An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA02-260


Filed: 4 February 2003


     v .                             Guilford County
                                    Nos.    00 CRS 1113 93
MICHAEL DEWAYNE McCOY                        01 CRS 23733

    Appeal by defendant from judgment entered 11 September 2001 by Judge William Z. Wood in Guilford County Superior Court. Heard in the Court of Appeals 31 October 2002.

    Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.

    James R. Parish for defendant appellant.

    McCULLOUGH, Judge.

    Defendant Michael Dewayne McCoy was tried before the Honorable William Z. Wood from 4 September through 10 September 2001 at a Criminal Session of the Guilford County Superior Court. Defendant was indicted on one count of first-degree murder (00 CRS 111393) on 2 January 2001, and indicted on one count of possession of a weapon of mass destruction (01 CRS 23733) on 16 August 2001. The first- degree murder charge was reduced to non-capital as defendant's trial commenced on 4 September 2001.
    The facts in this case are as follows. On 9 December 2000, defendant and a few friends were drinking alcohol and smoking marijuana at defendant's residence. One of the friends received a page from the victim, Jernahl Jordan, aka “Jamal.” The group thenwent to Jamal's house in defendant's car, where they continued to drink and smoke. All of them went to play basketball at a local court, traveling in defendant's car. On the way back from playing basketball, Jamal, seated in the backseat of the car, noticed a gun in the backseat.
    Apparently, Jamal believed the gun to be fake and accidentally fired the gun. The bullet shattered the driver's side window. Defendant, who was driving his car, became extremely agitated. The two argued about the window and Jamal said he would pay for it. The group then continued on their way home. However, defendant drove past the home of one of the group even though the person wanted to get out. Defendant said nothing as he sped down the streets to a dirt road.
    Defendant stopped the car on the dirt road, got out of the car, demanded that Jamal get out also, and resumed arguing about the window. Defendant had the gun with him. At this point, shots rang out and defendant got back into the car and sped away. The group went back to check on Jamal and found him seriously wounded. Defendant dropped off the other occupants of the car, who reported the incident.     The victim had been shot three times, two of which were fatal.
    It was defendant's strategy at trial to admit to second-degree murder, and defend against first-degree murder by rebutting premeditation and deliberation with diminished capacity and voluntary intoxication.    On 10 September 2001, the jury returned verdicts of guilty on both charges. Defendant was determined to have a Prior Record Level II, and was sentenced to life imprisonment without parole.
    On appeal, defendant argues the following assignments of error: (I) the trial of defendant on the same day he was served with notice of an indictment for possession of a weapon of mass destruction, appointed counsel and arraigned on the charge violated the statutory law of North Carolina and defendant's rights to a fair trial and effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 18, 19 and 23 of the North Carolina Constitution; (II) the trial court erred in failing to dismiss due to the insufficiency of the evidence the charge of possession of a weapon of mass destruction; and (III) the trial court erred in failing to instruct as requested by defense counsel on the element of “deliberation.”

    Defendant's first assignment of error contends that the trial court violated his rights by proceeding to trial on the weapons of mass destruction charge the same day he was served, arraigned and assigned counsel for that charge. Specifically, defendant argues that the State and the trial court violated N.C. Gen. Stat. § 15A- 943 (2001).
    N.C. Gen. Stat. § 15A-943 states:
            (a) In counties in which there are regularly scheduled 20 or more weeks of trial sessions of superior court at which criminalcases are heard, and in other counties the Chief Justice designates, the prosecutor must calendar arraignments in the superior court on at least the first day of every other week in which criminal cases are heard. No cases in which the presence of a jury is required may be calendared for the day or portion of a day during which arraignments are calendared.

