STATE OF NORTH CAROLINA
v
.
Moore County
No. 99 CRS 3685
RONALD DEON BARRETT
Attorney General Roy Cooper, by Special Deputy Attorney
General Elizabeth Leonard McKay, for the State.
Cunningham, Dedmond, Petersen & Smith, L.L.P., by Bruce T.
Cunningham, Jr., for defendant-appellant.
CAMPBELL, Judge.
Ronald Deon Barrett (“defendant”) was indicted on 16 August
1999 for first degree murder in the death of Calvin Lee Steele, Jr.
(hereinafter, “the victim” or “Steele”). Defendant pled not
guilty. The State elected not to place defendant on trial for
first degree murder but rather to try him for second degree murder
or any lesser included offense supported by the evidence.
Defendant was convicted of voluntary manslaughter and sentenced to
a presumptive prison term of 60 to 81 months. Defendant appeals.
The State's evidence at trial tended to show the following:
On the night of 28 April 1999, the victim and three of his friends,
Theodore Gill (“Gill”), John Hancock (“Hancock”) and Clarence
Davenport (“Davenport”), rode to the Cameron Elementary Schoolgymnasium to play basketball. The four men traveled to the school
in Gill's Ford Explorer, with Gill driving, Davenport in the front
passenger seat, Hancock in the left rear passenger seat, and Steele
in the right rear passenger seat. When the four men arrived at the
school, defendant and his cousin, Chris Barrett (“Chris”), were in
a car parked in the school's parking lot. Gill parked the Explorer
and the four men waited in the truck for the gym to be opened for
play. While the four men waited in Gill's truck, Chris walked up
to the driver's side window and began talking across Gill to
Davenport. Steele got out of the right rear passenger seat and
walked around the Explorer towards Chris. Steele asked Chris
“where was his man at” and Chris replied that “he's in the car.”
Steele then punched Chris, grabbed Chris' jacket, and pulled the
jacket off over Chris' head. Chris ran back to the car in which
defendant was sitting, while Steele calmly walked back around the
Explorer to the right rear passenger side.
Defendant then got out of his car and walked at a fast pace
towards the Explorer carrying a handgun in his left hand. As
defendant approached, Steele stood there with his arms up and his
hands empty. Defendant walked up to Steele, stuck the gun in his
chest, and gave him a push. Steele responded by punching defendant
in the face, and then the two men began wrestling for position. As
defendant and Steele struggled with each other, the gun went off.
Defendant then backed away with the gun still pointed at Steele.
After a brief second, defendant ran back to the car with the gun in
his hand and drove away. The operator of the gym testified that defendant and Steele
had gotten into an argument a few weeks earlier while playing
basketball and that defendant had slapped Steele in the face. The
operator testified that, based on this previous incident, he
immediately asked if defendant had done it when he saw Steele lying
on the ground.
Detective Jeff Sheffield testified that defendant had no
bruises, marks, scratches or abrasions, on him when he was
arrested. Detective Richard Talbert testified that the photograph
taken of defendant in the early morning hours of 29 April 1999 did
not reveal any injuries to defendant.
Defendant presented no evidence and the jury returned a
verdict of guilty of voluntary manslaughter.
At the sentencing hearing, defendant submitted five statutory
mitigating factors and requested a sentence in the mitigated range.
Defendant submitted evidence of his good character and his support
system in the community through the testimony of family members.
Following the sentencing hearing, the trial court found no
aggravating or mitigating factors and sentenced defendant in the
presumptive range.
Defendant brings forward five assignments of error in the
record on appeal. Two of defendant's assignments of error are not
set out or supported in his brief, and are therefore deemed
abandoned pursuant to N.C. R. App. P. 28(b)(6).
By his first remaining assignment of error, defendant argues
that the trial court erred in having the following exchange in thepresence of the prospective jurors prior to jury selection:
THE COURT: Call your case.
