Appeal by defendant from judgment entered 2 March 2006 by
Judge Thomas Haigwood in Wake County Superior Court. Heard in the
Court of Appeals 23 May 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Sandra Wallace-Smith, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defenders Kristen L. Todd and Benjamin Dowling-Sendor, for
defendant-appellant.
GEER, Judge.
Defendant Charles A. McArthur appeals from his conviction for
assault with a deadly weapon inflicting serious injury with the
intent to kill. Our Supreme Court has repeatedly awarded a new
trial when, as here, the trial court instructed the jury that it
must return a verdict of not guilty upon a determination that
defendant acted in self-defense, but failed to specificallyinstruct the jury to return a verdict of not guilty if it concluded
the State failed to prove the elements of the crime beyond a
reasonable doubt. See, e.g., State v. Dallas, 253 N.C. 568, 569,
117 S.E.2d 415, 416 (1960) (per curiam). We, therefore, remand
this case for a new trial.
Facts
The State's evidence at trial tended to show the following
facts. Defendant had been dating Mia Boyd, a neighbor of
Christopher Hinton and Robert Peyton, and the mother of one of
Hinton's and Peyton's friends. On the evening of 25 May 2005,
defendant chased Boyd to Peyton's house, and Hinton and Peyton
witnessed defendant push her up against a wall.
It is undisputed that on the following day, 26 May 2005,
defendant crossed paths with Hinton and Peyton, a confrontation
took place, and defendant cut Hinton's neck with a box cutter.
Hinton was treated at a local hospital where he received 13
stitches.
Hinton testified at trial that defendant approached Peyton and
him at Peyton's house. Defendant accused Hinton of "being in his
business," asked Hinton if he wanted to fight, and then slashed
Hinton's neck with the box cutter. Peyton testified in a
substantially similar fashion, but added that defendant smelled of
alcohol.
Defendant testified in his own defense that the altercation
took place near the curb in front of defendant's yard. He stated
that Hinton and Peyton started the fight by "throw[ing]" words atdefendant from the street. According to defendant, Hinton and
Peyton then approached him, and Hinton became so enraged and got so
close to defendant's face that Hinton spit on defendant's face as
he spoke. Defendant testified that he thought Hinton was about to
"pull[] something out" and attack him. Defendant then swung the
box cutter and sliced Hinton's neck.
On 11 July 2005, defendant was indicted for assault with a
deadly weapon inflicting serious injury with intent to kill.
Following the presentation of the evidence, the trial court
instructed the jury that it was to consider four possible verdicts:
(1) guilty of assault with a deadly weapon with the intent to kill
inflicting serious injury; (2) guilty of assault with a deadly
weapon inflicting serious injury; (3) guilty of assault with a
deadly weapon; or (4) not guilty. The court also instructed the
jury as to self-defense. The jury found defendant guilty of
assault with a deadly weapon with the intent to kill inflicting
serious injury. The trial court sentenced defendant within the
presumptive range to 128 to 163 months imprisonment. Defendant now
appeals to this Court.
Discussion
[1] Defendant argues that the trial court erred by failing to
specifically instruct the jury that it should return a verdict of
not guilty if it concluded that the State failed to prove any of
the elements of the charged assault beyond a reasonable doubt. The
parties dispute whether defendant has sufficiently preserved this
issue for appellate review. Generally, "[a] party may not assign as error any portion of
the jury charge or omission therefrom unless he objects thereto
before the jury retires to consider its verdict . . . ." N.C.R.
App. P. 10(b)(2). Here, defendant requested, and the trial court
agreed, to present the jury with three North Carolina Pattern
Instructions applicable to assault with a deadly weapon. Each of
the pattern instructions contains a concluding paragraph stating:
"If you do not so find or have a reasonable doubt as to one or more
of these things, it would be your duty to return a verdict of not
guilty."
