1. Homicide_-first-degree murder--short-form indictment--constitutionality
The short-form indictment used to charge defendant with first-degree murder was
constitutional and sufficient to support defendant's conviction of felony murder.
2. Confessions and Incriminating Statements--Miranda rights--mentally retarded
defendants
The trial court did not err in a first-degree felony murder and conspiracy to commit
robbery case by denying defendant's motion to suppress his statement to the police allegedly
obtained in violation of his Miranda rights even though defendant had an IQ of 61, because the
findings all support the conclusion that the statement was voluntarily given and that defendant
knowingly waived his Miranda rights.
3. Evidence--exhibit--enlargement of defendant's statement
The trial court did not abuse its discretion in a first-degree felony murder and conspiracy
to commit robbery case by permitting the State to display to the jury an enlarged image of
defendant's statement to the police, because: (1) defendant's statement was already held to be
admissible; and (2) the enlarged version was permissible for illustrative purposes.
4. Conspiracy-_robbery--instructions--diminished capacity
The trial court did not commit plain error by failing to instruct the jury on diminished
capacity regarding the conspiracy to commit robbery charge, because: (1) defendant's evidence
concerning his low IQ, smoking marijuana, and sharing Hennessy over the course of the evening
was not so overwhelming as to render the lack of a voluntary intoxication instruction prejudicial;
(2) a voluntary intoxication instruction is not required even where there is testimony that
defendant consumed intoxicating beverages or controlled substances; (3) there was testimony
that defendant did not appear intoxicated; (4) finding defendant not guilty of first-degree murder
based on premeditation and deliberation does not necessarily imply the jury concluded defendant
had a diminished capacity to form any intent; (5) considering defendant's confession, a witness's
testimony, the victim's statement regarding the shooting, and the forensic evidence, the jury had
sufficient basis for its verdicts; and (6) it cannot be said that the jurors would have reached a
different result had they been given this instruction.
5. Constitutional Law--effective assistance of counsel--failure to request instruction
Defense counsel's failure to request an instruction on diminished capacity regarding the
conspiracy to commit robbery charge did not amount to ineffective assistance of counsel,
because the Court of Appeals already determined that there was no plain error in the failure to
provide this instruction to the jury.
6. Criminal Law--instruction by trial court--defendant confessed to crimes
The trial court did not commit plain error in a first-degree felony murder and conspiracy
to commit robbery case by instructing the jury that the evidence tended to show that defendantconfessed to the crimes, because: (1) the instruction given by the trial court was verbatim from
pattern jury instruction N.C.P.I.-Crim. 104.70; (2) the Supreme Court has held that this
instruction makes it clear that even though there was evidence tending to show that defendant
had made an admission, it was solely for the jury to determine whether defendant in fact had
made any admission; and (3) the instruction was based on a reasonable view of the evidence.
7. Homicide--instruction_-voluntary manslaughter based on imperfect self-defense
The trial court did not commit plain error in a first-degree felony murder case by failing
to instruct sua sponte on voluntary manslaughter based on imperfect self-defense, because: (1)
defendant was not found guilty of first-degree murder based on a theory of premeditation and
deliberation, which could be mitigated by imperfect self-defense to voluntary manslaughter; and
(2) the jury found defendant guilty based on the felony murder rule, and imperfect self-defense is
not available as a defense to the underlying robbery.
Roy A. Cooper, III, Attorney General, by C. Norman Young, Jr.,
Assistant Attorney General, for the State.
Ann B. Petersen for defendant-appellant.
MARTIN, Chief Judge.
Defendant was charged with first-degree murder, robbery with
a dangerous weapon, and conspiracy to commit robbery with a
dangerous weapon. At trial, the evidence tended to show that on 15
November 1999, defendant and Lynn Downy had discussed committing
robbery while they were drinking and smoking marijuana. They went
to Winshell Harris's (Harris) house, to purchase additional
marijuana. When they arrived, Harris was not at home, but his
brother, Michael Wilson (Wilson), told them to return in a half anhour. Upon their return, Wilson directed them to a side entrance,
in order for him to visit with his friend in the living room, while
Harris visited defendant and Downy in the kitchen. Wilson
testified that at one point he entered the kitchen to get a glass
of water and the conversation between Harris, defendant and Downy
stopped. He also stated that he noticed Harris sitting at the
table, which had Harris's nine millimeter gun and $800 on it.