MS. KRUEGER [State]: Your Honor, the first
matter is Ronald Deon Barrett.
THE COURT: Is the State ready?
MS. KRUEGER: Yes, your Honor.
THE COURT: Is the defendant ready?
MR. CROCKETT [Defense]: Yes, your Honor.
MR. YATES [State]: Your Honor, in the
indictment the defendant was charged with
first degree murder. The State will proceed
with second degree murder.
THE COURT: Let the record show that the State
does not place the defendant on trial for
first degree murder, but will place the
defendant on trial for second degree murder
and will seek such other verdict as the
evidence might warrant and the jury might
find.
Defendant argues that the trial court violated both N.C. Gen.
Stat. § 15A-1221(b) and defendant's right to due process under the
state and federal constitutions by informing the prospective jurors
that defendant had been charged with a greater offense (first
degree murder) than the one the State sought to try him on (second
degree murder), leaving the prospective jurors with the impression
that defendant had already received a major concession from the
State.
A review of the record reveals that defendant did not object
at trial to the above exchange.
In order to preserve a question for
appellate review, a party must have presented
to the trial court a timely request, objection
or motion, stating the specific grounds forthe ruling the party desired the court to make
if the specific grounds were not apparent from
the context. It is also necessary for the
complaining party to obtain a ruling upon the
party's request, objection or motion.
N.C. R. App. P. 10(b)(1) (2002). In criminal cases, a question
which is not properly preserved for appellate review by objection
at trial and is not deemed preserved, “nevertheless may be made the
basis of an assignment of error where the judicial action
questioned is specifically and distinctly contended to amount to
plain error.” N.C. R. App. P. 10(c)(4). The scope of review on
appeal is confined to a consideration of those assignments of error
set out in the record on appeal in accordance with Rule 10. N.C.
R. App. P. 10(a). In addition, constitutional arguments not raised
in the trial court are deemed waived on appeal. State v.
Fernandez, 346 N.C. 1, 18, 484 S.E.2d 350, 361 (1997). Defendant
did not object at trial to the above quoted exchange and has failed
to assert plain error. Accordingly, defendant has failed to
preserve for appellate review any issue related to the exchange.
Assuming, arguendo, that these issues had been properly
preserved for appellate review, we conclude that the trial court
did not err in informing the prospective jurors that defendant had
been charged with first degree murder but that the State had
elected to try him for second degree murder.
N.C.G.S. § 15A-1221(b) prohibits any person from reading the
indictment against the defendant to prospective jurors or to the
jury at any time during jury selection or trial. See, e.g., State
v. Knight, 340 N.C. 531, 459 S.E.2d 481 (1995); State v. Faucette,326 N.C. 676, 392 S.E.2d 71 (1990); State v. Leggett, 305 N.C. 213,
287 S.E.2d 832 (1982). N.C.G.S. § 15A-1213 is substantially
similar, prohibiting the trial judge from reading the pleadings to
the jury. N.C.G.S. § 15A-1213 (2001).
However, N.C.G.S. § 15A-1221(a)(2) requires the trial court to
inform prospective jurors about the case in accordance with
N.C.G.S. § 15A-1213. N.C.G.S. § 15A-1213 requires the trial court
to identify the parties and their counsel and briefly inform the
prospective jurors of the name of the defendant, the charge, the
date of the alleged offense, the name of the victim alleged in the
pleadings, defendant's plea, and any affirmative defense of which
defendant has given proper notice. Knight, 340 N.C. at 556, 459
S.E.2d at 496. “To comply with these requirements, the trial court
may draw 'information from the bills of indictment to the extent
necessary to identify the defendant and explain the charges against
him and the circumstances under which he was being tried.'”
Faucette, 326 N.C. at 689, 392 S.E.2d at 78 (quoting Leggett, 305
N.C. at 218, 287 S.E.2d at 835-36 (1982)).
