State v. Ballard

• Decision Date: 04 November 2008
• Docket Number: No. COA08-196.,COA08-196.
• Citation: 668 S.E.2d 78
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina, Plaintiff, v. Timothy Franklin BALLARD, III, Defendant.

668 S.E.2d 78

STATE of North Carolina, Plaintiff, v. Timothy Franklin BALLARD, III, Defendant.

No. COA08-196.

Court of Appeals of North Carolina.

November 4, 2008.

Appeal by defendant from judgment entered on or about 18 July 2007 by Judge Dennis J. Winner in Superior Court, Henderson County. Heard in the Court of Appeals 9 September 2008.

Attorney General Roy A. Cooper, III by Special Deputy Attorney General R. Marcus Lodge, for the State.

Reita P. Pendry, Charlotte, for defendant-appellant.

STROUD, Judge.

Defendant appeals from his conviction by a jury of second-degree murder. Defendant argues the trial court plainly erred in "failing to instruct the jury that if the [S]tate failed to prove any element of the charged offense, or any lesser included offense, it must find defendant not guilty[,]" and "denying the jury's request for the testimony of three witnesses[,]" and erred in instructing the jury on flight. For the following reasons, we find no prejudicial error.

I. Background

The State's evidence tended to show the following: Defendant and the victim lived together in a trailer on Kristilia Lane. Defendant and the victim were having problems because the victim owed defendant money. On 29 July 2006, defendant's brother, Luther Ballard, told defendant he was thinking of selling his .41 Magnum Smith & Wesson handgun, and defendant bought the gun.

Defendant testified that he and his brother Norman went to the trailer to get some of his stuff. Defendant claims the victim said he was going to kill him and that he shot the victim in self-defense. Defendant "was so scared [he] emptied the pistol." When Detective Scott Galloway ("Detective Galloway") of the Henderson County Sheriff's Department responded to a dispatch about the shooting on Kristilia Lane, he blocked defendant's escape, and defendant got out of his car and surrendered.

On or about 27 November 2006, defendant was indicted for first-degree murder. On or about 16 July 2007, a jury found defendant guilty of second-degree murder. On or about 18 July 2007, the trial court sentenced defendant to a minimum term of 216 months to a maximum term of 269 months imprisonment. Defendant argues the trial court plainly erred in "failing to instruct the jury that if the [S]tate failed to prove any element of the charged offense, or any lesser included offense, it must find defendant not guilty[,]" and "denying the jury's request for the testimony of three witnesses[,]" and erred in instructing the jury on flight. For the following reasons, we find no prejudicial error.

II. Jury Instructions as to Elements of the Charged Offenses

Defendant first contends that

[t]he trial court's instruction never told the jury that if it found that the State had failed to prove each essential element of first degree murder, it must find the defendant not guilty of that offense. Likewise, the trial court's instruction never told the jury that if the State failed to prove each essential element of second-degree murder, it must find the defendant not guilty of that offense.

. . . .

The court's instructions left the jury to think that it could choose the most likely offense of three — first degree murder, second degree murder, or voluntary manslaughter — rather than correctly informing the jury that it had to consider each charge separately, assess whether the State had met its burden as to that charge, and if it had not, enter a verdict of not guilty to that charge.

We disagree.

When a defendant fails to object to the trial court's jury instructions, he has failed to preserve the issue for appellate review. See N.C.R.App. P. 10(b)(2). Defendant concedes that he failed to object to the jury instructions on this issue. Therefore, the instructions are reviewed only for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). "A prerequisite to our engaging in a `plain error' analysis is the determination that the instruction complained of constitutes `error' at all." State v. Johnson, 320 N.C. 746, 750, 360 S.E.2d 676, 679 (1987) (citation and quotation marks omitted). "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." Odom at 661, 300 S.E.2d at 378-79.

