Opinion
No. COA11–1533.
2012-07-3
STATE of North Carolina v. Hammett Allen HIGHT, Defendant.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Richard J. Votta, for the State. Robert W. Ewing for defendant-appellant.
Appeal by defendant from judgment entered on or about 9 June 2011 by Judge Henry W. Hight, Jr. in Superior Court, Vance County. Heard in the Court of Appeals 9 May 2012. Attorney General Roy A. Cooper, III, by Assistant Attorney General Richard J. Votta, for the State. Robert W. Ewing for defendant-appellant.
STROUD, Judge.
Hammett Allen Hight (“defendant”) appeals from a conviction for voluntary manslaughter. For the following reasons, we find no error in defendant's trial.
I. Background
On 17 November 2008, defendant was indicted on one count of first-degree murder. Defendant was tried on this charge at the 6 June 2011 Criminal Session of Superior Court, Vance County. The State's evidence tended to show that on 4 October 2008, defendant was working a 12 hour shift from 8 a.m. until 8 p.m. but his supervisor sent him home early around 11:00 a.m. because “he appeared too sleepy.” Once home, defendant informed his wife Tammy Hight that he had hit a guard rail with her car on his way to work that morning. Tammy became angry at him and they got into an argument. During the argument, defendant got a handgun from the kitchen cabinet and threatened to kill himself. After they stopped fighting, defendant got himself something to eat and went to bed; Tammy left with her two daughters Megan and Allison. When Tammy returned, defendant was still in bed and she went outside to see the damage to her car. While looking in her car, she found a bottle of pills and an empty cigarette pack containing what appeared to be marijuana. She put the pills and cigarette packet in her pocket, took them to her older brother Ray Steed, explained the situation to him, and took her daughters to the library. At the time, Ray, who was 12 years older than Tammy, was living part-time with his sister Frances and would from time to time stay in a room in a barn near Tammy and defendant's house, as he had been separated from his wife Connie Steed for about five or six years. Frances' house, Tammy and defendant's house, and the barn were located near each other on land which made up the Steed family farm.
After returning from the library, Tammy and her daughters stopped at their house to change clothes and defendant was still in bed. Tammy and her daughters then went to the barn and had dinner with Ray around 4:30 p.m. Shortly thereafter, Connie Steed stopped by the barn. Tammy decided that she and her daughters would stay at her sister Frances' house that night, rather than with defendant, and returned to her house to get some clothes and her daughter's seizure medication. When Tammy arrived at her house, defendant met her at the door, and asked her about the pills and cigarette pack in her car and she told him that she did not know what he was talking about. Tammy then went to Frances' house to wait for Ray. While they were waiting, Tammy's daughter Megan called Ray on his cell phone and asked him if he was coming. Ray responded by asking if defendant was there and Megan hesitated. Ray then said to Megan that “he'd be there in just a minute” and ended the call. Ray, still at the barn, told Connie that defendant “was at home” with Tammy. Connie Steed testified that sometimes if defendant had been drinking, Tammy would call Ray and he would talk with defendant, so that Tammy and defendant could work out their martial disagreement. Connie noted that Ray was not angry but upset and worried when he received the phone call from Megan. Ray got in his truck and drove across the road to defendant and Tammy's house, with Connie following him in her car. From Frances' driveway, Tammy could see what was going on at her house, so she called 911 because she thought “something bad [was] going on.” However, Tammy had misplaced her keys and could not immediately drive back to her house.