See N.C.P.I.--Crim. 208.10 (2002) (assault with deadly
weapon with intent to kill inflicting serious injury);
see also
N.C.P.I.--Crim. 208.15 (2002) (assault with deadly weapon
inflicting serious injury); N.C.P.I.--Crim. 208.50 (2002) (assault
with deadly weapon). Although the trial court failed to
specifically read these paragraphs when charging the jury,
defendant did not object.
Nevertheless, our Supreme Court has concluded that "a request
for an instruction at the charge conference is sufficient
compliance with [Rule 10(b)(2)] to warrant our full review on
appeal where the requested instruction is subsequently promised but
not given, notwithstanding any failure to bring the error to the
trial judge's attention at the end of the instructions."
State v.
Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988). Thus, once
the trial court agreed to provide the requested pattern
instructions, defendant was not required to object to their
alteration to preserve the issue for review.
See also State v.Jaynes, 353 N.C. 534, 556, 549 S.E.2d 179, 196 (2001) ("[W]hen the
instruction actually given by the trial court varied from the
pattern language, defendant was not required to object in order to
preserve this question for appellate review."),
cert. denied, 535
U.S. 934, 152 L. Ed. 2d 220, 122 S. Ct. 1310 (2002);
State v. Keel,
333 N.C. 52, 56-57, 423 S.E.2d 458, 461 (1992) (holding defendant
could challenge jury instruction on appeal, regardless of failure
to object, when trial court gave different instruction than the one
it agreed to give during charge conference).
At the beginning of the trial court's instructions to the
jury, before the court addressed the elements of the charges listed
on the verdict sheet, the court instructed the jury generally: "You
should weigh all of the evidence in the case. After weighing all
of the evidence, if you're not convinced of the guilt of the
defendant beyond a reasonable doubt, you must find him not guilty."
After giving another preliminary instruction defining "intent," the
court then instructed the jury as to each of the charges listed on
the verdict sheet. After instructing as to the elements of the
charges, the court proceeded to explain the law regarding self-
defense. He then concluded the instructions regarding the charges
by stating in his final mandate:
So I charge that if you find from the
evidence beyond a reasonable doubt that the
defendant is guilty of an assault with a
deadly weapon with intent to kill inflicting
serious injury, or that he's guilty of an
assault with a deadly weapon inflicting
serious injury, or that he's guilty of an
assault with a deadly weapon, you may return a
verdict of guilty only if the State has
satisfied you also beyond a reasonable doubtthat the defendant's action was not in self-
defense; that is, that the defendant did not
reasonably believe the assault was necessary
or apparently necessary to protect himself
from death or seriously [sic] bodily injury,
or that he used excessive force or that he was
the aggressor.
If you did not so find or have a
reasonable doubt, then the defendant's action
would be justified by self-defense, and
thereof it would be your duty to return a
verdict of not guilty.
Nowhere during the instructions on the elements of the crimes or
self-defense did the trial court specifically instruct the jury
that it was also required to return a verdict of not guilty if it
found that the State failed to prove beyond a reasonable doubt any
of the elements of the crimes.
We cannot meaningfully distinguish this case from decisions of
our Supreme Court, including
Dallas, 253 N.C. at 569, 117 S.E.2d at
416;
State v. Ramey, 273 N.C. 325, 329, 160 S.E.2d 56, 59 (1968);
and
State v. Woods, 278 N.C. 210, 217, 179 S.E.2d 358, 363 (1971),
overruled on other grounds by State v. McAvoy, 331 N.C. 583, 417
S.E.2d 489 (1992). Notably, although defendant discussed all three
decisions, the State has only attempted to distinguish
Dallas. It
has not addressed
Ramey or
Woods at all.
In
Dallas, the trial court charged the jury that it could
return one of three verdicts: guilty of murder in the second
degree, guilty of manslaughter, or not guilty on the grounds of
self-defense. 253 N.C. at 569, 117 S.E.2d at 415-16. The Supreme
Court observed: "The charge as a whole limits the authority of the
jury to return a verdict of not guilty to a finding of 'not guiltyby reason of self-defense.'
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. In effect the court instructed the jury that
defendant was not entitled to an acquittal unless he satisfied the
jury that he had acted in self-defense."
