State v. Dotson

WHITESIDE, J.,

concurring in part, dissenting in part.

Although I concur in the sustaining of the third assignment of error and in the judgment of reversal, I would also sustain the fourth assignment of error.

Contrary to the statement in the majority opinion, the trial court did not give the requested instructions upon which the claim of error is predicated as the trial court specifically noted (Tr. 193). The trial court instructions as to credibility of witnesses was only very general and given only before the commencement of trial. No such instruction was given during the general charge following closing argument when it would be most helpful to the jury in its deliberations. Rather, the trial court gave only a charge on identification testimony. There is no contention by the prosecution that the requested instructions are not proper. Having been requested to do so, it was error for the trial court not to be more specific in explaining the import of various tests which the jury may use in weighing the evidence and determining truthfulness The appellant made the request, and the trial court should have given the instructions, especially since the court did not repeat the general instructions during the mandatory charge following closing argument.

Although I concur in overruling the second assignment of error, my reason varies slightly. If defendant were with Robin Bowshier, instead of Pamela Willis, he was aware of it at all times and did not need *575notification from the prosecutor. Appellant has offered no explanation of why, from his own personal knowledge, he did not timely file a notice of alibi.