2. Robbery--armed--taking property after victim's death--sufficiency of evidence
The trial court did not err by failing to dismiss the armed robbery charge against defendant
based on alleged insufficient evidence, because: (1) the fact that the victim is already dead when
her possessions are taken has not previously been an impediment in this jurisdiction to the
defendant's conviction for armed robbery; and (2) two witnesses testified that defendant told them
he killed the victim.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jill Ledford Cheek and Assistant Attorney General
Steven F. Bryant, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Janet Moore, for defendant.
LEVINSON, Judge.
Defendant appeals from convictions and judgments for first
degree murder and armed robbery. We find no error in part, and
reverse and remand in part.
The evidence presented at trial may be summarized as follows:
On the morning of 14 November 2000, Tammy Cush was discovered dead
in her apartment. Her husband returned home and found his wife's
naked body lying in their bedroom. She had two stab wounds to the
neck which, according to expert testimony, caused her death. A jar
of coins was spilled on the living room floor. Silver coins from
this jar were missing, as were the Play Station and VCR. Mrs.
Cush's purse had been emptied of the money inside, and food was
strewn on the kitchen floor. A trail of vegetables led towards
defendant's apartment. The victim's VCR and Play Station were
found in defendant's apartment.
In response to police questioning the next day, defendant
admitted having entered the victim's home on the evening of 13
November 2000. He stated he had seen Mrs. Cush lying naked in the
bedroom with a hole in her neck trying to breathe. Defendant
contended that he slipped in a pool of warm blood, vomited in the
toilet, took the VCR and Play Station, and returned to his
apartment.
Ronald Pritt testified that defendant told him he killed the
victim. Pritt was incarcerated in jail at the same time defendant
was incarcerated at the Catawba County jail. Defendant told Pritt
that, on the night of the murder, he went to Mrs. Cush's apartmentintending to kill her husband. Mrs. Cush backed out of “the
plotting and planning to kill her husband”, and defendant returned
to his apartment. Later, defendant explained, he “forgot
something” and returned to Mrs. Cush's apartment with a pair of
scissors. When he walked in the door, Mrs. Cush had “started
yelling at him, throwing her -- all wild, and he blanked out and
when he came back to, he had blood all over him. She was laying on
the floor.” Defendant told Pritt he had asked “the Gideons” who
visited the prisoners in jail to pray that Mrs. Cush's killer would
be found because it would “throw the officers off, saying he didn't
do it.”
Robert Howie testified that defendant told him he had killed
his girlfriend. Howie was incarcerated in jail at the same time
defendant was incarcerated at the Catawba County jail. Defendant
said his girlfriend “had broke[n] up with him and he wanted to have
sex with her one more time.” When she refused to have intercourse
with him, “[h]e lost it and stabbed her in the neck, turned her
over, and had sex with her.” Defendant also told Howie he had
spilled a jar of coins in the victim's apartment and had gone
through the coins looking for money to buy beer.
Defendant presented no evidence.
After denying defendant's request to submit second degree
murder to the jury, the court instructed the jury on first degree
murder on the theories of malice, premeditation and deliberation
and the felony murder rule. In addition, the court instructed the
jury on robbery with a dangerous weapon and the lesser-includedoffense of larceny. The jury convicted defendant of first degree
murder based upon both theories, and robbery with a dangerous
weapon. For first degree murder, defendant was sentenced to life
imprisonment without parole; for the armed robbery, defendant was
sentenced to 77-102 months imprisonment. From these convictions
and judgments, defendant appeals.
___________________________________
[1] Defendant first argues the trial court committed plain
error by eliminating the option of not guilty of first degree
murder in its final mandate to the jury and, in a related argument,
by omitting the option of not guilty of first degree murder on the
verdict sheet.
(See footnote 1)
Defendant argues these omissions so tainted the
proceedings against him that a new trial on the first degree murder
charge is required. After very careful review, we are compelled to
agree.
The underlined portions of the following instructions given by
the trial court play a significant role in our evaluation of this
assignment of error:
The Defendant has entered pleas of not guilty
as to each charge. The fact that he has been
charged is no evidence of guilt. Under our
system of justice when a Defendant pleads not
guilty, he is not required to prove his
innocence. He is presumed to be innocent.
