The trial court did not commit plain error by submitting to the jury the charge of
involuntary manslaughter even though defendant stabbed the victim with a knife, because: (1)
there was sufficient evidence to permit the jury to find that when defendant stabbed the victim,
he did not act with any intent to kill or inflict serious bodily injury; and (2) contrary to
defendant's assertion, there was no indication in the record that he stipulated to intentionally
killing the victim.
Appeal by defendant from judgment entered 13 June 2002 by
Judge W. Douglas Albright in Columbus County Superior Court. Heard
in the Court of Appeals 10 September 2003.
Attorney General Roy Cooper, by Assistant Attorney General P.
Bly Hall, for the State.
Poyner & Spruill, L.L.P., by Joseph E. Zeszotarski, Jr., for
Defendant Watson Carlos Drew appeals from his conviction of
involuntary manslaughter, arguing that the State offered
insufficient evidence to warrant submitting
to the jury a charge of
involuntary manslaughter as well as voluntary manslaughter.
Because the record contains sufficient evidence to permit the jury
to find that when defendant stabbed the victim, he did not act with
any intent to kill or inflict serious bodily injury, we hold that
there was no error. Facts
The State's evidence tended to show the following. Defendant
lived with his fiancée, Addie Nealey, and her three children in a
mobile home in Whiteville, North Carolina. On the night of 27
April 2001, while defendant was working out of state and was not
expected home for a day or more, Tony Langley visited Ms. Nealey at
the mobile home. Defendant and Mr. Langley had had several
altercations over Ms. Nealey. Ms. Nealey allowed Mr. Langley to
stay at the mobile home with her and at some point he joined her in
her bed under circumstances that are disputed.
At approximately 11:00 p.m., defendant unexpectedly returned
home, entering through the back door of the pitch-dark home. Mr.
Langley hid in the bathroom while Ms. Nealey intercepted defendant
in another part of the mobile home. Ms. Nealey attempted to
persuade defendant to drive her to her grandmother's home so that
she could pick up two nieces to spend the weekend with them. She
explained that she did not want to drive herself because she had
taken cold medication and was drowsy.
In a statement given to the Columbus County Sheriff's
Department, defendant said that he walked into the kitchen, told
Ms. Nealey she was acting funny, and asked her if anyone was in the
mobile home. Ms. Nealey first denied anyone else was present, then
said she did not know.
Ms. Nealey did not see what happened next and defendant gaveconflicting statements. It is, however, undisputed that defendant
entered the master bathroom holding a knife. In one statement,
defendant claimed he was using the knife to make a sandwich when he
heard a noise and went to investigate. In a second statement,
defendant claimed that when Ms. Nealey twice suspiciously denied
anyone was in the house, he "grabbed the knife and went into the
bedroom and looked around[.]"
In the bathroom, defendant saw no one, flipped a cigarette
butt into the toilet, and left. When, however, he was just outside
the bathroom, he heard a noise. Defendant re-entered the bathroom
and saw a man standing behind the door. In his statements,
defendant claimed the man lunged or swung at him. Defendant ducked
and swung his knife. Defendant then turned and ran out of the
mobile home because, according to his statement, he was scared.
Ms. Nealey reported that defendant yelled, "Addie, the 'MF' jumped
at me. The 'MF' jumped at me."
Defendant later returned to the mobile home and found Ms.
Nealey trying to hold Mr. Langley upright. Defendant accused Ms.
Nealey of protecting Mr. Langley and started hitting them until Ms.
Nealey forced defendant to stop. Defendant then told Ms. Nealey,
"I didn't know I stabbed him."
Ms. Nealey left to seek help. When the rescue squad arrived,
defendant ran into the woods near the mobile home. As the deputies
escorted him in handcuffs out of the woods, defendant told thedeputies, "I didn't mean to kill him[.]" Police officers described
defendant as "very upset, scared, shaking" and "hysterical."
