The issues on appeal are whether the trial court erred by:
(I) concluding defendant was competent to stand trial; (II)
preventing members of the public from entering or exiting the
courtroom during the trial; (III) refusing to instruct the jury on
voluntary manslaughter; and (IV) sentencing defendant to a term of
189 to 236 months imprisonment.
On the issue of competency to stand trial, defendant maintains
the order should be reversed because Judge Lewis failed to include
specific findings of fact to support her conclusions of law. We
disagree. N.C. Gen. Stat. § 15A-1001(a) (2003) provides in pertinent
part as follows:
No person may be tried, convicted, sentenced,
or punished for a crime when by reason of
mental illness or defect he is unable to
understand the nature and object of the
proceedings against him, to comprehend his own
situation in reference to the proceedings, or
to assist in his defense in a rational or
N.C. Gen. Stat. § 15A-1002(b) (2003) states that [w]hen the
capacity of the defendant to proceed is questioned, the court shall
hold a hearing to determine the defendant's capacity to proceed.
The issue [of the defendant's capacity to proceed] may be resolved
by the trial court with or without the aid of a jury. State v.
, 302 N.C. 101, 104, 273 S.E.2d 666, 669 (1981) (citing
State v. Willard
, 292 N.C. 567, 234 S.E.2d 587 (1977)). When
ruling without input from a jury, it is the court's duty to
resolve conflicts in the evidence; the court's findings of fact are
conclusive on appeal if there is competent evidence to support
them, even if there is also evidence to the contrary. State v.
, 309 N.C. 231, 234, 306 S.E.2d 109, 111 (1983).
As noted above, Judge Lewis
resolved the issue of defendant's
capacity to proceed without a jury. On appeal, defendant does not
challenge the sufficiency of the evidence supporting the order's
findings of fact. Rather, defendant insists the order must be
reversed because it fails to contain specific findings of fact that
defendant was able to understand the nature and object of the
proceedings against him, able to comprehend his own situation in
reference to the proceedings, and able to assist in his defensein a rational or reasonable manner. Defendant's first argument is
The order included the following, denominated as conclusions
1. This court reviewed all the transcripts
of the proceedings on 10 December 2003
and 16 December 2003,
2. Pursuant to State v. Silvers
, 323 NC 646
(1989) this court relied upon testimony
of expert and lay witnesses who had
observed, conversed with and dealt with
defendant and had a reasonable
opportunity to form an opinion as to
defendant's mental capacity,
. . . .
8. The test pursuant to North Carolina
General Statutes 15A-1001 is:
a. Whether defendant is able to
understand the nature and object of
the proceedings against him,
b. Whether defendant is able to
comprehend his own situation in
these proceedings, and
c. Whether defendant is able to assist
in his own defense in a rational and
9. This court finds after reviewing the
evidence presented, the testimony,
transcripts of the proceedings, records
presented that the defendant is able to:
a. Understand the nature and object of
the proceedings against him,
b. Comprehend his own situation in
these proceedings, and
c. Assist in his own defense in a
rational and reasonable manner.
The foregoing amply reflects consideration of the evidenceintroduced by the parties and application of the proper legal
standard. While several of the conclusions of law may more
properly be characterized and denominated as findings of fact, we
are not persuaded that any such mislabeling requires reversal of
the order. See State v. Richardson
, 316 N.C. 594,
601, 342 S.E.2d
823, 829 (1986) ([D]efendant has not shown that he has been
prejudiced by the fact that [the trial court's] conclusions of law
were incorrectly denominated as findings of fact.).
review of the transcript reveals competent evidence supporting
Judge Lewis' determination regarding defendant's capacity to
proceed. See State v. Reid
, 38 N.C. App. 547, 548-49, 248 S.E.2d
390, 391 (1978), disc. review denied
, 296 N.C. 588, 254 S.E.2d 31
(1979) (The question of defendant's capacity is within the trial
judge's discretion and his determination thereof, if supported by
the evidence, is conclusive on appeal.). In short, we perceive no
abuse of discretion in Judge Lewis' ruling, and defendant's first
argument therefore fails.
