Opinion
NO. COA12-192
10-16-2012
STATE OF NORTH CAROLINA v. JEFFERY SCOTT MULLIS
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State. Duncan B. McCormick for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Stanly County
No. 08 CRS 51241
Appeal by Defendant from judgment entered 11 August 2011 by Judge Christopher M. Collier in Stanly County Superior Court. Heard in the Court of Appeals 8 October 2012.
Attorney General Roy Cooper, by Assistant Attorney General Thomas O. Lawton, III, for the State.
Duncan B. McCormick for Defendant.
STEPHENS, Judge.
Defendant Jeffery Scott Mullis appeals from a judgment entered upon a jury verdict finding him guilty of second-degree murder, contending the court committed plain error in instructing the jury. We find no prejudicial error.
The State's evidence tended to show that, on the afternoon of 5 May 2008, Defendant, Paul Chaney, and their sons had been playing horseshoes at Defendant's house when Chaney left abruptly. Defendant remarked that Chaney was having sex with Defendant's wife, got his .357 Magnum revolver, and drove with his son to Chaney's home. Defendant demanded Chaney come outside, and when Chaney did so, Defendant again accused him of having sex with Defendant's wife. Chaney denied the accusation and told Defendant to leave his property. As Defendant walked away, he heard something, turned around, and saw Chaney coming toward him. Defendant shot Chaney, who bled to death.
The transcript makes references both to Defendant's "wife" and "ex-wife."
At trial, Defendant admitted he shot Chaney and caused his death. During the charge conference, defense counsel stated, "I don't think there's enough to go for involuntary. I don't think it would comply," and "you probably have to tailor it to take out involuntary." The court instructed the jurors that they could find Defendant guilty of first-degree murder, guilty of second-degree murder, guilty of voluntary manslaughter, or not guilty. Defendant did not object to the instructions. The jury found Defendant guilty of second-degree murder. Defendant appeals.
Defendant contends the trial court's failure to instruct on involuntary manslaughter was plain error. We disagree.
To prevail under plain error review, a defendant must not only show error, but must also establish that the error prejudiced him. State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation omitted). "A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443(c) (2011); see also State v. Williams, 333 N.C. 719, 728, 430 S.E.2d 888, 893 (1993) (holding that where the "defendant foreclosed any inclination of the trial court to instruct on the lesser-included offense of second-degree murder[,] [h]e is not entitled to any relief and will not be heard to complain on appeal.").
Here, the record reveals that any error the trial court made in not instructing on the lesser-included offense of involuntary manslaughter was invited by Defendant, who expressly requested that such an instruction not be given. Accordingly, Defendant cannot show prejudice, and thus fails to establish plain error.
NO PREJUDICIAL ERROR.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).