In this Edgecombe County solicitation to commit murder case, the trial court did not err (1) in resolving the defendant’s request for substitute counsel; (2) by denying the defendant’s motion to dismiss for insufficient evidence; and (3) by declining to intervene ex mero motu in the State’s closing argument. Additionally, (4) any error in the jury instructions for solicitation to commit murder was harmless.

(1) The trial court did not err by denying the defendant’s request for the appointment of substitute counsel where the record did not reflect an absolute impasse between the defendant and his counsel. The trial court engaged in a lengthy colloquy with the defendant and its findings and conclusions that the defendant was acting in a disruptive manner and expressing dissatisfaction with his counsel to derail the trial but was not at an absolute impasse were well-supported.

(2) The trial court properly denied the defendant’s motion to dismiss a charge of solicitation to commit first-degree murder for insufficient evidence. Evidence at trial tended to show that the defendant had multiple conversations with another person, Capps, where he requested that Capps kill the defendant’s ex-girlfriend, Thomas; that the defendant gave Capps a map of Thomas’s house and the surrounding area; that the defendant provided detailed suggestions about how to kill Thomas; and that the defendant offered to kill Capps’s girlfriend if Capps killed Thomas. In the light most favorable to the State, this evidence was sufficient for the solicitation charge to be submitted to the jury.

(3) The trial court did not err by declining to intervene ex mero motu in the State’s closing argument that involved questioning the defendant’s credibility, characterizing the defendant as “angry” and “dangerous” among other things, stating that the evidence rebutted the presumption of innocence, and calling the jury’s attention to the specific deterrence a conviction would provide and the jury’s role as representatives of the community. In the context of the evidence at trial and relevant precedent, the arguments were not grossly improper.

(4) The Court of Appeals determined on plain error review that any error in the trial court’s jury instruction on solicitation to commit first-degree murder was harmless. The trial court instructed the jury using NCPI Crim. 206.17, which omits any mention of the elements of premeditation and deliberation, which distinguish first-degree from second-degree murder. The court reasoned that any error in the omission of these elements in the instruction was harmless on the facts of this case where the evidence showed that the defendant “solicited [Capps] to kill [Thomas] with malice upon [Capps’s] release from prison.” As the solicited killing necessarily would occur in the future and according to the defendant’s suggested plans, the evidence unavoidably established the defendant solicited a premeditated and deliberated homicide with the specific intent to kill. Thus, there was no indication that the jury would have reached a different verdict absent any error in the instruction, and the defendant’s ability to defend himself from the charge was not frustrated as his strategy was to deny asking Capps to kill Thomas regardless of premeditation, deliberation, or specific intent.

Judge Murphy concurred in result only and without a separate opinion with respect to the court’s conclusion that the trial court did not err by failing to intervene ex mero motu in the State’s closing argument.

In this Buncombe County case, defendant appealed his conviction for first-degree murder, arguing five separate errors by the trial court and contending the cumulative prejudice of those errors entitled him to a new trial. The Court of Appeals found no error. 

In June of 2017, the victim was shot in the parking lot of an apartment complex in Asheville by a man in a black hoodie. At the time of the shooting, defendant was sixteen years of age. A witness from the scene later identified defendant as the man in the hoodie, picking his photograph out of a selection of potential subjects. The witness also gave a written statement of the events to detectives. Another witness, defendant’s cousin, also identified him as the shooter during a recorded interview with detectives. At trial, both witnesses were called to testify. Defendant’s cousin testified she was unable to recall the events around the shooting, and the prosecutor moved to have the recording of her interview played for the jury under Rule of Evidence 803(5). Over defense counsel’s objection, the trial court permitted playing the video. The detectives also testified regarding the interviews of both witnesses. Defendant was subsequently convicted and appealed. 