The State must prove to you that the Defendant
is guilty beyond a reasonable doubt.
. . . .
You should weigh all the evidence in the case.
After weighing all of the evidence if you are
not convinced of the guilt of the Defendant
beyond a reasonable doubt you must find him
not guilty.
. . . .
Ladies and gentlemen, the Defendant has been
charged with first-degree murder. Under the
law and the evidence in this case, it is your
duty to return one of the following verdicts:
guilty of first-degree murder or not guilty.
You may find the Defendant guilty of first-
degree murder on either or both of two
theories; that is, on the basis of malice,
premeditation, and deliberation or under the
first-degree felony murder rule.
. . . .
If you find from the evidence beyond a
reasonable doubt that on or about the alleged
date the Defendant, acting with malice, killed
the victim with a deadly weapon thereby
proximately causing the victim's death and
that the Defendant intended to kill the victim
and that the Defendant acted after
premeditation and with deliberation, it would
be your duty to return a verdict of guilty of
first-degree murder on the basis of malice,
premeditation, and deliberation.
If you do not so find or have a reasonable
doubt as to one or more of these things, you
would not return a verdict of guilty of first-
degree murder on the basis of malice,
premeditation, and deliberation. Whether or
not you find the Defendant guilty of first-
degree murder on the basis of malice,
premeditation, and deliberation, you will also
consider whether he is guilty of first-degree
murder under the first-degree felony murder
rule.
If you find from the evidence beyond a
reasonable doubt that on or about the alleged
date the Defendant committed the offense of
robbery with a dangerous weapon and that whilecommitting the offense of robbery with a
dangerous weapon the Defendant killed the
victim and that the Defendant's act was a
proximate cause of the victim's death, it
would be your duty to return a verdict of
guilty of first-degree murder under the felony
murder rule.
If you do not so find or have a reasonable
doubt as to one or more of these things, you
will not return a verdict of guilty of first-
degree murder under the felony murder rule.
Now, ladies and gentlemen, the verdict form
with respect to the charge of first-degree
murder sets out first-degree murder both on
the basis of malice, premeditation, and
deliberation and first-degree murder under the
felony murder rule.
In the event that you should find the
Defendant guilty of first-degree murder,
please have your foreperson indicate whether
you did so on the basis of malice,
premeditation, and deliberation or the felony
murder rule or both.
As to armed robbery and the lesser-included offense of
larceny, the trial court instructed the jury, in pertinent part, as
follows:
The Defendant has also been charged with
robbery with a dangerous weapon, which is
taking and carrying away the personal property
of another from his or her person or in his or
her presence without his or her consent by
endangering or threatening a person's life
with a dangerous weapon, the taker knowing
that he was not entitled to take the property
and intending to deprive another of its use
permanently.
. . . .
If you find from the evidence beyond a
reasonable doubt that on or about the alleged
date the Defendant had in his possession a
dangerous weapon and took and carried away
[the personal property of another] from the
person or in the presence of a person withouther voluntary consent by endangering or
threatening her life with the use or
threatened use of a dangerous weapon, the
Defendant knowing that he was not entitled to
take the property and intending to deprive
that person of its use permanently, it would
be your duty to return a verdict of guilty of
robbery with a dangerous weapon.
If you do not find the Defendant guilty of
robbery with a dangerous weapon or have a
reasonable doubt as to one or more of these
things, it would be your duty to consider
whether the Defendant is guilty of larceny.
. . . .
If you find from the evidence beyond a
reasonable doubt that on or about the alleged
date the Defendant took and carried away
another person's property without her consent
knowing that he was not entitled to take it
and intending at the time to deprive the
victim of its use permanently, it would be
your duty to return a verdict of guilty.
If you do not so find or if you have a
reasonable doubt as to one or more of these
things, it would be your duty to return a
verdict of not guilty as to that charge.
Because defendant did not object at trial to the omission of
the not guilty option from the trial court's final mandate to the
jury, we review the trial court's actions for plain error. See
State v. Walker, 170 N.C. App. 632, 636, 613 S.E.2d 330, 333
(2005).
Plain error includes error that is a
fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done; or grave error
that amounts to a denial of a fundamental
right of the accused; or error that has
resulted in a miscarriage of justice or in the
denial to appellant of a fair trial.
