State v. Valdez, No. COA08-820 (N.C. App. 5/5/2009)
| Decision Date | 05 May 2009 |
| Docket Number | No. COA08-820,COA08-820 |
| Parties | STATE OF NORTH CAROLINA, Plaintiff, v. ERIC VALDEZ, Defendant. |
| Court | North Carolina Court of Appeals |
Paul F. Herzog, for defendant-appellant.
Defendant appeals from judgments entered pursuant to jury verdicts finding him guilty of (1) first degree murder on the basis of malice, premeditation and deliberation and under the felongy murder rule; and (2) robbery with a dangerous weapon. Defendant contends that he is entitled to a new trial as to all charges because the trial court's instructions on the general duties of the jury were erroneous. Defendant specifically attacks his conviction of felony murder on the basis that (1) the State presented insufficient evidence of robbery with a dangerous weapon, and alternatively (2) the trial court erred when it failed to instruct the jury on the lesser included offense of felonious larceny. Defendant also contends that he is entitled to a new trial on the charge of premeditated murder because the trial court failed to instruct the jury on the lesser included offense of voluntary manslaughter. We disagree and conclude that defendant received a fair trial, free of reversible error.
At trial, the State presented evidence that tended to show: Defendant and Sherry Nelson ("Sherry" or "the victim") worked together at a Pizza Hut restaurant in Marion, McDowell County. Sherry was a shift manager; defendant, a Mexican national, was a cook. Defendant and Sherry had a history of arguments with one another at work which sometimes degenerated into racial insults directed toward defendant.
On 13 March 2005 Sherry was responsible for making a bank deposit at the end of her shift and defendant was assigned to accompany her to the bank. Defendant and Sherry both clocked out of work at 11:52 p.m. Defendant carried a knife with a nearly 10 inch long blade out of the restaurant.
Defendant and Sherry began arguing on the way to Sherry's car, continuing the argument after they got into her car. While they sat in the car arguing, Sherry told defendant, "it's a shame that you Mexicans didn't drown while you were crossing the border." Sherry then got into the backseat of the car. Defendant picked up the knife, walked around the car and started stabbing her. Sherry fought back, but defendant prevailed. Defendant stabbed Sherry multiple times spattering blood on the trunk and all around the car. Defendant left Sherry hanging out of the backseat of the car, with her feet inside and her head on the ground. Sherry bled to death from her wounds.
Defendant then grabbed the bank deposit and ran away, dropping his Pizza Hut uniform shirt on a nearby street shortly after midnight. Defendant ran to his girlfriend's house and stored his bloody undershirt in a bag in his girlfriend's car.
Defendant was arrested on 14 March 2005. The McDowell County Grand Jury indicted defendant for first degree murder and robbery with a dangerous weapon. Defendant was tried before a jury at the 2 October 2006 Criminal Session of McDowell County Superior Court. On 6 October 2006 defendant was found guilty of first degree murder on the basis of malice, premeditation and deliberation and under the first degree felony murder rule. Defendant was also found guilty of robbery with a dangerous weapon. Upon the jury verdict, judgment was arrested as to the charge of robbery with a dangerous weapon, and defendant was sentenced to life imprisonment without parole for first degree murder. Defendant appeals.
Defendant contends that he is entitled to a new trial on all changes because the trial court instructed the jury on the duty to deliberate as follows:
The attitude and conduct of jurors at the beginning of their deliberations are matters of considerable importance. It is rarely productive of good for a juror at the outset to make an emphatic expression of his or her opinion of the case or to state how he or she intends to vote.
When one does that at the beginning, a sense of pride may be aroused, and a juror may hesitate to change his or her position, even if shown that it is wrong. Remember that you are not partisans or advocates in this matter, but rather are the judges of the facts.
Defendant urges us to review this instruction de novo. He concedes that no objection was made at trial, but contends that the instruction amounted to plain error.