When Connie and Ray arrived at defendant and Tammy's house, Connie informed Ray that Tammy's car was not there. Connie and Ray then both walked up the stairs onto the back deck and entered defendant's house through the unlocked back storm door, leading into the laundry room. Connie said that this was how they normally entered defendant's house. Connie noted that Ray did not have anything in his hand when he entered the house. Once inside, they noticed that there were no lights on and began calling for Tammy and the children. After walking around inside the house, they noticed that there was a light on in the master bedroom but the door was closed. Ray opened the bedroom door and entered the room. Connie then saw defendant sitting on the edge of the bed and pointing a handgun at Ray. Defendant then stood up and Connie backed away from the bedroom towards the kitchen and heard Ray asked defendant, “what's going on?” Defendant then shot two times at Ray, hitting him in the stomach. While Connie was in the kitchen looking for a phone to call 911, defendant came into the kitchen swinging the gun “like a pocketbook, or something[.]” Defendant then ran out of backdoor and Connie began helping Ray as he tried to walk out of the house. When Connie and Ray got to the laundry room near the back door, defendant threw a metal pipe at them from the outside, which missed them and hit the floor. Connie helped Ray get to the top of the steps on the deck before they both collapsed. Connie called 911. Defendant then threw the gun near them at the bottom of the steps. Connie reached over, grabbed the gun, and handed it to Ray, who put it under his leg. Defendant then got in the truck to leave, but, upon seeing law enforcement, he drove the truck to the left side of the house. Defendant then got out of the truck, ran to the deck, climbed over the deck railing, went inside the house, picked up the metal pipe in the laundry room with a cloth, and threw it back outside on the ground near Ray.
Shortly after hearing the sound of gunshots from her house, Tammy found her keys, drove to her house, pulled up in her driveway, saw that Ray had been shot, and he was bleeding and unresponsive. Connie handed Tammy defendant's handgun. Defendant told her that “it was self-defense” as Ray had hit him with a metal pipe. A sheriff's deputy arrived at the scene, went inside the house, and placed defendant into custody. Ray Steed later died as a result of a gunshot wound to the abdomen.
Tammy Hight described her relationship with her brother Ray Steed, as “[v]ery close. We were extremely close. He was kind of like a dad. Tried to be to us, you know.” Ray was also close to her children and they spent a lot of time together. She also stated that Ray “help[ed] [Tammy and defendant] around the house in whatever we needed to be, you know, needed done.” Also, defendant had let Ray borrow his truck for about two years and, even though Ray was disabled, he would help defendant with his grass-cutting business.
Defendant testified that on the day in question he had been sent home from work for sleeping, as he had been on night shift for eight months, this was the first day working on day shift, and he had not gotten any sleep the night before. He had also fallen asleep while driving to work, hit a guardrail, and damaged his wife's car. Defendant got in “a heated argument” with his wife when he got home. During the argument, defendant got his pistol and “felt like, just ending [his] life.” After the argument, he got something to eat, took the gun to bed with him, and slept most of the day in the master bedroom. He was awakened when he heard Ray Steed open the back door to the house and say “where you at?” Shortly thereafter, “the bedroom door [came] flying open” and Ray entered the bedroom with a pipe in his hand, yelling, “I'm going to kill your motherfucking ass. I'm going to kill you.” Ray hit defendant on the left side of his head and on the left shoulder with the pipe, while defendant was still in bed. Ray then tried to hit defendant again and defendant shot him one time with his handgun. Defendant stated that he shot Ray because he believed he “was going to kill [defendant].” Defendant did not remember going outside or throwing the gun. Defendant was then arrested. Defendant later noticed a bruise on his shoulder and a knot on his head from where Ray had hit him with the pipe but the sheriff's deputy would not take a picture of the bruises.
On 10 June 2011, a jury found defendant guilty of the lesser included offense of voluntary manslaughter. The trial court sentenced defendant to a term of 72 to 96 months imprisonment. On 15 June 2011, defendant filed written notice of appeal. On appeal, defendant argues that the trial court committed plain error in (1) failing to instruct the jury on the defense of habitation and (2) in instructing the jury on the charge of voluntary manslaughter on the grounds that it was not supported by the evidence.
II. Standard of Review
When a defendant fails to preserve instructional or evidentiary errors at trial for appellate review, our Court may nonetheless review for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Our Supreme Court recently clarified the process for plain error review:
We now reaffirm our holding in Odom and clarify how the plain error standard of review applies on appeal to unpreserved instructional or evidentiary error. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. See Odom, 307 N.C. at 660, 300 S.E.2d at 378. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.” See id. (citations and quotation marks omitted) .... Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” Odom, 307 N.C. at 660, 300 S .E.2d at 378, the error will often be one that “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings,” Odom, 307 N.C. at 660, 300 S.E.2d at 378[.]