Defendant next maintains the trial court erred by preventing
members of the public from entering or exiting the courtroom during
the trial. The instant record reflects that members of the public
were prohibited from entering or exiting the courtroom (i) while
the jury pool was being instructed on the case, (ii) while the
parties were making their closing arguments, and (iii) while the
jury's verdict was being read.
Although asserting [t]here were no findings justifying the
closing of the courtroom, and there was no overriding interest inits closure, defendant fails to cite any instance in the record
where he objected to the trial court's decision to close the
N.C.R. App. P. 10(b)(1) (2005) (in order to
properly preserve a question for appellate review, a party must
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make if the specific grounds were not apparent
from the context); N.C.R. App. P. 10(c)(1) (assignments of error
sufficient[ly] preserve an issue for appeal only when they
direct the attention of the appellate court to the particular
error about which the question is made, with clear and specific
record or transcript references). Failure to object or preserve
the issue for appellate review subjects defendant's assignment of
error to dismissal. See id
proper preservation of this issue for
appeal, moreover, examination of the record herein fails to sustain
defendant's argument. First, there is no indication in the record
that prohibiting members of the public from entering or exiting the
courtroom at specific limited times resulted in a violation of
defendant's constitutional rights. See State v. Clark
, 324 N.C.
146, 167, 377 S.E.2d 54, 66-67 (1989) (neither Sixth Amendment
right to public trial nor right to open court under N.C. Const.
Art. I, § 18 violated where trial court did not vacate the
courtroom nor bar the courtroom door but rather warned the
spectators of [its] intention to restrict public egress during
closing arguments). Further, N.C. Gen. Stat. § 15A-1034(a) (2003) provides that
[t]he presiding judge may impose reasonable limitations on access
to the courtroom when necessary to ensure the orderliness of
courtroom proceedings or the safety of persons present. Contrary
to defendant's impression, application of the statutory test to the
entire record herein indicates the trial court's actions in
prohibiting courtroom ingress and egress at certain critical phases
of the trial constituted reasonable limitations on access, aimed at
ensuring a fair and impartial jury as well as orderly courtroom
In short, we reject defendant's second argument.
Defendant next asserts the trial court erred by refusing to
submit an instruction to the jury on the offense of voluntary
manslaughter. We do not agree.
Where a defendant is charged with murder,
[i]t is the duty of the trial court to
instruct the jury on the law applicable to the
substantive features of the case arising on
the evidence, and when there is evidence to
support the lesser included offense of
voluntary manslaughter, [the] defendant is
entitled to have that offense submitted to the
jury under proper instructions.
State v. Robbins
, 309 N.C. 771, 776-77, 309 S.E.2d 188, 191 (1983)
Voluntary manslaughter is the unlawful killing of a human
being without malice, express or implied, and without premeditation
or deliberation. One who kills a human being while under the
influence of passion or in the heat of blood produced by adequate
provocation is guilty of manslaughter. State v. Wynn
, 278 N.C.513, 518, 180 S.E.2d 135, 139 (1971) (citations omitted).
Defendant contends there was substantial credible evidence
that [he] was suffering from a mental disorder that the jury could
have found to have negated the element of malice necessary for a
conviction on second degree murder and that an instruction on
voluntary manslaughter was therefore required. Defendant's
argument misses the mark.
Although finding of a mental disorder by the jury may have
overcome the element of malice required for second degree murder
and thus necessitated a verdict of not guilty on that charge, in
order [t]o reduce the crime of murder to voluntary manslaughter,
the defendant must either 'rely on evidence presented by the State
or assume a burden to go forward with or produce some evidence of
all elements of heat of passion on sudden provocation.' State v.
, 87 N.C. App. 137, 141, 360 S.E.2d 121, 123 (1987) (quoting
, 309 N.C. at 777-78, 309 S.E.2d at 192). A killing in the
'heat of passion' on sudden and adequate provocation means a
killing without premeditation under the influence of a sudden
passion which renders the mind incapable of cool reflection.