"A plain error is one so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Robledo, ___ N.C. App. ___, ___, 668 S.E.2d 91, 97 (2008). (citation and quotation marks omitted). Of course, "[a] prerequisite to our engaging in a plain error analysis is the determination that the instruction complained of constitutes error at all." Id. (citation and quotation marks omitted).
In determining whether the trial court erred, State v. Baskin, ___ N.C. App. ___, ___, 660 S.E.2d 566, 573 (2008) (citation, quotation marks and brackets omitted). This includes general instructions. N.C. Gen. Stat. § 15A-1235(b) (2005) ; See also State v. Adams, 85 N.C. App. 200, 210, 354 S.E.2d 338, 344 (1987) ().
Defendant concedes that "[i]n State v. Bryant, 282 N.C. 92, 191 S.E.2d 745 (1972), [the North Carolina] Supreme Court approved a jury instruction that was substantially similar to the instruction set forth in this assignment of error." D BR 32 Defendant goes on to contend however, that the instruction permitted in Bryant in 1972 became impermissible when the General Assembly enacted N.C. Gen. Stat. § 15A-1235(b)1 in 1977. Defendant further cites a case from Maryland, Thompson v. State, where a criminal defendant was granted a new trial on the grounds of a "final test" instruction. 810 A.2d 435, 443 (Md. 2002).
We first note that Thompson is not at all persuasive sub judice because it is completely in apposite. Three sentences in the trial court's instruction quoted above are nearly identical to the first three sentences of the instruction in Thompson. 810 A.2d at 443. However, Thompson held that reversible error arose from the fourth sentence of the instruction: "[t]he final test of the quality of your service will lie in the verdict which you return to the Court, not in the opinions any of you may hold as you retire." Thompson, 810 A.2d at 443. Thompson reasoned that defendant was entitled to a new trial because the fourth sentence of the instruction "logically implies that a `good' juror acquiesces in a verdict rather than adheres to his or her own judgment." Id. However the trial court's charge sub judice does not contain any phrase or sentence remotely resembling the offending fourth sentence in Thompson.
"If the [jury] charge as a whole presents the law fairly and clearly to the jury, the fact that isolated expressions, standing alone, might be considered erroneous will afford no ground for reversal."State v. Davis, 349 N.C. 1, 58, 506 S.E.2d 455, 487 (1998), cert. denied, 526 U.S. 1161, 144 L. Ed. 2d 219 (1999). Furthermore, the statutory general instructions on the duty to deliberate are discretionary, not mandatory. N.C. Gen. Stat. § 15A-1235(b) ; State v. Sanders, 81 N.C. App.438, 442, 344 S.E.2d 592, 594 (), disc. review denied, 318 N.C. 419, 349 S.E.2d 604 (1986).
While the trial court's general instruction on the duty to deliberate did not quote N. C. Gen. Stat. § 15A-1235(b), its instruction captured the essence of sub-subsection (b)(3), which states "a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous[.]" Furthermore, reading the portion of the instructions assigned as error contextually with the whole, we find that the charge "present[ed] the law fairly and clearly to the jury." Davis, 349 N.C. at 58, 506 S.E.2d at 487. Accordingly, this assignment of error is overruled.
Defendant next argues that it was error for the trial court to omit the following jury instruction after it was requested:
The highest aim of every legal contest is the ascertainment of the truth. Somewhere within the facts of every case, the truth abides, and where truth is, justice steps in garbed in its robes and tips the scales. In this case you have no friend to reward, you have no enemy to punish; you have no anger to appease or sorrow to assuage. Yours is a solemn duty to let your verdict speak the everlasting truth.
(Quoting N.C.P.I.—Crim. 101.36.)
The North Carolina Supreme Court addressed this precise question in State v. Beamer:
The defendant argues that when a party requests an instruction that is supported by the evidence, the court must give the jury at least the substance of the instruction. [However, the defendant] does not say what evidence supported th[e]...
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