State v. Gregory, 342 N.C. 580, 586, 467 S.E.2d 28, 32 (1996).
“It is well established that 'the trial court's charge to the
jury must be construed contextually and isolated portions of it
will not be held prejudicial error when the charge as a whole is
correct.'” State v. Hornsby, 152 N.C. App. 358, 367, 567 S.E.2d
449, 456 (2002) (quoting State v. Boykin, 310 N.C. 118, 125, 310
S.E.2d 315, 319 (1984)), appeal dismissed, 356 N.C. 685, 578 S.E.2d
316 (2003). “Regardless of requests by the parties, a judge has an
obligation to fully instruct the jury on all substantial and
essential features of the case embraced within the issue and
arising on the evidence. The trial judge may in his discretion
also instruct on the subordinate and nonessential features of a
case without requests by counsel.” State v. Harris, 306 N.C. 724,
727, 295 S.E.2d 391, 393 (1982) (citing State v. Ward, 300 N.C.
150, 266 S.E.2d 581 (1980)).
Our Supreme Court has held that the failure of the trial court
to provide the option of acquittal or not guilty in its charge to
the jury can constitute reversible error. See, e.g., Ward, 300
N.C. at 155, 266 S.E.2d at 584 (where presiding judge was required
to “declare and explain the law arising on the evidence” to the
jury under N.C. Gen. Stat. § 15A-1232, the trial court's failure to
do so, together with its failure to give a final mandate to the
effect that the jury had a duty to return a verdict of not guilty
if they had a reasonable doubt as to defendant's guilt of second
degree murder, resulted in new trial); State v. Overman, 257 N.C.
464, 468, 125 S.E.2d 920, 924 (1962)(reversible error where courtinstructed jury on its duty to return a verdict of guilty if
certain facts found to be true, but failed “to tell the jury that
if they were not satisfied beyond a reasonable doubt that those
were the facts, they would acquit”); State v. Dallas, 253 N.C. 568,
569, 117 S.E.2d 415, 416 (1960) (“At no time was the jury
instructed that, if upon a fair and impartial consideration of the
evidence they had a reasonable doubt of defendant's guilt, it would
be their duty to acquit him.”); but see State v. Bridges, 231 N.C.
163, 165, 56 S.E.2d 397, 398 (1949) (defense theory at trial was
that the killing was in the nature of second degree murder and
defendant acknowledged manslaughter was not implicated; even in
absence of final not guilty option, first degree murder conviction
sustained because, considering the charge as a whole, “jury was
admonished that a presumption of innocence surrounded the defendant
which remained with him up to the rendition of an adverse verdict
against him”).
In State v. Howell, 218 N.C. 280, 282, 10 S.E.2d 815, 817
(1940), where the trial court erred, in part, by failing to
instruct the jury that it could return a verdict of not guilty, the
Supreme Court held:
When there is a general plea of not guilty and
no admission of an unlawful killing the . . .
penalty will be exacted only upon the verdict
of a jury which has been given full
opportunity to pass upon the weight and
credibility of the evidence and only after it
has been instructed as to its right to return,
and the conditions upon which it should
render, a verdict of not guilty.
Our Supreme Court recently relied upon Ward, and quoted the above
language from Howell, in a case where the defendant argued the
trial court failed to provide a not guilty verdict in its mandate.
See State v. Chapman, 359 N.C. 328, 380, 611 S.E.2d 794, 831
(2005). Finally, in State v. Ramey, 273 N.C. 325, 329, 160 S.E.2d
56, 59 (1968), the Court awarded a new trial based on the trial
court's failure to properly instruct the jury on returning a
verdict of not guilty:
[D]efendant was entitled to an explicit
instruction, even in the absence of a specific
request therefor, to the effect the jury
should return a verdict of not guilty if the
State failed to satisfy them from the evidence
beyond a reasonable doubt that a bullet wound
inflicted upon Mabry by defendant proximately
caused his death. The trial judge
inadvertently failed to give such [an]
instruction. The necessity for such an
instruction is not affected by the fact there
was plenary evidence upon which the jury
[might return a verdict of guilty].
. . . .