Downy testified that while they were waiting on Harris's
marijuana supplier, other customers came and went. He did not
notice either Harris or defendant with a gun, nor did he see money
on the table. He stated that after waiting for five minutes or so,
Harris informed them the supplier was unable to come, so Downy
decided to leave. A minute or two after leaving he heard shots,
but he did not look back. Downy also testified that he asked
defendant if he had shot Harris, but that defendant swore he did
not.
Wilson testified that he heard five shots and, before he could
enter the kitchen, Harris entered the living room, bleeding
profusely. Harris told Wilson that “Little Rick”, whom Wilson knew
as defendant, had shot him. Wilson helped his brother to a chair
and returned to the kitchen to see if defendant and Downy were
still there. The back door was open and the money and gun were
gone from the table.
When Officer L.C. Peele arrived on the scene, he observed
Harris bleeding, and Harris informed him he had been shot. Peele
accompanied Harris to the hospital, noting that Harris wasconscious and alert, but Harris subsequently suffered cardiac
arrest and died.
Based on the statements made by Wilson, defendant was arrested
and his residence was searched. No evidence of the crime was found
on his person or at his residence. While defendant was in the
patrol car, Detective Michael Lewis read him his Miranda rights.
He did not assert his rights and agreed to speak with Lewis. Lewis
testified that defendant seemed agitated and that while there was
a moderate odor of alcohol, defendant did not have difficulty
speaking or walking, glassy eyes, or slurred speech. Initially,
defendant denied involvement in the shooting, but on further
questioning at the police station, he began crying and confessed
that he and Harris were friends and that “it was not supposed to
happen like that.”
Defendant's statement explained that he and Downy were
together when Downy said he needed money, and that Harris had some,
so they planned a robbery and walked to Harris's house. According
to the statement, Downy planned to trade his .45 caliber handgun
for half an ounce of cocaine. When meeting with Harris, Harris
handed Downy a nine millimeter pistol to look at, and Downy grabbed
the gun and the cash from the table. Defendant stated that he
thought Harris was reaching for a gun, so he pulled his .38
revolver from his pants and shot at Harris. According to this
statement, defendant hid his gun under some leaves behind a shed at
406 Carolina Avenue, burned the clothes he was wearing, and Downykept Harris's pistol and the money from the table. A .38 caliber
revolver was found at the Carolina Avenue location.
At defendant's request, Lewis wrote out this statement and
went over it line by line with him. This statement was read to the
jury at trial, and enlarged on a poster entitled, “Confession of
Ricky Andrews.” On cross-examination, Lewis admitted that he did
not write down every word that defendant said and did write down
words defendant did not actually say.
Crime scene investigator Sandra Kay Rose testified that she
recovered one projectile from the wall of Harris's home, and
several from his body. Forensic firearms expert Carol Ann
Marshburn testified that the projectile recovered from the
residence and two of the projectiles recovered from Harris were
fired from the .38 caliber revolver discovered at the location
indicated in defendant's statement. The two other projectiles came
from the same class type of firearm as defendant's but lacked
“enough individual characteristics” to be positively identified as
being from defendant's revolver.
Defendant presented a court-appointed expert witness, Dr. Gary
H. Bachara, who testified that the defendant had an I.Q. of 61,
equivalent to the mental age of an eight-year-old. He explained
that his test results were consistent with defendant's school
records. Dr. Bachara opined that people with I.Q.'s of 61 are
impulsive and lack an ability to form the intent to plan “even
hours in the future.” He also stated that he did not believedefendant would understand some of the words used in his written
statement.
The jury convicted defendant of first-degree felony murder,
conspiracy to commit robbery, and robbery with a firearm.
Defendant was sentenced to life imprisonment without parole for the
first-degree murder and conspiracy to commit robbery offenses, and
the judgment on the robbery with firearm was arrested. From these
judgments, defendant appealed.
On appeal, by order dated 8 July 2003, this Court remanded for
“an evidentiary hearing concerning the admissibility of the
statements made by defendant to police following his arrest.” This
evidentiary hearing was held on 23 September 2004, after which the
court found facts and concluded:
1. That there was no offer of hope, reward or
inducement to the defendant to make a
statement.