State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, 334 (2012).
III. Instruction as to Defense of Habitation
Defendant first contends that the trial court committed plain error in failing to instruct the jury on the defense of habitation, as the evidence viewed in the light most favorable to defendant showed that he “believed that the use of deadly force was necessary because [Ray] Steed was attempting to kill him in his own home.” Defendant argues that “[t]he trial court's failure to give a defense of habitation instruction had a probable impact on the jury's finding because the court instructed the jury that they could convict the defendant even though he could be justified in being the aggressor under N.C.G.S. § 14–51.1.”
“Where the defendant's or the State's evidence when viewed in the light most favorable to the defendant discloses facts which are ‘legally sufficient’ to constitute a defense to the charged crime, the trial court must instruct the jury on the defense.” State v. Everett, 163 N.C.App. 95, 100, 592 S.E.2d 582, 586 (2004) (quoting State v. Marshall, 105 N.C.App. 518, 522, 414 S.E.2d 95, 97,disc. review denied, 332 N.C. 150, 419 S.E.2d 576 (1992)). N.C. Gen.Stat. § 14–51.1(a) (2007) provides as follows:
(a) A lawful occupant within a home or other place of residence is justified in using any degree of force that the occupant reasonably believes is necessary, including deadly force, against an intruder to prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry (i) if the occupant reasonably apprehends that the intruder may kill or inflict serious bodily harm to the occupant or others in the home or residence, or (ii) if the occupant reasonably believes that the intruder intends to commit a felony in the home or residence.
(Emphasis added.)
.N.C. Gen.Stat. § 14–51.1 has been subsequently repealed, see 2011 N.C. Sess. Laws 268, s. 2, effective 1 December 2011. However, this statute is still applicable, as defendant was charged based on acts committed on 4 October 2008.
We note that although the trial court did not give a defense of habitation instruction to the jury it did give an instruction regarding self-defense, as requested by defendant. Our Supreme Court, in State v. Blue, explained the difference between self-defense and the common law defense of habitation, and how N.C. Gen.Stat. § 14–51.1 expanded the defense of habitation at common law:
the principal distinction between the common law defense of habitation and the defense of the person on or within one's own premises is that in the former, the victim is attempting to forcibly enter the defendant's dwelling; whereas, in the latter, the victim has actually attacked or assaulted the defendant in the defendant's dwelling or on the defendant's premises. [State v. McCombs, 297 N.C. 151, 156–57, 253 S.E.2d 906, 910 (1979) ]. In neither case is the defendant required to retreat. The legal effect of the difference between the defenses is that under the defense of habitation, the defendant's use of force, even deadly force, before being physically attacked would be justified to prevent the victim's entry provided that the defendant's apprehension that he was about to be subjected to serious bodily harm or that the occupants of the home were about to be seriously harmed or killed was reasonable and further provided that the force used was not excessive. Whereas, under the defense of the person on one's premises, the defendant would have the benefit of perfect self-defense and no duty to retreat only if the defendant had first been attacked or assaulted. Prior to passage of N.C.G.S. § 14–51.1, once the victim was inside the defendant's home, the defendant would have the benefit of perfect self-defense only if the victim made the initial attack or assault on the defendant, though the defendant would have no duty to retreat, see 297 N.C. at 158–59, 253 S.E.2d at 911; however, if the defendant made the initial attack or assault, the defendant would be entitled only to imperfect self-defense and would be guilty at least of voluntary manslaughter, see id. The limitation that defendant be acting to prevent forcible entry into the home for the defense of habitation to be applicable was eliminated by N.C.G.S. § 14–51.1. In enacting N.C.G.S. § 14–51.1, the General Assembly broadened the defense of habitation to make the use of deadly force justifiable whether to prevent unlawful entry into the home or to terminate an unlawful entry by an intruder. N.C.G.S. § 14–51 .1.
