State v. Brichikov, ___ N.C. App. ___, 2022-NCCOA-33 (Jan. 18, 2022)

temp. stay granted, 380 N.C. 289, 867 S.E.2d 533 (Feb. 4, 2022)

In this Wake County murder case, the defendant admitted to having assaulted his wife and she was found with physical trauma to her face. She also had cocaine and fentanyl in her blood, had recently overdosed, and had a serious heart condition. There was conflicting evidence at trial on whether the facial injuries alone could have caused her death. The defendant requested instructions on voluntary and involuntary manslaughter. The trial court declined to give the requested instructions and the jury convicted on second-degree murder. A divided Court of Appeals reversed and remanded for a new trial.

(1) The defendant’s request for an involuntary manslaughter instruction was preserved. While an initial request for the instruction focusing on the defendant’s failure to act would have been a special instruction (as it deviated from the pattern instruction) and would have needed to be in writing in order to preserve the issue, the defendant articulated multiple theories in support of an involuntary manslaughter instruction. He also objected to the lack of manslaughter instructions at the charge conference and again after the jury was instructed. This preserved the issue for review.

(2) The defendant argued that his evidence contradicted the State’s evidence of malice with evidence of recklessness, and that he was entitled to an involuntary manslaughter instruction when the evidence was viewed in the light most favorable to him. The State argued that the defendant’s use of a deadly weapon—his hands—"conclusively established” the element of malice, so that no lesser-included instructions were required. The court agreed with the defendant:

Viewing the evidence in the light most favorable to Defendant, the evidence was not “positive” as to the element of malice for second-degree murder. The jury could reasonably have found Defendant did not act with malice, but rather committed a reckless act without the intent to kill or seriously injure–he spent the day declaring his love for Mrs. Brichikov, they used drugs together . . . and her body was in a weakened state from a recent overdose, heart blockage, and fentanyl overdose. Brichikov Slip op. at 17-18.

The failure to give an involuntary manslaughter instruction prejudiced the defendant and required a new trial. The court declined to consider the propriety of the defendant’s proposed special jury instruction on culpable negligence by omission, finding that issue moot in light of its ruling and expressing no opinion on the merits of the instruction.

Judge Carpenter dissented and would have found that any error in the jury instructions was not prejudicial in light of the aggravating factor found by the jury that the defendant acted especially cruelly.