Id., 117 S.E.2d at 416
(emphasis added).
The State selectively quotes from
Dallas, inappropriately
replacing the italicized portion of the above quote with an
ellipsis. As in
Dallas, the jurors in this case were never charged
that if they had a reasonable doubt regarding defendant's guilt, it
would be their duty to acquit him. When one reads
Dallas' holding
in its entirety _ without the strategic omission _ it mandates a
new trial.
Id.
The Supreme Court reached an identical conclusion in
Ramey.
In
Ramey, the trial court had given an instruction very similar to
the one in this case, setting out the elements of second degree
murder and manslaughter, followed by the elements of self-defense,
and concluding that if the jury found to its satisfaction that the
defendant acted in self-defense, "it would be your duty to render
a verdict of not guilty in this case." 273 N.C. at 328, 160 S.E.2d
at 58 (emphasis omitted). The Court observed that "[t]he only
portions of the charge in which the jury was instructed as to
circumstances under which they might return a verdict of not guilty
relate directly and solely to the return of a verdict of not guiltyin the event the jury found defendant acted in the lawful exercise
of his right of self-defense."
Id. The Court then held:
In our opinion, and we so decide,
defendant 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 [the victim] by defendant
proximately caused his death. The trial judge
inadvertently failed to give such instruction.
The necessity for such instruction is not
affected by the fact there was plenary
evidence upon which the jury could base a
finding that a bullet wound inflicted upon
[the victim] by defendant proximately caused
his death.
As indicated, the quoted excerpt from the
charge was the court's final instruction to
the jury. 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.
Id. at 329, 160 S.E.2d at 59 (internal citation omitted). Based on
that omission _ even though no specific request had been made for
the omitted instruction _ the Court awarded a new trial.
Id. at
330, 160 S.E.2d at 59.
The Court addressed the issue a third time in
Woods. The
trial court in
Woods instructed the jury as follows:
If the State has satisfied you beyond a
reasonable doubt that defendant, by means of a
deadly weapon, intentionally inflicted the
wound which produced [the victim's] death it
would be your duty to return a verdict of
guilty of murder in the second degree unless
defendant has satisfied you that she shot [thevictim] in self-defense. If you are satisfied
beyond a reasonable doubt that defendant
intentionally shot [the victim] and that his
death was the natural and probable result, but
you are not satisfied beyond a reasonable
doubt that she shot him with malice, your
verdict will be voluntary manslaughter unless
defendant has satisfied you she shot [the
victim] in self-defense. If you are not
satisfied beyond a reasonable doubt that
defendant shot [the victim] intentionally but
are satisfied beyond a reasonable doubt that
she shot him in the commission of some
unlawful act and his death was a natural and
probable result, your verdict will be guilty
of involuntary manslaughter even though the
wounding of the deceased was unintentional,
unless defendant has satisfied you she shot in
self-defense. Although the State may have
satisfied you beyond a reasonable doubt that
defendant shot and killed [the victim], if she
has satisfied you that she was not the
aggressor and that she shot [the victim] under
circumstances which created in her mind the
reasonable belief that it was necessary to
shoot him in order to save herself from death
or great bodily harm, it would be your duty to
return a verdict of not guilty.
278 N.C. at 214-15, 179 S.E.2d at 361 (internal quotation marks
omitted). The Supreme Court observed that although the trial court
had instructed the jury as to the circumstances under which they
could return a verdict of guilty, "it was only in the event they
found defendants to have acted in lawful self-defense that he
specifically told them they could or should return a verdict of not
guilty."
Id. at 215, 179 S.E.2d at 361. The Court then held that
the defendant "was, therefore, entitled to the explicit
instruction, even in the absence of a specific request therefor,
that the jury should return a verdict of not guilty if the State
failed to prove beyond a reasonable doubt that a bullet wound
inflicted by defendant proximately caused [the victim's] death."
Id. at 216, 179 S.E.2d at 362. As in
Ramey and
Dallas, because of
the omission, the Court awarded a new trial.
