Opinion
No. COA11–1347.
2012-06-5
STATE of North Carolina v. Quintarus Kentae RHODES.
Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State. William D. Spence, for Defendant-appellant.
Appeal by Defendant from judgments entered 20 April 2011 by Judge Franklin F. Lanier in Cumberland County Superior Court. Heard in the Court of Appeals 3 April 2012. Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Hollis, for the State. William D. Spence, for Defendant-appellant.
HUNTER, JR., ROBERT N., Judge.
Quintarus Kentae Rhodes (“Defendant”) appeals from judgments finding him guilty of first degree murder, assault with a deadly weapon with intent to kill inflicting serious injury (“AWDWIKISI”), and assault with a deadly weapon inflicting serious injury (“AWDWISI”). Defendant specifically argues the trial court erred by (1) failing to dismiss the “short form” first degree murder indictment, (2) denying his motion to dismiss the charge of first degree murder, (3) denying his motion to dismiss the charge of AWDWIKISI, (4) denying his motion to dismiss the charge of AWDWISI, and (5) refusing to instruct the jury on diminished capacity as a defense to AWDWIKISI. For the following reasons, we find no error.
I. Facts & Procedural Background
On 8 January 2008, a Cumberland County Grand Jury indicted Defendant for first degree murder of James Behlin, AWDWIKISI on Jarvis Curry, and AWDWISI on Willie Washington. The State did not seek the death penalty. The case was heard during the 11 April 2011 criminal session of Cumberland County Superior Court, the Honorable Franklin F. Lanier presiding.
At trial, the State's evidence tended to show the following. Defendant's cousin, Revoldo Rhodes, testified that approximately one month prior to 21 April 2007, he played in a basketball game with Defendant, William Maniaci, Mr. Behlin, Mr. Curry, and others. During the game, Revoldo and Mr. Behlin exchanged words and pushed each other. Following the game, the players dispersed without further incident.
On 21 April 2007, Defendant, Revoldo, and Mr. Maniaci arrived at Club Palace on Bragg Boulevard in Fayetteville in Mr. Maniaci's white Dodge pickup truck between 12:00 and 12:30 a.m. Mr. Maniaci parked the truck across from the club on Bragg Boulevard. Revoldo testified Defendant usually carried a “Mack–11” pistol and Mr. Maniaci usually carried a .9 millimeter pistol. As such, Revoldo assumed both Mr. Maniaci and Defendant had guns in the truck. While in the club, Defendant, Revoldo, and Mr. Maniaci encountered Mr. Behlin and Mr. Curry, but nothing happened.
According to Revoldo, Defendant, Revoldo, and Mr. Maniaci left the club around 2:00 a.m. and walked to Mr. Maniaci's truck. Once at the truck, Mr. Maniaci said, “We're going to get them; we're about to get them,” referring to Mr. Behlin and Mr. Curry. Defendant grabbed his M–11 pistol, and Mr. Maniaci grabbed his .9 millimeter pistol. Revoldo testified that Defendant and Mr. Maniaci then walked back toward the club, and, shortly thereafter, Revoldo heard five or six gunshots. Revoldo testified the gunshots sounded like they were fired from a “Mack.” He further testified that immediately following the gunshots, Defendant and Mr. Maniaci ran across Bragg Boulevard to the white Dodge pickup truck. Once at the truck, Defendant and Mr. Maniaci told Revoldo to “crank the vehicle, go, go, go, go, go.” Revoldo drove and was directed where to go by Mr. Maniaci, who was sitting in the passenger seat. Defendant was in the back seat. While driving away, Defendant stated, “I hit him; I know I hit him.” About five minutes later, Revoldo pulled into a driveway. Within minutes, police effected a traffic stop on the white pickup truck. Revoldo testified that during the stop, Defendant moved around in the vehicle in an attempt to hide the “Mack.” All three men were arrested. Revoldo testified that during the booking process, Defendant said, “I know I hit him; I know I hit him.”