It is noted that no instruction was given that
if the State failed to satisfy the jury from
the evidence beyond a reasonable doubt that
defendant was guilty of murder in the second
degree, and failed to satisfy the jury from
the evidence beyond a reasonable doubt that
defendant was guilty of manslaughter, the jury
should return a verdict of not guilty.
(citations omitted and emphasis added). In sum, our appellate
precedent illustrates the importance placed upon the trial court's
obligation to provide a not guilty final mandate to juries.
In the instant case, on the charge of first degree murder, the
trial court failed to instruct the jury on the option of findingdefendant not guilty during its final mandate.
(See footnote 2)
Indeed, it neither
stated that the jury could find defendant not guilty of first
degree murder, nor that it was their duty to do so should they
conclude the State failed in its burden of proof. And it did not,
as an alternative to a “not guilty” mandate, instruct the jury to
answer “no” to the first issue on the verdict sheet should it not
find any one or more of the elements of murder missing:
(See footnote 3)
We the jury unanimously find the Defendant,
Michael Lane McHone:
1. Guilty of First Degree Murder?
ANSWER: yes
2. IF YOUR ANSWER IS “YES,” IS IT:
A. On the basis of malice,
premeditation and deliberation?
ANSWER: yes
B. Under the first degree felony
murder rule?
ANSWER: yes
We conclude the trial court's failure to provide a not guilty final
mandate constituted error, and next turn to whether this error
constitutes plain error, requiring a new trial. We first consider the jury instructions on murder in their
entirety in determining whether the failure to provide a not guilty
mandate constitutes plain error. The trial court judge correctly
instructed the jury that if it did not find the requisite malice,
premeditation and deliberation, it “would not return a verdict of
guilty of first-degree murder on the basis of malice,
premeditation, and deliberation” and must then consider whether the
killing was done consistent with the requirements of the felony
murder rule. Likewise, the concluding portion of the jury
instruction on felony murder mirrored the one concerning malice,
premeditation and deliberation in that it stated that the jury
“[would] not return a verdict of guilty of first-degree murder
under the felony murder rule[]” if the State failed in one or more
of the elements of felony murder. The instruction, then, in the
absence of a final not guilty mandate, essentially pitted one
theory of first degree murder against the other, and impermissibly
suggested that the jury should find that the killing was
perpetrated by defendant on the basis of at least one of the
theories. Telling the jury “not [to] return a verdict of guilty”
as to each theory of first degree murder does not comport with the
necessity of instructing the jury that it must or would return a
verdict of not guilty should they completely reject the conclusion
that defendant committed first degree murder.
Secondly, we consider the content and form of the first degree
murder verdict sheet in determining whether the failure to provide
a not guilty mandate constitutes plain error. Here, the trialcourt initially informed the jury that it was their “duty to return
one of the following verdicts: guilty of first-degree murder or not
guilty.” However, the verdict sheet itself did not provide a space
or option of “not guilty.” And while the content and form of the
verdict sheet did not compel the jury to return a verdict of guilty
insofar as it stated “if” it found defendant guilty of first degree
murder, we repeat our observation that it failed to afford exactly
that which the court initially informed the jury it would be
authorized to return _ a not guilty verdict.
Thirdly, we consider the instructions and verdict sheet for
the armed robbery/larceny offenses in determining whether the
failure to provide a not guilty final mandate for the murder charge
constitutes plain error. As to these taking offenses, the trial
court judge did provide a not guilty mandate. After instructing
the jury that it must consider the offense of larceny should they
reject the armed robbery, the court properly charged the jury, “If
you do not so find or if you have a reasonable doubt as to one or
more of these things, it would be your duty to return a verdict of
not guilty as to that charge.” Rather than help correct the
failure to provide a similar not guilty mandate with respect to the
first degree murder charge, the presence of a not guilty final
mandate as to the taking offenses likely reinforced the suggestion
that the jury should return a verdict of first degree murder based
upon premeditation and deliberation and/or felony murder.
