State v. Storm

• Decision Date: 02 July 2013
• Docket Number: No. COA12–1498.,COA12–1498.
• Citation: 743 S.E.2d 713
• Parties: STATE of North Carolina v. Tyler James STORM.
• Court: North Carolina Court of Appeals

743 S.E.2d 713

STATE of North Carolina

v.Tyler James STORM.

No. COA12–1498.

Court of Appeals of North Carolina.

July 2, 2013.

Appeal by defendant from judgment entered 12 April 2012 by Judge Gary M. Gavenus in Buncombe County Superior Court. Heard in the Court of Appeals 22 May 2013.

Attorney General Roy Cooper, by Special Deputy Attorney General H. Dean Bowman, for the State.

Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Andrew J. DeSimone, for defendant-appellant.

STEELMAN, Judge.

By failing to object to the omission of diminished capacity and voluntary intoxication from the trial court's final mandate to the jury instructions on the charge of murder, defendant failed to preserve this issue for appellate review. The trial court did not commit plain error when it omitted jury instructions on diminished capacity and voluntary intoxication from its final mandate on the charge of murder. The trial court did not abuse its discretion when it prohibited a lay witness from testifying that defendant “appeared noticeably depressed with flat affect.” The trial court was not required to intervene ex mero motu where the prosecutor's closing argument was not so grossly improper as to interfere with defendant's right to a fair trial.

I. Factual and Procedural Background

On 18 August 2010, the Buncombe County Sheriff's Department responded to a 911 call made by eighteen-year-old Tyler James Storm (defendant) stating that he had killed his younger brother. Deputies arrived at defendant's residence, arrested defendant, and transported him to the Sherriff's Department where he was interviewed. Defendant admitted that he killed his brother earlier that morning and stated that around midnight, he had consumed two cans of Four Loko beers, containing twelve percent alcohol. Defendant went into the bedroom where his brother was sleeping, and “chopped him up” with a sword.

On 11 July 2011, defendant was indicted for first-degree murder. During his trial, defendant presented evidence that defendant witnessed incidents of domestic violence between his mother and his step-father; that defendant suffered from panic attacks and had trouble sleeping; that defendant was diagnosed with an adjustment disorder with anxious mood in 2000; that defendant was diagnosed as having a generalized anxiety disorder in 2009; and that a doctor prescribed defendant medication in 2009 for that condition.

On 10 April 2012, the jury found defendant guilty of first-degree murder. The trial court sentenced defendant to life imprisonment without parole.

Defendant appeals.

II. Jury Instructions

In his first argument on appeal, defendant contends that the trial court erred by failing to instruct the jury in its final mandate that “the jury should find [defendant] not guilty of first-degree murder if it had a reasonable doubt that he formed the specific intent to kill based upon his defenses of diminished capacity or intoxication.” We disagree.

A. Preservation of the Issue at Trial

Defendant's request for jury instructions at trial included that the jury be instructed in accord with the following pattern jury instructions: “Section 305.11, Voluntary Intoxication, Lack of Mental Capacity–Premeditated and Deliberate First Degree Murder[;]” “Section 305.11, Diminished Capacity–Premeditated and Deliberate First Degree Murder[;]” and “Section 206.13, First Degree Murder Where a Deadly Weapon is Used, Not involving Self–Defense, covering all Lesser included Homicide Offenses[,] Lesser Included Offenses of Second Degree Murder and Voluntary Manslaughter.” During the jury charge conference, the trial court denied defendant's request for an instruction on voluntary manslaughter and granted his requests for instructions in accord with Pattern Jury Instruction 305.11, diminished capacity and voluntary intoxication. The trial court explained where in the charge the defenses would appear, stating “I'll try to incorporate the two instructions on defense into that instruction [on the definition of intent], right before the final mandate.” The instructions on diminished capacity and voluntary intoxication given by the trial court contained a mandate in their last paragraph, in accordance with Pattern Jury Instruction 305.11:

Therefore, I charge that if, upon considering the evidence with respect to the defendant's lack of mental capacity, you have a reasonable doubt as to whether the defendant formulated the specific intent required for conviction of first-degree murder, you will not return a verdict of guilty of first-degree murder.

....

