State v. Young, 153A88

• Decision Date: 08 June 1989
• Docket Number: No. 153A88,153A88
• Citation: 324 N.C. 489,380 S.E.2d 94
• Parties: STATE of North Carolina v. William James YOUNG.
• Court: North Carolina Supreme Court

Page 94

380 S.E.2d 94

324 N.C. 489

STATE of North Carolina v. William James YOUNG.

No. 153A88.

Supreme Court of North Carolina.

June 8, 1989.

Appeal of right pursuant to N.C.G.S. § 7A-27 from judgment entered by Davis, J., in the Superior Court, Wilkes County, on 12 November 1987, sentencing the defendant to life imprisonment for murder in the first degree. Heard in the Supreme Court on 13 February 1989.

Lacy H. Thornburg, Atty. Gen. by John H. Watters, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Staples Hughes, Asst. Appellate Defender, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant was tried in a noncapital trial upon a proper indictment charging him with the murder of his wife. The jury was instructed on possible verdicts of first degree murder, second degree murder, or not guilty. The jury found the defendant guilty of first degree murder on the theory that the killing was premeditated and deliberate, the only theory upon which first degree murder was submitted.

On appeal, the defendant contends that the trial court committed prejudicial error when it refused to instruct on involuntary manslaughter and that this error was not cured by the jury's verdict finding him guilty of first degree murder. Further, the defendant contends that the trial court's instruction which referred to evidence tending to show that the defendant had "confessed" to the crime charged was error requiring a new trial, notwithstanding his failure to object. We conclude, however, that the defendant's trial was free of prejudicial error.

The evidence presented at trial tended to show that the defendant began drinking liquor early in the afternoon of 25 July 1987 and drank liquor heavily throughout that afternoon and early evening. After a cookout at his relatives' house, during which the defendant became sick, the defendant and his wife and baby daughter returned to their residence, where the defendant took a brief nap. Upon awakening, the defendant went to his car and finished a fifth of liquor, then re-entered the residence.

The defendant decided that he needed to drive to the store to buy beer. A heated argument ensued with his wife, who refused to give him his car keys because she said he was too drunk to drive. During the argument, the defendant selected a loaded .30-.30 rifle from his gun rack, cocked it and pointed it at his wife's face, demanding his keys. The gun went off, and the defendant's wife was killed instantly as a .30-.30 bullet fired at close range entered her right eye, traveled straight through her brain and exited the back of her skull.

The defendant left the residence with his daughter and went to a neighbor's house. The neighbor gave them a ride to the defendant's father's house, where the defendant left his daughter with his sister and drove away on a moped. Soon thereafter, the defendant turned himself in to authorities.

The defendant contended at trial that the shooting was an accident. He requested jury instructions on the lesser included offenses of voluntary and involuntary manslaughter, which the trial court refused to give. However, the trial court did give an instruction on the defense of accident.

On appeal, the defendant concedes that the evidence would not support a verdict convicting him of voluntary manslaughter. He maintains, however, that the evidence would support a finding that the rifle went off accidentally during the commission of an assault by pointing a gun, which he argues would in turn support a verdict finding him guilty of involuntary manslaughter. He assigns as error the trial court's failure to give an involuntary manslaughter instruction and argues that the error was not cured by the jury's verdict convicting him of first degree murder.

Involuntary manslaughter is a lesser included offense of second degree murder. State v. Greene, 314 N.C. 649, 336 S.E.2d 87 (1985). However, the defendant's assertion that the evidence justified instructing the jury to consider a possible verdict convicting him of the lesser included offense of involuntary manslaughter in the present case is problematic. See, e.g., State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978) (specific intent to kill not a necessary element of second degree murder, and an intentional act is sufficient to supply the required malice if it reveals recklessness of consequences and a mind devoid of social duty, even though there may be no intent to injure). See also, State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984) (malice for conviction of second degree murder where deaths resulted from automobile wreck caused by reckless driving of a drunken driver).

