Opinion
No. COA12–1216.
2013-06-4
STATE of North Carolina v. Michael Eugene MARLEY.
Attorney General Roy Cooper, by Special Deputy Attorney General David N. Kirkman, for the State. James N. Freeman, Jr., for defendant appellant.
Appeal by defendant from judgment entered 30 November 2011 by Judge Anna Mills Wagoner in Iredell County Superior Court. Heard in the Court of Appeals 13 March 2013. Attorney General Roy Cooper, by Special Deputy Attorney General David N. Kirkman, for the State. James N. Freeman, Jr., for defendant appellant.
McCULLOUGH, Judge.
On 29 November 2011, a jury found Michael Eugene Marley (“defendant”) guilty of voluntary manslaughter. The trial court entered judgment on the verdict, sentencing defendant to 67 to 90 months' imprisonment. On appeal, defendant contends the trial court plainly erred in instructing the jury on voluntary manslaughter by de-emphasizing and confusing the jury as to whether the defenses of self-defense and defense of a family member were complete defenses to that crime. Because the trial court failed to give the final mandate on self-defense and defense of a family member following its final mandate on the offense of voluntary manslaughter, we grant him a new trial on that offense.
I. Background
On the evening of 30 November 2009, defendant engaged in an altercation with Samuel Foote (“the victim”) at defendant's home, during which the victim wrestled a pistol away from defendant and pointed the pistol at defendant's wife. Defendant then produced a rifle and fired two shots into the victim's vehicle, which was parked in defendant's driveway, after the victim “jumped” inside the vehicle. The victim died shortly thereafter as a result of gunshot wounds.
On 14 December 2009, defendant was indicted for the offenses of first-degree murder and discharging a firearm into occupied property. Defendant was tried by jury beginning 14 November 2011. At trial, defendant presented evidence supporting jury instructions on the defenses of self-defense and defense of a family member. On 30 November 2011, the jury returned verdicts finding defendant not guilty of discharging a firearm into an occupied vehicle, not guilty of both first- and second-degree murder, but guilty of voluntary manslaughter. The trial court entered judgment on the verdict, sentencing defendant to 67 to 90 months' imprisonment. Defendant gave oral notice of appeal in open court.
II. Standard of Review
Defendant did not object to the trial court's jury instructions at trial. Nonetheless, defendant contends on appeal that the trial court plainly erred in instructing the jury on voluntary manslaughter and the defenses of self-defense and defense of a family member as they relate to the charge of voluntary manslaughter.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C.R.App. P. 10(a)(4) (2013). “For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal quotation marks and citations omitted); see also State v. Towe, 366 N.C. 56, ––––, 732 S.E.2d 564, 568 (2012). “ ‘In deciding whether a defect in the jury instruction constitutes “plain error”, [sic] the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.’ “ State v. McNeil, 196 N.C.App. 394, 400, 674 S.E.2d 813, 817–18 (2009) (quoting State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 378–79 (1983)).
III. Discussion
In the present case, the trial court instructed the jury on the offenses of first-degree murder on the basis of premeditation and deliberation; first-degree murder under the felony murder rule, with the relevant underlying felony being discharging a firearm into occupied property; and second-degree murder. The trial court also instructed the jury on the law as it related to self-defense and defense of a family member with respect to each of these three offenses and included the possibility of finding defendant not guilty by reason of self-defense or defense of a family member in these instructions. The trial court then instructed the jury on voluntary manslaughter. In its final mandate on the offenses of first-degree murder on the basis of premeditation and deliberation, first-degree murder under the felony murder rule, and second-degree murder, the trial court included as a possible verdict that defendant could be found not guilty by reason of self-defense or defense of a family member. The trial court then stated, in its final mandate:
If you do not find ... Defendant guilty of second degree murder, you must then consider whether he is guilty of voluntary manslaughter.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant intentionally wounded the victim with a deadly weapon and thereby proximately caused the victim's death and that the Defendant was the aggressor in bringing on the fight or used excessive force, it would be your duty to find the Defendant guilty of voluntary manslaughter even if the State has failed to prove that the Defendant did not act in self-defense.
Or if you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant intentionally and not in self-defense wounded the victim with a deadly weapon and thereby proximately caused the victim's death but the State has failed to satisfy you beyond a reasonable doubt that the Defendant did not act in the heat of passion upon adequate provocation, it would be your duty to return a verdict of guilty of voluntary manslaughter.
If you do not so find or have a reasonable doubt as to one or more of these things, ... you will not return a verdict of guilty of voluntary manslaughter and you will return a verdict of not guilty.
Thereafter, the trial court instructed the jury on the offense of discharging a firearm into occupied property and the law of self-defense and defense of a family member in relation to that offense, and included the possibility of finding defendant not guilty by reason of those two defenses in its final mandate to the jury on that offense. Thus, the trial court gave the final mandate on self-defense and defense of a family member, including the possible verdict of not guilty by reason of those two defenses, following every charged offense with the exception of voluntary manslaughter.
