State v. Strickland, 2022-NCCOA-299, ___ N.C. App. ___ (May. 3, 2022)

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.