An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1089


Filed: 1 July 2003


v .                         Wake County
                            No. 01 CRS 22131

    Appeal by defendant from judgment entered 8 March 2002 by Judge A. Leon Stanback in Wake County Superior Court. Heard in the Court of Appeals 22 May 2003.

    Attorney General Roy Cooper, by Assistant Attorney General Diane A. Reeves, for the State.

    McCotter, McAfee, & Ashton, P.L.L.C., by Rudolph A. Ashton, III, and Robert J. McAfee, for defendant-appellant.

    CALABRIA, Judge.

    On 2 March 2001, Rico Waters (“the victim”) contacted Phillip Vance Smith, II (“defendant”) in order to arrange a drug purchase. Unbeknownst to victim, defendant decided he was going to rob the victim for the drug money and not sell him drugs. The victim, driven by his friend Gregory Adams (“Adams”), arrived at the bowling alley where defendant and the victim had arranged to meet. Defendant got in the back seat of the car and directed Adams to park behind a dumpster in a parking lot at an apartment complex. At that point, defendant drew a gun and aimed it towards the front of the car in the direction of the victim and Adams. Defendant demanded the victim's money, and the victim began to plead and argue with defendant. Approximately three minutes later, thevictim reached under his seat and pulled out what appeared to be a gun and pointed it at defendant. In actuality, the victim had pulled a plastic toy from beneath the seat. The victim continued to ask defendant why he was pulling a gun on him and why he was robbing him. When Adams thought defendant was sufficiently distracted, he exited the car. As Adams ran from the car, he heard defendant and the victim continue to argue, and when he had run approximately fifty yards from the car, he heard multiple shots fired. These shots were also heard by Michael Solares and Nicole Velarde, who saw defendant running from the area with a look of terror on his face.
    After the shooting, defendant paged his friend, Heather Sollars, so she would come to get him. She drove defendant to a place where he wrapped the gun in a plastic bag and disposed of it. The victim was found at approximately 4:30 a.m. on the morning following the shooting. He had died as a result of sustaining two gunshot wounds from close range to the head. Defendant went to Chicago, but returned to North Carolina and turned himself in at the advice of his father.
    Defendant was indicted for murder by the Wake County Grand Jury on 20 March 2001 for violation of N.C. Gen. Stat. § 14-17. State's witness, Robert Lundy (“Lundy”), had previously been at the same correctional facility with defendant when defendant was incarcerated on unrelated charges. Lundy testified defendant wrote a manuscript about “life in the streets” during the time they were imprisoned together. Defendant's manuscript described amisunderstanding between himself and an individual named Rico and defendant's desire to “get him back.” When questioned about the manuscript by Lundy, defendant stated he was going to kill the victim when he was released from the correctional facility.
    Defendant testified on his own behalf concerning the shooting and stated he had not wanted to “pull the gun out.” Defendant further testified he shot only after the victim had pulled what appeared to be a gun and “tried to reach out at” him. Defendant testified he only intended to rob the victim. Though defendant “had a feeling that . . . [the victim] was probably going to die” when defendant started shooting, he testified he fired because he was trying to survive the encounter. Regarding his written manuscript, defendant explained that the character named Rico was fictional. The name was based on that of a former fellow inmate, and he had not yet met the victim, also named Rico, at the time he wrote the story.
    At the close of the State's case and again at the close of all the evidence, defendant moved to dismiss the charge of first-degree murder on the grounds that there was insufficient evidence of each element of the charged offense. The trial court denied both motions. The jury was given the following options on the verdict sheet: guilty of first-degree murder on the basis of malice, premeditation and deliberation; guilty of first-degree murder under the first-degree felony murder rule; guilty of second-degree murder; and not guilty. The jury found defendant guilty of both forms of first-degree murder, and the trial court entered judgment,sentencing defendant to life imprisonment without parole. Defendant appeals.
    On appeal, defendant asserts the trial court erred in (I) denying defendant's motion to dismiss the short-form indictment of first-degree murder; (II) erred by denying defendant's motion to dismiss based on insufficiency of the evidence; and (III) erred in refusing defendant's requests for a jury instruction regarding Lundy's testimony and for a jury instruction on self-defense. Defendant also asserts (IV) the trial court committed plain error in refusing defendant's instruction on flight.
I. Short-form Indictment
    Defendant asserts, for preservation of the issue, the short-form indictment utilized in the murder charge was fatally defective because it “fail[ed] to properly allege the elements of first degree murder and [failed] to allege that the murder was committed either in the course of a felony or with premeditation and deliberation.” However, defendant acknowledged the North Carolina Supreme Court has upheld the constitutionality of the short-form murder indictment. 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.
II. Motion to Dismiss
