State v. Lea

• Decision Date: 17 June 1997
• Docket Number: No. COA96-229,COA96-229
• Citation: 485 S.E.2d 874,126 N.C.App. 440
• Parties: STATE of North Carolina. v. Orlando Tremaine LEA and Lacy Marcelo Colon, Defendants.
• Court: North Carolina Court of Appeals

Page 874

485 S.E.2d 874

126 N.C.App. 440

STATE of North Carolina. v. Orlando Tremaine LEA and Lacy Marcelo Colon, Defendants.

No. COA96-229.

Court of Appeals of North Carolina.

June 17, 1997.

Attorney General Michael F. Easley by Assistant Attorney General Gail E. Weis, for the State.

Robert H. Martin, Elon College, for defendant-appellant Colon.

Lee W. Settle, Mebane, for defendant-appellant Lea.

EAGLES, Judge.

In this consolidated appeal, we review each defendant's appeal individually and we address separately the issues raised.

I. Defendant Lea

A.

Defendant Lea first argues that the offense of "attempted first degree felony murder" cannot exist under the law of this State. We hold that defendant Lea lacks standing to raise this issue because he was not convicted of "attempted first degree felony murder." State v. Bynum, 282 N.C. 552, 558, 193 S.E.2d 725, 729, cert. denied, 414 U.S. 869, 94 S.Ct. 182, 38 L.Ed.2d 116 (1973). Defendant Colon is the only party here who was convicted at trial of "attempted first degree felony murder" and "[o]nly the party aggrieved by the judgment may appeal." Id. This assignment of error is overruled.

We note that defendant Colon has properly assigned error and raised this issue. We address defendant Colon's arguments in Part II of this Opinion where we hold that the offense of "attempted first degree felony murder" does not exist under the law of North Carolina.

B.

Defendant Lea next argues that the trial court erred in denying his motions to dismiss at the close of State's evidence, at the close of all evidence, and after the jury returned its verdict. Defendant's brief here blends several arguments in support of his contention that the trial court erred in failing to grant his motions to dismiss. We have examined defendant's various arguments and determined them to be without merit. Accordingly, we hold that the trial court correctly denied defendant Lea's motions to dismiss.

We first consider defendant Lea's contention that the jury returned inconsistent verdicts between defendant Lea and defendant Colon and that the trial court therefore should have granted defendant Lea's motion to dismiss made after the jury returned its verdict and before the trial court entered judgment. In State v. Reid, 335 N.C. 647, 660, 440 S.E.2d 776, 783 (1994), our Supreme Court determined that a defendant's conviction for acting in concert may be upheld even where the accused's co-defendant was acquitted and where the co-defendant's acquittal of acting in concert may have been the result of "mistake, compromise, or lenity...." Id. The Supreme Court in Reid limited review of the conviction to sufficiency of the evidence. Id. at 660-61, 440 S.E.2d at 783. Even if the verdicts rendered in this case were inconsistent, Reid clearly insulates jury verdicts from review on this ground. Id. Accordingly, because defendant does not challenge the sufficiency of the evidence, we overrule defendant's assignment of error here.

C.

Defendant argues that the trial court erred in failing to dismiss all charges of "attempt" because the evidence here shows "completed actions" and not "attempts in the legal sense." By this logic defendant argues that he could validly be convicted only of the completed assaults and not of attempted second degree murder. We disagree.

"The elements of the crime of 'attempt' consist of the following: (1) an intent by an individual to commit a crime; (2) an overt act committed by the individual calculated to bring about the crime; and (3) which falls short of the completed offense." State v. Gunnings, 122 N.C.App. 294, 296, 468 S.E.2d 613, 614 (1996). Defendant's argument here fails because the crime of second degree murder, to be a completed offense, requires that the victim actually be killed. Since none of the victims here were killed, defendant Lea's conduct fell "short of the completed offense ..." and was therefore properly deemed attempted second degree murder. Id.

Defendant Lea argues then that he could not constitutionally be convicted both of attempted second degree murder and of assault with a deadly weapon inflicting serious bodily injury. We find this contention without merit. We need not further consider defendant Lea's argument because the trial court did not sentence defendant Lea based on the convictions for assault with a deadly weapon and assault with a deadly weapon inflicting serious injury. See, e.g., State v. Pakulski, 326 N.C. 434, 439-40, 390 S.E.2d 129, 132 (1990). The trial court ordered that prayer for judgment be continued as to defendant Lea's conviction of two counts of assault with a deadly weapon and of one count of assault with a deadly weapon inflicting serious injury.