Mr. Curry testified that approximately one month before the shooting at Club Palace, he and Mr. Behlin played a basketball game against Defendant, Revoldo, and Mr. Maniaci. After a confrontation, players on Revoldo's team yelled, “[W]e got a gun.”
Mr. Curry further testified that on 21 April 2007, he went to Club Palace with Mr. Behlin. While at the club, he noticed a “tall Caucasian” that participated in the basketball game the month before. The man came over to them, shook their hands, and asked how they were doing. Shortly after, Mr. Curry and Mr. Behlin exited the club. Both men stopped to speak with women immediately outside the exit when gunshots were fired. Mr. Curry ran but turned around and noticed Mr. Behlin lying on the ground. Mr. Curry also realized that he himself had been shot in his right calf.
Mr. Behlin died after the shooting. Thomas Clark, a forensic pathologist, was tendered as an expert in the identification of Mr. Behlin's cause of death. Dr. Clark testified the victim had been shot in the upper right side of his back. Dr. Clark opined that a gunshot wound to the back caused the death three days after the shooting.
Michael Bradshaw and Aaron Murchison testified as eyewitnesses to the shooting. Both Mr. Bradshaw and Mr. Murchison, along with three police officers, Robert Woolard, Aaron Davis, and David Joyce, testified they heard several shots. After the shooting, Mr. Bradshaw, Officer Woolard, and Sergeant Joyce observed Mr. Behlin lying on the ground.
Officer Davis testified he saw the man who committed the shooting run from the area. Other officers informed him that the fleeing man got into a white pickup truck. Officer Davis pursued the truck and conducted a traffic stop of the vehicle. Despite Officer Davis's instructions for the occupants to show their hands, Defendant continued to move around in the backseat. Upon searching the vehicle, a Tech .9 pistol was recovered under the passenger seat where Defendant was seated. A .9 millimeter pistol was recovered from under the front center console of the truck. Both guns were loaded. Defendant's hands were swabbed by a crime scene technician for traces of gunshot residue. Defendant informed the technician that he was at a firing range two days ago and may have some gunshot residue on his hands.
Michael Gurdziel of the State Bureau of Investigation was tendered as an expert in identification of gunshot residue and testified that he analyzed Defendant's gunshot residue test. The material collected from Defendant's hands resembled that of gunshot residue. Revoldo and Mr. Maniaci tested negative for gunshot residue.
A Fayetteville Police Department homicide detective, Jason Sondergaard, testified that on 21 April 2007, he interviewed Revoldo and Defendant. Revoldo admitted he was at Club Palace, heard gunshots, and fled the scene with Defendant and Mr. Maniaci. Revoldo later informed the police that Defendant and Mr. Maniaci got their weapons out of the white truck.
Defendant told Detective Sondergaard that he was standing outside the club when the shooting started. Police officers observed him running across the street. He was then stopped by the officers and accused of being the shooter. Defendant said, “[T]hey did not get no gun on me” nor was he “beefing with anyone.” Defendant said he was unaware of the gun found in the vehicle where he had been sitting. Defendant again stated that he had been at the firing range a few days before the shooting.
Eugene Bishop, a detective with the Cumberland County Sheriff's Office, testified that he analyzed the projectile recovered from Mr. Behlin's body. After examination, Detective Bishop concluded the projectile had been fired from the M–11 pistol Defendant possessed the night of the shooting.
At the close of the State's evidence, Defendant moved to dismiss all the charges against him based on a lack of evidence. The trial court denied the motion.
Defendant's evidence tended to show the following. Ashley Cross, Defendant's girlfriend, and Quandra Rhodes, Defendant's sister, testified as witnesses who previously lived with Defendant. Both testified that Defendant is mentally incompetent. They testified that Defendant lacks competency to complete basic hygiene tasks and frequently consumes alcohol and drugs. Both witnesses also testified that Defendant is illiterate and unable to retain employment. Ms. Rhodes noted that Defendant was diagnosed with a mental disability prior to third grade.