    Defendant asserts the trial court erred in denying defendant's motion to dismiss the charge of first-degree murder on the basis of malice, premeditation and deliberation because the evidence indicated only that defendant overreacted when the intended robberyescalated to a fatal confrontation. We note defendant was convicted for first-degree murder not only on the basis of premeditation and deliberation but also on the basis of the felony murder rule. Because defendant has not attacked the conviction of first-degree murder under the felony murder rule, any error would be harmless, and this assignment of error is overruled. See State v. Reese, 319 N.C. 110, 144-45, 353 S.E.2d 352, 371-72 (1987) (holding that even where “there was insufficient evidence from which a reasonable jury could find beyond a reasonable doubt that [the] defendant . . . committed premeditated and deliberate murder[,]” the defendant was not entitled to a new trial because he had also been convicted under the felony murder rule and that conviction had not been attacked), overruled on other grounds by State v. Barnes, 345 N.C. 184, 481 S.E.2d 44 (1997).
III. Jury Instructions
    Defendant asserts the trial court erred in refusing to instruct the jury as to Robert Lundy's testimony being an interested witness on the basis that he was acting as an informer for furtive gain and erred in refusing to instruct the jury on self-defense.
    “The defendant is not entitled to a new trial based on trial errors unless such errors were material and prejudicial.” State v. Alston, 307 N.C. 321, 339, 298 S.E.2d 631, 644 (1983). “To meet this burden, defendant must show '[there is a reasonable possibility] that, had the error in question not been committed, a different result would have been reached at the trial out of whichthe appeal arises.'” State v. Hutchinson, 139 N.C. App. 132, 139, 532 S.E.2d 569, 574 (2000) (quoting N.C. Gen. Stat. § 15A-1443 (1988)).
    At trial, Lundy's testimony supported the charge of first- degree murder on the basis of malice, premeditation and deliberation. His testimony focused on the manuscript written by defendant concerning defendant and an individual with the same name as the victim. The manuscript described how a previous misunderstanding with “Rico” caused defendant to feel “humiliated and . . . disrespected” and how defendant desired to get Rico back. When Lundy questioned defendant about the manuscript, defendant stated he would hate to be Rico Waters and admitted he was going to kill him when he got out. Defendant requested a jury instruction concerning Lundy on the grounds that he was acting as an informer for furtive gain; therefore, the jury should have examined Lundy's testimony in light of his interest as an informer.   (See footnote 1) 
    At trial, defendant testified on his own behalf concerning the robbery. Defendant asserted he shot the victim because the victim had drawn a gun and he was trying to “just survive.” Defendant further asserted he had not intended to shoot the victim, but merely to rob him. On that basis, defendant sought an instruction on self-defense, which the court declined to give. We note self-defense, be it perfect or imperfect, cannot be asserted as a defense to first-degree murder under the felony murder rule. State v. Richardson, 341 N.C. 658, 668, 462 S.E.2d 492, 499 (1995).
    In the present case, defendant argues only that the trial court erred in its jury instructions but fails to address how “there is a reasonable possibility . . . a different result would have been reached at the trial[.]” N.C. Gen. Stat. § 15A-1443(a). Both Lundy's testimony concerning the transcript and defendant's testimony concerning self-defense dealt only with the charge of first-degree murder on the basis of malice, premeditation and deliberation. Assuming arguendo that the trial court erroneously failed to give the sought instructions and that the jury would have returned a different verdict on that charge, the conviction for first-degree murder would still result from the trial under the felony murder rule. Accordingly, the result of the trial would have been exactly the same, and defendant has failed to establish prejudicial error.
IV. Flight
    Defendant asserts the trial court improperly instructed on flight. Defendant argues two bases in support of this assertion: defense counsel accepted the trial court's intention to instruct on flight but did so with the condition that it would be made clear that defendant turned himself in; and the instruction on flight was not warranted since defendant turned himself in after returning to North Carolina. Because defendant did not formally object at trial, defendant asserts plain error.    “'A prerequisite to our engaging in a “plain error” analysis is the determination that the instruction complained of constitutes “error” at all.'” State v. Johnson, 320 N.C. 746, 750, 360 S.E.2d 676, 679 (1987) (quoting State v. Torain, 316 N.C. 111, 116, 340 S.E.2d 465, 468 (1986)). Where “the challenged instruction was not error, . . . 'plain error' analysis is not required.” Id.
    A trial court may instruct a jury on a defendant's flight where “'there is some evidence in the record reasonably supporting the theory that defendant fled after commission of the crime charged.'” State v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 434 (1990) (quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842 (1977)). “[M]ere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.” State v. Westall, 116 N.C. App. 534, 549, 449 S.E.2d 24, 33 (1994).
    In the instant case, defendant ran from the scene and disposed of the weapon used in the shooting. The morning after the shooting, defendant testified he felt he had “to get out of [Raleigh]” and “was going to run.” Defendant then pooled his money, bought a bus ticket, and went to Chicago. Despite the fact that he later returned to town and turned himself in at the advice of his father, the evidence clearly warrants that, at the time of the shooting and shortly thereafter, defendant was attempting to avoid apprehension. Because the trial court committed no error ininstructing on flight, there can be no plain error review, and this assignment of error is overruled.
    No error.
    Judges McGEE and McCULLOUGH concur.
    Report per Rule 30(e).

Footnote: 1
     We note Lundy was subpoenaed to appear to testify, had less than six months left on his sentence, had been given no offers for leniency or a shorter prison term, and had asked for nothing in exchange for his testimony or for the information he initially provided. Moreover, Lundy had no arrangement to report or monitor defendant, and only became involved after he wrote a letter to the District Attorney's office.

*** Converted from WordPerfect ***