Smith's Criminal Case Compendium

Smith's Criminal Case Compendium

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This compendium includes significant criminal cases by the U.S. Supreme Court & N.C. appellate courts, Nov. 2008 – Present. Selected 4th Circuit cases also are included.

Jessica Smith prepared case summaries Nov. 2008-June 4, 2019; later summaries are prepared by other School staff.

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E.g., 09/22/2021
E.g., 09/22/2021

The defendant was convicted of voluntary manslaughter and sentenced to 73 to 100 months in prison for shooting her boyfriend, Timothy Lee Fry, with whom she had lived for approximately three years. The evidence showed that their relationship was good at first but started to deteriorate after about a year. Fry verbally and physically abused her. He would choke her, pull her hair, and push her face. A gun enthusiast who kept loaded guns around the house, Fry would point the laser sight at the defendant’s forehead and chest. The abuse also included repeated instances in which Fry would coerce her into having sex with him and other, older men. The defendant suffered from depression and had once attempted suicide. On the day of the shooting, the defendant returned home from work to find Fry in the basement of their home. He asked her to go with him to South Carolina to have sex with an older man. When she refused, Fry held a handgun to her chest, acted like he was pulling the trigger, and told her he would kill her if she didn’t go. The defendant went upstairs. When she returned to the basement, Fry repeated that he was going to kill her if she didn’t go and grabbed where the gun was and started towards her. The defendant grabbed a shotgun leaning against the bathroom wall and fired five rounds, hitting him four times. The defendant testified, “The closer he came, the more I would shoot because he wouldn’t stop, he just kept coming towards me.” After each shot, she had to load a new shell into the chamber, push the slide forward, and pull the trigger. Two shots entered Fry’s chest. Another two entered through his left arm and armpit, traveling through his left lung and fracturing five ribs. The State’s forensic pathologist testified that any one of the shots would have been enough to incapacitate and kill Fry. Three bullet holes from the shotgun’s slugs were found in the carpet beneath Fry’s body, suggesting that he was on the ground when shot; and each of the four bullet wounds had a downward trajectory. After shooting Fry, the defendant called 911 and told the operator that she had shot her boyfriend.

The trial judge instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, self-defense, voluntary intoxication, and diminished capacity. In the final mandate on voluntary manslaughter, the offense for which the defendant was convicted, the trial judge instructed the jury as follows but without the underlined phrase:

 

If you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally wounded the alleged victim with a deadly weapon and thereby proximately caused the alleged victim’s death, and that the defendant . . . used excessive force, it would be your duty to find the defendant guilty of voluntary manslaughter, even if the State has failed to prove that the defendant did not act in self-defense.

The Court of Appeals held that the defendant failed to preserve the erroneous omission of the underlined language for appellate review. The defendant did not object to the omission and, after the judge excused the jury to commence its deliberations, did not request any modifications to the instructions when asked by the judge. The Court distinguished decisions finding no waiver in which the trial judge agreed to give a specific instruction and failed to give it altogether rather than omitting a portion of the instruction as in this case. Reviewing the instruction for plain error, the Court found that the defendant failed to show reversible error because the trial judge in other portions of the jury instructions included the language omitted from the final mandate.

The trial court did not err in this murder case by declining to include a special jury instruction on specific intent in the final mandate. On the issue of specific intent, the trial judge gave the jury an instruction regarding voluntary intoxication and its effect on specific intent, but did not repeat the instruction as part of the final mandate. The appellate court held that the defendant failed to preserve the issue by not objecting, and further held that it was not plain error because the trial judge was not required to restate the specific intent instruction in the final mandate.

In this robbery case, no plain error occurred with respect to the trial court’s not guilty mandate. The jury instructions for the offenses of armed and common law robbery conformed to the pattern jury instructions with one exception: the court did not expressly instruct the jury that it had a “duty to return a verdict of not guilty” if it had a reasonable doubt as to one or more of the enumerated elements of the offenses. Instead, for the offense of armed robbery, the court ended its charge to the jury with the following instruction: “If you do not so find or have a reasonable doubt as to one or more of these things, then you will not return a verdict of guilty of robbery with a firearm as to that defendant.” For the offense of common law robbery, the court ended its charge similarly, substituting the words “common law robbery” for robbery with a firearm. Citing State v. McHone, 174 N.C. App. 289 (2005) (trial court erred by failing to instruct the jury that “it would be your duty to return a verdict of not guilty” if the State failed to meet one or more of the elements of the offense), the court held that the trial court’s instructions were erroneous. However, it went on to hold that no plain error occurred, reasoning in part that the verdict sheet provided both guilty and not guilty options, thus clearly informing the jury of its option of returning a not guilty verdict.

No plain error occurred with respect to the trial court’s final mandate to the jury on a first-degree murder charge. The trial court instructed the jury that it could find the defendant guilty of first-degree murder as to victim Frink under the following theories: premeditation and deliberation, felony-murder, and lying in wait. After instructing the jury on all theories, the trial court continued: “If you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.” The defendant argued that the jury could have construed this not guilty mandate as applying solely to the theory of lying in wait—the last theory explained in the instructions--as opposed to the overall charge of first-degree murder. The court rejected that argument, concluding first that “[w]hile the better practice would have been for the trial court to make clear to the jury that its final not guilty mandate applied to all three theories of first-degree murder, this — by itself — is not sufficient to establish plain error.” Next the court examined the verdict sheet and concluded that it “clearly informed the jury of its option of returning a not guilty verdict regarding this charge.” Finally, the court compared the not guilty mandate at issue with the analogous mandate regarding the first-degree murder charge as to a second victim, Jones. In the course of this examination, the court noted that “the final not guilty mandate in the Frink instruction is worded more appropriately than that in the Jones instruction,” because the “former informed the jury of its ‘duty’ to return a verdict of not guilty while the latter merely stated that the jury ‘would’ return a not guilty verdict if the State failed to prove the defendant’s guilt beyond a reasonable doubt.” In the end, the court concluded that even if the trial court erred, the error did not rise to the level of plain error.

Distinguishing State v. McHone, 174 N.C. App. 289, 294 (2005), the court held that no plain error occurred when the trial court failed to instruct that the jury must return a “not guilty” verdict if it was unable to conclude that the defendant committed first-degree murder on the basis of premeditation and deliberation. The court noted that the verdict sheet provided a space for a “not guilty” verdict and the trial court’s instructions on second-degree murder and the theory of lying in wait comported with the McHone final mandate requirement. With respect to premeditation and deliberation, the instruction stated, in part: “If you do not so find or have a reasonable doubt as to one or more of these things you would not return a verdict of “guilty of first-degree murder” on the basis of malice, premeditation and deliberation.”

Although the trial judge did not expressly instruct the jury that if it failed to find the required elements it must find the defendant not guilty, the defendant was not prejudiced by the trial court’s alternative final mandate language (“If you do not so find . . . you will not return a verdict of guilty”). Notably, the verdict sheet provided an option of returning a not guilty verdict.

Although the trial court erred by failing to give the final not guilty mandate, under the circumstances presented the error did not rise to the level of plain error.

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