Converted WP file 060857-1

Appeal by Defendant from judgments entered 9 January 2006 by Judge Kenneth C. Titus in Superior Court, Durham County. Heard in the Court of Appeals 20 February 2007.

Attorney General Roy Cooper, by Steven M. Arbogast, Special Deputy Attorney General, for the State.

Marilyn G. Ozer, for defendant-appellant.

    WYNN, Judge.

    This appeal arises from Defendant Devon Marquis Carter's conviction on the charges of the first-degree murder of Phillip Taing and four counts of robbery with a dangerous weapon. We have carefully reviewed this matter and find that Defendant received a fair trial that was free of prejudicial error.
    At trial, the evidence tended to show that Defendant went to Mr. Taing's apartment on 2 December 2004 with four other individuals, on the pretext of purchasing marijuana from Mr. Taing but with the actual intention of robbing him. Three of Defendant's co-defendants testified at his trial, in exchange for a reduction in charges from first- to second-degree murder. They stated that Defendant shot and killed Mr. Taing during the course of therobbery at his apartment. The robbery victims corroborated the testimony of Defendant's co-defendants.
    Following the robbery and shooting, Defendant went to the house of Michael Weller, who lived close by to Mr. Taing. Mr. Weller testified that he did not know Defendant but allowed him to use his telephone and gave him a jacket and money for a taxi after Defendant told him he had been mugged. After the taxi took him to a nearby convenience store, Defendant encountered an acquaintance from high school and asked him for a ride; Defendant was arrested after his friend's car was pulled over by the police shortly after picking him up.
    On 9 January 2006, a jury found Defendant guilty of first- degree murder and four counts of robbery with a dangerous weapon. The trial court entered judgment and sentenced Defendant to life in prison without possibility of parole for the first-degree murder charge, under the felony murder rule, and to sixty-five to eighty- seven months in prison on the robbery charges, to run concurrently with the life sentence.
    Defendant appeals, arguing the trial court erred by (I) failing to comply fully with the mandatory charge conference statute; (II) allowing questions related to his invocation of his right to counsel during interrogation; (III) giving instructions to the jury that improperly focused attention on his invocation of his right to counsel; (IV) failing to arrest judgment on the underlying armed robbery charges; and, (V) imposing a sentence of life without parole.

    First, Defendant argues that the trial court erred by failing to comply fully with North Carolina General Statute § 15A-1231, which requires him to “hold a recorded conference on [jury] instructions out of the presence of the jury.” N.C. Gen. Stat. § 15A-1231(b) (2005). Because we conclude that the trial court did, in fact, fully comply with this statute, this assignment of error is overruled.
    The charge conference statute reads in pertinent part:
        Before the arguments to the jury, a judge must hold a recorded conference on instructions out of the presence of the jury. At the conference the judge must inform the parties of the offenses, lesser included offenses, and affirmative defenses on which he will charge the jury and must inform them of what, if any, parts of tendered instructions will be given. A party is also entitled to be informed, upon request, whether the judge intends to include other particular instructions in his charge to the jury. The failure of the judge to comply fully with the provisions of this subsection does not constitute grounds for appeal unless his failure, not corrected prior to the end of the trial, materially prejudiced the case of the defendant.

