State v. Hooper
| Citation | 864 S.E.2d 376 |
| Decision Date | 21 September 2021 |
| Docket Number | No. COA20-200,COA20-200 |
| Parties | STATE of North Carolina v. Ivan Gerren HOOPER |
| Court | Court of Appeal of North Carolina (US) |
Attorney General Joshua H. Stein, by Special Deputy Attorney General Jasmine C. McGhee, for the State.
Carella Legal Services, PLLC, by John F. Carella, for defendant-appellant.
¶ 1 Ivan Gerren Hooper ("Defendant") appeals from a judgment entered upon a jury's verdicts finding him guilty of assault by strangulation, communicating threats, assault on a female, interfering with emergency communication, and attaining habitual felon status. We find no error.
¶ 2 On 5 March 2017, Reidsville Police Officer Scott Brown responded to a call placed by Ashley Thomas concerning an alleged assault, which had occurred at a Quality Inn Hotel the previous evening. Officer Brown met Thomas at her residence located on Wolf Island Road. Thomas stated she had an altercation with Defendant, the father of her child. Evidence tended to show Thomas arrived with their son, Trent, at Defendant's hotel room at the Quality Inn on 4 March 2017. Following the altercation in the hotel room, Defendant had been shot. Thomas was visibly bruised and swollen across the bridge of her nose and eyes and displayed redness around her neck. Thomas also showed an open wound on her cheek, and scratches down her chest.
¶ 3 Defendant was indicted for assault by strangulation, possession of a firearm by felon, communicating threats, assault on a female, interfering with an emergency communication, and subsequently, with attaining the status of a habitual felon. Defendant failed to file a pre-trial notice to assert self-defense. See N.C. Gen. Stat. § 15A-905(c)(1) (2019).
¶ 4 Thomas testified to her version of the events that unfolded at Defendant's hotel room. Thomas testified when she arrived at Defendant's hotel room with their son for visitation, Defendant began questioning Thomas regarding her personal relationship status. Defendant became agitated, punched, kneed, and threatened Thomas’ life. Thomas then kneed Defendant, which allowed Thomas to get up and retrieve her phone just before Defendant shattered it. Thomas turned to the TV stand, picked up [Defendant's] gun, and discharged the gun towards the floor.
¶ 5 Defendant did not testify at trial. Reidsville Police Officer Jason Joyce, a witness for the State, testified about what Defendant had told him on 5 March 2017. Defendant told Officer Joyce he had advanced toward Thomas after he saw her with the firearm.
¶ 6 Defendant's mother, Felicia Donnell, testified for Defendant regarding a phone call she had with Thomas shortly after the events had occurred in the hotel room. Donnell testified she was told no physical altercation had occurred until after the first shot was fired. Further testimony by other defense witnesses showed Thomas had acquired a gun prior to her visit to Defendant's hotel room.
¶ 7 At the close of the State's case and again at the close of all evidence, Defendant moved to dismiss for insufficiency of the evidence. Defense counsel argued Thomas had "provoked this particular action" and that it was a "defense mechanism" and that "he had to try to protect himself." Both motions were denied. During the initial charge conference, the trial court presented and laid out the proposed jury instructions. Defendant did not request additional instructions or raise objections to the instructions the court intended to give. Counsel expressly agreed to the court's tendered instructions.
¶ 8 The following day, immediately before the jury instructions were to be delivered, Defendant requested, for the first time, the jury be instructed on self-defense using the pattern jury instruction, entitled "Self-Defense-Assaults Not Involving Deadly Force." N.C.P.I. -- Crim. 308.40 (2017). The State objected.
¶ 9 The trial court denied Defendant's request, stating "there was no notice given of [an] affirmative defense." The court further pointed out there was no evidence of what Defendant thought or believed about the need to defend himself and "there [was] no other evidence that ... anything was done in self-defense." After instructing the jury, the trial court again asked both the State and Defendant if there were any objections to the jury instructions. Both parties replied they had no objections to the instructions as given.