Clinical psychologist Brad Fisher was tendered as an expert in mental retardation. Dr. Fisher administered an I.Q. test to Defendant, on which Defendant scored a 68. After reviewing the test, Dr. Fisher opined that Defendant is mildly mentally retarded. However, Dr. Fisher also opined that defendant has the ability to think, communicate, control impulses, have judgments, and intend to harm others.
At the close of all evidence, Defendant again moved to dismiss the charges against him, and the motion was denied. After deliberation, the jury found Defendant guilty of first degree murder based upon the theories of premeditation and deliberation, the felony murder rule, and lying in wait. Defendant was also found guilty of AWDWIKISI on Mr. Curry and AWDWISI on Mr. Washington. The trial court sentenced Defendant to life imprisonment without parole within the presumptive range, an active sentence of a minimum of 73 months and a maximum of 97 months, and a consecutive active sentence of a minimum of 25 months and a maximum of 30 months, respectively. On 20 April 2011, Defendant gave oral notice of appeal in open court.
II. Jurisdiction
Defendant appeals from the final judgment of a superior court, and appeal therefore lies with this Court pursuant to N.C. Gen.Stat. § 7A–27(b) (2011).
III. Analysis
A. Short Form Indictment
Defendant first argues the trial court erred in denying his motion to dismiss the charge of first degree murder because the indictment failed to allege the theories on which Defendant was charged: premeditation and deliberation, felony murder, and lying in wait. We disagree. Defendant himself concedes this Court is bound by State v. Brown, 320 N.C. 179, 191–92, 358 S.E.2d 1, 11 (1987), where our Supreme Court held that such a short form indictment is sufficient to charge murder on the basis of premeditation, felony murder, and lying in wait. Therefore, Defendant's argument is overruled.
B. Motion to Dismiss First Degree Murder Charge
Defendant next argues the trial court erred in denying his motion to dismiss the first degree murder charge because the evidence was insufficient to establish every element of the crime on any of the three theories (premeditation and deliberation, felony murder, and lying in wait) submitted to the jury. We disagree.
“This Court reviews the trial court's denial of a motion to dismiss de novo. ” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007). “Upon defendant's motion for dismissal, the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455,cert. denied, 531 U.S. 890 (2000) (quotation marks and citation omitted). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135 (1995).
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and quotation marks omitted) (alteration and emphasis in original).
1. Theory of Premeditation and Deliberation
Defendant specifically argues the trial court erred in denying his motion to dismiss the charge of first degree murder on the theory of premeditation and deliberation because the State's evidence failed to establish Defendant “intentionally” killed Mr. Behlin. Defendant argues the evidence shows Defendant was incapable of forming a specific intent to kill.
First degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation. State v. Hunt, 330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991); N .C. Gen.Stat. § 14–17 (2011). “Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation; it is sufficient if the process of premeditation occurred at any point prior to the killing.” Id. at 427, 410 S.E.2d at 480. “Deliberation means an intent to kill carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” Id. “Premeditation and deliberation are mental processes. Generally, they are not subject to proof by direct evidence but must be proved, if at all, by circumstantial evidence.” State v. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994). Evidence of the defendant's conduct and statements before and after the killing may be considered in determining whether a killing was with premeditation and deliberation. Id.
