State v. Moore
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA14-141 NORTH CAROLINA COURT OF APPEALS Filed: 5 August 2014 STATE OF NORTH CAROLINA v. Columbus County No. 11 CRS 51346 JERRY LEE MOORE, JR. Appeal by defendant from judgment entered 2 August 2013 by Judge Douglas B. Sasser in Columbus County Superior Court. Heard in the Court of Appeals 5 June 2014. Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Charlesena Elliot Walker, for defendant-appellant. HUNTER, JR., Robert N., Judge. Defendant Jerry Lee Moore, Jr. ( Defendant ) appeals from a jury verdict finding him guilty of first-degree murder. Defendant argues the pattern jury instruction used by the trial court was prejudicial and that his conviction must be vacated. After careful review, we hold this issue was previously decided adversely to Defendant in State v. Carroll, 356 N.C. 526, 573 -2S.E.2d 899 (2002). Accordingly, we hold that the trial court did not err. I. Facts & Procedural History On 8 July 2011 the Columbus County Grand Jury indicted Defendant on a charge of first-degree murder of Samuel Odell Hampton, III ( Hampton ). counsel and asserted Defendant, an indigent, was appointed the defense of diminished capacity. Defendant stood trial on 29 July 2013 through 2 August 2013 in Columbus County Superior Court. The record and trial transcript tended to show the following facts. Special Agent Adrienne Harvey ( Agent Harvey ) said she was informed of a shooting at the Hide Away Club around 4 a.m. on 23 April 2011. Defendant surrendered himself to local police at the jail near the Columbus County Sherriff s Office. Harvey arrived Defendant. signed a Defendant. at the jail around 5:15 a.m. to Agent interview Defendant was read his Miranda rights, voluntarily Miranda waiver, and then Agent Harvey interviewed According to Agent Harvey, Defendant understood the questions asked in the interview and was clear and coherent. Defendant told Agent Harvey that when he shot Hampton he started to pull the gun out of his pocket, realized the safety was on, -3lowered it, turned off the safety, and then pointed the gun at Hampton. After the interview, Defendant helped Agent Harvey and other officers locate and recover the .22 caliber pistol used in the shooting. find the Defendant led officers to a wooded location to weapon. Agent Harvey also testified that seven projectiles were recovered during the autopsy of Hampton. Of these seven shell casings, Agent Harvey stated five were fired and ejected from the .22 caliber handgun that Defendant used. Assistant Privette ( Dr. Chief Medical Privette ) Examiner testified Dr. Johnathan next about David Hampton s autopsy, Hampton s gunshot wounds, and the range at which the gunshot wounds were inflicted. cause of death for Hampton Dr. Privette testified that the was multiple gunshot wounds to Hampton s head, each of which alone had the potential to be fatal. case. After Dr. Privette s testimony, the State rested its Defendant made a motion to dismiss at the close of the State s evidence, which was denied by the trial court. Defendant testified next at trial, stating he had been in two fights with Hampton prior to 23 April 2011. The first fight was about thirty days prior to the 23 April 2011 shooting; at this fight, Hampton hit Defendant on the head from behind, -4scaring defendant. Defendant testified the occurred around a week after the first fight. second fight At this fight, Hampton got close to [Defendant and] he had his fists balled up[.] Hampton then started backing away. Defendant stated this event sort of scared him and that he had stolen a gun to protect himself from Hampton. Defendant testified on his own behalf and denied that he ever said he wanted to kill Hampton or that he ever intended to kill Hampton before the shooting on 23 April 2011. However, on cross, [Hampton], when asked [d]id you not mean to kill Defendant responded [e]videntially [sic], yes. Defendant also testified about his scholastic performance. Defendant was placed in a special education program from the time that he was in the fifth grade until he graduated from high school. Defendant later attended Lenoir Community College, where he played basketball. Defendant eventually dropped out of college grades. due to his poor Defendant said he has difficulties with reading and writing. Defendant s mother Angelia Kinlaw Hatcher ( Angelia ), testified next, stating that Defendant was always slow and that she assisted him with classwork. She repeated that Defendant had been in special education classes during most of -5grade school and played basketball at Lenoir Community College before dropping out due to his poor grades. Angelia testified that Defendant was shot in 2009 and thereafter went into a deep depression. behavior Angelia stated that Defendant engaged in strange such as wearing long-sleeved shirts in the summer, being disrespectful, and talking to himself. Defendant s final witness, neuropsychologist Christine Herfkens, Ph.D. ( Dr. Herfkens ), testified at trial that she had diagnosed functioning. Defendant Dr. with Herfkens said borderline Defendant s intellectual overall IQ was seventy-two, two points above the level of mental retardation. Defendant s verbal comprehension was sixty-six which put him at the first percentile for his age. Defendant s processing speed put him in the fifth percentile for his age. Both Defendant s verbal comprehension and processing speed were in the range of impairment. Dr. Herfkens also testified that while Defendant s verbal reasoning skills were low, his nonverbal analysis test results were abstract percentile and strong. to (also these attributes processes. Defendant s reason ability pragmatically considered impaired) to were and Dr. reason in in the Herfkens the sixth said could potentially affect his decision-making -6Dr. Herfkens testified it was her opinion that Defendant was capable of making the decision to shoot someone, but that Defendant s impairments may render him incapable of making a rational decision. Additionally, Dr. Herfkens testified that