2. That there was no threat or suggestive
violence or show of violence to persuade or
induce the defendant to make a statement.
3. That any statement made by the defendant
to Detective Mike Lewis of the Rocky Mount
Police Department on December 16, 1999 was
made voluntarily, knowingly and
understandingly.
4. That the defendant was in full
understanding of his constitutional rights to
remain silent and rights to counsel.
5. That he purposely, freely, knowingly and
voluntarily waived each of those rights and,
thereupon, made a statement to Detective
Lewis.
6. That the warning given by Detective Lewis
was in all respects in compliance with the
requirements of “Miranda.”
7. That the defendant's admission was
voluntarily and made understandingly and
without any evidence of coercion.
8. That Dr. Bachara never said the defendant
could not understand his rights.
9. That defendant had the capacity to
knowingly and understandingly waive his rights
under Miranda.
_____________________________
Defendant argues it was: 1) error to try defendant and
sentence him for felony murder based on a short form indictment; 2)
a violation of defendant's Miranda rights to admit defendant's
statement to police; 3) error to admit an enlargement of this
statement for illustrative purposes; 4) plain error for the trial
court to fail to instruct the jury regarding diminished capacity to
form specific intent necessary for the underlying felony of robbery
or conspiracy to commit robbery; 5) a violation of defendant's
right to effective assistance of counsel to fail to request these
instructions; 6) error to instruct the jury “that the evidence
tended to show the defendant confessed;” and 7) error not to
instruct on voluntary manslaughter based on imperfect self-defense.
After careful consideration of his arguments, we hold defendant
received a fair trial, free from prejudicial error.
[1] Defendant first argues that the short-form indictment does
not allege all the elements of first-degree murder as is required
by Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311 (1999),
and applied to state statutes in Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435 (2000). Our Supreme Court has “held that
the short-form indictment is sufficient to charge first-degreemurder on the basis of any of the theories . . . set forth in
N.C.G.S. § 14-17.” State v. Braxton, 352 N.C. 158, 174, 531 S.E.2d
428, 437 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797
(2001). N.C. Gen. Stat. § 14-17 defines first and second degree
murder, including murder “committed in the perpetration or
attempted perpetration of any . . . robbery . . . or other felony
committed or attempted with the use of a deadly weapon.” N.C. Gen.
Stat. § 14-17 (2003). The indictment in this case alleged first-
degree murder and referenced section 14-17; accordingly, this
assignment of error is overruled.
[2] In defendant's second argument he maintains the trial
court erred in denying his motion to suppress his statement to the
police because it was obtained in violation of his Miranda rights.
On appeal the findings of fact made by a trial court “following a
voir dire hearing on the voluntariness of a confession are
conclusive” as long they are supported by competent evidence.
State v. Massey, 316 N.C. 558, 573, 342 S.E.2d 811, 820 (1986).
Our Supreme Court has “consistently held that a defendant's
subnormal mental capacity is a factor to be considered when
determining whether a knowing and intelligent waiver of rights has
been made” but lack of intelligence alone does not “render an
in-custody statement incompetent if it is in all other respects
voluntary and understandingly made.” State v. Jones, 153 N.C. App.
358, 366, 570 S.E.2d 128, 135 (2002) (quoting State v. Fincher, 309
N.C. 1, 8, 305 S.E.2d 685, 690 (1983)); see also Massey, 316 N.C.
at 575, 342 S.E.2d at 821 (mildly mentally retarded 18-year-olddefendant with a mental age of ten or eleven gave voluntary
confession); State v. Thompson, 287 N.C. 303, 319, 214 S.E.2d 742,
752 (1975) (finding a 19-year-old defendant with an I.Q. of 55
capable of waiving his rights). We examine “the totality of the
circumstances, and in the case of mentally retarded defendants, we
pay particular attention to the defendant's personal
characteristics and the details of the interrogation.” State v.