N.C. Gen. Stat. § 15A-1231(b) (emphasis added).
    Here, Defendant concedes that the trial court held the mandatory charge conference, gave the parties the opportunity to tender instructions, and informed them as to which of those tendered instructions he planned to use in his charge to the jury, in addition to the “full first degree instruction” because the evidence could support a verdict of felony murder. Nevertheless, Defendant maintains that the trial court erred by including anadditional charge to the jury _ one not discussed in the charge conference _ on false, contradictory, or conflicting statements of a defendant. Defendant argues that this added instruction materially prejudiced him, as it would have led the jury to make certain assumptions as to whether he had given a sworn statement to the police. We disagree.
    During the charge conference, the trial court asked both parties whether they had requests for specific instructions and then indicated which of those tendered he would include and which he would not. He also informed the parties that he would give the “full first degree instruction, which leaves second degree as an option as well,” because “the circumstances in the case are closely [sic] to felony murder.” During the charge conference, defense counsel made no request, as required by the statute, as to what “other particular instructions” the trial court intended to include in his charge to the jury, despite having the opportunity to do so.
    As noted by our Supreme Court, a defendant “cannot prohibit the giving of an instruction to the jury by failing to request the instruction.” State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393 (1982). Indeed, “[r]egardless 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.” Id. (internal citation omitted). Moreover, “[t]he trial judge has wide discretion in presenting the issues to the jury.” Id. at 728, 295 S.E.2d at 393.
    In the instant case, Defendant contends that the trial courterred by charging the jury with a non-requested instruction on false, contradictory, or conflicting statements. He argues the error was due to failing to give the parties the chance to object to the instruction before it was given to the jury. However, the statute has no such requirement. Further, Defense counsel objected to the instruction after it was given, which afforded the opportunity to correct any error prior to the end of the trial; the objection was overruled. We find no abuse of discretion in that ruling.
    Additionally, even assuming arguendo that charging the jury with N.C.P.I.-Crim. 150-21 was error, we conclude that it did not materially prejudice Defendant. N.C.P.I.-Crim. 150-20, Impeachment or Corroboration by Prior Statement, accepted by Defendant at trial, concerns the testimony of witnesses that is shown to be inconsistent with their earlier statements not made under oath at trial. N.C.P.I.-Crim. 150-21, False, Contradictory, or Conflicting Statements, by contrast, addresses the possibly conflicting statements of a defendant, rather than just witnesses, and does not mention the issue of whether any of the defendant's statements were made under oath. Defendant argues in his brief that the inclusion of both instructions could have led the jury to assume that Defendant had made a sworn statement to the police that had been suppressed out of evidence because it would conflict with his testimony.
    We find this argument to be without merit, as it relies on speculation that the jury engaged in a series of tenuousassumptions and leaps of logic. Based on the record before us, we find it equally, if not more, likely that the jury believed the instructions referred to the contrast between Defendant's testimony and that of Mr. Weller, the State witness who recounted the story Defendant told him on the night of the murder and robbery. We decline to engage in this type of inappropriate speculation, concluding that such ambiguity cannot rise to the level of material prejudice to Defendant. This assignment of error is accordingly overruled.

    Defendant next argues that the trial court erred by allowing questions related to his invocation of his right to counsel during interrogation by the police, thereby entitling him to a new trial. We disagree.
    In general, a defendant's right to remain silent is protected by the Fifth Amendment to the United States Constitution. See Miranda v. Arizona, 384 U.S. 436, 469, 16 L. Ed. 2d 694, 721 (1966); State v. Elmore, 337 N.C. 789, 792, 448 S.E.2d 501, 502 (1994). Moreover, “[i]t [is] fundamentally unfair to impeach defendants concerning their post-arrest silence after they had been impliedly assured through the Miranda warnings that their silence would not result in any penalty.” State v. Lane, 301 N.C. 382, 384, 271 S.E.2d 273, 275 (1980). Nevertheless, “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” Harris v. New York, 401 U.S.222, 226, 28 L. Ed. 2d 1, 5 (1971). Thus, as noted by this Court:
        When a defendant chooses to testify in his own behalf, . . ., his 5th amendment right to remain silent must give way to the state's right to seek to determine, by way of impeachment, whether a defendant's prior silence is inconsistent with his trial testimony. The test is whether, under the circumstances at the time of arrest, it would have been natural for defendant to have asserted the same defense asserted at trial.