We find it unnecessary to decide in the present case whether the trial court's failure to instruct the jury to consider a possible verdict for the lesser included offense of involuntary manslaughter was error. Assuming arguendo that the trial court erred in this regard, the error was harmless because the trial court gave correct instructions as to possible verdicts on murder in the first and second degrees and the jury found the defendant guilty of the greater crime of murder in the first degree upon a theory of premeditation and deliberation. State v. Whitley, 311 N.C. 656, 667, 319 S.E.2d 584, 591 (1984). Cf. State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969) (reviewing authorities from other states to the same effect). In so holding, we expressly disavow prior decisions of this Court to the extent that they state or imply that a verdict of first degree murder in such situations does not render the failure to give instructions on involuntary manslaughter, or errors made in giving such instructions, harmless. E.g., State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); State v. McNeill, 229 N.C. 377, 49 S.E.2d 733 (1948); State v. Childress, 228 N.C. 208, 45 S.E.2d 42 (1947); State v. Burnette, 213 N.C. 153, 195 S.E. 356 (1938); State v. Lee, 206 N.C. 472, 174 S.E. 288 (1934); State v. Robinson, 188 N.C. 784, 125 S.E. 617 (1924); State v. Williams, 185 N.C. 685, 116 S.E. 736 (1923); State v. Thomas, 184 N.C. 757, 114 S.E. 834 (1922); State v. Merrick, 171 N.C. 788, 88 S.E. 501 (1916).

The defendant recognizes that this Court has previously held that errors in voluntary manslaughter instructions are deemed harmless when the jury has chosen to convict for first degree murder rather than second degree murder. E.g., State v. Freeman, 275 N.C. 662, 667, 170 S.E.2d 461, 464 (1969). The defendant argues, however, that the evidence in this case would support a finding that he did not intentionally kill his wife and that the lack of an involuntary manslaughter instruction, therefore, deprived the jury of any opportunity to accept his evidence that the killing was unintentional. We do not agree.

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986); State v. Judge, 308 N.C. 658, 303 S.E.2d 817 (1983); State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982). "Premeditation" is defined as thought beforehand, for some length of time, however short. Id. "Deliberation" means an intent to kill carried out by the defendant in a cool state of blood. Id. A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation. State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968). Proof of premeditation and deliberation is proof of that intent. State v. Quesinberry, 319 N.C. 228, 354 S.E.2d 446 (1987).

Second degree murder is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Snyder, 311 N.C. 391, 317 S.E.2d 394 (1984); State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978). Although second degree murder does not exist absent some intentional act sufficient to show malice and which proximately causes death, an intent to kill is not a necessary element of that crime. Id.

The jury in the present case was instructed that it could not return a verdict finding the defendant guilty of first degree murder unless it found beyond a reasonable doubt that he specifically intended to kill the victim, that he formed the intent for some amount of time beforehand and that he carried out that intent in a cool state of mind. Further, the trial court instructed the jury that it could return a verdict convicting the defendant of second degree murder if it found that the defendant acted without a specific intent to kill, premeditation or deliberation. In reaching its verdict convicting the defendant of first rather than second degree murder, the jury found beyond a reasonable doubt that he had the specific intent to kill his wife and, necessarily, rejected the possibility that the killing was unintentional. See State v. Bush, 307 N.C. at 164, 297 S.E.2d at 571 ("In finding the defendant guilty beyond a reasonable doubt of the willful, deliberate and premeditated killing of the victim, the jury ... necessarily rejected beyond a reasonable doubt the possibility that the defendant acted in the heat of passion."). Therefore, the jury verdict finding the defendant guilty of first degree murder precludes the possibility that the same jury might have found him guilty of involuntary manslaughter on the ground that the killing was unintentional, even if it had been given an instruction on that lesser included crime. Cf., State v. Freeman, 275 N.C. at 668, 170 S.E.2d at 465 (reviewing authorities from other jurisdictions to the same effect). This assignment of error is without merit and is rejected.

By his other assignment of error, the defendant contends that the trial court committed reversible error by expressing an opinion on the evidence during its instructions to the jury. The defendant argues that this error requires a new trial, notwithstanding his failure to object. The State argues, on the other hand, that due to the...