STATE OF NORTH CAROLINA
v
.
Orange County
No. 98 CRS 1364
WILLIAM WILSON HORNER
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Everett & Hite, L.L.P., by Kimberly A. Swank, for defendant-
appellant.
McGEE, Judge.
Defendant appeals from a judgment entered upon his conviction
of second degree murder on 15 January 1999. The State's evidence
at trial tended to show the following:
Defendant left work at A.O. Smith Electrical Products Company
at 11:00 p.m. on 14 January 1998 and joined David Fulp (Fulp) in
purchasing two twelve-packs of beer. After consuming the beer,
defendant and Fulp drove to Mebane and purchased crack cocaine,
which they smoked while parked on a gravel road in rural Orange
County.
Brandon Albertson (Albertson) passed defendant's car on the
gravel road as he was driving home from work at approximately 2:30
a.m. on 15 January 1998. Albertson honked his horn at defendantand Fulp as he drove by. Shortly thereafter, defendant and Fulp
continued driving down the gravel road and noticed Albertson's
vehicle in the ditch. They decided not to stop and assist because
there were beer cans and drug paraphernalia in their car.
Defendant and Fulp drove by Albertson's car three more times
on their trips to purchase additional crack cocaine. On the final
trip, defendant and Fulp pulled over by Alberton's vehicle.
Defendant asked Fulp, who was driving, for Fulp's knife which they
had used to cut the crack cocaine. Defendant, with the knife in
his pocket, exited the car and approached the unarmed Albertson,
while Fulp remained in the car. Defendant and Albertson spoke
briefly and Albertson expressed anger that defendant had not
stopped earlier. Defendant turned to leave and Albertson grabbed
defendant's arm. Defendant struck Albertson in the chest with the
closed knife and a fight ensued between defendant and Albertson.
Defendant stabbed Albertson twelve times, twice cutting his throat.
Albertson's body was found in the ditch at approximately 4:30 a.m.
on 15 January 1998. A pager located three feet from Albertson's
body was registered to defendant.
Defendant and Fulp left the scene and drove to Fulp's house
where defendant threw the knife in a pond. Defendant then returned
to his home, where he washed his clothes. Later in the day, Fulp
told Heath Stovall (Stovall) about the killing. Defendant pointed
out to Stovall the blood stains on his jeans and boots. Later that
afternoon, defendant and Fulp told Fulp's younger brother, Michael
Fulp, of the killing. In defendant's first assignment of error, he contends that the
trial court erred in failing to instruct the jury as to voluntary
manslaughter. Defendant argues that because the trial court did
not instruct the jury on this lesser included offense to murder,
defendant was denied his constitutional rights to due process and
a fair trial as guaranteed under the State and federal
constitutions. However, at trial, the following exchange occurred
between defendant and the trial court:
THE COURT: In other words, what do you think
that we should submit with regard to the
substantive charges?
MR. DICKERSON [for the defense]: Your Honor,
at this time what I would indicate to the
Court that I would request the Court to
submit, pursuant 206.13, first-degree murder
where a deadly weapon is used not involving
self-defense but in _ but only including the
lesser included offense of second-degree
murder. Would not request voluntary
manslaughter or involuntary manslaughter as
lesser included offenses.
"[T]his Court has consistently denied appellate review to
defendants who have attempted to assign error to the granting of
their own requests." State v. Wilkinson, 344 N.C. 198, 213, 474
S.E.2d 375, 383 (1996), cert. denied, 353 N.C. 279, 546 S.E.2d 394
(2000); State v. Prevatte, 356 N.C. 178, 256, 570 S.E.2d 440, 483
(2002)(defendant invited the sentencing error by requesting
instruction on life without parole), cert. denied, ___ U.S. ___,
155 L. Ed. 2d 681 (2003); State v. Basden, 339 N.C. 288, 303, 451
S.E.2d 238, 246 (1994)("Having invited the error, defendant cannot
now claim on appeal that he was prejudiced by the instruction."),
cert. denied, 515 U.S. 1152, 132 L. Ed. 2d 845 (1995); State v.McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991)("A criminal
defendant will not be heard to complain of a jury instruction given
in response to his own request.").
Defendant specifically requested at trial that there be no
instruction given as to voluntary manslaughter. "Since [defendant]
asked for the exact instruction that he now contends was
prejudicial, any error was invited error. Therefore, this
assignment of error is without merit and is overruled." McPhail,
329 N.C. at 643-44, 406 S.E.2d at 596-97.
Defendant next argues the trial court's imposition of a
sentence within the aggravated range without making any finding of
aggravation was in error. Defendant was sentenced for second
degree murder, a class B2 felony, under a prior record level III
with five prior record points. Defendant was sentenced to a
minimum term of 220 months and a maximum term of 273 months.
N.C. Gen. Stat. § 15A-1444(a1)(2003) provides that a defendant
who has been found guilty is
entitled to appeal as a matter of right the
issue of whether his or her sentence is
supported by the evidence introduced at the
trial and sentencing hearing only if the
minimum sentence of imprisonment does not fall
within the presumptive range for the
defendant's prior record or conviction level
and class of offense.
The applicable minimum sentence range in this case under N.C. Gen.
Stat. § 15A-1340.17(c)(2003) is 176 to 220 months. Defendant's
minimum sentence of 220 months is within the presumptive range,
although at the uppermost limit.
Defendant argues that the minimum sentence also falls withinthe aggravated range and thus the trial judge was obliged to make
findings in aggravation. This Court addressed the issue of the
overlap between the presumptive range and the aggravated range in
State v. Ramirez and concluded that "[t]he fact that the trial
court could have found aggravating factors and sentenced defendant
to the same term does not create an error in defendant's sentence."
Ramirez, 156 N.C. App. 249, 259, 576 S.E.2d 714, 721, disc. review
denied, 357 N.C. 255, 583 S.E.2d 286 (2003), cert. denied, ___ U.S.
___, 157 L. Ed. 2d 388 (2003). This Court is not persuaded by
either of defendant's arguments regarding sentencing; defendant's
assignment of error is overruled .
Defendant failed to present an argument in support of his
remaining assignments of error and they are therefore deemed
abandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges HUDSON and CALABRIA concur.
Report per Rule 30(e).
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