State v. Mchone
| Decision Date | 01 November 2005 |
| Docket Number | No. COA04-1605.,COA04-1605. |
| Citation | 620 S.E.2d 903 |
| Court | North Carolina Supreme Court |
| Parties | STATE of North Carolina v. Michael Lane McHONE. |
Appellate Defender Staples Hughes, by Assistant Appellate Defender Janet Moore, for defendant.
Defendant appeals from convictions and judgments for first degree murder and armed robbery. We find no error in part, and reverse and remand in part.
The evidence presented at trial may be summarized as follows: On the morning of 14 November 2000, Tammy Cush was discovered dead in her apartment. Her husband returned home and found his wife's naked body lying in their bedroom. She had two stab wounds to the neck which, according to expert testimony, caused her death. A jar of coins was spilled on the living room floor. Silver coins from this jar were missing, as were the Play Station and VCR. Mrs. Cush's purse had been emptied of the money inside, and food was strewn on the kitchen floor. A trail of vegetables led towards defendant's apartment. The victim's VCR and Play Station were found in defendant's apartment.
In response to police questioning the next day, defendant admitted having entered the victim's home on the evening of 13 November 2000. He stated he had seen Mrs. Cush lying naked in the bedroom with a hole in her neck trying to breathe. Defendant contended that he slipped in a pool of warm blood, vomited in the toilet, took the VCR and Play Station, and returned to his apartment.
Ronald Pritt testified that defendant told him he killed the victim. Pritt was incarcerated in jail at the same time defendant was incarcerated at the Catawba County jail. Defendant told Pritt that, on the night of the murder, he went to Mrs. Cush's apartment intending to kill her husband. Mrs. Cush backed out of "the plotting and planning to kill her husband", and defendant returned to his apartment. Later, defendant explained, he "forgot something" and returned to Mrs. Cush's apartment with a pair of scissors. When he walked in the door, Mrs. Cush had Defendant told Pritt he had asked "the Gideons" who visited the prisoners in jail to pray that Mrs. Cush's killer would be found because it would "throw the officers off, saying he didn't do it."
Robert Howie testified that defendant told him he had killed his girlfriend. Howie was incarcerated in jail at the same time defendant was incarcerated at the Catawba County jail. Defendant said his girlfriend "had broke[n] up with him and he wanted to have sex with her one more time." When she refused to have intercourse with him, "[h]e lost it and stabbed her in the neck, turned her over, and had sex with her." Defendant also told Howie he had spilled a jar of coins in the victim's apartment and had gone through the coins looking for money to buy beer.
Defendant presented no evidence.
After denying defendant's request to submit second degree murder to the jury, the court instructed the jury on first degree murder on the theories of malice, premeditation and deliberation and the felony murder rule. In addition, the court instructed the jury on robbery with a dangerous weapon and the lesser-included offense of larceny. The jury convicted defendant of first degree murder based upon both theories, and robbery with a dangerous weapon. For first degree murder, defendant was sentenced to life imprisonment without parole; for the armed robbery, defendant was sentenced to 77-102 months imprisonment. From these convictions and judgments, defendant appeals.
Defendant first argues the trial court committed plain error by eliminating the option of not guilty of first degree murder in its final mandate to the jury and, in a related argument, by omitting the option of not guilty of first degree murder on the verdict sheet.1 Defendant argues these omissions so tainted the proceedings against him that a new trial on the first degree murder charge is required. After very careful review, we are compelled to agree.
The underlined portions of the following instructions given by the trial court play a significant role in our evaluation of this assignment of error:
The Defendant has entered pleas of not guilty as to each charge. The fact that he has been charged is no evidence of guilt. Under our system of justice when a Defendant pleads not guilty, he is not required to prove his innocence. He is presumed to be innocent. The State must prove to you that the Defendant is guilty beyond a reasonable doubt.
. . . .
You should weigh all the evidence in the case. After weighing all of the evidence if you are not convinced of the guilt of the Defendant beyond a reasonable doubt you must find him not guilty.
. . . .
Ladies and gentlemen, the Defendant has been charged with first-degree murder. Under the law and the evidence in this case, it is your duty to return one of the following verdicts: guilty of first-degree murder or not guilty.
You may find the Defendant guilty of first-degree murder on either or both of two theories; that is, on the basis of malice, premeditation, and deliberation or under the first-degree felony murder rule.
. . . .
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant, acting with malice, killed the victim with a deadly weapon thereby proximately causing the victim's death and that the Defendant intended to kill the victim and that the Defendant acted after premeditation and with deliberation, it would be your duty to return a verdict of guilty of first-degree murder on the basis of malice, premeditation, and deliberation.
If you do not so find or have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of first-degree murder on the basis of malice, premeditation, and deliberation. Whether or not you find the Defendant guilty of first-degree murder on the basis of malice, premeditation, and deliberation, you will also consider whether he is guilty of first-degree murder under the first-degree felony murder rule.
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant committed the offense of robbery with a dangerous weapon and that while committing the offense of robbery with a dangerous weapon the Defendant killed the victim and that the Defendant's act was a proximate cause of the victim's death, it would be your duty to return a verdict of guilty of first-degree murder under the felony murder rule.
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 under the felony murder rule.
Now, ladies and gentlemen, the verdict form with respect to the charge of first-degree murder sets out first-degree murder both on the basis of malice, premeditation, and deliberation and first-degree murder under the felony murder rule.
In the event that you should find the Defendant guilty of first-degree murder, please have your foreperson indicate whether you did so on the basis of malice, premeditation, and deliberation or the felony murder rule or both.
As to armed robbery and the lesser-included offense of larceny, the trial court instructed the jury, in pertinent part, as follows:
The Defendant has also been charged with robbery with a dangerous weapon, which is taking and carrying away the personal property of another from his or her person or in his or her presence without his or her consent by endangering or threatening a person's life with a dangerous weapon, the taker knowing that he was not entitled to take the property and intending to deprive another of its use permanently.
. . . .
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant had in his possession a dangerous weapon and took and carried away [the personal property of another] from the person or in the presence of a person without her voluntary consent by endangering or threatening her life with the use or threatened use of a dangerous weapon, the Defendant knowing that he was not entitled to take the property and intending to deprive that person of its use permanently, it would be your duty to return a verdict of guilty of robbery with a dangerous weapon.
If you do not find the Defendant guilty of robbery with a dangerous weapon or have a reasonable doubt as to one or more of these things, it would be your duty to consider whether the Defendant is guilty of larceny.
. . . .
If you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant took and carried away another person's property without her consent knowing that he was not entitled to take it and intending at the time to deprive the victim of its use permanently, it would be your duty to return a verdict of guilty.
If you do not so find or if you have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty as to that charge.
Because defendant did not object at trial to the omission of the not guilty option from the trial court's final mandate to the jury, we review the trial court's actions for plain error. See State v. Walker, ___ N.C.App. ___, ___, 613 S.E.2d 330, 333 (2005).
Plain error includes error that is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done; or grave error that amounts to a denial of a fundamental right of the accused; or error that has resulted in a...
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