STATE OF NORTH CAROLINA
v. Macon County
No. 03 CRS 52262
RODNEY KEITH WATTS
Attorney General Roy Cooper, by Special Deputy Attorney
General Daniel D. Addison, for the State.
Donald Joseph Willey, for defendant-appellant.
LEVINSON, Judge.
Rodney Keith Watts (defendant) appeals his conviction for
second degree murder. We find no error.
The State adduced evidence tending to show the following:
Raymond Watkins died in the hospital on 16 December 2003 from
complications arising from multiple blunt force injuries inflicted
by defendant. When Watkins was found in defendant's house by two
of Watkins' friends on 8 December 2003, Watkins was “badly bruised”
all over his body and had “very black” eyes, blood on his face and
nose, and a swollen abdomen. Defendant told the friends that he
“got beat” by someone but “didn't fight back.” He told the
sheriff's deputy who responded to the scene that a “buddy had beathim up” with his fists and a cane. The doctor who treated Watkins
at Asheville VA Medical Center found that he had a fractured
forearm, several fractured ribs, and blunt force injuries, bruises
and cuts covering head, face and body. Because Watkins' liver and
kidneys had failed, the doctor determined that he had “no chance”
to survive his injuries. Watkins' autopsy revealed that he
sustained bruising around his small intestine and omentum and a
subdural hemorrhage in his head. The pathologist labeled his death
a homicide.
Detective William Harrell of the Macon County Sheriff's
Department interviewed defendant in his residence on 10 December
2003. Defendant told the detective that Watkins assaulted him
three times while they were having conversations about defendant's
ex-girlfriend. On the first occasion, Watkins swung at defendant
with his walking cane. Defendant blocked the blow and placed
Watkins' cane on the floor. Watkins later picked up the cane and
hit defendant, bloodying his lip. Defendant grabbed the cane,
struck Watkins with it once on the arm, and placed it beyond
Watkins' reach. The two men apologized to each other. Several
minutes later, Watkins started talking “out of his head, being
drunk and then attacked” defendant a third time. Wanting to make
Watkins stop fighting, defendant “whipped his a[]” and “beat [him]
until he knew [he] had enough.” Although he suspected that the
fight occurred “probably because they were drinking[,]” defendant
told Harrell that neither he nor Watkins was drunk. Defendant
expressed regret for the incident, because Watkins “was in badshape, was crippled and could hardly walk and was fighting
hepatitis C.” Following his arrest, defendant gave a statement at
the Macon County Sheriff's Department, providing additional details
of the incident.
The trial court instructed the jury on second-degree murder,
voluntary manslaughter, involuntary manslaughter, and the law of
self-defense. During its deliberations, the jury submitted the
following question to the court:
To what extent, if any, can we consider such
issues as drunkenness or under the influence
of drugs?
Noting that defendant had not raised a defense of intoxication at
trial, the court suggested that “intoxication or drugs would only
be of relevance then if it is the contention of either side that
second-degree murder is a specific intent crime.” The State
averred that second-degree murder did not include the element of a
specific intent to kill and, therefore, “voluntary intoxication is
no defense to this charge.” When asked by the court for his
position, defense counsel “agree[d] with the State's assertion on
specific intent.”
The court announced its intention to instruct the jury that
voluntary intoxication or drug use did not provide a legal excuse
for crime. The court proposed explaining to the jury that
intoxication would have been an issue for consideration if
defendant had been charged with a crime involving the specific
intent to kill. Absent any element of specific intent, the court
proposed the instruction that “intoxication or a voluntary drugcondition is not relevant in this case.” The State expressed its
satisfaction with the instruction. The court then addressed
defense counsel as follows:
THE COURT: What says defense?
[COUNSEL]: Satisfied, Your Honor.
After instructing the jury that “the defendant's intoxication or
the drug condition, should you find that it exists, can have no
bearing upon your determination of the defendant's guilt or
innocence of the charges[,]” the court asked the parties if they
requested “corrections or additions to the instructions I've just
given the jury[.]” Defense counsel replied, “No additional
requests[.]”
Upon the jury's verdict finding defendant guilty of second
degree murder, the trial court sentenced him to a presumptive term
of 251-311 months' imprisonment. Defendant gave notice of appeal
in open court.
On appeal, defendant claims the trial court committed plain
error by instructing the jury that evidence of intoxication could
not be considered in its deliberations. While he concedes that
voluntary intoxication provides no defense to the general intent
crimes of second-degree murder and manslaughter, defendant asserts
that evidence of his and Watkins' intoxication was relevant to the
issue of whether he acted with malice. He insists that “[t]he jury
was entitled to consider the evidence of the victim's intoxication
and conduct as well as the defendant's in evaluating whether the
defendant, as he perceived the situation at the time, acted in theheat of passion upon adequate provocation.”
Plain error review is available for errors in the admission of
evidence and jury instructions. State v. Wolfe, 157 N.C. App. 22,
33, 577 S.E.2d 655, 663 (2003). To establish plain error, a
defendant must demonstrate “(i) that a different result probably
would have been reached but for the error or (ii) that the error
was so fundamental as to result in a miscarriage of justice or
denial of a fair trial.” State v. Bishop, 346 N.C. 365, 385, 488
S.E.2d 769, 779 (1997). We “must examine the entire record and
determine if the . . . error had a probable impact on the jury's
finding of guilt.” State v. Pullen, 163 N.C. App. 696, 701, 594
S.E.2d 248, 252 (2004) (internal quotation marks omitted).
We conclude that defendant's assignment of plain error is not
properly before this Court. Defendant did not merely fail to
object to the challenged jury instruction as contemplated by N.C.R.
App. P. 10(c)(4); he expressly assented to the instruction on two
separate occasions. See State v. Wilkinson, 344 N.C. 198, 235-36,
474 S.E.2d 375, 396 (1996); State v. Weddington, 329 N.C. 202, 210,
404 S.E.2d 671, 674 (1991). Accordingly, “[i]f there was error in
the charge, it was invited error and we shall not review it.”
Wilkinson, 344 N.C. at 236, 474 S.E.2d at 396 (quotation marks
omitted).
The record on appeal includes additional assignments of error
not addressed by defendant in his brief to this Court. They are,
therefore, abandoned. See N.C.R. App. P. 28(b)(6).
No error.
Judges TYSON and BRYANT concur.
Report per Rule 30(e).
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