State v. Locklear
State v. Locklear
Opinion of the Court
The question is whether defendant may now, for the first time, seek collateral review of an alleged error in the judge’s charge that took place during his trial in August, 1974, when he failed to raise the question at trial, on direct appeal or in a subse
“[I]t is unlikely that prior to Mullaney many defense lawyers made appropriate objections to jury instructions incorporating those presumptions. . . . The States, if they wish, may be able to insulate past convictions by enforcing the normal and valid rule that failure to object to a jury instruction is a waiver of any claim of error.” 432 U.S. at 244 n. 8.
At the time defendant was tried (as well as under our current Rules of Appellate Procedure) a defendant waived the right to claim error in the charge unless he presented the questions for review in an appeal where the exceptions were noted, included in an assignment of error, and brought forward and argued in his brief. Following the decision in Hankerson, our courts have consistently held that a defendant who failed to raise the alleged error on direct appeal will be held to have waived his right to complain about the error. State v. Riddick, 293 N.C. 261, 247 S.E. 2d 234 (1977); State v. Jackson, 293 N.C. 260, 247 S.E. 2d 234 (1977); State v. Brower and Johnson, 293 N.C. 259, 243 S.E. 2d 143 (1977); State v. Watson, 37 N.C. App. 399, 246 S.E. 2d 25 (1978); State v. Abernathy, 36 N.C. App. 527, 244 S.E. 2d 696 (1978).
It is of no consequence that defendant’s counsel, in the preparation of the record on appeal, set out assignments of error to the judge’s charge. “Exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.” Rule 28, Rules of Practice in the Court of Appeals of North Carolina. (Superseded as of 1 July 1975.) Substantially the same provision may be found in the current rules. Rule 28, North Carolina Rules of Appellate Procedure. Under the former practice, however, the appeal itself was considered an exception to the judgment and presented the “face of the record proper” for review. State v. Kirby, 276 N.C. 123, 171 S.E. 2d 416 (1970). That review considered such matters as “the sufficiency of the indictment, subject matter jurisdiction, and regularity of the judgment.” State v. McMorris, 290 N.C. 286, 292, 225 S.E. 2d 553, 557 (1976). Defendant’s appeal was taken prior to the adoption of
The order under review is in error. It is reversed and vacated. The case is remanded to the Superior Court of Robeson County.
Reversed and remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.