We note that although defense counsel did not object to the trial court's instructions as given at trial, the record reveals that throughout the charge conference, defense counsel insisted that the trial court give the final mandate on self-defense following each charged offense, and the trial court indicated its intention to do so, including following the voluntary manslaughter charge. Nonetheless, in the State's final compilation of the jury instructions, presented to both defense counsel and the trial court just prior to the trial court's instructing the jury, the final mandate on self-defense following the voluntary manslaughter charge appears to have been inadvertently omitted and was not corrected by either party during trial.
The jury instructions given by the trial court, as delineated above, were substantively accurate, as each and every jury instruction given was substantially similar to North Carolina's pattern jury instructions. Nonetheless, defendant argues that the trial court's failure to give an instruction and the final mandate on self-defense and defense of a family member following its instruction and final mandate on voluntary manslaughter confused the jury as to whether those defenses were applicable to that charge. Defendant contends that, because the voluntary manslaughter charge is the only charge for which he was not acquitted, the instructional error had a probable impact on the jury's finding defendant guilty of that offense. We agree.
In State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974), our Supreme Court held that a trial court's failure to include the possible verdict of “not guilty by reason of self-defense” in its final mandate to the jury was prejudicial error entitling the defendant to a new trial. Id. at 165, 203 S.E.2d at 820. In Dooley, the trial court gave instructions to the jury as to the elements of the offenses of second-degree murder and manslaughter, as well as an explanation of the law as it related to self-defense and what must be shown to excuse the defendant's conduct on that ground. Id. at 163–64, 203 S.E.2d at 818–19. The trial court's final mandate then charged the jury on the offense of second-degree murder, followed by the offense of manslaughter, stating in relevant part:
Now, if you find the defendant guilty of murder in the second degree, you will not consider the count of manslaughter. But, if you find the defendant not guilty of murder in the second degree, then, you will consider whether or not he be guilty of the offense of manslaughter.
So, the court instructs you, members of the jury, if you find the defendant not guilty of murder in the second degree, but you find from the evidence beyond a reasonable doubt that on or about the 18 day of January, 1973, the defendant intentionally shot [the victim] with a deadly weapon ... thereby proximately causing [the victim's] death, but you are satisfied that the defendant killed [the victim] without malice, or that he killed him in the heat of a sudden passion, and that in doing so, that he used excessive force in the exercise of self-defense, it would be your duty to return a verdict of manslaughter. If you do not so find, you would return a verdict of not guilty; or, if upon a fair and impartial consideration of all the facts and circumstances in the case there should arise in your minds a reasonable doubt as to this offense of manslaughter, it would be your duty to give the defendant the benefit of that doubt, and to find him not guilty upon the count of manslaughter.
Id. at 164–65, 203 S.E.2d at 819. On appeal, the defendant in Dooley argued that “following the mandate on manslaughter the jury should have been instructed: ‘Or, if you are satisfied that the defendant acted in self-defense, then it will be your duty to return a verdict of not guilty.’ “ Id. at 165, 203 S.E.2d at 819–20. Our Supreme Court agreed, reasoning:
Here in the final mandate the court gave special emphasis to the verdicts favorable to the State, including excessive use of force in self-defense as a possible verdict. At no time in this mandate did the court instruct the jury that if it was satisfied by the evidence that defendant acted in self-defense, then the killing would be excusable homicide and it would be their duty to return a verdict of not guilty.
The failure of the trial judge to include not guilty by reason of self-defense as a possible verdict in his final mandate to the jury was not cured by the discussion of the law of self-defense in the body of the charge. By failing to so charge, the jury could have assumed that a verdict of not guilty by reason of self-defense was not a permissible verdict in the case.
Id. at 165–66, 203 S.E.2d at 820.
In State v. Hunt, 28 N.C.App. 486, 221 S.E.2d 720 (1976), this Court reiterated that “ Dooley ... require[s] the trial judge to include not guilty by reason of self-defense as a possible verdict in his final mandate where the defense has been raised by the evidence. A failure to do so is not cured by an instruction on the law of self-defense in the body of the charge.” Id. at 488,221 S.E.2d at 721–22. In Hunt, the trial court “included a general statement concerning the law of self-defense and the things of which defendant must satisfy the jury in order to excuse the killing on grounds of self-defense” in the body of the jury charge. Id. at 488, 221 S.E.2d at 721. The trial court's final mandate then
described each of the possible offenses[,] ... stated that the State must prove beyond a reasonable doubt that defendant “without justification or excuse” shot the deceased[, and] ... further instructed that “if you have a reasonable doubt as to any one or more of these things, it is your duty to return a verdict of not guilty.”