Brown, 112 N.C. App. 390, 396, 436 S.E.2d 163, 167 (1993), aff'd,
339 N.C. 606, 453 S.E.2d 165-66 (1995).
At the evidentiary hearing on this issue, the trial court
reviewed the evidence and made findings examining the totality of
the circumstances. The hearing included re-examinations of the
arresting and questioning officer and the psychologist that
examined the defendant. The court found that the warnings given by
the officer complied with the requirements of Miranda and that
defendant was not threatened, physically coerced, or offered a
reward, and he did not appear to be under the influence of alcohol
or drugs. At defendant's trial, during the initial voir dire on
the motion to suppress, the trial court found that defendant
indicated that he understood his rights; that during the interview
at the police station, after about thirty minutes, the defendant
“broke down” and made a statement; and that he was not denied food,
water or an opportunity to use the bathroom. The trial court also
noted that defendant recounted details of his involvement in the
shooting and had a prior record. These findings all support the
conclusion that the statement was voluntarily given and thatdefendant knowingly waived his Miranda rights. Therefore it was
not error for the trial court to admit defendant's confession, and
this assignment of error is overruled.
[3] Defendant's third argument is that it was prejudicial
error for the trial court to permit the State to display to the
jury an enlarged image of his statement. Presentation of evidence
is within the trial court's discretion and will not be disturbed on
appeal absent an abuse of discretion. State v. Waddell, 351 N.C.
413, 423, 527 S.E.2d 644, 651 (2000). Because we have already
concluded that the defendant's statement was admissible, it was not
error for the trial court to permit the State to display the
enlarged version for illustrative purposes. See State v. Thompson,
149 N.C. App. 276, 283, 560 S.E.2d 568, 573, disc. review denied,
355 N.C. 499, 564 S.E.2d 231 (2002) (no error to admit defendant's
confession after concluding it was voluntary); see also State v.
Harris, 315 N.C. 556, 562, 340 S.E.2d 383, 387 (1986) (distributing
copies of the handwritten statement to each juror did not prejudice
defendant). Accordingly, this assignment of error is overruled.
Defendant's remaining arguments all relate to the trial
court's instructions to the jury. He maintains that 1) it was
plain error not to instruct on diminished capacity regarding the
underlying robbery for felony murder or for conspiracy, and
counsel's failure to request this instruction amounts to
ineffective assistance; 2) the trial court erred when it instructed
that the evidence tended to show defendant confessed; and 3) there
was error in the trial court's failure to instruct on voluntarymanslaughter based on a theory of imperfect self-defense. We will
address each of these arguments in turn.
As an initial matter, we note that defendant did not request
or propose any of these instructions at trial, and thus has not
preserved his right to review. See N.C.R. App. P. 10(b)(2) (2004);
State v. Gay, 334 N.C. 467, 486, 434 S.E.2d 840, 851 (1993).
Therefore, we review using the plain error standard. Plain error
is error that either amounts to the denial of a fundamental right
or is “so lacking in its elements that justice cannot have been
done.” State v. Carpenter, 147 N.C. App. 386, 397, 556 S.E.2d 316,
323 (2001), cert. denied, 536 U.S. 967, 153 L. Ed. 2d 851 (2002)
(internal citations omitted). In order to prevail under the plain
error analysis, the defendant must show 1) there was error, and 2)
that absent the error, the jury would have reached a different
result. Id.
[4] Defendant contends the jury's verdict finding defendant
not guilty of first-degree murder by premeditation and deliberation
indicates the jurors determined that defendant lacked sufficient
mental capacity to form specific intent for either armed robbery or
conspiracy to commit robbery. Had they been properly instructed by
the trial court regarding diminished capacity in terms of these
charges, defendant maintains the jury would have been unable to
find the specific intent for those charges as well. We disagree.
Defendant's arguments regarding instructions about the
underlying robbery are not properly before us. Defendant's
assignments of error do not plainly “specifically and distinctly”allege plain error regarding the robbery charge. N.C.R. App. P.
10(c)(4) (2004); State v. Dennison, 359 N.C. 312, 313, 608 S.E.2d
756, 757 (2005). Therefore, we only examine the diminished
capacity instruction in relationship to the conspiracy charge.