Mr. Langley died of a single stab wound to the chest and
defendant was indicted on a charge of voluntary manslaughter. At
trial, defendant did not present any evidence, but asserted a claim
of self-defense. The judge submitted to the jury three possible
verdicts: guilty of voluntary manslaughter, guilty of involuntary
manslaughter, and not guilty. The record does not reveal if the
State or defendant requested the involuntary manslaughter
instruction or whether the trial court gave the instruction sua
sponte. Defendant did not, however, express any objection to that
instruction. The jury found defendant guilty of involuntary
manslaughter and the trial court sentenced defendant to a minimum
term of 24 months and a maximum term of 29 months.
Defendant asserted eight assignments of error, but failed to
bring forth and argue six of them in his brief to this Court.
Those assignments of error are therefore deemed abandoned. N.C.R.
App. P. 28(b)(6).
Defendant argues that the trial court erred in submitting to
the jury a charge of involuntary manslaughter, contending that all
the evidence showed that his act in stabbing Mr. Langley was
intentional. We apply the plain error standard of review to this
assignment of error as the record does not indicate that defendantobjected to the instruction at trial. N.C.R. App. P. 10(c)(4).
"In deciding whether a defect in the jury instruction constitutes
'plain error,' 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. Odom
, 307 N.C. 655, 661,
300 S.E.2d 375, 378-79 (1983).
Although acknowledging the lack of objection, defendant argues
that plain error review is inappropriate, citing State v. Ataei-
, 68 N.C. App. 209, 314 S.E.2d 751, disc. review denied,
N.C. 763, 321 S.E.2d 146 (1984). In Ataei-Kachuei
, however, the
question of which standard of review to apply did not arise.
the other hand, State v. Blue
, 115 N.C. App. 108, 112, 443 S.E.2d
748, 750 (1994), specifically holds that the plain error
applies when reviewing the submission to the jury, without
objection, of a lesser included offense.
As this Court explained,
"[T]o allow a defendant who does not so object to then use his
choice at trial to gain reversal on appeal would afford a criminal
defendant the right to appellate review, predicated on invited
The lack of an objection is of particular concern
because of the possibility, not precluded by the record in this
case, that trial counsel for defendant actually wanted the
instruction to be given.
In deciding whether to charge the jury as to a lesser included
offense, "the trial judge must make two determinations. The firstis whether the lesser offense is, as a matter of law, an included
offense of the crime for which defendant is indicted. . . . The
second is whether there is evidence in the case which will support
a conviction of the lesser included offense." State v. Thomas
N.C. 583, 590-91, 386 S.E.2d 555, 559 (1989). Since defendant
accepts that involuntary manslaughter is a lesser included offense
of voluntary manslaughter, the question before this Court is
whether the record contains evidence from which the jury could find
that defendant committed involuntary manslaughter.
Involuntary manslaughter has been defined by our Courts in two
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. Involuntary manslaughter may
also be 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
State v. Powell
, 336 N.C. 762, 767, 446 S.E.2d 26, 29 (1994)
(citations omitted). Involuntary manslaughter is distinguished
from murder or voluntary manslaughter by "the absence of malice,
premeditation, deliberation, intent to kill, and intent to inflict
serious bodily injury . . . ." State v. Greene
, 314 N.C. 649, 651,
336 S.E.2d 87, 89 (1985).
Although the crime in this case involved a deadly weapon _ aknife _ defendant may still be found guilty of involuntary
manslaughter if he acted without any intent to kill or inflict
serious injury. As the Supreme Court has held, "involuntary
manslaughter can be committed by the wanton and reckless use of a
deadly weapon such as a firearm or a knife." State v. Buck
N.C. 602, 605, 313 S.E.2d 550, 552 (1984) (citations omitted).
