State v. Jenrette, 236 N.C. App. 616 (Oct. 7, 2014)

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.