individuals who are incarcerated tend to perform better on IQ tests while incarcerated due to their structured environment. Thus, Dr. Herfkens opined that Defendant may have been performing at a higher level during his IQ tests than at the time of the shooting. Dr. Herfkens testified that Defendant faked a suicide attempt in order to get privileges and be moved out of his holding cell. After Dr. Herfken s testimony, Defendant rested his case and renewed his motion to dismiss, which was denied. During the jury instruction conference, Defendant requested that the court deliver the pattern jury instruction concerning diminished capacity. The court instructed the jury in accordance with N.C.P.I. Crim. 305.11 (2009), the pattern jury instruction for lack of mental capacity for first-degree murder, as follows: You may find there is evidence which tends to show that the defendant lacked mental capacity at the time of the acts alleged in this case. If you find the defendant lacked mental capacity, you should consider whether this condition affected the defendant s -7ability to formulate a specific intent which is required for conviction of first degree murder on the basis of malice, premeditation and deliberation. In order for you to find the defendant guilty of first degree murder on that basis, you must find beyond a reasonable doubt that the defendant killed the deceased with malice and in the execution of an actual, specific intent -- in the execution of an actual specific intent to kill formed after premeditation and deliberation. If as a result of lack of mental capacity the defendant did not have the specific intent to kill the deceased formed after premeditation and deliberation, the defendant is not guilty of first degree murder on the basis of malice, premeditation and deliberation. Therefore, I charge that if upon considering the evidence with respect to the defendant s lack of mental capacity, you have a reasonable doubt as to whether the defendant formulated the specific intent required for conviction of first degree murder on the basis of malice, premeditation and deliberation, you will not return a verdict of guilty of first degree murder on that basis. The jury returned a unanimous verdict that the defendant is guilty of first-degree [murder] both on the basis of malice, premeditation and deliberation and on the basis of lying in wait. Defendant was sentenced to life in prison without the possibility of parole. Following the verdict, Defendant gave oral notice of appeal in open court. -8II. Jurisdiction & Standard of Review Defendant appeals as of right from a decision of the trial court pursuant to N.C. Gen. Stat. ยงยง 7A-27(b), 15A-1444(a) (2013). Defendant argues that the trial court s diminished capacity jury instruction constituted plain error because the instruction was erroneous; misleading; and confusing and placed a higher burden upon [Defendant] than he was required by law to bear. The North Carolina Supreme Court has elected to review unpreserved issues for plain error when they involve either (1) errors in the judge s instructions to the jury, or (2) rulings on the admissibility of evidence. State v. Gregory, 342 N.C. 580, 584, 467 S.E.2d 28, 31 (1996). As Defendant failed to object to the jury instructions that the trial court delivered, we review Defendant s challenge to the diminished capacity instruction for plain error. Plain error arises when the error is so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.] State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (citation and quotation marks omitted). Under the plain error rule, defendant must convince this Court not -9only that there was error, but that absent the error, the jury probably would have reached a different result. State v. Jordan, 333 N.C. 431, 440, 426 S.E.2d 692, 697 (1993). III. Analysis Defendant regarding argues whether that Defendant the trial lacked court s mental instruction capacity and its reference to Defendant s lack of mental capacity which was derived from N.C.P.I. Crim. 305.11 improperly raised the burden of proving diminished capacity for first-degree murder. We disagree. Defendant s argument presents an argument resolved in State v. Carroll, 356 N.C. 526, 540, 573 S.E.2d 899, 909 (2002) (citing State v. Mash, 323 N.C. 339, 344, 372 S.E.2d 532, 535 (1988)). The defendant in Carroll similarly asserted that the trial court s reference to a lack of capacity was prejudicial in that it raised the burden on the defendant to prove he was completely without capacity to form the required intent before the jury could consider the impact of the defendant s capacity on his ability to form the mens rea requirement of first-degree murder. Id. Our Supreme Court rejected this argument for two separate reasons: (i) the use of this pattern jury instruction had already been upheld in Mash and (ii) the defendant had used -10the language argument. S.E.2d lack of mental capacity in his own closing Id.; see also State v. Roache, 358 N.C. 243, 304, 595 381, 420 (2004) (holding N.C.P.I. Crim. 305.11 is an accurate statement of the law). Similarly, Defendant delivery of the capacity. Defendant Carroll, asked instruction, the the party who jury instruction for 356 trial standard Instruction. would pattern was N.C. at court 540, to instruction 573 add requested lack of mental S.E.2d at diminished from the N.C.P.I. Crim. 305.11, the Pattern trial Jury that it court Defendant if that was the instruction he sought. 909. capacity After the trial court told Defendant deliver the asked Defendant s counsel responded affirmatively, stating Yes, sir, that s what we want. Defendant did not object when the pattern jury instruction was given. As N.C.P.I. Crim. 305.11 has been explicitly adopted by our Supreme Court instruction, and the Defendant trial was court the did party not instructions. IV. Conclusion For the reasons stated above, we find NO PLAIN ERROR. err requesting in its this jury -11Judges ERVIN and DAVIS concur. Report per Rule 30(e).
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