Carolina v. Simmons

WHICHARD, Judge.

Guilt Phase

Defendant contends the court erred in failing to summarize any of his evidence or contentions in its instructions while fully summarizing the State’s evidence and contentions. He did not present evidence, but relies on evidence allegedly favorable to him elicited on cross-examination.

Defendant concedes that he did not object at trial, and that N.C. R. App. P. 10(b)(2) thus precludes assigning this failure as error on appeal. He argues, however, that failure to allow him the opportunity to object out of the hearing of the jury obviates the Rule 10(b)(2) requirement.

Th…