Appeal by defendant from judgment entered 11 July 2006 by
Judge Michael E. Beale in Rowan County Superior Court. Heard in
the Court of Appeals 4 June 2007.
Attorney General Roy Cooper, by Associate Attorney General
LaToya B. Powell, for the State.
Sue Genrich Berry for defendant-appellant.
MARTIN, Chief Judge.
Defendant was indicted for common law robbery, and for having
attained the status of an habitual felon. He entered pleas of not
guilty. He appeals from judgments entered upon jury verdicts
finding him guilty of common law robbery and attaining the status
of an habitual felon. We find no error in his trial.
The evidence presented at trial tends to show the following:
On 3 January 2005, Patrick Wendell Murphy, Jr., went to the Country
Cupboard Convenience Store (Country Cupboard
) in Spencer, North
Carolina. The defendant, Samuel Emanuell Miller, was also at the
store and was run off for creating a disturbance. Murphy
purchased some cigarettes and left the store. As Murphy turnedright after going out the front door, defendant hit him on his
hand, causing Murphy to drop his change. Defendant told Murphy to,
Give me your money. Murphy told him, You can have it.
Defendant took the money and left.
Shortly before 6 p.m. on the same day, Officer Wayne Comer of
the Spencer Police Department was dispatched to investigate a
disturbance at the Country Cupboard
. Defendant was identified to
Officer Comer as causing the disturbance and people inside the
store directed Officer Comer to defendant's home. When Officer
Comer found defendant at his home, defendant was intoxicated.
Officer Comer frisked him and found a box cutter, a lighter, and
U.S. currency. Officer Comer determined that defendant was too
intoxicated to be out in the public and warned him he would be
arrested if he went back outside. Defendant indicated that he
understood the warning.
Officer Comer was then dispatched to the Bethany Center in
Spencer to investigate a robbery. When he got there, he met with
Murphy. Murphy appeared very scared, very timid and explained to
Officer Comer what had happened at the Country Cupboard
then accompanied Officer Comer back to the Country Cupboard
gave him a written statement. Officer Comer and Murphy were
sitting in Officer Comer's patrol car after finishing the statement
when Murphy began to get excited. Murphy started yelling, That's
the man. That's the man [who] robbed me. Officer Comer then
observed defendant walk in front of the patrol car. Officer Comer
got out of the patrol car and arrested defendant for beingintoxicated and disruptive. Defendant did not offer evidence.
Defendant first argues
that the trial court committed plain
error by failing to instruct the jury on voluntary intoxication
Defendant contends there is undisputed evidence that he was too
intoxicated to form the specific intent to rob Murphy. Defendant
cites Officer Comer's testimony that defendant was very
intoxicated, he could hardly stand, and that defendant was too
intoxicated to be out in the public.
We find this argument
A plain error is one 'so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have
reached.' State v. Carroll
, 356 N.C. 526, 539, 573 S.E.2d 899,
908 (2002)(quoting State v. Bagley
, 321 N.C. 201, 213, 362 S.E.2d
244, 251 (1987), cert. denied,
485 U.S. 1036, 99 L. Ed. 2d 912
(1988)), cert. denied
, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). It
is to be applied cautiously and only in the exceptional case where
the error is so prejudicial, that justice cannot have been done.
State v. Baldwin
, 161 N.C. App. 382, 388, 588 S.E.2d 497, 503
(2003)(citing State v. Odom
, 307 N.C. 655, 660, 300 S.E.2d 375, 378
In deciding whether a defect in the jury instruction
constitutes 'plain error,' the appellate court must examine the
entire record and determine if the instructional error had a
probable impact on the jury's finding of guilt. Id.
, 307 N.C. at 661, 300 S.E.2d at 378-79)
Defendant was charged with common law robbery, a
intent crime. See State v. Bailey
, 4 N.C. App. 407, 412, 167
S.E.2d 24, 27 (1969).
This Court has stated that:
Voluntary intoxication may negate the
existence of specific intent as an essential
element of a crime. . . . In order for
intoxication to negate the existence of
specific intent, the evidence must show that
the defendant was utterly incapable of
forming the requisite intent. Evidence of
mere intoxication is insufficient to meet this
State v. Howie
, 116 N.C. App. 609, 613, 448 S.E.2d 867, 869-70
(1994)(citations omitted)(emphasis added).
Here, we conclude that the evidence of intoxication was
insufficient to require an instruction on the defense.
Officer Comer went to defendant's residence, he found defendant to
be so intoxicated he could hardly stand. However, defendant was
coherent enough to answer Officer Comer's questions. When asked,
defendant admitted that he had been at the Country Cupboard.
During the frisk, when asked how much money he had in his pocket,
defendant responded that he had fifteen dollars. Then, after
Officer Comer left, defendant was able to walk unaccompanied back
to the Country Cupboard
. After his arrest, defendant was coherent
enough to provide Officer Comer with his biographical data,
including name, date of birth, age, race, sex, place of birth, an
address, occupation, employer's occupation, and next of kin.
Defendant also gave Officer Comer his social security number. See
State v. Shoemaker
, 334 N.C. 252, 272, 432 S.E.2d 314, 324
Other evidence which indicates that defendant was not'utterly incapable' of forming the necessary intent includes the
fact that defendant engaged in a lengthy conversation with the
above-mentioned detective and provided the detective with his full
name, date of birth, driver's license number, address, telephone
number, and information regarding his employer.) Therefore, while
the evidence shows that defendant may have been intoxicated, it
falls short of showing that he was so intoxicated as to be utterly
incapable of forming the specific intent to commit the charged
offense. State v. Herring
, 338 N.C. 271, 276, 449 S.E.2d 183, 186
Moreover, the failure to instruct the jury on voluntary
intoxication did not amount to a miscarriage of justice.
Accordingly, we decline to find plain error.
Defendant next argues that
he received ineffective assistance
of counsel because his attorney failed to request an instruction on
voluntary intoxication. Defendant contends that there was ample
evidence in the record to support the instruction, and but for
counsel's error, there would have been a different result in the
To obtain relief for ineffective assistance of counsel, the
defendant must demonstrate that his counsel's conduct fell below
an objective standard of reasonableness. State v. Braswell
N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985)(citing Strickland v.
, 466 U.S. 668, 80 L. Ed. 2d 674, reh'g denied
, 467 U.S.
1267, 82 L. Ed. 2d 864 (1984)). This requires a showing that: (1)
counsel's performance was deficient; and (2) that the deficient
performance prejudiced his defense. Id.
at 562, 324 S.E.2d at248
. As discussed previously herein, we conclude that the trial
court did not commit plain error by failing to instruct the jury on
voluntary intoxication. There being no 'plain error' in the jury
instructions, defendant's assertion of ineffective assistance of
counsel with respect thereto must also fail. State v. Seagroves,
78 N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985), disc. rev. denied
316 N.C. 384, 342 S.E.2d 905 (1986).
Accordingly, we find no
Judges CALABRIA and JACKSON concur.
Report per Rule 30(e).
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