356 N.C. 79, 88–89, 565 S.E.2d 133, 139 (2001) (footnote omitted) (emphasis added).
First, looking to the elements of the defense of habitation pursuant to N.C. Gen.Stat. § 14–51.1, we note that it is undisputed that defendant was a “lawful occupant” of his home and that he used deadly force in fatally shooting Ray Steed with a handgun. Also, defendant testified that he shot Ray because he believed Ray “was going to kill [defendant]” with a metal pipe. This testimony supports N.C. Gen.Stat. § 14–51.1's requirement that defendant “reasonably apprehend[ed] that the intruder may kill or inflict serious bodily harm” to him. See N.C. Gen.Stat. § 14–51.1. As noted above, the use of force must be to “prevent a forcible entry into the home or residence or to terminate the intruder's unlawful entry[.]” See id. However, here, there is no indication of forcible entry into defendant's home, as Connie Steed testified that she and Ray walked up the stairs onto the deck, entered defendant's unlocked back storm door and went inside the house. Accordingly, defendant argues that “the evidence viewed in the light most favorable to [him] showed that Mr. Steed unlawfully entered the defendant's residence since there was absolutely no evidence that he was invited into the residence by either the defendant or the defendant's wife[.]” As noted in Blue,N.C. Gen.Stat. § 14–51 .1 “broadened the defense of habitation to make the use of deadly force justifiable whether to prevent unlawful entry into the home or to terminate an unlawful entry by an intruder.” See 356 N.C. at 89, 565 S.E.2d at 139.
Although it is unclear from his argument, it appears that defendant is arguing that Ray's entry into his home was unlawful because it amounted to a crime, either felony breaking and entering, see State v. Litchford, 78 N.C.App. 722, 725, 338 S.E.2d 575, 577 (1986) (stating that “[t]he essential elements of felonious breaking or entering are (1) the breaking or entering (2) of any building (3) with the intent to commit any felony or larceny therein .” (citing N.C. Gen.Stat. § 14–54(a))); misdemeanor breaking and entering, see State v. O'Neal, 77 N.C.App. 600, 606, 335 S.E.2d 920, 924 (1985) (stating that “[m]isdemeanor breaking or entering, G.S. 14–54(b), is a lesser included offense of felonious breaking or entering and requires only proof of wrongful breaking or entry into any building.” (citation omitted)); first-degree trespass, seeN.C. Gen.Stat. 14–159.12(a) (2007) (stating that a person may be found guilty of first-degree trespass “if, without authorization, [a person] enters or remains: (1) On premises of another so enclosed or secured as to demonstrate clearly an intent to keep out intruders; or (2) In a building of another”); or second-degree trespassing, seeN.C. Gen.Stat. § 14–159.13 (2007) (stating that a person commits the offense of second-degree trespass if “he enters or remains on premises of another: (1) After he has been notified not to enter or remain there by the owner by a person in charge of the premises, by a lawful occupant, or by another authorized person” or “(2) That are posted, in a manner reasonably likely to come to the attention of intruders, with notice not to enter the premises.” (footnote omitted)). In the context of breaking and entering, we have stated that “the entry proscribed by the statute contemplates an unauthorized or unpermitted entry, and thus an entry with the consent of the owner is not an unlawful entry under G.S. § 14–54.” State v. Boone, 39 N.C.App. 218, 220, 249 S.E.2d 817, 819 (1978), modified and aff'd, 297 N.C. 652, 256 S.E.2d 683 (1979)); see also State v. Boone, 297 N.C. 652, 659, 256 S.E.2d 683, 687 (1979) (explaining that, even though the absence of consent is not an element of the offense of breaking or entering, “an entry with consent of the owner of a building, or anyone empowered to give effective consent to entry, cannot be the basis of a conviction for [breaking or entering]”). Therefore, an essential element to these crimes is an unauthorized entry. Contrary to defendant's arguments, we fail to see how Ray's entry into defendant's home was unlawful.