            (b) When a defendant pleads not guilty at an arraignment required by subsection (a), he may not be tried without his consent in the week in which he is arraigned.
N.C. Gen. Stat. § 15A-943(a)-(b) (2001) (emphasis added).
    The Supreme Court interpreted this statute to give defendants a statutory right “'not [to] be tried without his consent in the week in which he is arraigned.'” State v. Shook, 293 N.C. 315, 319, 237 S.E.2d 843, 846 (1977). The Court further stated:
        [T]he provision vests a defendant with a right, for by its terms it requires his consent before a different procedure can be used. To require a defendant to show prejudice when asserting the violation of this statutory right which he has insisted upon at trial would be manifestly contrary to the intent of the legislature, which has provided that the week's time between arraignment and trial must be accorded him unless he consents to an earlier trial. Prejudice under these circumstances must necessarily be presumed.

Id. at 319, 237 S.E.2d at 846-47.
    In the present case, defendant was indicted for possession of a weapon of mass destruction in case number 01 CRS 23733 on 6 August 2001. However, defendant was not served with that indictment until 4 September 2001, the day his trial on the first- degree murder charge was scheduled to begin. It was at this time that defendant was arraigned for the possession charge. The Statethen made a motion to consolidate the two charges for trial. This was granted and trial was had on both charges. Thus, a violation of the statutory one-week period occurred.
    However, “it is a general rule that a defendant may waive the benefit of statutory or constitutional provisions by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it.” State v. Gaiten, 277 N.C. 236, 239, 176 S.E.2d 778, 781 (1970); State v. Young, 291 N.C. 562, 567, 231 S.E.2d 577, 580 (1977). The Shook Court noted that “this defendant has not waived the statutory right. Rather he asserted the right and raised the issue before the trial court -- a prerequisite for his assertion of the right on appeal.” Shook, 293 N.C. at 320, 237 S.E.2d at 847.
    It is clear from the record that defendant in the case sub judice did not make any assertion of his rights under N.C. Gen. Stat. § 15A-943. Defendant thereby consented to being tried the week of his arraignment. See State v. Davis, 38 N.C. App. 672, 675-76, 248 S.E.2d 883, 886 (1978); State v. Styles, 93 N.C. App. 596, 602, 379 S.E.2d 255, 259 (1989). Defendant proceeded with trial and never requested any delay in his trial. This assignment of error is overruled.
    Defendant next argues that the trial court should have dismissed the possession of a weapon of mass destruction charge due to insufficiency of the evidence. He bases this argument on thetheory that the statute N.C. Gen. Stat. § 14-288.8 (2001) is fundamentally flawed.
    The weapon used by defendant to kill the victim in this case was a sawed-off .22-caliber bolt-action rifle with a magazine that held ten rounds. Defendant had 'adjusted' the weapon by sawing the barrel down to twelve inches, making the overall length of the weapon twenty-one and one-half inches. Testimony at trial discussed how the weapon operated: After firing a round from the rifle, the operator would have to open the bolt and pull it back, which extracted the spent cartridge from the chamber; this action would also bring another round up from the magazine, which would be moved into the chamber by moving the bolt forward again and locking it down. This process had to be performed every time before the weapon would operate.
    N.C. Gen. Stat. § 14-288.8, among other things, prohibits the possession of weapons of mass death and destruction. The statute provides:
        (c) The term “weapon of mass death and destruction” includes:

        . . . .

                (3)    Any firearm capable of fully automatic fire, any shotgun with a barrel or barrels of less than 18 inches in length or an overall length of less than 26 inches, any rifle with a barrel or barrels of less than 16 inches in length or an overall length of less than 26 inches, any muffler or silencer for any firearm, whether or not such firearm is included within this definition. For the purposes of this section, rifle is defined as a weapon designed orredesigned, made or remade, and intended to be fired from the shoulder[.]