In State v. Daniels
, 87 N.C. App. 287, 360 S.E.2d 470 (1987),
as here, the defendant argued that the trial court erred in
submitting involuntary manslaughter as a possible verdict when the
defendant had stabbed the victim. In Daniels
, the defendant, who
was in a fight with the victim, "stuck at him, trying to get him
away from [her]", but "she did not intend to either stab or hurt
[the victim.]" Id.
at 288, 360 S.E.2d at 470. The Court also
observed that the defendant had claimed, in her statements, that
she did not mean to hurt the victim. This Court held that
"[e]vidence indicating that [the victim's] death was caused by
defendant inadvertently stabbing him in the chest while not
attempting or intending to do so clearly meets [the] requirement"
that the killing was the result of an act done in a culpable or
criminally negligent way. Id.
at 289, 360 S.E.2d at 471.
The evidence in this case is comparable. There were no
eyewitnesses to the actual stabbing; the sole evidence of what
occurred in the bathroom is found in defendant's statements to the
Sheriff's Department. From those statements, a jury could findthat defendant, who had been told that no one was in the house, was
surprised in the bathroom by a man whom he did not immediately
recognize; that the intruder lunged or swung at him; that he
immediately swung back holding the knife; and that he ran away out
of fear. The jury could also find, based on defendant's statements
and the testimony of the officers, that defendant did not know that
he had stabbed Mr. Langley and that he did not intend to kill him.
Officers confirmed that defendant was "hysterical" and "very upset"
when they found him.
From this evidence, the jury could have further concluded that
defendant panicked after discovering Langley and either (1)
intended to strike at Mr. Langley to keep him away, but did not
intend to kill or seriously injure him; or (2) simply reacted
instinctively without any intent to strike Mr. Langley at all.
Either scenario would support a verdict of involuntary manslaughter
. See also Buck
, 310 N.C. at 606, 313 S.E.2d at 553
(involuntary manslaughter was properly submitted to the jury when
the defendant testified that he grabbed a knife because he was
scared of the victim who also had a knife, that defendant threw the
victim to the floor, that the victim was stabbed with the
defendant's knife as the defendant fell on top of him while holding
the knife, and that defendant did not intend to stab the victim).
Defendant, however, claims that he stipulated at the outset of
the trial that he intentionally killed Langley. Our review of therecord reveals that defendant never made such a stipulation.
Instead, out of the hearing of the jury, counsel for defendant,
documented on the record that defendant had consented to counsel's
conceding at trial, if he chose to do so, that "the stab wound was
administered." Counsel was acting pursuant to State v. Harbison
315 N.C. 175, 180, 337 S.E.2d 504, 507-08 (1985) ("[W]e conclude
that ineffective assistance of counsel, per se in violation of the
Sixth Amendment, has been established in every criminal case in
which the defendant's counsel admits the defendant's guilt to the
jury without the defendant's consent."), cert. denied
, 476 U.S.
1123, 90 L. Ed. 2d 672, 106 S. Ct. 1992 (1986). When the trial
court asked whether defendant was stipulating that he intentionally
stabbed the deceased, counsel stated unambiguously, "I am not so
stipulating at this point." There is no indication in the record
that defendant ultimately at trial ever stipulated or otherwise
admitted that he intentionally stabbed Mr. Langley.
Although defendant also points to Ataei-Kachuei
submission of the instruction, all of the evidence in Ataei-Kachuei
established that the defendant, who fired multiple gunshots into a
car, intentionally shot the victim. No such dispositive evidence
was presented in this case. We therefore hold that the trial court
did not err in submitting the issue of involuntary manslaughter to
the jury. See also State v. Lytton
, 319 N.C. 422, 427, 355 S.E.2d
485, 488 (1987) (even though, during a struggle, defendant had hisfinger on the trigger of a loaded pistol and intentionally shot a
warning shot, the trial court should have instructed the jury on
involuntary manslaughter when defendant testified that he did not
intend to pull the trigger on the second and third shots, did not
aim the pistol, and did not intend to shoot the victim).
Our holding that sufficient evidence existed to support
submission of the issue of involuntary manslaughter to the jury
resolves defendant's second argument that the ultimate verdict was
unsupported by the evidence.
Chief Judge MARTIN and Judge BRYANT concur.
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