Defendant brings forth three assignments of error on appeal.
Defendant argues that the trial court erred when it failed to: (1)
instruct the jury on the offense of involuntary manslaughter; (2)
strike a juror for cause; and (3) dismiss the case based on the
State's use of the “short-form” murder indictment.
[1] The dispositive issue on appeal is whether the trial court
erred by failing to instruct the jury on involuntary manslaughter
where defendant's evidence supported the instruction. We hold that
the trial court committed error when it failed to so instruct the
jury. Thus, we vacate defendant's conviction and remand the case
for a new trial. As such, we do not address the merits ofdefendant's second assignment of error. Defendant's third
assignment of error is without merit for the reasons addressed
below.
The trial court must give a requested instruction, at least in
substance, if a defendant requests it and the instruction is
correct in law and supported by the evidence.
State v. Lamb, 321
N.C. 633, 644, 365 S.E.2d 600, 605 (1988). In determining whether
the evidence supports an instruction requested by a defendant, the
evidence must be interpreted in the light most favorable to him.
State v. Ataei-Kachuei, 68 N.C. App. 209, 212, 314 S.E.2d 751, 753
(1984). The trial judge making the decision must focus on the
sufficiency of the evidence, not the credibility of the evidence.
Id. Failure to give the requested instruction where required is a
reversible error.
Ataei-Kachuei, 68 N.C. App. at 214, 314 S.E.2d
at 754.
Our Supreme Court has defined involuntary manslaughter as “the
unlawful and unintentional killing of another human being, without
malice, which proximately results from an unlawful act not
amounting to a felony . . . or from an act or omission constituting
culpable negligence.”
State v. Wallace, 309 N.C. 141, 145, 305
S.E.2d 548, 551 (1983). Culpable negligence is defined as an act
or omission suggesting a disregard for human rights and safety.
State v. Wilkerson, 295 N.C. 559, 580, 247 S.E.2d 905, 917 (1978);
State v. Tidwell, 112 N.C. App. 770, 774, 436 S.E.2d 922, 925
(1993).
There is no evidence that defendant killed Morgan while
engaged in an unlawful act not amounting to a felony. Thus, tosupport an involuntary manslaughter instruction, defendant must
present evidence that Morgan's death was the result of culpable
negligence.
Tidwell, 112 N.C. App. at 774, 436 S.E.2d at 925. The
only evidence from which culpable negligence could be found was
defendant's testimony that he knocked a “cocked” and loaded gun
from Morgan's hand and struggled with her for control of the gun.
Thus, we must decide whether such acts can constitute culpable
negligence.
Our courts have addressed similar circumstances in at least
two previous cases. In
State v. Wallace, the State's evidence
tended to show that the defendant shot his girlfriend, the
decedent, in her home after she asked him to leave. 309 N.C. at
142, 305 S.E.2d at 550. The defendant testified that the decedent
verbally threatened him and started for a gun.
Wallace, 309 N.C.
at 143, 305 S.E.2d at 550. Defendant further testified that he
grabbed the gun from decedent's hand and, while attempting to throw
it across the room, the gun discharged into decedent, killing her.
Id. At trial, the court refused defendant's request for an
involuntary manslaughter instruction.
Wallace, 309 N.C. at 145,
305 S.E.2d at 551. The jury was charged on second degree murder,
voluntary manslaughter, self-defense and accident.
Id. After the
jury convicted the defendant of second degree murder, defendant
appealed, arguing that the trial court erred when it failed to
instruct the jury on involuntary manslaughter.
Id. Our Supreme
Court concluded that based on the defendant's testimony, the trial
court was required to provide an involuntary manslaughter jury
instruction.
Wallace, 309 N.C. at 145-49, 305 S.E.2d at 551-54. In a more recent Court of Appeals decision,
State v. Tidwell,
the State's evidence tended to show that the defendant reached for
a gun in an attempt to prevent the decedent from committing
suicide, but during the struggle, the gun discharged and killed
decedent. 112 N.C. App. at 774-75, 436 S.E.2d at 925. The
defendant's request for an involuntary manslaughter jury
instruction was denied.
Tidwell, 112 N.C. App. at 774, 436 S.E.2d
at 925. On appeal to this Court, we concluded that the trial
court's failure to provide the requested involuntary manslaughter
jury instruction was prejudicial error.
Tidwell, 112 N.C. App. at
776, 436 S.E.2d at 927. Where the circumstances as described by
the defendant suggest “that the victim was unintentionally killed
with a deadly weapon during a physical struggle with the defendant,
the trial court should charge the jury on the offense of
involuntary manslaughter.”
Tidwell, 112 N.C. App. at 775, 436
S.E.2d at 926.
Defendant testified that he attempted to knock a loaded and
“cocked” gun from Morgan's hand, which is similar behavior to that
alleged in
Wallace. 309 N.C. at 143, 305 S.E.2d at 550. Defendant
further testified that he began to “scuffle” with Morgan for
control of the gun, alleging similar behavior as that in
Tidwell.
112 N.C. App. at 775, 436 S.E.2d at 925. Based on
Wallace and
Tidwell, this Court concludes that there was sufficient evidence
presented from which a jury could find culpable negligence. Thus,
defendant's evidence regarding Morgan's unintentional death
required the trial court to instruct the jury on involuntary
manslaughter. In light of the prejudicial error by the trial court, we hold
defendant is entitled to a new trial.
[2] Defendant's third assignment of error argues that the
State's use of the “short-form” murder indictment denied defendant
the due process, equal protection, notice and fair trial rights
guaranteed him by the United States Constitution and the North
Carolina Constitution. However, defendant acknowledged that the
short-form murder indictment is authorized by N.C. Gen. Stat. . 15-
144 (2001). We further note that the constitutionality of the
short-form murder indictment has been upheld by the North Carolina
Supreme Court.
State v. Braxton, 352 N.C. 158, 531 S.E.2d 428
(2000);
State v. Wallace, 351 N.C. 481, 528 S.E.2d 326 (2000).
Thus, we hold accordingly.
Vacate and Remand for New Trial.
Judges HUDSON and ELMORE concur.
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