Opinion
NO. COA12-595
12-18-2012
STATE OF NORTH CAROLINA v. JIVON JACQUELE DARDEN
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Glenn Gerding for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Cumberland County
No. 09 CRS 54594
Appeal by Defendant from judgment entered 18 August 2011 by Judge Gregory A. Weeks in Cumberland County Superior Court. Heard in the Court of Appeals 15 November 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State.
Glenn Gerding for Defendant.
, Judge.
Procedural History and Evidence
This appeal arises from the events surrounding the robbery and murder of Cedrick Ladon Brown on 2 April 2009 in Fayetteville. Defendant Jivon Jacquele Darden was indicted for first-degree murder, first-degree burglary, robbery with a dangerous weapon, and conspiracy to commit robbery with a dangerous weapon. Defendant was tried non-capitally at the 15 August 2011 criminal session of superior court in Cumberland County. The jury returned verdicts of guilty on all charges. The trial court sentenced Defendant to life in prison without the possibility of parole for the first-degree murder conviction, which was based upon a theory of felony murder, and accordingly, arrested judgment on the first-degree burglary conviction, the predicate felony therefor. The court consolidated the robbery and conspiracy convictions with the murder conviction for judgment. Defendant appeals.
Discussion
Defendant's sole argument on appeal is that the trial court committed plain error in failing to give the option of acquittal or not guilty in its final mandate to the jury on the charge of first-degree murder. We disagree.
Where a
defendant did not object at trial to the omission of the not guilty option from the trial court's final mandate to the jury, we review the trial court's actions for plain error.State v. McHone, 174 N.C. App. 289, 294, 620 S.E.2d 903, 907 (2005) (citations and quotation marks omitted), disc. review denied, 362 N.C. 368, 628 S.E.2d 9 (2006). In some cases, "the failure of the trial court to provide the option of acquittal or not guilty in its charge to the jury can constitute reversible error." Id. at 295, 620 S.E.2d at 907.
Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave
error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a miscarriage of justice or in the denial to [the] appellant of a fair trial.
It is well established that the trial court's charge to the jury must be construed contextually and isolated portions of it will not be held prejudicial error when the charge as a whole is correct.
In McHone, this Court considered three factors in determining that the court's failure to provide the option of not guilty in its charge to the jury constituted plain error: (1) "the jury instructions on murder in their entirety[,]" (2) "the content and form of the first[-]degree murder verdict sheet [,]" and (3) "the instructions and verdict sheet for [the underlying felonies.]" Id. at 297-98, 620 S.E.2d at 909. After careful review, we conclude that the distinctions between this case and McHone as to factors one and two are significant and warrant a different outcome.
As to the first factor, here the trial court instructed the jury separately on felony murder based upon burglary, robbery, and kidnapping. As in McHone, the court here failed to give the option of not guilty during any portion of the first-degree murder charge. However, at the conclusion of its instructions for each of the three theories of felony murder, the trial court here did instruct the jury:
Defendant was not indicted for the substantive offense of kidnapping, but the State presented evidence it believed supported kidnapping as a predicate felony to first-degree murder. Further, although Defendant's indictment for first-degree murder was based upon theories of both felony murder and "malice aforethought," the State did not request, and the court did not give, an instruction on premeditation and deliberation.
If you do not so find or if you have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of first[-]degree murder committed during the perpetration of the felony of burglary and you would write no in the space provided on the verdict form.(Emphasis added). In contrast, in McHone, the trial court "did not, as an alternative to a 'not guilty' mandate, instruct the jury to answer 'no' . . . on the verdict sheet should it not find any one or more of the elements of murder missing[.]" Id. at 296, 620 S.E.2d at 908-09. Thus, here, although the court did not use the words "not guilty," it did instruct the jury that it should answer "no" if it had a reasonable doubt as to the State's proof on any element.
. . . .
If you do not so find or if you have a reasonable doubt as to one or more of these things [first-degree murder committed during the perpetration of the felony of robbery], you would write no in the space provided on the verdict form.