Id. We held in Hunt that in light of our Supreme Court's holding in Dooley, the defendant was “entitled to a new trial for omission in the judge's final mandate to the jury that self-defense was a possibility of acquittal.” Id. at 488, 221 S.E.2d at 722;see also State v. Girley, 27 N.C.App. 388, 390, 219 S.E.2d 301, 302–03 (1975) (new trial warranted where trial court failed to include not guilty by reason of self-defense as a possible verdict in final mandate to jury); State v. Woodson, 31 N.C.App. 400, 401, 229 S.E.2d 254, 254 (1976) (same).
In State v. Williams, 154 N.C.App. 496, 571 S.E.2d 886 (2002), this Court again granted the defendant a new trial because “[a] possible verdict of not guilty by reason of self-defense was not included in the final mandate to the jury.” Id. at 499, 571 S.E.2d at 888. In Williams, the trial court's final mandate addressing the charge of voluntary manslaughter, of which the defendant was convicted by the jury, was substantially similar to that given by the trial court in the present case. The trial court's final mandate in Williams stated in pertinent part:
So I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally and with malice but not in self-defense, killed the victim with a deadly weapon thereby proximately causing the victim's death, it would be your duty to return a verdict of guilty of second-degree murder. However, if you do not so find or have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty [of] second-degree murder. If you do not find the defendant guilty of second-degree murder, you must consider whether he's guilty of voluntary manslaughter.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally killed the victim with a deadly weapon and the defendant was the aggressor in bringing on the fight or used excessive force, it would be your duty to find the defendant guilty of voluntary manslaughter even if the State has failed to prove that the defendant did not act in self-defense, or if you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally and not in self-defense killed the victim with a deadly weapon but the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in the heat of passion upon adequate provocation, it would be your duty to return a verdict of guilty of voluntary manslaughter. However, if you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of voluntary manslaughter.
Id. (alteration in original).
In State v. Davis, 177 N.C.App. 98, 627 S.E.2d 474 (2006), this Court was presented with circumstances substantially similar to those presented in the present case. In Davis:
[T]he trial court properly instructed the jury on first degree murder under the felony murder rule, with the relevant underlying felony being discharging a firearm into occupied property. The trial court included not guilty by reason of self-defense in this instruction, and in the instruction on the lesser included offense of second degree murder. In its final mandate on the murder charge, the trial court included as a possible verdict that defendant could be found not guilty by self-defense. Subsequently, the trial court instructed the jury with respect to the elements of the crime of discharging a firearm into occupied property, explaining self-defense as a justification or excuse for the act in the body of the instruction. However, when giving the final mandate with respect to the charge of discharging a firearm into occupied property, the trial court did not instruct the jury that it could return a verdict of not guilty as to that charge if it found defendant had acted in self-defense. The trial court continued with its general jury instructions and, as it was late in the day, excused the jurors for the evening recess. When the court reconvened the next morning, the trial court re-instructed the jury on second degree murder, voluntary and involuntary manslaughter, including the instruction that it could find defendant not guilty by reason of self-defense, but gave no additional instructions on the charge of discharging a firearm into occupied property nor any final mandate on that charge which permitted the jury to find the defendant not guilty of the charge by reason of self-defense.
Id. at 101–02, 627 S.E.2d at 477. Given these circumstances, we held in Davis that “[t]he failure to include not guilty by reason of self-defense in the final mandate [was] prejudicial error,” and we granted the defendant a new trial on the charge of discharging a firearm into occupied property. Id. at 102, 627 S .E.2d at 477.
In State v. Tyson, 195 N.C.App. 327, 672 S.E.2d 700 (2009), we held that “the trial court committed plain error by failing to include in the final mandate the possible verdict of ‘not guilty by reason of unconsciousness.’ “ Id. at 337, 672 S.E.2d at 707. In Tyson, we reasoned:
While the trial court correctly instructed that the jury should find Defendant “not guilty” if it had a reasonable doubt as to any of the elements of statutory rape, the trial court failed to include in its final mandate that the jury should find Defendant “not guilty” if it had a reasonable doubt as to Defendant's consciousness. As in Dooley where, even if the State proved all the statutory elements of murder, the defendant would be not guilty if his actions were justified by self-defense, in this case, even if the State proved all the statutory elements of statutory rape, Defendant would be not guilty if his actions were blameless due to his unconsciousness. Thus, as in Dooley, the omission of “not guilty by reason of unconsciousness” was not cured by the discussion of the law of unconsciousness in the body of the charge. By failing to so charge, the jury could have assumed that a verdict of not guilty of statutory rape by reason of unconsciousness was not a permissible verdict in the case. The trial court's failure to include “not guilty by reason of unconsciousness” in the final mandate to the jury constitutes plain error in this case and warrants a new trial.
Id. at 338–39, 672 S.E.2d at 708.