Connie Steed testified that when defendant and his wife Tammy were having marital problems, such as when defendant was drinking, Tammy would call Ray and he would talk with defendant, and assist both Tammy and defendant in resolving their problems. Additionally, the State's evidence showed a close relationship between Ray and defendant's family. Tammy described her relationship with her brother Ray Steed, who was twelve years older than her, as “[v]ery close. We were extremely close. He was kind of like a dad.” Ray was also close to her children and they spent a lot of time together. Tammy also testified that Ray also “help[ed] [Tammy and defendant] around the house in whatever we needed to be, you know, needed done.” Therefore, the State's evidence showed that Ray had a close relationship with defendant's family, so much so that he regularly helped out around defendant's house, and, as a father figure, he would step in to help mediate disagreements between his sister Tammy and defendant. Defendant's testimony did not contradict the State's evidence but confirmed this close relationship. Defendant testified that he had known Ray Steed 16 or 17 years; “he was like a big brother to [defendant] [;]” he helped make home repairs for defendant and Tammy; he “was like a—another daddy to [defendant's] children[;]” Ray “thought of [defendant's] kids as his daughters” and would “keep them from time-to-time[;]” Ray had helped defendant with his “grass-cutting business” for about 8 or 9 years; they had never been in any fights or affray's together; they would watch races together and drink together; and defendant had given Ray a truck to drive. Accordingly, defendant gave no testimony that Ray was forbidden from going into his house. In fact, he stated that he did not know why Ray was mad at him or would try to kill him.
It appears that on the day in question, Ray's sister Tammy had told Ray at the barn that she and defendant had been arguing, defendant had pulled a gun during the argument and threatened to kill himself, and she had found the pills and a cigarette pack containing what appeared to be marijuana. Based on that conversation, Ray apparently believed that when Megan, Tammy's daughter, called him on his cell phone a short time later, she was requesting his assistance to resolve a dispute between Tammy and defendant. Connie Steed noted that Ray was not angry but upset and worried when he received the phone call on his cell phone that night. As Ray had done in the past as a father-figure to Tammy and a “big brother” to defendant, he drove to defendant's house to help Tammy and defendant resolve their dispute. Therefore, as the evidence, even when viewed in the light most favorable to defendant, showed that Ray had ongoing permission and authorization from both Tammy and defendant to intervene during their domestic disputes and to enter defendant's home, his entry into defendant's home was not unlawful. Thus, the defense of habitation instruction was not supported by “the defendant's or the State's evidence” and the trial court did not err in not giving an instruction on the defense of habitation. See Everett, 163 N.C.App. at 100, 592 S.E.2d at 586. As the trial court's failure to give an instruction as to the defense of habitation, did not amount to error, it also did not amount to plain error. Accordingly, defendant's argument is overruled.
IV. Voluntary Manslaughter Instruction
Defendant next contends that he is entitled to a new trial because the trial court committed plain error “in instructing the jury on a theory of guilt of voluntary manslaughter that was not supported by the evidence.” Defendant argues that the trial court erred in instructing the jury on imperfect self-defense voluntary manslaughter based on the theory that he was the first aggressor without murderous intent in the affray that led to Ray's death because the State's evidence shows that defendant “was an aggressor with murderous intent only” and defendant's evidence shows that Ray and not defendant was the first aggressor. Defendant concludes that since defendant was convicted of voluntary manslaughter based on alternative instructions, one of which was not supported by the evidence, the trial court's error amounted to prejudicial error because there is a possibility that he was convicted based on a theory not supported by the evidence.
It appears from the trial transcript that defendant specifically requested the voluntary manslaughter and self-defense jury instruction that he now raises as error. “Voluntary manslaughter is an intentional killing without premeditation, deliberation or malice but done in the heat of passion suddenly aroused by adequate provocation or in the exercise of imperfect self-defense where excessive force under the circumstances was used or where the defendant is the aggressor.” State v. Lyons, 340 N.C. 646, 663, 459 S.E.2d 770, 779 (1995) (citation and brackets omitted). Our Supreme Court has explained that “[p]erfect self-defense excuses a killing altogether, while imperfect self-defense may reduce a charge of murder to voluntary manslaughter.” State v. Ross, 338 N.C. 280, 283, 449 S.E.2d 556, 559 (1994) (citation omitted). Perfect self-defense is established when the following four elements exist at the time of the death:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i .e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
Lyons, 340 N.C. at 661, 459 S.E.2d at 778 (citations and quotation marks omitted). Imperfect self-defense is established if the first two elements existed at the time of the death, “but the defendant, without murderous intent, either was the aggressor in bringing on the affray or used excessive force.” Id.