D.

We next consider defendant Lea's argument that the trial court's instruction on the charge of "attempted first degree felony murder ... so colored the jury's deliberations ..." that even defendant's conviction of the lesser and unrelated charge of attempted second degree murder must be set aside. Defendant Lea's principal complaint here appears to be that a theoretical potential for prejudice exists because the jury might have compromised lower than attempted second degree murder if the instruction on attempted first degree felony murder had not been given. We find this argument without merit.

"In order to show prejudicial error, defendant must show a reasonable possibility that had the error not been committed, a different result would have been reached at trial." State v. Frazier, 344 N.C. 611, 617, 476 S.E.2d 297, 300-01 (1996) (citing G.S. § 15A-1443(a) (1988)). Here, the trial court also instructed the jury on the charge of attempted first degree murder on the basis of malice, premeditation and deliberation, and defendant Lea does not object to this charge. Moreover, strong evidence supports the jury's conviction of defendant Lea for attempted second degree murder. After careful review of the record, we conclude that there is no "reasonable possibility" that the outcome of defendant Lea's trial would have been different had the trial court not given the attempted first degree felony murder instruction to the jury. Accordingly, we discern no prejudice to defendant Lea here.

E.

Defendant Lea argues that the trial court erred by instructing the jury on the principle of "acting in concert." We disagree.

"It is well settled that when a request is made for a specific instruction that is supported by the evidence and is a correct statement of the law, the court, although not required to give the requested instruction verbatim, must charge the jury in substantial conformity therewith." State v. Holder, 331 N.C. 462, 474, 418, S.E.2d 197, 203 (1992).

Under the principle of acting in concert, [an instruction on an offense may be given and] a person may be found guilty of an offense if he is present at the scene of the crime and the evidence is sufficient to show he is acting together with another who does the acts necessary to constitute the crime pursuant to a common plan or purpose to commit the crime.

State v. Wilson, 322 N.C. 117, 141, 367 S.E.2d 589, 603 (1988). We conclude that the evidence here clearly supports an instruction on "acting in concert" and that the trial court's instruction substantially conformed to the pattern jury instruction on "acting in concert." N.C.P.I.--Crim. 202.10 (1994). This assignment of error is overruled.

F.

We now turn to defendant Lea's argument that the trial court erred in failing to instruct the jury on the lesser included charge of attempted voluntary manslaughter based on the theory of imperfect self-defense. In this vein, defendant Lea also challenges the trial court's failure to instruct the jury on the theory of imperfect self-defense. We hold that the trial court did not err.

"A trial judge is not required to instruct the jury on lesser-included offenses 'when there is no evidence to sustain a verdict of defendant's guilt of such lesser degrees.' " State v. Lyons, 340 N.C. 646, 663, 459 S.E.2d 770, 779 (1995) (quoting State v. Shaw, 305 N.C. 327, 342, 289 S.E.2d 325, 333 (1982)). "[V]oluntary manslaughter is an intentional killing without premeditation, deliberation or malice but done in the heat of passion suddenly aroused by adequate provocation or in the exercise of imperfect self-defense where excessive force under the circumstances was used or where the defendant is the aggressor." State v. Wallace, 309 N.C. 141, 149, 305 S.E.2d 548, 553 (1983).

[I]f defendant believed it was necessary to kill the deceased in order to save herself from death or great bodily harm, and if defendant's belief was reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, but defendant, although without murderous intent, was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right of self-defense, having lost the benefit of perfect self-defense, and is guilty at least of voluntary manslaughter.

State v. Wilson, 304 N.C. 689, 695, 285 S.E.2d 804, 808 (1982) (quoting State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 573 (1981)) (emphasis omitted).

We conclude that no one "of ordinary [mental] firmness" could reasonably believe that the use of deadly force by defendants was necessary here in order for defendants to save themselves from "death or great bodily harm...." Id. Furthermore, "[t]here is absolutely no evidence in the record that [either] defendant had formed a belief that it was necessary to kill in order to save himself from death or great bodily harm." Lyons, 340 N.C. at 662, 459 S.E.2d at 779. Defendant Colon's "self-serving" statements to the effect that he and defendant Lea were "scared" the victims would "run them off the road" are not evidence that either defendant "formed a belief that it was necessary to kill in order to...