Here, in the light most favorable to the State, the evidence shows that in March 2007, Revoldo, Defendant, and Mr. Maniaci played basketball with Mr. Behlin and Mr. Curry. Revoldo and Mr. Behlin exchanged words and pushed each other. One month later, Revoldo, Mr. Maniaci, and Defendant went to Club Palace. Revoldo testified Defendant and Mr. Maniaci usually carried guns with them. Revoldo also testified he thought Defendant had a gun in the truck the night they went to the club. At the club, they saw Mr. Behlin and Mr. Curry. Nothing occurred at the club, but upon leaving, Mr. Maniaci told Revoldo and Defendant, “We're going to get them; we're about to get them.” Both Defendant and Mr. Maniaci grabbed their pistols and walked back towards the club. A witness saw Defendant and Mr. Maniaci speak to each other. Mr. Maniaci then went to bushes near the front of the club, and Defendant took a gun out and pointed it at the front door of the club as patrons were leaving. Several witnesses heard multiple gunshots and saw a man matching Defendant's description fire a gun several times. Mr. Behlin was shot, and the cause of death was a gunshot wound to the back. Mr. Behlin died three days later. After the shots were fired, Defendant and Mr. Maniaci ran from the scene to the truck they arrived in. Mr. Maniaci urged Revoldo to drive away quickly. While they were driving away, Defendant said, “I hit him; I know I hit him.” Police conducted a traffic stop on the vehicle minutes after the shooting, and a loaded gun was found under the seat where Defendant was seated. Another loaded pistol was found under the front center console of the truck. Defendant's hands tested positive for material resembling gunshot residue. Detective Bishop testified that the bullet recovered from Mr. Behlin's body was fired from the pistol Defendant possessed the night of the shooting. Before trial, Defendant even admitted to killing Mr. Behlin, albeit claiming he did not intend to kill him. We hold this evidence is sufficient to show Defendant committed first degree murder of Mr. Behlin on the theory of premeditation and deliberation.
Defendant argues he lacked the mental capacity to commit first degree murder and relies on the testimony of clinical psychologist Brad Fisher who testified Defendant has a diminished capacity. However, Defendant ignores a significant portion of the doctor's testimony that shows Defendant was in fact capable of forming the intent to kill Mr. Behlin:
Q. Did you form an opinion as to whether he had the—he could form the intent to harm someone?
A. Form the intent? Well, all I can—I—I have to answer that as a psychologist and—and—that he is forming the—could he hurt somebody, obviously; or, could he mean to hurt somebody, yes, he could; but, he—could he form the intent, certainly not any sort of sophisticated process of forming the intent; but, yes, indeed, he could hurt someone or mean to hurt someone.
Therefore, we hold the evidence taken in the light most favorable to the State is more than sufficient to survive Defendant's motion to dismiss.
2. Theory of Lying in Wait
Defendant also argues the trial court erred in denying his motion to dismiss the charge of first degree murder on the theory of lying in wait because the State's evidence failed to present sufficient evidence that Defendant waited and watched for Mr. Behlin and then intentionally shot him.
A murder perpetrated by means of lying in wait is murder in the first degree. Premeditation and deliberation are not elements of the crime of first-degree murder perpetrated by means of lying in wait, nor is a specific intent to kill. The presence or absence of these elements is irrelevant. Murder perpetrated by lying in wait “refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim.” The assassin need not be concealed, nor need the victim be unaware of his presence. “If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin's presence or, if he does know, is not aware of his purpose to kill him, the killing would constitute a murder perpetrated by lying in wait.”
The State need not prove that the killer stationed himself and waited at the site of the killing for some period of time before it may proceed on a theory of lying in wait. “Even a moment's deliberate pause before killing one unaware of the impending assault and consequently without opportunity to defend himself' satisfies the definition of murder perpetrated by lying in wait.” In State v. Bridges, 178 N.C. 733, 101 S.E. 29 (1919), police officers went to the defendants' home for the purpose of arresting them. They did not know whether anyone was in the house, but upon turning a corner inside the house, an officer was suddenly fired upon by the defendants. The victim “had no time even to raise his pistol in defense of himself. The defendants were waiting in the dark for him, as much concealed as if they had been hidden in ambush, prepared to slay without a moment's warning to their victim.” Id. at 738, 101 S.E. at 32.
State v. Leroux, 326 N.C. 368, 375–76, 390 S.E.2d 314, 320 (1990) (some internal citations omitted).