N.C. Gen. Stat. § 14-288.8(c)(3) (2001) (emphasis added). Defendant was indicted on the basis that he “did possess a weapon of mass death and destruction, a rifle with a barrel length of less than 18 inches and an overall length of less than 26 inches.” We note that while the indictment is incorrect, as a rifle must have a barrel of less than 16 inches, this is harmless as the evidence showed that the barrel in this case was down to 12 inches.
    Defendant contends that the length of the firearm has nothing to do with its capabilities of being a weapon of mass death and destruction. Defendant maintains that N.C. Gen. Stat. § 14- 288.8(c)(3) must be read as prohibiting a firearm capable of fully automatic fire and with the requisite short barrel or short overall length. Defendant argues that a sawed-off bolt-action .22-caliber rifle cannot be a weapon of mass death and destruction. Because the State did not prove that the weapon in this case was capable of mass death and destruction, but only its length, the trial court should have granted defendant's motion to dismiss.
    When considering a motion to dismiss, the court is “concerned only with the legal sufficiency of the evidence to support a verdict, not its weight, which is a matter for the jury.” State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987). The State gets the benefit of all reasonable inferences drawn from the evidence. State v. Scott, 296 N.C. 519, 522, 251 S.E.2d 414, 416 (1979).    The statute is clear in what it prohibits. The General Assembly has seen fit to punish those who possess shotguns or rifles of certain lengths. The statute clearly does not require them to be fully automatic, or even semi-automatic. As one of the cases that defendant cites states, “the State can regulate the length of a particular firearm as long as there is a reasonable purpose for doing so.” State v. Fennell, 95 N.C. App. 140, 144, 382 S.E.2d 231, 233 (1989); see also United States v. Walker, 39 F.3d 489 (4th Cir. 1994).
    This assignment of error is overruled.
    Defendant's final assignment of error is that the trial court erred by not instructing the jury as per his proposed instruction on the element of “deliberation.”
    “[W]hen the request [for instruction] is correct in law and supported by the evidence in the case, the court must give the instruction in substance.” State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976). However, “the trial court is not required to give a requested instruction in the exact language of the request.” Id.
    Defendant proposed an instruction on deliberation that read:
            And Fifth, that the defendant acted with deliberation, which means that he acted while he was in a cool state of mind. While “Cool State of Mind” does not mean there had to be an absence of passion or emotion, it does require that defendant's anger or emotion must not have been such to overcome his reason. If the intent to kill was formed with a fixed purpose, not under the influence of somesuddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or excited when the intent was carried into effect.

(Footnote omitted) (emphasis added).
    This instruction differs slightly from North Carolina Pattern Jury Instruction 206.13, which the trial court followed when it gave the following instruction to the jury:
            And Fifth, the State must prove from the evidence beyond a reasonable doubt that the defendant acted with deliberation, which means that the defendant acted while he was in a cool state of mind. This does not mean that there had to be a total absence of passion or emotion.

            If the intent to kill was formed with a fixed purpose, not under the influence of some suddenly aroused violent passion, it is immaterial that the defendant was in a state of passion or was excited when the intent was carried into effect.

    Defendant based his “cool state of mind” addition pursuant to State v. Hunt, 330 N.C. 425, 410 S.E.2d 478 (1991). That case reads in pertinent part:
        Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.

            An unlawful killing is deliberate and premeditated if done as part of a fixed design to kill, notwithstanding the fact that the defendant was angry or emotional at the time, unless such anger or emotion was strong enough to disturb the defendant's ability to reason. The requirement of a “cool state of blood” does not require that the defendant be calm or tranquil. The phrase “cool state of blood”means that the defendant's anger or emotion must not have been such as to overcome the defendant's reason.

Hunt, 330 N.C. at 427, 410 S.E.2d at 480 (citations omitted).
    We understand that the strategy used by defendant rested solely on its ability to persuade the jury that he was incapable of premeditation and deliberation, however we hold that the instruction given captured the essence of the proposed instruction. So much so in fact that the requested instruction was given in substance. The phrase “this does not mean that there had to be a total absence of passion or emotion” more or less presupposes that some anger or emotion can be present as long as the defendant can still reason. While the trial court could have elected to expound upon the pattern instruction, it is an adequate statement of the law. See State v. Stevenson, 328 N.C. 542, 549, 402 S.E.2d 396, 400 (1991) holding that (“The instruction [206.13] adequately explains that the killing need not have been committed with a complete lack of emotion; such a killing would be a rare one indeed.”).
    This assignment of error is overruled.
    No error.
    Judge WALKER and CAMPBELL concurred in this opinion prior to 31 December 2002.
    Report per Rule 30(e).

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