Reviewing for plain error, we conclude that defendant's
evidence concerning his low I.Q., smoking marijuana, and sharing
Hennessy over the course of the evening was not so overwhelming as
to render the lack of a voluntary intoxication instruction
prejudicial. It is “well established” that a voluntary
intoxication instruction is not required even where there is
testimony that defendant consumed “intoxicating beverages or
controlled substances.” State v. Cheek, 351 N.C. 48, 74, 520
S.E.2d 545, 560 (1999), cert. denied, ___ U.S. ___, 160 L. Ed. 2d
137 (2004) (internal citation omitted). Moreover, there was
testimony that defendant did not appear intoxicated. Finding
defendant not guilty of first-degree murder based on premeditation
and deliberation does not necessarily imply the jury concluded
defendant had a diminished capacity to form any intent.
Additionally, considering the defendant's confession, the testimony
of Downy, and the victim's statement regarding the shooting and the
forensic evidence, the jury had sufficient basis for its verdicts.
We cannot say that had the jurors been given this instruction, they
would have reached a different result. This assignment of error is
overruled.
[5] Defendant further maintains that the failure of defense
counsel to request this instruction constitutes ineffectiveassistance of counsel. We disagree. When raising a claim of
ineffective assistance of counsel, a defendant has to satisfy the
two-part test set forth in Strickland v. Washington, 466 U.S. 668,
687, 80 L. Ed. 2d 674 (1984) to show counsel's performance failed
to meet an objective standard of reasonableness. State v. Gainey,
355 N.C. 73, 112, 558 S.E.2d 463, 488, cert. denied, 537 U.S. 896,
154 L. Ed. 2d 165 (2002). This burden requires showing that 1)
counsel erred so seriously so as not to function as counsel and 2)
the deficient performance deprived defendant of a fair trial.
Because we have determined that there was no plain error in the
failure to provide this instruction to the jury, “defendant's
assertion of ineffective assistance of counsel with respect thereto
must also fail.” State v. Seagroves, 78 N.C. App. 49, 54, 336
S.E.2d 684, 688 (1985), disc. review denied, 316 N.C. 384, 342
S.E.2d 905 (1986).
[6] Defendant next contends that the trial court erred when it
instructed the jury that the evidence tended to show that defendant
confessed to the crimes charged. The judge instructed the jury, in
pertinent part:
There's evidence which tends to show that the
defendant confessed that he committed the
crime charged in this case.
If you find that the defendant made that
confession, then you should consider all of
the circumstances under which it was made in
determining whether it was a truthful
confession and the weight you will give to it.
Again, we review for plain error since defendant did not object to
this instruction at trial. This instruction is verbatim from thepattern jury instruction. N.C.P.I._Crim. 104.70 (1970). Our
Supreme Court has held that this instruction makes it clear “that
even though there was evidence tending to show that the defendant
had made an admission, it was solely for the jury to determine
whether the defendant in fact had made any admission.” State v.
McKoy, 331 N.C. 731, 734, 417 S.E.2d 244, 246-47 (1992). We
conclude that since the instruction was based upon a reasonable
view of the evidence, it was not erroneous. State v. Cannon, 341
N.C. 79, 90, 459 S.E.2d 238, 245 (1995).
[7] Finally, defendant argues the trial court erred in failing
to instruct on voluntary manslaughter based on imperfect self-
defense. “[S]elf-defense, perfect or imperfect, is not a defense to
first-degree murder under the felony murder theory, and only
perfect self-defense is applicable to the underlying felonies.”
State v. Richardson, 341 N.C. 658, 668, 462 S.E.2d 492, 499 (1995).
If imperfect self-defense applied to felony murder, it would defeat
the purpose of the felony murder rule, which is “to deter even
accidental killings from occurring during the commission of a
dangerous felony.” Id.
In this case, defendant was not found guilty of first-degree
murder based on a theory of premeditation and deliberation, which
can be mitigated by imperfect self-defense to voluntary
manslaughter. See State v. Bush, 307 N.C. 152, 159, 297 S.E.2d
563, 568 (1982) (noting that the exercise of imperfect self-defense
leaves defendant guilty of at least voluntary manslaughter).
Instead, the jury found the defendant guilty based on the felonymurder rule, and imperfect self-defense is not available as a
defense to the underlying robbery. The failure of the trial court
to instruct sua sponte on imperfect self-defense and voluntary
manslaughter, therefore, does not rise to the level of plain error.
We hold that defendant received a fair trial, free from prejudicial
error.
No error.
Judges HUNTER and CALABRIA concur.
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