Id. at 217, 179
S.E.2d at 363.
Here, defendant's plea of not guilty "placed the burden upon
the State to satisfy the jury beyond a reasonable doubt of every
element of the offenses charged in the bill of indictment."
State
v. Overman, 257 N.C. 464, 466-67, 125 S.E.2d 920, 923 (1962). As
Dallas,
Ramey, and
Woods expressly held, defendant was, therefore,
entitled to a specific instruction that if the jury determined that
the State failed to prove any of the elements of the charges, it
should return a verdict of not guilty. The State's contention that
the trial court's instruction requiring the State to prove the
elements beyond a reasonable doubt was sufficient cannot be
reconciled with our Supreme Court's holdings.
See also State v.
McHone, 174 N.C. App. 289, 298, 620 S.E.2d 903, 910 (2005) (noting
that a new trial has been awarded for failure to provide a not
guilty final mandate even when the trial court has given
instructions on burden of proof or presumption of innocence),
disc.
review denied, 362 N.C. 368, 628 S.E.2d 9 (2006).
The statement in the preliminary portion of the trial court's
instructions that "if you're not convinced of the guilt of the
defendant beyond a reasonable doubt, you must find him not guilty,"
also did not solve the problem since the trial court had not yet
explained what was entailed in establishing the guilt of defendant.
See State v. Chapman, 359 N.C. 328, 380, 611 S.E.2d 794, 831 (2005)
("Every criminal jury must be instructed as to its right to return,and the conditions upon which it should render, a verdict of not
guilty. Such instruction is generally given during the final
mandate after the trial court has instructed the jury as to
elements it must find to reach a guilty verdict." (internal
citations and quotation marks omitted));
State v. Ward, 300 N.C.
150, 156-57, 266 S.E.2d 581, 585 (1980) ("By failing to give the
converse or alternative view that acquittal should result if the
jury were not satisfied beyond a reasonable doubt as to each and
every stated element, the trial judge failed to provide even a
general application of the law to the evidence raised by
defendant's testimony.").
In light of controlling Supreme Court precedent, we are
required to award defendant a new trial because of the trial
court's failure to include a specific instruction directing the
jury to enter a verdict of not guilty if it found that the State
had failed to prove any of the elements of the charged crimes
beyond a reasonable doubt. We do not address defendant's remaining
arguments since they may not be repeated during subsequent
proceedings.
[2] We do observe, however, that there appears to be an
ambiguity in the pattern jury instruction regarding self-defense.
The trial court substantially modeled its instructions on N.C.P.I.-
-Crim. 308.45 (2003), which states:
If from the evidence you find beyond a
reasonable doubt that the defendant assaulted
the victim with deadly force; that is, force
likely to cause death or great bodily harm and
that the circumstances would have created a
reasonable belief in the mind of a person ofordinary firmness that the assault was
necessary or apparently necessary to protect
himself from death or great bodily harm, and
the circumstances did create such belief in
the defendant's mind at the time he acted,
such assault would be justified by
self-defense. You, the jury, determine the
reasonableness of the defendant's belief from
the circumstances appearing to him at the
time.
(Emphasis added.) This instruction _ read literally _ states that
the elements of self-defense must be found beyond a reasonable
doubt, suggesting that a defendant bears the burden of proof. It
is, however, well established that the burden of proving that the
defendant did not act in self-defense is on the State.
See State
v. Hankerson, 288 N.C. 632, 643, 220 S.E.2d 575, 584 (1975)
(rejecting, under Due Process Clause of Fourteenth Amendment,
"long-standing rule" that defendant must prove to satisfaction of
jury that he killed in self-defense in order to rebut presumption
that killing was unlawful),
rev'd on other grounds, 432 U.S. 233,
53 L. Ed. 2d 306, 97 S. Ct. 2339 (1977). We urge trial judges to
take care in using the pattern self-defense instruction and edit it
in order to ensure that the burden of proof is correctly placed on
the State throughout the instructions.
New trial.
Judges HUNTER and ELMORE concur.
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