In light of the foregoing authority, we conclude the trial court plainly erred in failing to include the possible verdict of not guilty by reason of self-defense or defense of a family member in its final mandate to the jury on the voluntary manslaughter offense in the present case. Here, as in Dooley, “[b]y failing to so charge, the jury could have assumed that a verdict of not guilty by reason of self-defense [or defense of a family member] was not a permissible verdict [on that charge].” Dooley, 285 N.C. at 166, 203 S.E.2d at 820. Also like Dooley, the trial court's final mandate on voluntary manslaughter in the present case emphasized only those verdicts favorable to the State, including that the defendant was the aggressor in bringing on the fight or used excessive force in self-defense. See id. at 165, 203 S.E.2d at 820. In addition, as in Hunt, Girley, and Woodson, the trial court's failure to include a possible verdict of not guilty by reason of self-defense or defense of a family member as to the voluntary manslaughter offense was not cured by the inclusion of instructions on the law of these defenses within the body of the charge and the final mandate addressing the other charged offenses. Hunt, 28 N.C.App. at 488, 221 S.E.2d at 721–22;Girley, 27 N.C.App. at 390, 219 S.E.2d at 302–03;Woodson, 31 N.C.App. at 401, 229 S.E.2d at 254. Rather, as in Davis, by including a possible verdict of not guilty by reason of self-defense or defense of a family member in the final mandate as to all other offenses, the trial court's instructions likely reinforced the suggestion that the jury could not acquit defendant of the voluntary manslaughter offense on the basis of these defenses. Davis, 177 N.C.App. at 101–02, 627 S.E.2d at 477;see also State v. McHone, 174 N.C.App. 289, 298, 620 S.E.2d 903, 909 (2005) (where the trial court provided a not guilty mandate with respect to taking offenses, trial court's failure to provide a similar not guilty mandate with respect to first-degree murder offense “likely reinforced the suggestion that the jury should return a verdict of first degree murder” on some basis and therefore amounted to plain error).
Although the jury instructions considered as a whole were correct and substantially followed the North Carolina Pattern Jury Instructions, we cannot conclude that this is a case in which the trial court's instructions “made it clear to the jury that a verdict of not guilty by reason of self-defense [or defense of a family member] was permissible” as to the offense of voluntary manslaughter. See McNeil, 196 N.C.App. at 404, 674 S.E.2d at 819–20 (trial court's failure to include not guilty by reason of self-defense as a possible verdict in its final mandate to the jury was not plain error where the jury instructions considered as a whole were correct and the trial court's instructions clearly communicated both that a verdict of not guilty by reason of self-defense was permissible and under what circumstances the jury should return such a verdict); State v. Haire, 205 N.C.App. 436, 443, 697 S.E.2d 396, 400 (2010) (“When the trial court's instructions to the jury are considered in context as a whole, ‘we think the jury clearly understood that the burden was upon the State to satisfy it beyond a reasonable doubt that defendant did not act in self-defense and clearly understood the circumstances under which it should return a verdict of not guilty by reason of self-defense.’ “ (quoting State v. Gaines, 283 N.C. 33, 43, 194 S.E.2d 839, 846 (1973))). Furthermore, although the trial court's final mandate on voluntary manslaughter referenced “self-defense,” like the final mandate we upheld in McNeil, the trial court's final mandate here contained absolutely no reference to or possibility of finding defendant not guilty by reason of defending a family member. See McNeil, 196 N.C.App. at 403–04, 674 S.E.2d at 819–20. Rather, we conclude that the trial court's inclusion of a possible verdict of not guilty by reason of self-defense or defense of a family member as to all the charged offenses except voluntary manslaughter only served to confuse the jury on this issue. Indeed, the jury acquitted defendant of every other offense, including the offense of discharging a firearm into occupied property, all of which were predicated on the same facts as the voluntary manslaughter offense—that defendant fired a weapon into an occupied vehicle, thereby killing the victim.
Given these circumstances, we must conclude that the trial court's instructional error had a probable impact on the jury's finding defendant guilty of the voluntary manslaughter offense. Therefore, as we reasoned in Tyson, the trial court's failure to include “not guilty by reason of self-defense” or defense of a family member in the final mandate to the jury on the voluntary manslaughter offense constitutes plain error in this case and warrants a new trial for defendant on that offense. Tyson, 195 N.C.App. at 339, 672 S.E.2d at 708;see also Williams, 154 N.C.App. at 499, 571 S.E.2d at 888.
IV. Conclusion
The trial court's failure to include not guilty by reason of self-defense or defense of a family member as a possible verdict in the final mandate for the offense of voluntary manslaughter was plain error in this case, and we must therefore grant defendant a new trial on the offense of voluntary manslaughter.
New trial. Judges BRYANT and HUNTER, JR., (ROBERT N.), concur.
Report per Rule 30(e).