Here, the evidence shows Mr. Maniaci stated at the truck while he and Defendant grabbed the firearms that he and Defendant were going to “get them,” referring to the men from the pick-up basketball game, Mr. Behlin and Mr. Curry. Defendant was waiting in close proximity to the front door of the club with his M–11 pistol. As soon as or soon after Mr. Behlin and Mr. Curry left the club, Defendant opened fire and actually hit Mr. Behlin. Finally, Defendant stated after the shooting, “I hit him; I know I hit him.” This evidence is sufficient to show Defendant committed first degree murder of Mr. Behlin on the theory of lying in wait.
Defendant argues there was evidence presented by the State, however, that Defendant “was shooting at the crowd,” indicating he was not lying in wait for anyone in particular. However, evidence already discussed above indicates otherwise. Moreover, as this Court must resolve all contradictions and discrepancies in favor of the State because such issues are for the jury to decide, see State v. Garcia, 358 N.C. 382, 413, 597 S.E.2d 724, 746 (2004), we hold the evidence is sufficient to survive Defendant's motion to dismiss the charge of first degree murder on the theory of lying wait.
3. Theory of Felony Murder
Defendant also argues the trial court erred in denying his motion to dismiss the charge of first degree murder on the theory of felony murder. “A killing in the commission or in the attempt to commit a designated felony is known as a felony murder.' “ State v. Moore, 284 N.C. 485, 494, 202 S.E.2d 169, 175 (1974). Defendant specifically argues the State's evidence failed to prove the predicate felonies of either AWDWIKISI on Mr. Curry or AWDWISI on Mr. Washington. We disagree.
a. AWDWIKISI
“The elements of [AWDWIKISI] are (1) an assault, (2) with a deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting in death.” State v. Grigsby, 351 N.C. 454, 456, 526 S.E.2d 460, 462 (2000). Defendant argues the State failed to prove the required element of “intent to kill.” We disagree.
“An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred.” State v. Cauley, 244 N.C. 701, 708, 94 S .E.2d 915, 921 (1956). “[T]he nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances are all matters from which an intent to kill may be inferred.' “ State v. Alexander, 337 N.C. 182, 188, 446 S.E.2d 83, 87 (1994) (citation omitted) (alteration in original). Moreover, an assailant “must be held to intend the natural consequences of his deliberate act.” State v. Jones, 18 N.C.App. 531, 534, 197 S.E.2d 268, 270,cert. denied, 283 N.C. 756, 198 S.E.2d 726 (1973).
Here, the evidence in the light most favorable to the State shows Defendant played basketball with Mr. Behlin and Mr. Curry one month before the shooting. Mr. Behlin and Defendant's cousin had a heated argument, and Mr. Curry testified he heard either Defendant or the people Defendant was with say they had a gun. Although nothing happened during the game, Defendant saw both Mr. Behlin and Mr. Curry at Club Palace on 21 April 2007. When Defendant, his cousin, and Mr. Maniaci left the club, they retrieved their loaded guns from Mr. Maniaci's truck, and Mr. Maniaci stated, “We're going to get them; we're about to get them.” Defendant's cousin testified Mr. Maniaci was referring to Mr. Behlin and Mr. Curry. Mr. Maniaci and Defendant proceeded to speak about something, and then both individuals moved towards the front door of the club. As soon as or soon after Mr. Behlin and Mr. Curry left the club, witnesses observed Defendant shoot towards the front door of the club where the victims were standing. Mr. Curry was shot in the leg. Defendant ran from the scene and was later apprehended. We hold the State presented substantial evidence that Defendant committed the underlying felony of AWDWIKISI on Mr. Curry.
Defendant argues, because of his diminished capacity, he lacked the intent to kill required for AWDWIKISI. However, as stated supra in part B.1, the testimony of Defendant's own expert witness on mental retardation shows Defendant has the ability to form specific intent. Therefore, we hold the trial court did not err in denying Defendant's motion to dismiss the charge of first degree murder on the theory of felony murder.
b. AWDWISI
Defendant also argues the trial court erred by denying Defendant's motion to dismiss the charge of first degree murder on the theory of felony murder because the State failed to prove Defendant committed the underlying felony of AWDWISI on Mr. Washington. “The elements of [AWDWISI] are (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death.” State v. Aytche, 98 N.C.App. 358, 366, 391 S.E.2d 43, 47 (1990). Defendant specifically argues the State failed to prove that the injury Mr. Washington sustained was serious and caused “great pain and suffering.”
Although the NC Pattern Jury Instructions on AWDWISI suggest that a trial court “may” define “serious injury” as one causing “great pain and suffering,” N.C.P.I.Crim. 208.10, n. 4, this State's courts define serious injury in the following way: “[T]he serious injury element of [N.C. Gen.Stat.] § 14–32” means “a physical or bodily injury.” State v. Everhardt, 326 N.C. 777, 780, 392 S.E.2d 391, 392 (1990). “The courts of this [S]tate have declined to define serious injury for purposes of assault prosecutions other than stating that the term means physical or bodily injury resulting from an assault, and that further definition seems neither wise nor desirable.” State v. Morgan, 164 N.C.App. 298, 303, 595 S.E.2d 804, 808–09 (2004) (quotation marks and citations omitted) (alteration in original). “Whether a serious injury has been inflicted is a factual determination within the province of the jury.” Id. at 303, 595 S.E.2d at 809. “Among the factors that have been deemed relevant in determining whether serious injury has been inflicted are: (1) pain and suffering; (2) loss of blood; (3) hospitalization; and (4) time lost from work. Evidence of hospitalization is not, however, necessary for proof of serious injury.” State v. Walker, 204 N.C.App. 431, 446, 694 S .E.2d 484, 495 (2010) (internal citation omitted). The “[c]ases that have addressed the issue of the sufficiency of evidence of serious injury appear to stand for the proposition that as long as the State presents evidence that the victim sustained a physical injury as a result of an assault by the defendant, it is for the jury to determine the question of whether the injury was serious.” State v. Alexander, 337 N.C. at 189, 446 S.E.2d at 87.
Here, the evidence in the light most favorable to the State shows that several witnesses saw a man matching the description of Defendant shoot a loaded gun towards the front door of Club Palace on 21 April 2007. Mr. Washington heard gunshots and ran from the area, later realizing he had been shot in his leg. The State presented evidence that Mr. Washington's leg was hurting, although not “real bad.” However, Mr. Washington's leg eventually broke and collapsed from the impact of the hit. He was attended to at a local hospital, where it was determined that he had broken bones in his ankle. He spent four days at the hospital and had two operations. Mr. Washington's foot was eventually placed in a cast. We hold this evidence is sufficient to prove Mr. Washington suffered a serious injury because the evidence indicates Mr. Washington sustained a physical injury due to the actions of Defendant. Therefore, we hold the trial court did not err in denying Defendant's motion to dismiss the charge of first degree murder on the theory of felony murder because the State presented substantial evidence that Defendant committed the underlying felony of AWDWISI on Mr. Washington.
C. Motion to Dismiss AWDWIKISI and AWDWISI Charges
Defendant further argues the trial court erred in denying his motion to dismiss AWDWIKISI on Mr. Curry because the State failed to prove the required element of “intent” to kill. Defendant also argues the trial court erred in denying his motion to dismiss the charge of AWDWISI on Mr. Washington because the State failed to prove the “serious injury” element required for AWDWISI. Based on the analyses provided in sections B.3.a and B.3.b supra, we overrule this argument.
D. Jury Instruction on Diminished Capacity Defense
Defendant finally argues the trial court committed plain error in failing to instruct the jury that the defense of diminished capacity would negate the required “intent” to kill element of first degree murder and AWDWIKISI. We disagree. At the outset, we note that the trial court did in fact instruct the jury on diminished capacity concerning the first degree murder charge on the theory of premeditation and deliberation. Thus, we review only whether the trial court committed plain error by failing to instruct the jury on diminished capacity concerning the charge of AWDWIKISI.
“A party may not make any portion of the jury charge or omission therefrom the basis of an issue presented on appeal unless the party objects thereto before the jury retires....” N.C. R.App. P. 10(a)(2); see also State v. McNeil, 350 N.C. 657, 691, 518 S.E.2d 486, 507 (1999), cert. denied,529 U.S. 1024 (2000). However, our Supreme Court “has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge's instructions to the jury, or (2) rulings on the admissibility of evidence.” State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). “To have an alleged error reviewed under the plain error standard, the defendant must specifically and distinctly' contend that the alleged error constitutes plain error.” State v. Lawrence, ––– N.C. ––––, ––––, 723 S.E.2d 326, –––– (2012); see also N.C. R.App. P. 10(a)(4). In alleging 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 affect[s] the fairness, integrity or public reputation of judicial proceedings.”
Lawrence, ––– N.C. at ––––, 723 S.E.2d at –––– (internal citations omitted) (alteration in original).
Here, although Defendant did not object to the trial court's failure to instruct the jury on “diminished capacity” as a defense to AWDWIKISI on Mr. Curry, Defendant has specifically and distinctly argued on appeal that the error constitutes plain error. Therefore, this Court will review Defendant's contention.
This Court has held that
[a]n instruction on diminished capacity is warranted where the evidence of the defendant's mental condition is sufficient to raise a reasonable doubt in the mind of a rational trier-of-fact as to whether the defendant had the ability to form the necessary specific intent to commit the crimes for which he is charged.
State v. Garcia, 174 N.C.App. 498, 505, 621 S.E.2d 292, 297 (2005). Assuming arguendo the trial court committed error by failing to instruct the jury on diminished capacity as a defense to AWDWIKISI, we disagree this error constitutes plain error.
It is true the trial court did not instruct the jury specifically on diminished capacity as it related to AWDWIKISI. However, there was much testimony concerning Defendant's mental condition, including testimonies of clinical physicians and relatives. Moreover, as Defendant himself points out, both defense counsel and the State discussed Defendant's mental condition in relation to the charge of AWDWIKISI. The trial court even instructed the jury as to diminished capacity concerning the first degree murder charge on the theory of premeditation and deliberation before giving the AWDWIKISI instructions:
You may find that there is evidence which tends to show that the defendant lacked mental capacity at the time of the acts alleged in this case. If you find that the defendant lacked mental capacity, you should consider whether this condition affected the defendant's ability to formulate the specific intent which is required for conviction of first degree murder.
In order for you to find the defendant guilty of first degree murder, you must find beyond a reasonable doubt that the defendant killed the deceased with malice and in the execution of an actual specific intent to kill formed after premeditation and deliberation. If, as a result of a lack of mental capacity, the defendant did not have the specific intent to kill the deceased formed after premeditation and deliberation, the defendant is not guilty of first degree murder.
Therefore, I charge that if, upon considering the evidence with respect to the defendant's lack of mental capacity, you have a reasonable doubt as to whether the defendant formulated the specific intent required for conviction of first degree murder, you will not return a verdict of guilty of first degree murder. Now, for the purposes of clarification, if necessary, the Court—this Court—I am instructing you that the defendant is mentally retarded as having been found so at a previous hearing.
The diminished capacity defense applies to the same element of first degree murder as it does to AWDWIKISI: “intent to kill.” Further, it was the same action that resulted in both charges: the shooting at Club Palace. Thus, it follows the jury would understand that if Defendant could not meet the required “intent to kill” element of first degree murder if he had a diminished capacity, he likewise would not meet the required “intent to kill” element of AWDWIKISI. Most importantly, the jury in this case rejected the diminished capacity defense as it related to first degree murder, indicating the jury also would have rejected the diminished capacity defense as related to AWDWIKISI because both charges stem from the same incident. Therefore, we hold the trial court did not commit plain error when it did not instruct the jury on diminished capacity as a defense to AWDWIKISI.
IV. Conclusion
For the foregoing reasons, we find NO ERROR. Judges McGEE and STEPHENS concur.
Report per Rule 30(e).