State v. Mash

• Decision Date: 06 October 1988
• Docket Number: No. 728A86,728A86
• Citation: 323 N.C. 339,372 S.E.2d 532
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. David James MASH.

Page 532

372 S.E.2d 532

323 N.C. 339

STATE of North Carolina v. David James MASH.

No. 728A86.

Supreme Court of North Carolina.

Oct. 6, 1988.

Lacy H. Thornburg, Atty. Gen. by Joan H. Byers, Sp. Deputy Atty. Gen., and John H. Watters, Asst. Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Louis D. Bilionis, Asst. Appellate Defender, Raleigh, for defendant appellant.

Smith, Patterson, Follin, Curtis, James & Harkavy by Norman B. Smith, Greensboro, William Simpson, Raleigh, for North Carolina Civil Liberties Union Legal Foundation, Inc., amicus curiae.

EXUM, Chief Justice.

The sole issue dispositive of this appeal is whether the trial court erroneously instructed the jury on the issue of defendant's voluntary intoxication to defendant's prejudice. We conclude it did and order a new trial.

I.

The defendant and the state agree that in a period of minutes around 11 p.m. on 5 June 1986, the defendant beat Randall Cupp to death with a car jack. State's evidence in the guilt phase of the trial tended to show the following:

Defendant's friends first saw him drinking beer in the driveway of his mother's house around 4 p.m. on 5 June. They saw him shortly thereafter at the home of a neighbor, Betty Melton, where he was also drinking beer. Sometime after this, defendant was seen in the parking lot of Royal's Package Store, again drinking beer. From there, defendant drove to a neighborhood gathering place, "The Forks," where he stayed about fifteen minutes. Defendant then drove to the home of Danny Schneider, where around 8 p.m., he and others were drinking an alcoholic beverage consisting of a mixture of grain alcohol and fruit punch. Around 9:30 p.m., defendant decided to make a "beer run." Driving his own car and taking some of his friends with him, he left Danny Schneider's house. He stopped for the second time that evening in the parking lot of Royal's Package Store, where a crowd of people had gathered. The store had closed for the evening, but the events leading to the murder of Randall Cupp took place in the store parking lot.

None of the witnesses testified as to how much alcohol the defendant consumed on 5 June, but several described how he acted and appeared during the evening. In the opinion of one witness, defendant was quiet and polite when sober but became profane, loud, boisterous and crazy when drunk. Witness Dean Long, a friend of the defendant, said that on 5 June, defendant was already "high" around 4 p.m. before drinking beer at his mother's house. Long testified defendant was definitely drunk at Danny Schneider's house and continued to drink on the "beer run." Another of defendant's friends testified that defendant swerved as he drove and was "pretty high." Another witness recalled that defendant drove slowly but swerved.

Shortly after arriving at Royal's Package Store for the second time, defendant drove away alone in a friend's car and was gone about 30 minutes. His friends testified that upon returning, he drove the car up and down the road in front of the store, "spinning doughnuts." One of his friends testified that after defendant got out of the car, his eyes were red and he was staggering. Another friend testified that defendant's appearance and behavior were changed in that he was "drunker, wilder and out of control." His eyes were dilated, his face was red and he was sweating. His tongue was so tight he could hardly talk. He staggered and seemed dazed. Another witness described the defendant at this time as, "pretty darn [sic] drunk." Defendant continued to drink beer in the parking lot.

At this point, some other young men drove up in a car. Defendant threw a beer bottle against a wall. When one of his friends criticized this act, he responded by hitting her once in the mouth, drawing blood. Defendant then asked the newly arrived men what they were looking at. The testimony of the witnesses varied as to what happened next, but defendant engaged in fights with either one or two of the men. One witness said defendant fought with a man in the car, trying to pull him out of the vehicle. Another witness said defendant chased and caught one of the men and was on the ground on top of the man, beating him. Another friend testified defendant had to be pulled off because he was too rough on the victim. According to uncontradicted testimony, as defendant's friends pulled defendant away, he tried to shake them off and struck one of them four times in the back. The friend did not respond or retaliate because he thought this would make defendant even more angry.