State v. Forrest
, 321 N.C. 186, 192, 362 S.E.2d 252, 256 (1987)
(citations omitted). 'In the definition of manslaughter as
homicide committed without premeditation but under the influence of
sudden passion, this term means any of the emotions of the mind
known as rage, anger, hatred, furious resentment, or terror,
rendering the mind incapable of cool reflection.' State v.
, 276 N.C. 157, 161, 171 S.E.2d 447, 449-50 (1970) (quotingBlack's Law Dictionary, p. 1281 (4th ed. 1951)).
Significantly, our Court has narrowly
construed the requirement under the 'heat of
passion' doctrine that provocation be adequate
and reasonable. We have held, for example,
that mere words or insulting language, no
matter how abusive, can never be adequate
provocation and can never reduce murder to
manslaughter under the heat of passion
doctrine. We have held as adequate
provocation an assault or threatened assault,
and the discovery of the deceased spouse and a
paramour in the act of intercourse[.]
, 321 N.C. at 192-93, 362 S.E.2d at 256 (citations omitted).
Examining the record for heat of passion evidence, we note
defendant's statement to law enforcement officials contains several
references to fussing back and forth between defendant and his
wife prior to the homicide as well as her threat to go out and get
up with other men. However, these mere words are insufficient
to reduce defendant's culpability of the offense of second degree
murder. See Forrest
, 321 N.C. at 192, 362 S.E.2d at 256. Further,
there is no indication defendant was reacting to an assault or
threatened assault when he struck Patricia in the head with the
pipe. Instead, by his own admission, defendant picked the pipe up
and set it back down several times before ultimately attacking
Patricia with it.
To summarize, the record contains no evidence that the murder
of Patricia occurred while defendant was in heat of passion caused
by legally sufficient provocation. State v. Upright
, 72 N.C. App.
94, 102, 323 S.E.2d 479, 485 (1984), disc. review denied
, 313 N.C.
513, 329 S.E.2d 400, cert. denied
, 313 N.C. 610, 332 S.E.2d 82
(1985). Accordingly, the trial court did not err by denyingdefendant's request to submit to the jury an instruction on
Finally, defendant assigns error to the trial court's judgment
imposing an active prison term of 189 to 236 months. We hold that
the trial court committed no error in this regard.
According to defendant, the sentence is invalid because it
stems from a portion of our state's Structured Sentencing Law, N.C.
Gen. Stat. § 15A-1340 et seq.
, at which the corresponding
presumptive and aggravated ranges overlap. See
N.C. Gen. Stat. §
15A-1340.17(c). Although defendant concedes his argument has
consistently been rejected by this Court, see, e.g.
, State v.
, 168 N.C. App. 190, 607 S.E.2d 311, disc. review denied
N.C. 636, 618 S.E.2d 232 (2005); State v. Ramirez
, 156 N.C. App.
249, 576 S.E.2d 714, disc. review denied
, 357 N.C. 255, 583 S.E.2d
286, cert. denied
, 540 U.S. 991, 157 L. Ed. 2d 388 (2003); State v.
, 146 N.C. App. 594, 553 S.E.2d 240 (2001), cert. denied
356 N.C. 312, 571 S.E.2d 211 (2002), he nonetheless insists the
issue should be revisited in light of the United States Supreme
Court's decision in Blakely v. Washington
, 542 U.S. 296, 159 L. Ed.
2d 403 (2004). The State counters that Blakely
, a case concerned
with the imposition of aggravated sentences pursuant to findings of
aggravating factors, contains no implications for the case sub
, wherein the trial court found no aggravating factors and
sentenced defendant within the presumptive range. The State's
point is well taken.
Defendant also contends his sentence should be vacated becausethe State failed to allege aggravating factors in the indictment.
This argument likewise has previously been resolved against
defendant. See State v. Allen
, 359 N.C. 425, 438, 615 S.E.2d 256,
265 (2005) (State not required to allege in underlying indictment
aggravating factors which might lead to an enhancement of accused's
sentence). Moreover, we reiterate that no aggravating factors were
found by the trial court herein.
In sum, the trial court committed no prejudicial error in the
trial and sentencing of defendant.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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