. . . .
If you do not so find or if you have a reasonable doubt as to one or more of these things [first-degree murder committed during
the perpetration of the felony of kidnapping], you would write no in the space provided on the verdict form.
As to the second factor, in McHone, the failure to provide an alternative to a not guilty mandate was exacerbated because "the verdict sheet itself did not provide a space or option of 'not guilty.'" Id. at 298, 620 S.E.2d at 909. Here, however, the verdict form did provide the option of a "NOT GUILTY" verdict for the first-degree murder charge, as well as blanks labeled "ANSWER" under each of the three felony theories that could support first-degree murder. Thus, unlike in McHone, the jury in this case was explicitly told that if it had a reasonable doubt as to an element of first-degree murder under any of the three theories put forth by the State, it should answer "no" on the verdict form. The verdict form in turn provided spaces for "no" answers as to the felony theories and also contained a "not guilty" option for first-degree murder.
As to the third factor, here as in McHone, the trial court gave an explicit not guilty option in its final mandate as to the underlying felonies with which Defendant was charged, to wit, robbery with a dangerous weapon and burglary. In McHone, we noted that,
[r]ather than help correct the failure to provide a similar not guilty mandate with respect to the first[-]degree murder charge, the presence of a not guilty final mandate as to the [underlying felony] offenses likely reinforced the suggestion that the jury should return a verdict of first[-]degree murder based upon premeditation and deliberation and/or felony murder.Id. (emphasis in original). There was no such suggestion in this case, where the trial court explicitly instructed the jury to answer "no" if it had a reasonable doubt as to any element of the first-degree murder charge and the verdict form provided a "NOT GUILTY" option for that charge. Thus, the court's inclusion of a not guilty option in the final mandate of the underlying offenses here did not serve to reinforce any misperception by the jury.
Likewise, the content and form of the verdict sheet on the underlying offenses, which did afford a space for a not guilty verdict, also likely reinforced the suggestion that [the] defendant must have been guilty of first[-]degree murder on some basis[.]
Ultimately in McHone, we concluded that the defendant had established plain error, "based not only on the importance of the jury receiving a not guilty mandate from the presiding judge, but also on the form and content of the particular verdict sheets utilized in this case." Id. at 299, 620 S.E.2d at 910. Based upon the differences discussed supra, we find the jury charge and verdict form here distinguishable from those in McHone and much more like those in State v. Boyd, where
the jury was instructed explicitly that it could not return a guilty verdict should it have reasonable doubt as to any of the elements of [the crime charged]. Unlike McHone, all of the verdict sheets given to the jury provided them the option of returning a not guilty verdict. The trial court polled the jury after having read the verdict and found the jury voted unanimously to convict on the . . . charge.State v. Boyd, __ N.C. App. __, __, 714 S.E.2d 466, 474 (2011). Because "[t]he jury . . . was given a clear instruction, and there [wa]s nothing in the record to suggest jurors were confused as to the conditions under which they could return an acquittal[,]" we found no error. Id. We note that here, as in Boyd, the trial court polled the jurors individually following the announcement of the guilty verdicts, and none revealed any confusion about their votes. Thus, in light of the nearly identical jury instructions and circumstances here and in Boyd, we find no error, let alone plain error. Accordingly, this argument is overruled.
In Boyd, at the charge conference, the trial court stated, without objection from the defendant, its intention to charge the jury using the relevant pattern jury instruction. __ N.C. App. at __, 714 S.E.2d at 473. However, during the actual charge, the court did not give the pattern instruction verbatim, but rather omitted the final not guilty mandate, a variance to which the defendant did not object. Id. Noting that "our Supreme Court has held that a defendant need not object to preserve the issue of a variance when the [d]efendant agreed to the use of a particular instruction[,]" we reviewed the omission de novo. Id. at __, 714 S.E.2d at 473-74.
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NO ERROR.
Judges GEER and MCCULLOUGH concur.
Report per Rule 30(e).