State v. McGinnis, 70 N.C. App. 421, 424, 320 S.E.2d 297, 300 (1984) (citing Lane, 301 N.C. 382, 271 S.E.2d 273).
    Under North Carolina law, if the trial court's rulings in the instant case violated Defendant's constitutional rights, such error would be considered prejudicial unless the error was harmless beyond a reasonable doubt. N.C. Gen. Stat. § 15A-1443(b) (2005); Elmore, 337 N.C. at 792, 448 S.E.2d at 502; State v. Ladd, 308 N.C. 272, 284, 302 S.E.2d 164, 172 (1983). “The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.” N.C. Gen. Stat. § 15A-1443(b). Thus, in this case, we consider whether a “reasonable possibility” exists that the reference to Defendant's request for counsel contributed to his conviction, using as “the lynchpin in our analysis . . . whether other overwhelming evidence of guilt was presented against defendant.” State v. Rashidi, 172 N.C. App. 628, 639, 617 S.E.2d 68, 76, aff'd per curiam, 360 N.C. 166, 622 S.E.2d 493 (2005). Other factors include how the reference was elicited, whether it was emphasized by the State, and whether the State sought to capitalize on the invocation. Id. (citing Elmore, 337 N.C. at 792-93, 448 S.E.2d at 503).    Here, Defendant specifically objects to a line of questions by the State which included references to whether Defendant had received his Miranda warnings while in a room with police officers, as well as a question of whether he had decided to “go with that option to allow for an attorney to be present before [Defendant] made a statement[.]” We conclude that, even assuming arguendo that the questions allowed by the trial court were error, the State has demonstrated that such error would have been harmless beyond a reasonable doubt. At trial, the State presented overwhelming evidence of Defendant's guilt, including the testimony of three of his co-defendants and prior inconsistent statements as to the events of the evening in question. Additionally, the State did not again refer to nor attempt to capitalize on Defendant's invocation of his right to counsel; his cross-examination was the only time that it was mentioned.
    In sum, we hold that any error in allowing questions regarding Defendant's Miranda rights was harmless beyond a reasonable doubt. Accordingly, this assignment of error is overruled.

    Defendant also asserts that the trial court erred by giving instructions to the jury that improperly focused on his invocation of his right to counsel during interrogation by the police. We disagree.
    When reviewing instructions to a jury, this Court must consider the charge in context, and “isolated portions of it will not be held prejudicial when the charge as a whole is correct.” State v. Morgan, 359 N.C. 131, 163, 604 S.E.2d 886, 905 (2004), cert. denied, 546 U.S. 830, 163 L. Ed. 2d 79 (2005). Indeed, “[i]f the charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for a reversal.” Id.
    Defendant's argument is closely related to his first assignment of error; he contends that charging the jury with N.C.P.I.-Crim. 150-21, False, Contradictory, or Conflicting Statements of Defendant, would have focused the jury's attention on questions posed by the prosecution concerning his interrogation by the police. As given by the trial judge, the relevant portion of the jury instruction was:
        The State contends, and the defendant denies, that the defendant made false, contradictory, or conflicting statements. If you find that the defendant made such statements, they may be considered by you as a circumstance tending to reflect the mental process of a person possessed of a guilty conscience, seeking to divert suspicion or exculpate himself, and you should consider that evidence, along with all other believable evidence, in the case.

Given that Defendant's testimony conflicted with what Mr. Weller recounted as to the story Defendant told him on the evening of the robbery and murder, we conclude that this instruction did, in fact, “present[] the law clearly and fairly to the jury.” We decline to speculate as to other possible interpretations the jury might have given to the instructions, when the context and evidence of the trial supported the trial court's decision to give this instruction. This assignment of error is therefore overruled.

    Next, Defendant contends that the trial court erred in sentencing by failing to arrest judgment on the underlying armed robbery charges. We agree.
    The jury in the instant case returned a verdict sheet indicating that they found Defendant guilty of first-degree murder under the felony murder rule, as well as of four counts of robbery with a dangerous weapon, of murder victim Phillip Taing and the other three individuals in the apartment that night. Because Defendant was convicted of first-degree murder under the felony murder rule, the trial court should have arrested judgment on the underlying charge of robbery with a dangerous weapon, as related to the murder victim Phillip Taing. See State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 770 (2002) (“When a defendant is convicted of felony murder only, the underlying felony constitutes an element of first-degree murder and merges into the murder conviction.”); State v. Silhan, 302 N.C. 223, 261-62, 275 S.E.2d 450, 477 (1981) (“When a defendant is convicted of first degree murder pursuant to the felony murder rule, and a verdict of guilty is also returned on the underlying felony, this latter conviction . . . merges into the murder conviction, and any judgment imposed on the underlying felony must be arrested.”), overruled on other grounds, State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997).
    Because the trial court failed to arrest judgment on the underlying charge of robbery with a dangerous weapon of Phillip Taing, we remand for resentencing in accordance with the felonymurder rule.