Defendant argued the first error was a failure to instruct the jury on the lesser-included offense of second-degree murder. The Court of Appeals disagreed, explaining that the prosecution had proven each element of first-degree murder, and no evidence was admitted negating any element. Walking through defendant’s points, the court noted (1) despite defendant’s claim that he used marijuana earlier in the day of the shooting, voluntary intoxication only negated specific intent if the defendant was intoxicated at the time the crime was committed; (2) no case law supported the argument that defendant’s age (16 years old) negated the elements of first-degree murder; (3) provocation by a third party could not excuse defendant’s actions towards the victim; and (4) defendant’s statement to a witness that he was “angry” at the victim but only intended to fight him did not prevent a finding of premeditation and deliberation where no evidence was admitted to show his anger reached a level “such as to disturb the faculties and reason.” Slip Op. at 19. 

The second error alleged by defendant was a special jury instruction requested by defense counsel on intent, premeditation, and deliberation for adolescents. The court explained that while defense counsel’s requested instruction might be supported by scientific research, no evidence was admitted on adolescent brain function, and “[d]efendant’s age is not considered nor contemplated in the analysis of premeditation and deliberation, therefore, this instruction would be incorrect and likely to mislead the jury.” Id. at 22. 

The third alleged error was playing the interview video and introducing the photo lineup identification provided by defendant’s cousin. Defendant argued she did not testify the events were fresh in her mind at the time of the recording, and the interview and lineup did not correctly reflect her knowledge of the shooting. The court disagreed with both arguments, explaining that the trial court found the recording was made two days after the shooting and concluded it was fresh in her memory. The court also explained that the witness did not disavow her statements, and provided a signature and initials on identification paperwork, justifying a finding that her testimony and identification were correct. Defendant also argued that admitting the interview and identification were improper under Rule of Evidence 403. The court disagreed, explaining that the interview was highly probative of defendant’s motive, outweighing the danger of unfair prejudice. 

Considering the fourth alleged error, that the identification evidence from the first witness was tainted by impermissibly suggestive interview techniques by the detectives, the court noted that defendant did not present arguments as to why the procedures were unnecessarily suggestive. Although defendant did not properly argue the first step of the two-step determination process for impermissibly suggestive techniques, the court addressed the second step of the analysis anyway, applying the five-factor test from State v. Grimes, 309 N.C. 606 (1983), to determine there was no error in admitting the witness’s identification of defendant. Slip Op. at 31. 

Finally, the court considered defendant’s argument that it was error to permit the detectives to offer improper lay opinions about the witnesses’ “forthcoming” and “unequivocal” participation in identifying defendant. Id. at 32. Defendant failed to object at trial, so the court applied a plain error standard to the review. The court did not believe that the statements were comments on the witnesses’ credibility, but even assuming that admission was error, the court concluded that admission was not plain error due to the other evidence of guilt in the record. Because the court found no error in any of the five preceding arguments, the court found no cumulative prejudice justifying a new trial. 

Judge Murphy concurred, but concurred in result only for Parts II-E (Detective’s Statements) and II-F (Cumulative Prejudice). Id. at 35. 

(1) In this case in which the defendant was convicted of felony murder with the underlying felony being child abuse, the trial court did not err by denying the defendant’s request to instruct the jury on premeditated and deliberate murder and all lesser included offenses. There was no evidence that the defendant possessed a specific intent to kill formed after premeditation and deliberation where the evidence showed that the defendant “snapped” and “lost control.” (2) Second-degree murder is not a lesser included offense of first-degree felony murder.

Where no evidence negated the State’s proof of first-degree murder, the trial court did not err by denying the defendant’s request for an instruction on second-degree murder.

In a case in which the defendant was charged with first-degree murder, the trial court did not err by denying the defendant’s request for a second-degree murder charge where there was no evidence to negate the State’s proof of every element of first-degree murder; the defendant’s defense was simply an assertion that he did not shoot the victim.

In a case in which the defendant was convicted of first-degree murder, the trial court did not err by failing to instruct the jury on second-degree murder. The defendant conceded that the evidence warranted an instruction on first-degree murder. However, he argued that because the evidence failed to illustrate the circumstances immediately preceding the murder, the jury should have been allowed to consider that he formed the intent to kill absent premeditation and deliberation and, therefore, was entitled to an instruction on second-degree murder. The court concluded that in the absence of evidence suggesting that the victim was killed without premeditation and deliberation, an instruction on second-degree murder would be improper.