The trial court used the relevant sections of the North Carolina Pattern Jury Instructions — Criminal 206.10, almost verbatim, to instruct the jury as to the charged crimes. The trial court's instructions in pertinent part were,

Therefore, if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally, but not in self-defense, killed the victim with a deadly weapon, thereby proximately causing the victim's death; and that the defendant acted with malice, with premeditation or with deliberation, it would be your duty to return a verdict of guilty of First-Degree Murder. If you do not so find, or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of First-Degree Murder.

If you do not find the defendant guilty of First-Degree murder, you must determine whether he is guilty of Second-Degree murder. If you find from evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally and with malice, but not in self defense, wounded the victim with a deadly weapon, thereby proximately causing the victim's death, it would be your duty to return a verdict of guilty of Second-Degree Murder. If you do not so find or have a reasonable doubt as to one or more of these things, you will not return a verdict of guilty of Second-Degree murder.

If you do not find the defendant guilty of Second-Degree Murder, you must consider whether he is guilty of Voluntary Manslaughter. If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally wounded the victim with a deadly weapon and thereby proximately causing the victim's death, and that the defendant was the aggressor in bringing on the fight, or used excessive force, it would be your duty to find the defendant guilty of voluntary manslaughter, even if the State has failed to prove that the defendant did not act in self defense.

Or if you find from the evidence beyond a reasonable doubt that on or about the alleged date, the defendant intentionally, and not in self defense, wounded the victim with a deadly weapon and thereby proximately caused the victim's death, that the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in the heat of passion upon adequate provocation, it would be your duty to return a verdict of guilty of Voluntary Manslaughter. If you do not so find or have a reasonable doubt as to one or more of these things, you will return a verdict of Not Guilty.

And finally, if the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in self defense, then the defendant's action would be justified by self defense. Therefore you would return a verdict of not guilty.

"This Court has recognized that the preferred method of jury instruction is the use of the approved guidelines of the North Carolina Pattern Jury Instructions." Caudill v. Smith, 117 N.C.App. 64, 70, 450 S.E.2d 8, 13 (1994) (citation omitted); disc. review denied, 339 N.C. 610, 454 S.E.2d 247 (1995). "Jury instructions in accord with a previously approved pattern jury instruction provide the jury with an understandable explanation of the law." Carrington v. Emory, 179 N.C.App. 827, 829, 635 S.E.2d 532, 534 (2006) (citing State v. Anthony, 354 N.C. 372, 395, 555 S.E.2d 557, 575 (2001)).

In spite of the trial court's accurate instructions of the relevant law pursuant to the pattern jury instructions, defendant directs our attention to three cases, State v. Jenkins, ___ N.C.App. ___, 658 S.E.2d 309 (2008); State v. McArthur, 186 N.C.App. 373, 651 S.E.2d 256 (2007); State v. McHone, 174 N.C.App. 289, 620 S.E.2d 903 (2005), arguing that these cases require the trial court to give instructions to find the defendant not guilty if the jurors have a reasonable doubt or if the State fails to meet its burden as to any of the elements of the charged offense. All of these cases are clearly distinguishable from the present case. In Jenkins, this Court concluded that "the omission of `not guilty' on the verdict form is reversible error." See Jenkins at ___, 658 S.E.2d at 311. However, in the case at bar, there was a "not guilty" option on the verdict form.

In McArthur, this Court concluded that

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.

McArthur at 380, 651 S.E.2d at 260. However, in the present case, unlike in McArthur, the trial court explicitly instructed the jury in its final mandate that, "If you do not so find or have a reasonable doubt as to one or more of these things, you will return a verdict of Not Guilty." The trial court provided the "not guilty" instructions before stating, "And finally, if the State has failed to satisfy you beyond a reasonable doubt that the defendant did not act in self defense, then the defendant's action would be justified by self defense. Therefore you would return a verdict of not guilty." Thus, in the present case, the instructions make it clear that defendant should be found not guilty if the jury has reasonable doubt as to any elements of the charged crimes or if the jury finds defendant acted in self defense.

In McHone, this Court concluded that the trial court committed plain error where the trial court as to the charge of first-degree murder failed "to provide a not guilty final mandate[,...