Likewise, the content and form of the verdict sheet on the taking
offenses, which did afford a space for a not guilty verdict, alsolikely reinforced the suggestion that defendant must have been
guilty of first degree murder on some basis:
We the jury unanimously find the Defendant,
Michael Lane McHone:
. Guilty of Robbery with a Dangerous Weapon
or
____ Guilty of Larceny
or
____ Not Guilty
Our review of binding precedent suggests that, even where the
trial court has given instructions on, e.g., burden of proof,
presumption of innocence, and/or provided some qualifying remarks
such as “ if the State has proven the elements you should return a
verdict of guilty”, a new trial has been awarded for the failure to
provide a not guilty final mandate. See Ward, 300 N.C. at 156, 266
S.E.2d at 585; Ramey, 273 N.C. at 327-29, 160 S.E.2d at 58-59;
Overman, 257 N.C. at 467-68, 125 S.E.2d at 923-24. Consequently,
the fact the trial court judge provided similar instructions here
does not necessarily foreclose the necessity of a new trial. And,
as our Supreme Court's holding in Ramey informs, “the fact there
was plenary evidence upon which the jury [might return a verdict of
guilty]” does not remedy the failure to provide a not guilty
mandate. Ramey, 273 N.C. at 329, 160 S.E.2d at 59.
We recognize that the jury could not have genuinely
misunderstood its role in passing on the guilt or innocence of
defendant. Even so, the trial court's inadvertent omission tipped
the scales of justice in favor of conviction and impermissiblysuggested that the defendant must have been guilty of first degree
murder on some basis. We conclude that the jury instructions on
first degree murder, considered in context and in their entirety,
amount to plain error. This conclusion is based not only on the
importance of the jury receiving a not guilty mandate from the
presiding judge, but also on the form and content of the particular
verdict sheets utilized in this case.
____________________________________
[2] Defendant next argues that the trial court erred by
failing to dismiss the armed robbery charge against him due to
insufficiency of the evidence. Defendant contends that the
evidence shows he took the VCR and Play Station from the victim's
apartment as an “afterthought,” once the victim was already dead,
and that therefore he did not take the objects “by use of a
dangerous weapon.” We disagree.
“In ruling on a motion to dismiss . . . the trial court must
consider the evidence in the light most favorable to the State and
give the State every reasonable inference to be drawn therefrom.”
State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995)
(citation omitted).
When the defendant moves for dismissal, the
court must determine if there is substantial
evidence of each essential element of the
crime charged . . . and evidence that
defendant committed the offense. If the
aforementioned evidence exists, the motion to
dismiss is properly denied.
State v. Featherson, 145 N.C. App. 134, 138-39, 548 S.E.2d 828, 831
(2001) (quoting State v. Earnhardt, 307 N.C. 62, 66, 296 S.E.2d
649, 652 (1982)).
The essential elements of armed robbery are: “(1) the unlawful
taking or an attempt to take personal property from the person or
in the presence of another; (2) by use or threatened use of a
firearm or other dangerous weapon; (3) whereby the life of a person
is endangered or threatened.” State v. Willis, 127 N.C. App. 549,
551, 492 S.E.2d 43, 44 (1997) (citation omitted); N.C. Gen. Stat.
§ 14-87 (2003). “That the victim is already dead when his
possessions are taken has not previously been an impediment in this
jurisdiction to the defendant's conviction for armed robbery.”
State v. Fields, 315 N.C. 191, 201, 337 S.E.2d 518, 524 (1985).
Where there is a continuous transaction, the
temporal order of the killing and the taking
is immaterial. Provided that the theft and
the killing are aspects of a single
transaction, it is immaterial whether the
intent to commit the theft was formed before
or after the killing.
State v. Handy, 331 N.C. 515, 528, 419 S.E.2d 545, 552 (1992).
In the instant case, the victim was found dead in her home
with stab wounds from a sharp object to her neck. In a statement
to the police, defendant admitted he entered the victim's
apartment, saw the victim lying naked in the bedroom with a hole in
her neck trying to breathe, and took the victim's VCR and Play
Station. Police officers found the victim's VCR and Play Station
in defendant's apartment. Pritt testified defendant told him that
he had killed the victim. Howie testified defendant told him hehad killed his girlfriend by stabbing her in the neck with a pair
of scissors.
We hold there was substantial evidence to sustain a conviction
of armed robbery against defendant. This assignment of error is
overruled.
Defendant's ineffective assistance of counsel argument is
without merit, and his remaining arguments are either without merit
or rendered moot as a result of this opinion.
In 00 CRS 19019, reversed and remanded for a new trial.
In 01 CRS 19538, no error.
Judges WYNN and CALABRIA concur.
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