Opinion
No. COA15–192.
01-19-2016
STATE of North Carolina, v. Landon Marchel RADER, Jr., Defendant.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General David J. Adinolfi II, for the State. Glen Gerding, for defendant-appellant.
Attorney General Roy A. Cooper, III, by Special Deputy Attorney General David J. Adinolfi II, for the State.
Glen Gerding, for defendant-appellant.
Opinion
Appeal by defendant from judgment entered on or about 8 October 2013 by Judge A. Moses Massey in Superior Court, Forsyth County. Heard in the Court of Appeals 26 August 2015.
STROUD, Judge.
Defendant appeals judgment entered upon jury verdicts finding him guilty of discharging a firearm inside the city limits and first-degree murder. For the following reasons, we conclude there was no error.
I. Background
In 2012 and 2013, defendant was indicted for discharging a firearm in the city and first and second-degree murder. At trial, defendant testified that in April of 2012 he stood up to throw away a beer bottle and his roommate, Mr. Jackie Cates, began cursing at him and looked like he was going to hit him in the head with a beer bottle. Defendant also saw a steel pipe laying nearby during the confrontation. Defendant went to his room, got a rifle, went into the kitchen, fired the rifle, and left in his car. Shortly after this confrontation, Mr. Cates' sister came to the residence and found Mr. Cates deceased and sitting in a chair. Mr. Cates died from gunshot wounds to his head, neck, and back. The jury found defendant guilty of discharging a firearm inside the city limits and first-degree murder, and defendant was sentenced by the trial court to life imprisonment without parole. Defendant appeals.
II. Jury Instructions
Members of the jury, thank you. I inadvertently stated one word incorrectly in my instructions to you. I stated earlier, “Furthermore, the defendant has no right to retreat in a place where the defendant has a lawful right to be.” That is in—I misused—I substituted the word “right” for the word “duty.”
Furthermore, the defendant has no duty to retreat in a place where the defendant has a lawful right to be. The defendant would have a lawful right to be in the defendant's home.
The printed version that I'll be sending in to you is correct.
Okay. Thank you. Go into the jury room. Do not begin your deliberations until you receive the verdict sheet which will be your signal to commence deliberating. Thank you again.
After the re-instruction the trial court asked if there were any objections, and defense counsel stated, “No, Your Honor.” Because defendant did not object, we review for plain error:
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. 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. Moreover, because plain error is to be applied cautiously and only in the exceptional case, the error will often be one that seriously affects the fairness, integrity or public reputation of judicial proceedings.
Thus, we must consider whether the jury instructions were erroneous and, if so, whether the error had a probable impact on the jury verdict.
State v. Saunders, ––– N.C.App. ––––, ––––, 768 S.E.2d 340, 342 (2015) (citations, quotation marks, and brackets omitted).
Again, defendant does not challenge any of the jury instructions which were actually given to the jury but simply contends that one more sentence should have been added, although he failed to request this at the time of his trial. The trial court gave the jury instructions which both parties had approved and when it was informed it had misspoken a word, the judge re-instructed the jury to correct that error. In addition, the trial court gave the correct written instructions to the jury, so if they had any question about the misspoken instruction, they could refer to the written instructions. Defendant did not object after the re-instruction nor does defendant contend on appeal that the instructions the trial court gave were legally incorrect. Even generously assuming arguendo, that the evidence supported a specific “force for force” instruction and that the instructions the trial court had already provided did not substantively provide that, the lack of one sentence did not have a “probable impact on the jury's finding that the defendant was guilty.” Id. The uncontroverted evidence showed defendant left the room where he and Mr. Cates were arguing, got a rifle, and then shot Mr. Cates in the back while he was sitting in a chair. This argument is overruled.
III. Conclusion
For the foregoing reasons, we find no error.
NO ERROR.
Judges CALABRIA and INMAN concur.
Report per Rule 30(e).