During the trial, the trial court asked if there were any “proposed jury instructions on behalf of the ... defendant?” Defense counsel responded:
We would request for 26–206.40, which is the voluntary manslaughter including self-defense.
It also includes an instruction on involuntary. There are some notes on that where they talk about imperfect, where there was an intentional discharge, but no malice, and the killing was unintentional. And that's where they get to be involuntary, so that's 206.40.
North Carolina Pattern Jury Instruction 206.40, titled in part, “VOLUNTARY MANSLAUGHTER INCLUDING SELF–DEFENSE (IN THE HEAT OF PASSION OR IMPERFECT SELF DEFENSE[,]” states first that “[t]he defendant would not be guilty of manslaughter if he acted in self-defense” and “if he was not the aggressor in bringing on the fight and did not use excessive force under the circumstances.” After defining the terms “aggressor” and “excessive force[,]” the instruction goes on to state that:
The defendant is not entitled to the benefit of self-defense if he was the aggressor in bringing on the fight.
The burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense.
For you to find the defendant guilty of voluntary manslaughter, the State must prove three things beyond a reasonable doubt:
First, that the defendant killed the victim by an intentional and unlawful act.
Second, that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause, a cause without which the victim's death would not have occurred.
And Third, that the defendant [did not act in self-defense] or [though acting in self-defense was the aggressor] (or) [though acting in self-defense used excessive force].
N.C.P.I.Crim. 206.40 (2007) (footnote omitted) (emphasis in original). Defense counsel made no request for any changes to pattern jury instruction 206.40. The trial court granted defendant's request for this specific pattern jury instruction and the trial court gave the following instructions to the jury which closely follows the pattern jury instructions:
If the State failed to prove either that the defendant did not act in self-defense, or was the aggressor with intent to kill or inflict serious bodily harm, you may not convict the defendant of either first or second degree murder, but you may convict the defendant of voluntary manslaughter, if the State proves that the defendant was simply the aggressor without murderous intent in bringing on the fight in which the deceased was killed, or, that the defendant used excessive force.
....
For you to find the defendant guilty of voluntary manslaughter, the State must prove three things beyond a reasonable doubt.
First, that the defendant kills the victim by an intentional and unlawful act.
Second, that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause. A cause without which the victim's death would not have occurred.
And third, that the defendant did not act in self-defense, or though acting in self-defense was the aggressor, or though acting in self-defense used excessive force.
Voluntary manslaughter is also committed if the defendant kills in self-defense, but uses excessive force under the circumstances, or was the aggressor without murderous intent in bringing on the fight in which the killing took place.
The burden is on the State to prove beyond a reasonable doubt that the defendant did not act in self-defense. However, if the State proves beyond a reasonable doubt that the defendant, though otherwise acting in self-defense, used excessive force, or was the aggressor, though he had no murderous intent when he entered the fight, the defendant would be guilty of voluntary manslaughter.
(Emphasis added.) Defendant raised no objection to these instructions, as he had requested them.
“It is well established that a defendant who causes or joins in causing the trial court to commit error is not in a position to repudiate his action and assign it as ground for a new trial.” State v. Jones, –––N.C.App. ––––, ––––, 711 S.E.2d 791, 796 (2011) (citation and quotation marks omitted). In State v. Barber, 147 N.C.App. 69, 74, 554 S.E.2d 413, 416 (2001) (citation, quotation marks, and brackets omitted), disc. review denied, 355 N.C. 216, 560 S.E.2d 141 (2002), we further stated that
North Carolina General Statutes section 15A–1443 (c) states that a defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct. Thus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.
As defendant requested this specific jury instruction at trial, any error was invited error and defendant has waived his right to plain error review on appeal.
For the foregoing reasons, we find no error in defendant's trial.
NO ERROR. Judges HUNTER, Robert C. and ERVIN concur.
Report per Rule 30(e).