,” in violation of Rule 21, General Rules of Practice for the Superior and District Courts.
The record does not expressly state whether the jury was present or absent at the time. Because defendant had no objection to offer, however, presence or absence of the jury was immaterial.
The record does not suggest that counsel was denied opportunity to approach the bench to present matters out of the hearing of the jury, or that [he was] denied opportunity to present matters out of the presence of the jury. The court [thus] complied in every respect with the requirements of Rule 21.
State v. Thompson, 59 N.C. App. 425, 429, 297 S.E. 2d 177, 180 (1982).
Defendant contends the court erred by allowing the State to cross-examine him as to inadmissible details regarding offenses for which he had previously been convicted. See State v. Finch, 293 N.C. 132, 141-42, 235 S.E. 2d 819, 824-25 (1977). Because he failed to object to this testimony at trial, he cannot assert these exceptions on appeal. Rule 10(b)(1), Rules of Appellate Procedure; see State v. Bryant, 56 N.C. App. 734, 736, 289 S.E. 2d 630, 631 (1982).
No error.