In this assault and second-degree murder case, the trial court did not err by denying the defendant’s request to instruct the jury on involuntary manslaughter. Involuntary manslaughter is a killing without malice. However, where death results from the intentional use of a firearm or other deadly weapon, malice is presumed. Here, the defendant intentionally fired the gun under circumstances naturally dangerous to human life and the trial court did not err by refusing to give an instruction on involuntary manslaughter. 

(per curiam). In a first-degree murder case, the court held, over a dissent, that the trial court did not err by declining to instruct the jury on involuntary manslaughter. The evidence showed that the defendant fought with the victim in the yard. Sometime later the defendant returned to the house and the victim followed him. As the victim approached the screen door, the defendant stabbed and killed the victim through the screen door. The knife had a 10-12 inch blade, the defendant’s arm went through the screen door up to the elbow, and the stab wound pierced the victim’s lung, nearly pierced his heart and was approximately 4 1/2 inches deep. The court rejected the defendant’s argument that his case was similar to those that required an involuntary manslaughter instruction where the “defendant instinctively or reflexively lashed out, involuntarily resulting in the victim’s death.” Here, the court held, the “defendant’s conduct was entirely voluntary.”

In a case where the defendant was convicted of first-degree murder, the trial court did not err by failing to submit an instruction on second-degree murder and/or voluntary manslaughter. The defendant argued that the evidence negated premeditation and deliberation. The court disagreed, finding that the State offered substantial evidence of those elements. Specifically, the defendant had a tumultuous relationship with the victim, with ill-will existing between the two. The victim planned to call off their wedding and sent the defendant a text message telling him that he needed to move out of the home and that she would be changing the locks. Moreover, she told the defendant, who had financial troubles, that she would continue to seek child support payments. Her body was found the next day. After the killing, the defendant gave inconsistent statements about events of the day. He told the victim’s friend that he left early for work and that the victim was not at the home, and said that she had a doctor’s appointment. However, the defendant had the victim’s vehicle and the keys to his own car with him, leaving her with no vehicle. When the friend asked the defendant whether the victim’s vehicle was at the home when he went to work, the defendant never responded. Moreover, there was no evidence that the victim provoked the defendant. This constituted substantial evidence of premeditation and deliberation. The only evidence claimed by the defendant to negate premeditation and deliberation is the text message from the victim telling him to move out and signs of struggle in the home. From this evidence, the defendant claims that premeditation and deliberation were negated because the jury could have concluded that an argument aroused a sudden passion in him. The court rejected the notion that this evidence negated premeditation and deliberation. Likewise the court determined that the trial court did not err by failing to instruct the jury on voluntary manslaughter, again noting the lack of evidence of heat of passion.

The trial court did not err by declining to instruct the jury on voluntary manslaughter. The trial judge instructed the jury on first- and second-degree murder but declined the defendant’s request for an instruction on voluntary manslaughter. The jury found the defendant guilty of second-degree murder. The defendant argued that the trial court should have given the requested instruction because the evidence supported a finding that he acted in the heat of passion based on adequate provocation. The defendant and the victim had been involved in a romantic relationship. The defendant argued that he acted in the heat of passion as a result of the victim’s verbal taunts and her insistence, shortly after they had sex, that he allow his cell phone to be used to text another man stating that the victim and the defendant were no longer in a relationship. The court rejected this argument, concluding that the victim’s words, conduct, or a combination of the two could not serve as legally adequate provocation. Citing a North Carolina Supreme Court case, the court noted that mere words, even if abusive or insulting, are insufficient provocation to negate malice and reduce a homicide to manslaughter. The court rejected the notion that adequate provocation existed as a result of the victim’s actions in allowing the defendant to have sex with her in order to manipulate him into helping facilitate her relationship with the other man. The court also noted that that there was a lapse in time between the sexual intercourse, the victim’s request for the defendant’s cell phone and her taunting of him and the homicide. Finally the court noted that the defendant stabbed the victim 29 times, suggesting premeditation.

In this murder case, the trial court did not err by denying the defendant’s request for jury instructions on self-defense and voluntary manslaughter. The defendant’s theory was that the gun went off accidentally. Additionally, there was no evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm.