State v Mills, (05-261) 02/07/2006

Appeal by defendant from judgments entered 27 May 2004 by Judge Clifton W. Everett, Jr., in Nash County Superior Court. Heard in the Court of Appeals 9 January 2006.

Attorney General Roy Cooper, by Assistant Attorney General John P. Barkley, for the State.

Daniel Shatz for defendant appellant.

McCULLOUGH, Judge.

    Defendant was found guilty of second-degree murder and robbery with a dangerous weapon. The trial court sentenced him to consecutive prison terms totaling 250 to 319 months. Defendant gave notice of appeal in open court.
    The State adduced evidence tending to show that on 6 September 2001, Brenton Evans drove with defendant to a migrant labor camp near Cooper Road in Nash County, North Carolina, looking for Urbano Alvarado Umana   (See footnote 1) . After locating him in a field, defendant approached Umana, brandished a .32 caliber handgun, and ordered him into the front passenger's seat of Evans' car. Defendant sat downin the car's backseat and told Evans to go to Umana's house at 13036 Cooper Road. When they arrived, defendant kicked open the door to the house, led Umana into the master bedroom and demanded money. Umana produced two $50 bills from a black pocketbook in the dresser. After telling defendant that he had no more money, Umana grabbed defendant's right arm. After a struggle, defendant brought the gun down to Umana's head and shot him. When Umana fell backwards to the floor, and defendant shot him two or three more times before telling Evans, “[L]et's go.” Evans drove defendant to Griffin's Store in Red Oak. When defendant exited the car to use a pay phone, Evans drove away and went to his brother's house on Arlington Street. He then drove with his brother and mother to the magistrate's office in Nash County, where he gave a statement implicating defendant in the shooting.
    At 3:46 a.m. on 7 September 2001, defendant was interviewed by Nash County Sheriff's Sergeants Brian Lewis and Steve Saunders, and admitted robbing and shooting Umana. Defendant then led the officers to a trash can in front of a residence at 1313 Proctor Street in Rocky Mount, North Carolina, where they found a blue and black Keltec .32 caliber semiautomatic pistol. Forensic tests later confirmed that the shell casings and projectile found at the crime scene had been fired from the weapon. After returning to the sheriff's department at 5:49 a.m., defendant dictated and signed a more detailed account of the murder and robbery.
    Defendant testified that he and Evans visited Umana on the afternoon of 6 September 2001. When they returned to Evans' house,defendant stayed at the house while Evans ran two errands in the car. Evans then drove defendant to Rocky Mount. While they were driving, defendant noticed that his gun had been moved from its location under the seat and was lying on the backseat on top of his shirt. He further noticed that four bullets were missing from the gun. Evans initially denied moving or using the gun but later admitted he had fired it. Evans gave defendant a $50 bill to buy cigarettes at a gas station and later gave him a second $50 bill as a down-payment on the gun. When they arrived in Rocky Mount, defendant walked to his son's mother's house on Proctor Street and hid the gun and bullets under a dresser. Suspicious of Evans' story, defendant later threw the box of bullets into the woods, wrapped the gun in a trash bag and put it in the trash can. He was arrested by Rocky Mount police at approximately 1:00 a.m., and was taken to the Nash County Sheriff's Office, where Saunders told him that Evans had implicated him in the murder and robbery. Defendant initially maintained his innocence but agreed to cooperate after he was threatened with the death penalty and with the arrest of his son's mother. Saunders typed something into a computer “[f]or about thirty minutes” without speaking to defendant. When defendant tried to read what he had written, Saunders took the document from him and said, “[I]t's your life, not mine.” After defendant signed and initialed the document without reading it, Saunders asked him “to show me where this gun is, if you want to clear your name.” After he led detectives to the gun, he was taken to jail.
    In his first argument on appeal, defendant claims the trial court committed plain error by instructing the jury on the lesser included offense of second-degree murder, absent any evidence to support the instruction. While conceding that he “acquiesced” to the instruction, defendant argues that it “violate[d] his fundamental constitutional rights,” allowing the jury to convict him of a crime he did not commit.
    A review of the transcript reveals that defendant did not merely accede to the court's instruction on second-degree murder. Rather, he explicitly requested the instruction and argued in favor of it, as follows:
            THE COURT: Anything unusual you want me to instruct on? . . .

            [DEFENSE COUNSEL]: . . . I'm just focus[]ing on first-degree murder, murder committed in the perpetration of the felony and murder with premeditation and deliberation where a deadly weapon is used.

            THE COURT: Yes.

            [DEFENSE COUNSEL]: Which would include that second-degree issue, your Honor.

(Emphasis added.) The State opposed an instruction on second- degree murder, noting that defendant denied being at the scene and that “[a]ll the [State's] evidence indicates premeditation, deliberation, and felony murder.” Defense counsel asserted an entitlement to the instruction, notwithstanding defendant's testimony that he had no involvement in the shooting:
        [DEFENSE COUNSEL]: . . . Our position would be and I'm taking this 206.00, pattern instructions relying on the State versusStrickland that says when the indictment charges first-degree murder, by premeditation and deliberation the trial will require the trial judge to require to instruct on second- degree murder only if the evidence tends to show lack of premeditation and deliberation or would permit a jury rationally to find the defendant guilty of a lesser offense and acquit him.

            It's our position, your Honor, we wish we didn't have to worry about any instructions, but in this case, _ and, obviously, I'd like to get him a not guilty and that's what I'm here for. But I'd rather take the less[e]r of two evils, I'd rather go with second.

            And our position is this is a standard indictment for 14-17, first-degree murder. . . . And if you take everything [the State] say[s] is true, his statement, Exhibit 1 and 2, Brenton, Lieutenant Saunders, Sergeant Lewis, then I submit that [if] we had kept our mouth shut, we would be entitled to this instruction.

            I don't think there's a contradiction that we put on our defense, but still should [not] be denied the benefit of the Strickland rationale.

(Emphasis added.) See State v. Strickland, 307 N.C. 274, 287, 298 S.E.2d 645, 654 (1983), overruled on other grounds by State v. Johnson, 317 N.C. 193, 203, 344 S.E.2d 775, 781 (1986). After allowing the parties to research the issue overnight, the court again addressed the issue of the murder instruction. The State conceded, “If [an instruction on] premeditation and deliberation is given, then second-degree has to also be given.” Believing that the evidence “certainly lends itself to premeditation and deliberation,” the court addressed defense counsel as follows:
            THE COURT: All right. I'll give the instruction on 206.14, [counsel], whichincludes the less[e]r included offense of second-degree murder.

            [DEFENSE COUNSEL]: Yes, your Honor.
(Emphasis added.)
    Under the doctrine of invited error, an appellant may not assign error, or plain error, “to the granting of their own requests” at trial. State v. Wilkinson, 344 N.C. 198, 213, 474 S.E.2d 375, 383 (1996). Consistent with this principle, "'[a] criminal defendant will not be heard to complain of a jury instruction given in response to his own request.'" Id. (quoting State v. McPhail, 329 N.C. 636, 643, 406 S.E.2d 591, 596 (1991)). Having invited the instruction of which he now complains, defendant “is not entitled to any relief and will not be heard to complain on appeal.” State v. Williams, 333 N.C. 719, 728, 430 S.E.2d 888, 893 (1993).
    Defendant next asserts that the trial court erred by sentencing him as a prior record level II, absent sufficient evidence to prove the existence of the prior conviction listed on the State's sentencing worksheet. The record reflects the court assigned defendant a single prior record point based upon a 1997 conviction for the Class 1 misdemeanor of injury to real property. N.C. Gen. Stat. §§ 14-127, 15A-1340.14(b)(5) (2005).
    For purposes of establishing a defendant's prior record level, the fact of his prior conviction may be proved, inter alia, by stipulation or “[a]ny other method found by the court to be reliable.” N.C. Gen. Stat. § 15A-1340.14(f) (2005). The Statebears the burden of proving defendant's prior convictions to the trial court by a preponderance of the evidence. Id. It is well established that “a worksheet, prepared and submitted by the State, purporting to list a defendant's prior convictions is, without more, insufficient to satisfy the State's burden in establishing proof of prior convictions.” State v. Eubanks, 151 N.C. App. 499, 505, 565 S.E.2d 738, 742 (2002).
    Here, defendant acknowledged two prior convictions while testifying during the guilt/innocence phase of his trial:
            Q. Have you ever been in trouble with the police before?

            A. I had a couple of misdemeanor charges.

            Q. What are they?

            A. I had _ I threw a brick through my insurance company window with a money order in it because I was about to be late on the payment. And I should have slid it under the door, but I weren't thinking.

            So I just threw a brick through the window with the money order in it. So they gave me a injury to property or something like that.

            Q. Do you have any other convictions?

            A. Yes.

            Q. What is that?

            A. Carrying a concealed weapon.
At sentencing, the court addressed the issue of defendant's prior record level as follows:
            THE COURT: All right. Let me hear from you about the defendant's worksheet.
            THE STATE: Your Honor, as for his worksheet, he would have two criminal convictions. One, as being a[] Class II misdemeanor, carrying a concealed weapon. The other being injury to real property, which is a Class I misdemeanor which would count the prior conviction points being one point, making him a level II.

            I believe that was what was placed into evidence, the injury to real property which would make him a level II.

            . . . .

            THE COURT: All right. You have any questions about the record level, [defense counsel]?

            [DEFENSE COUNSEL]: No, your Honor.
(Emphasis added.) We find defendant's admission to a conviction for “injury to property or something like that[,]” coupled with his description of throwing a brick through a commercial building, to be competent evidence allowing the trial court to find the fact of this prior conviction by a preponderance of the evidence. Moreover, defense counsel's response to the court that he had no questions regarding the State's prior record level calculation “might reasonably be construed as an admission by defendant that he had been convicted of the other charges appearing on the prosecutor's work sheet[.]” State v. Hanton, 140 N.C. App. 679, 690, 540 S.E.2d 376, 383 (2000); accord Eubanks, 151 N.C. App. at 505, 565 S.E.2d at 742. Accordingly, we overrule this assignment of error.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant toN.C.R. App. P. 28(b)(6), we deem them abandoned.
    No error.
    Judges TYSON and ELMORE concur.
    Report per Rule 30(e).

Footnote: 1