State v. Blue, 9312SC816

• Decision Date: 07 June 1994
• Docket Number: No. 9312SC816,9312SC816
• Citation: 115 N.C.App. 108,443 S.E.2d 748
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Dan Lemar BLUE.

Page 748

443 S.E.2d 748

115 N.C.App. 108

STATE of North Carolina v. Dan Lemar BLUE.

No. 9312SC816.

Court of Appeals of North Carolina.

June 7, 1994.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. P. Bly Hall, Raleigh, for the State.

Parish, Cooke & Russ by James R. Parish, Fayetteville, for defendant-appellant.

WELLS, Judge.

Pursuant to one of his assignments of error, defendant contends that the trial court erred in submitting to the jury second degree murder as a possible verdict because there was no evidence to support such a charge.

After the jury verdicts were returned, in the beginning stages of the charge conference, the trial judge stated that on the murder indictment, he would submit verdicts of guilty of first degree murder, or guilty of second degree murder, or not guilty. Defendant did not object then or at any time during the court's very thorough charge conference, or at any time before the jury retired.

Rule 10(b)(2) of our Rules of Appellate Procedure provides:

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, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.

Thus, the standard of review we must employ is the "plain error" rule adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983). As the Court stated in Odom, the adoption of the "plain error" rule does not mean that an improper instruction will mandate reversal regardless of a defendant's failure to object at trial, because to so hold would negate Rule 10(b)(2). Even when the "plain error" rule is applied, an improper instruction will rarely justify reversal of a criminal conviction when no objection was made in the trial court. Id. In this case, we accept for the purpose of our ruling defendant's contention that the evidence clearly established all the elements of first degree murder: malice, premeditation, and deliberation. Had defendant objected at trial to submitting the second degree verdict to the jury, we would be required to reverse his conviction. State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991). But to allow a defendant who does not so object to then use his choice at trial to gain reversal on appeal would afford a criminal defendant the right to appellate review, predicated on invited error. We refuse to recognize such a right. To do so would defy common sense and establish bad law. Accordingly, we hold that this defendant may not assign error in this appeal to the trial court's submitting the second degree verdict to the jury.

In his second, third, and fourth assignments of error, defendant challenges the sufficiency of the evidence to support his conviction of (1) attempted armed robbery, (2) conspiracy to commit robbery with a dangerous weapon, and (3) assault with a deadly weapon with intent to kill inflicting serious...