Randall and Faye Cupp lived across the road from Royal's Package Store. Mr. Cupp was a correctional officer at the Alexander County Prison Unit, where defendant's brother had been incarcerated. Mr. Cupp had come home from work around 10:30 that evening and he and his wife had retired for the night. Two of defendant's friends rang the Cupps' doorbell around 11 p.m., while defendant was driving up and down in front of Royal's, and asked the Cupps not to call law enforcement officers. The Cupps looked out their window and saw defendant's car, but they took no action. About ten minutes later, the doorbell rang again. This time defendant's friends asked for help. They told the Cupps how defendant had struck one of them in the mouth and how he was fighting, so Cupp decided to go over to the store.

Randall Cupp, wearing trousers and shoes, but no shirt, went to the parking lot. One witness testified defendant did not seem to recognize Cupp, and two other witnesses heard defendant say Cupp had a gun. Defendant went to the trunk of his car and opened it. He took out a jack, left the trunk lid open, and approached Mr. Cupp, who had bent down as if to tie his shoe. Two witnesses testified defendant said, "You guarded my brother, now see if you can guard me." Three witnesses said defendant struck the first blow, hitting Mr. Cupp with the jack. Although Mr. Cupp tried to ward off the blow and to hit defendant with a karate chop on the back of the neck, he was unsuccessful. Defendant quickly struck the victim again and continued to strike him as he lay upon the ground. When one of the bystanders screamed for him to stop, he stopped, walked toward her and began to cry.

Medical evidence indicated the six blows to the head suffered by the victim rendered him unconscious "immediately" and death followed a few minutes thereafter. The victim's brain injuries included bleeding into the subdural spaces and herniation or swelling. The swelling caused cardiac and respiratory arrest; pulmonary edema followed. Defendant's friend, Dean Long, testified that he and defendant together carried the victim across the road. Mr. Long performed cardiopulmonary resuscitation techniques on the victim and asked defendant to help. When defendant said he did not know how, Mr. Long showed him what to do.

Deputy Thomas Eller of the Wilkes County Sheriff's Department answered a call placed by Mrs. Cupp and arrived while Mr. Long and the defendant were trying to revive the victim. Detective Chris Shew of the Wilkes County Sheriff's Department arrived about 12:15 a.m. Defendant knew Detective Shew, called him by name, and conversed with him. He told Detective Shew that he had been passing by and stopped to see if he could help. He offered to let Detective Shew search his car and in Detective Shew's opinion, walked normally and talked clearly. Shew looked in the car and saw the jack on the floor behind the driver's seat. Later Deputy Eller took the jack from the car at Shew's instruction.

Defendant offered no evidence.

II

Defendant contends the trial judge incorrectly instructed the jury concerning defendant's voluntary intoxication. We agree.

In State v. Wilson, 280 N.C. 674, 187 S.E.2d 22 (1972), this Court held the following instructions properly stated the law regarding a jury's consideration of evidence pertaining to a defendant's voluntary intoxication:

There is evidence in this case which tends to show that the defendant was intoxicated at the time of the acts alleged in this case. Generally, voluntary intoxication is not a legal excuse for crime. However, if you find that the defendant was intoxicated, you should consider whether this condition affected his ability to formulate the specific intent which is required for conviction of first degree murder.

In order for you to find the defendant guilty of first degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual, specific intent to kill formed after premeditation and deliberation.

If as a result of intoxication the defendant did not have the specific intent to kill the deceased ... formed after premeditation and deliberation, he is not guilty of first degree murder.

Therefore, I charge you that if upon considering the evidence with respect to the defendant's intoxication you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first degree murder, you will not return a verdict of first degree murder. You will then consider whether or not he would be guilty of second degree murder.

Id. at 681, 187 S.E.2d at 26. This instruction was not only held to be proper in Wilson, but it is also the language recommended to our trial judges in North Carolina's Pattern Jury Instructions for Criminal Cases. See N.C.P.I.Crim. 305.11.

Defendant requested this instruction at trial. The district attorney requested instructions that in effect negated the specific intent element only if defendant's intoxication was

so great that his mind and reason were so completely overthrown as to render him utterly incapable to form a deliberate and premeditated purpose to kill. Mere intoxication cannot serve as an excuse for the defendant. It must be intoxication to the extent that the defendant's mental processes were so overcome by the excessive use of liquor or other...