¶ 10 The jury found Defendant not guilty of possession of a firearm by a felon, but guilty of assault by strangulation, communicating threats, assault on a female, interfering with emergency communication, and having attained habitual felon status. Defendant's convictions were consolidated, and he was sentenced to an active prison term of 65 to 90 months.
¶ 11 Defendant failed to give timely notice of appeal. Defendant's petition for writ of certiorari was allowed by this Court 27 August 2019 to review the judgment entered 7 March 2018. This Court possesses jurisdiction pursuant to N.C. Gen. Stat. § 15A-1444(g) (2019) and N.C. R. App. P. 21(a)(1).
¶ 12 Defendant argues the trial court erred by denying his request for an instruction on self-defense.
¶ 13 Defendant failed to file the statutorily required notice of intention to offer a defense of self-defense at trial. See N.C. Gen. Stat. § 15A-905(cv)(1) (). Defendant asserts sufficient evidence was presented to justify the trial court instructing the jury on self-defense.
¶ 14 During the jury charge conference, the trial court stated it was going to give:
The trial court then asked of both the State and Defendant's trial counsel: "Are there any requests for additional instructions or any objections to the instructions the Court is intending to give[?]" Defendant's counsel responded, "Your Honor, I believe that the information that's been articulate (sic) is accurate."
¶ 15 During the jury charge conference, Defendant's counsel never made additional requests, nor voiced any objection regarding the jury instructions proposed after he was specifically asked by the trial court. Defendant was provided the opportunity to object or correct these instructions and expressly agreed to the instructions to be given.
¶ 16 The day after the jury charge conference, just before jury deliberations, Defendant's counsel mentioned self-defense for the first time and made the request for a self-defense instruction. The trial court recalled Defendant's express agreement to the proffered instructions from the day prior, stating: "Well, you said yesterday you were satisfied with the instructions as the Court had outlined is going (sic) to give."
¶ 17 After delivering the instructions to the jury, the trial court held the following colloquy:
¶ 18 Defendant's failure to object during the charge conference or after the instructions were given to the jury, along with his express agreement during the charge conference and after the instructions were given to the jury, constitutes invited error. His invited error waives any right to appellate review concerning the invited error, "including plain error review. " State v. Barber , 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001) (emphasis supplied).
¶ 19 Our Supreme Court in State v. White examined a defendant's counsel's involvement in jury instructions in a death penalty case. State v. White , 349 N.C. 535, 508 S.E.2d 253 (1998). The Court held:
Counsel ... did not object when given the opportunity either at the charge conference or after the charge had been given. In fact, defense counsel affirmatively approved the instructions during the charge conference. Where a defendant tells the trial court that he has no objection to an instruction, he will not be heard to complain on appeal.
Id. at 570, 508 S.E.2d at 275 (citing State v. Wilkinson , 344 N.C. 198, 213, 474 S.E.2d 375, 396 (1996) ). The tardiness of Defendant's purported request followed by his counsel's express agreement following the jury instructions as given waives appellate review. Defendant's argument is overruled.
¶ 20 North Carolina's statutes provide: "A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443(c) (2019). Even if we agreed the trial court erred in denying Defendant's requests regarding the self-defense, Defendant cannot carry his burden to show the court's refusal of his requested instruction "had a probable impact on the jury's finding that the defendant was guilty." State v. Lawrence , 365 N.C. 506, 517, 723 S.E.2d 326, 333 (2012) (citation omitted).
¶ 21 In State v. Chavez , our Supreme Court held:
Where there is highly conflicting evidence in a...
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State v. Hooper
...evidence that would have allowed the jury to make such a determination. State v. Hooper , 279 N.C. App. 451, 2021-NCCOA-500, ¶¶ 12–13, 864 S.E.2d 376. In rejecting defendant's challenge to the trial court's judgment, the Court of Appeals held that "[d]efendant's failure to object [to the pl......