Therefore, I charge that if, upon considering the evidence with respect to the defendant's intoxication, you have a reasonable double [sic] as to whether the defendant formulated the specific intent required for a conviction of first-degree murder, you will not return a verdict of guilty of first-degree murder.

At no time did defendant request that the final mandate for the offenses of first-degree murder and second-degree murder include voluntary intoxication and diminished capacity nor did defendant object to the placement of these two matters in the jury instructions. Further, Pattern Jury Instruction 305.11 does not suggest that the trial court incorporate the mandate portion of these two matters into the final mandate on the substantive offenses. Defendant failed to object to the trial court's instructions when the trial court gave counsel written copies of its proposed jury instructions before closing arguments, and defendant did not object after the trial court instructed the jury. Defendant was expressly given the opportunity to object on both occasions in accordance with the provisions of Rule 21 of the General Rules of Practice for the Superior and District Courts. The trial court gave the instructions as requested by defendant. Defendant has not properly preserved this issue for appellate review.

B. Plain Error

Defendant contends in the alternative that if we determine that this issue was not properly preserved, the trial court's failure to include not guilty by reason of diminished capacity and intoxication in the final mandate constitutes plain error. We disagree.

1. Standard of Review

Because defendant did not object to the jury instructions at trial, we review the trial court's instructions for plain error. State v. Davis, 177 N.C.App. 98, 102, 627 S.E.2d 474, 477 (2006). To demonstrate plain error, a defendant must show that a fundamental error occurred at trial, meaning “that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (citation omitted).

2. Analysis

In State v. Pittman, 332 N.C. 244, 420 S.E.2d 437 (1992), our Supreme Court held that the trial court did not err by denying defendant's request to include an instruction on diminished capacity in its final mandate. Id. at 258–59, 420 S.E.2d at 445. Examining the charge as a whole, the Supreme Court determined that the jury could not have been confused as to the State's burden of proof because “[t]he court included in its charge an instruction that the jury could consider defendant's mental condition in connection with his ability to formulate a specific intent to kill.” Id. Similarly in State v. Daughtry, 340 N.C. 488, 459 S.E.2d 747 (1995), when the trial court gave the substance of the instruction defendant requested, the omission of a final mandate including a voluntary intoxication instruction did not constitute plain error. Id. at 516, 459 S.E.2d at 761.

While defendant cites several cases in support of his contention that the omission constituted plain error, none of the cases cited pertain to the defenses of diminished capacity or voluntary intoxication. The cases cited by defendant relate to self-defense and unconsciousness. See State v. Dooley, 285 N.C. 158, 165, 203 S.E.2d 815, 820 (1974) (holding that the trial court should have given “a specific instruction on self-defense ... in [its] final mandate to the jury”); State v. Tyson, 195 N.C.App. 327, 339, 672 S.E.2d 700, 708 (2009) (“The trial court's failure to include ‘not guilty by reason of unconsciousness' in the final mandate to the jury constitutes plain error[.]”). But see State v. McNeil, 196 N.C.App. 394, 404, 674 S.E.2d 813, 819 (2009) (“Although the trial court did not include ‘not guilty by reason of self-defense’ as a possible verdict in its final mandate, the jury instructions considered as a whole were correct.”). Unlike the pattern jury instructions for self-defense, which direct the trial court to include self-defense in its final mandate on the substantive offense, the pattern jury instructions for voluntary intoxication and diminished capacity contain no such direction.

Examining the jury instructions as a whole, the trial court's instructions do not constitute plain error. Following the instructions on first-degree and second-degree murder, the trial court charged the jury on diminished capacity and voluntary intoxication. The trial court's instruction followed the pattern jury instructions and the trial court gave the instruction twice, once for diminished capacity and once for voluntary intoxication. The voluntary intoxication and diminished capacity instructions each contained mandates, stating that if the jury “[had] reasonable doubt as to whether the defendant formulated the specific intent required for conviction of first-degree murder,” they were not to return a verdict of guilty of first-degree murder. These instructions appropriately state the law on diminished capacity and voluntary intoxication. See State v. Carroll, 356 N.C. 526, 539–40, 573 S.E.2d 899, 909 (2002) (finding no plain error where the trial court gave pattern jury instructions on diminished capacity). Based upon the facts of this case and considering the trial court's jury instructions as a whole, defendant cannot meet his high burden of...