Defendant specifically argues that N.C.G.S. §§ 15A-1213 and
15A-1221 prohibit a judge from informing prospective jurors that a
defendant has been charged with first degree murder when the State
has elected not to pursue first degree murder but rather to try the
defendant on second degree murder. We disagree.
The purpose of the requirement that the indictment not be read
to prospective jurors or to the jury is to prevent the jurors from
being “given a distorted view of the case before them by an initialexposure to the case through the stilted language of
indictments[.]” Leggett, 305 N.C. at 218, 287 S.E.2d at 836. In
the instant case, the trial court simply informed the prospective
jurors that defendant had been charged with first degree murder and
that the State had elected to try him for second degree murder.
The trial court did not read the indictment in its entirety and in
particular did not recite the language indicating that twelve or
more grand jurors had concurred in issuing the indictment. See
Knight, 340 N.C. at 556, 459 S.E.2d at 496 (quoting Faucette, 326
N.C. at 688, 392 S.E.2d at 78). Accordingly, the trial court did
not violate the proscription contained in N.C.G.S. §§ 15A-1213 and
15A-1221 against reading the indictment to prospective jurors or to
the jury. In addition, we conclude that the trial court's failure
to inform the prospective jurors of all the information required
under N.C.G.S. § 15A-1213 did not rise to the level of prejudicial
error, because there is not a reasonable possibility that, had the
trial court done so, a different result would have been reached at
trial. See N.C. Gen. Stat. § 15A-1443(a) (2001).
Finally, defendant's due process argument is overruled based
on this Court's decision in State v. Carter, 30 N.C. App. 59, 226
S.E.2d 179 (1976). In Carter, the defendant was indicted for first
degree murder, and was tried for and convicted of second degree
murder. Defendant was arraigned immediately before trial and the
indictment was read to the jury. The Court in Carter held that the
reading of the indictment to the jury was not a violation ofdefendant's right to due process and equal protection.
(See footnote 1)
The Court
further held:
Nor is there any merit to defendant's
contention that prejudicial error resulted
from the court's reading the indictment to the
jury and advising the jury that the State had
elected not to place the defendant on trial
for murder in the first degree but would place
him on trial for murder in the second degree
or for such other offense as the evidence may
warrant.
Id. at 61, 226 S.E.2d at 180 (emphasis added). Carter is still
binding precedent on the due process issue raised by defendant in
the instant case. Therefore, defendant's constitutional argument
lacks merit.
Defendant next contends that the trial court erred in failing
to submit to the jury the issue of defendant's guilt of the lesser
included offense of involuntary manslaughter. During the jury
charge conference, defendant requested an instruction on
involuntary manslaughter. The trial court denied the request and
charged the jury on second degree murder and voluntary
manslaughter. Prior to the jury retiring to consider its verdict,
defendant renewed his objection to the trial court's failure to
instruct on involuntary manslaughter.
“Involuntary manslaughter is the unlawful killing of a human
being without malice, without premeditation and deliberation, and
without intention to kill or inflict serious bodily injury.” State
v. Powell, 336 N.C. 762, 767, 446 S.E.2d 26, 29 (1994). Involuntary manslaughter has also been defined as “the
unintentional killing of a human being without malice, proximately
caused by (1) an unlawful act not amounting to a felony nor
naturally dangerous to human life, or (2) a culpably negligent act
or omission.” State v. Redfern, 291 N.C. 319, 321, 230 S.E.2d 152,
153 (1976); accord State v. Wingard, 317 N.C. 590, 600, 346 S.E.2d
648, 654-55 (1986).
The trial court is required to charge on a lesser included
offense only when there is evidence to support a finding of guilt
of the lesser offense. State v. Hickey, 317 N.C. 457, 346 S.E.2d
646 (1986); State v. Knight, 87 N.C. App. 125, 360 S.E.2d 125
(1987). In determining whether the evidence is sufficient, it must
be viewed in the light most favorable to the defendant. State v.
Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994). Defendant
contends that since there was evidence of a struggle between him
and the victim and there was no witness that testified to actually
seeing the gun when it was discharged, an inference can be drawn
that he unintentionally shot and killed the victim. We disagree.
In the instant case, defendant did not testify or put on any
evidence. The State's evidence tended to show that, a few weeks
prior to the shooting, defendant and the victim had gotten into an
altercation during which defendant had slapped the victim in the
face. On the night of the shooting, defendant quickly walked
towards the victim with a gun in his left hand. Defendant stuck
the gun in the victim's chest and gave the victim a push. The
victim then punched defendant and the two men began to strugglewith one another. The gun went off and defendant backed away with
the gun still pointed at the victim. Defendant then ran back to
his car and fled from the scene. The State's evidence, if
believed, tends to show an intentional killing. There was no
evidence presented from which the jury might infer that defendant
did not intend to fire the weapon, nor does such an inference arise
from the fact that defendant and the victim were engaged in a
struggle. See Knight, 87 N.C. App. at 130, 360 S.E.2d at 129.
Thus, the trial court did not err in failing to instruct on
involuntary manslaughter. See id. See also State v. Wingard, 317
N.C. 590, 346 S.E.2d 648 (1986); State v. Robbins, 309 N.C. 771,
309 S.E.2d 188 (1983).
Defendant's final contention is that the trial court erred in
not considering on the record the mitigating factors requested by
defendant.
Under the Structured Sentencing Act, the trial court is
required to consider evidence of aggravating or mitigating factors,
but it is within the trial court's discretion whether to depart
from the presumptive range. N.C. Gen. Stat. § 15A-1340.16(a)
(2001). The trial court is required to make findings of mitigating
factors, “only if, in its discretion, it departs from the
presumptive range of sentences specified in G.S. 15A-
1340.17(c)(2).” N.C.G.S. § 15A-1340.16(c); State v. Brown, 146
N.C. App. 590, 553 S.E.2d 428 (2001). In the instant case,
defendant requested that the trial court find five statutory
mitigating factors. Defendant was then allowed to present evidencethrough family members of his good character and his support system
in the community. The State requested certain aggravating factors
and the trial court also heard from members of the victim's family.
At the conclusion of the sentencing hearing, the trial court
stated:
Upon consideration of the evidence, the
Court will impose a judgment in the
presumptive range specified by the Legislature
and will sentence the defendant for a Class D
felony, record level number one, and the
sentence of the Court is the term of
imprisonment, not less than 60, no[r] more
than 81 months to be assigned to do labor as
by law provided . . . .
Defendant concedes that the trial court was under no
obligation to find the proposed mitigating factors because
defendant was sentenced in the presumptive range. However,
defendant maintains that, in order to demonstrate that it properly
considered the mitigating factors under N.C.G.S. § 15A-1340.16(a),
the trial court had a duty to comment on the record regarding its
findings as to each of the mitigating factors upon which defendant
presented evidence or argument. We disagree.
In the instant case, the record shows that the trial court
allowed defendant to present evidence and argument in support of
the requested mitigating factors. The record further shows that
the trial court was engaged with the parties throughout the
sentencing hearing. There is no evidence that the trial court
disregarded or ignored any of the evidence in mitigation offered by
defendant. Finally, the trial court indicated that its decision to
sentence defendant in the presumptive range was based “uponconsideration of the evidence.” Under the facts of this case, we
conclude that the trial court did as it was required to do under
the Structured Sentencing Act. When sentencing a defendant within
the presumptive range, the trial court is not required to state on
the record each individual mitigating factor that it considered,
and the reasons why it has decided not to find the mitigating
factor. Accordingly, defendant's final assignment of error is
overruled.
For the foregoing reasons, we find that defendant received a
fair trial and sentencing hearing free from prejudicial error.
No error.
Judges WALKER and McGEE concur.
Report per Rule 30(e).
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