Wilson County No. 01 CRS 55794

McGEE, Judge.

Reginald Antonio Barnes (defendant) was charged with first degree murder of James Worley (Worley). At trial, the State introduced evidence tending to show that on the night of 3 November 2001, Worley and his high school friends, Milton Hagans, Chris Carr and Denaney Taylor, congregated on Garner Street in Wilson, North Carolina after attending a party. As they stood on the sidewalk, a vehicle drove past them. One of the young men yelled, "that's Stanford's car but it don't look like Stanford in the car." The vehicle continued down Garner Street and stopped at the stop sign. Worley ran up to the stopped vehicle and attempted to open the driver's side door. He swung his hand into the driver's side window. The driver pulled away from the stop sign and turned left onto First Street. When Worley returned to the sidewalk, he told his friends that "I don't think that was Stanford."

Approximately ten minutes later, Marcus Barnes (Barnes) drove onto Garner Street and parked on the right side of the street across from Worley's vehicle. Worley and his friends crossed the street to talk with Barnes. Defendant later walked up to the group with a cell phone in his hand and asked, "Which one of y'all know Stanford?" He then asked "which one of y'all [Worley]?" Defendant, who was standing about two to five feet from Worley, pulled out a handgun and shot Worley. None of the young men saw Worley take a swing at defendant. Defendant dropped the gun, picked it up again, and ran down Garner Street. Worley died as a result of a single gunshot wound to the chest. The autopsy revealed powder burns around the gunshot wound indicative of "a very close gunshot wound."

Defendant testified that he went back to where Worley was standing on Garner Street to find out why Worley had hit him. Defendant testified that after speaking with Worley, Worley swung at defendant and reached into his pocket. Defendant testified that he shot Worley because he was afraid and needed to protect himself. Defendant admitted that he ran back to his vehicle after shooting Worley and that he went to his stepfather's house to change clothes and wash up.

A jury found defendant guilty of first degree murder. The trial court sentenced defendant to life imprisonment without parole. Defendant appeals.

Defendant first contends the trial court committed plain error by allowing the State to introduce into evidence photographs of the gunshot wounds taken at the autopsy. Defendant argues the photographs were irrelevant and inflammatory because defendant admitted he shot Worley at close range and stipulated to the autopsy report. During the testimony of Officer Rodney Dancy (Officer Dancy), an evidence and identification specialist for the Wilson Police Department, the State introduced three photographs into evidence to illustrate Officer Dancy's testimony. State's Exhibit No. 14 showed the bullet hole where the bullet exited Worley's chest; Exhibit No. 15 showed the entrance wound; and Exhibit No. 16 showed a close-up of the entrance wound and the powder burns surrounding the wound. As defendant notes, he did not object to the admission of these exhibits at trial and, therefore, we examine the admission of this evidence under the plain error standard.

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) (quoting United States v. McCaskill, 676 F.2d 995, 1002 (4th Cir.), cert. denied, 459 U.S. 1018, 74 L.Ed.2d 513 (1982)). Defendant therefore "must convince this Court not only 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). "Photographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury." State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988). "In a homicide case, photographs depicting the location and condition of the body at the time it was found are competent despite their portrayal of gruesome events which a witness testifies they accurately portray." State v. Alford, 339 N.C. 562, 577, 453 S.E.2d 512, 520 (1995). Additionally, photographs taken during an autopsy are generally admissible. State v. Barnes, 333 N.C. 666, 678, 430 S.E.2d 223, 230, cert. denied, 510 U.S. 946, 126 L.Ed.2d 336 (1993). Autopsy photographs are relevant in first degree murder cases even when such factors as the identity of the victim or the cause of death are not disputed. Id. at 678, 430 S.E.2d at 229. "A mere stipulation as to the cause of death may not necessarily convey to the jury full information as to the actual manner of killing." State v. Lester, 294 N.C. 220, 228, 240 S.E.2d 391, 398 (1978) (citations omitted).

In the case before us, the pictures were admitted to illustrate Officer Dancy's testimony regarding the autopsy, the location of the victim's gunshot wounds and the close range of the shooting. Thus, the photographs were relevant to the State's case that defendant committed first degree murder. Furthermore, defendant has not shown how the three photographs of the entrance and exit wounds inflamed the jury by their content and number. Accordingly, the trial court did not err in admitting the photographs into evidence.

Defendant also contends the trial court erred by failing to instruct the jury on his requested special instruction of "lack of flight." At the charge conference, defendant requested the following instruction:

The Defendant contends that he did not flee. Evidence that the Defendant did not flee may be considered by you together with all other facts and circumstances in this case in determining whether the combined circumstances amount to a denial of guilt.

The trial court denied the request because there was no substantial evidence to support the requested instruction, stating "the evidence said [defendant] ran off." The trial court also noted that there was no authority for the special instruction and determined that it would give the North Carolina Pattern Jury Instruction for flight in a first degree murder case. Defendant noted his objection for the record. Defendant argues the proposed instruction correctly stated the law and was supported by substantial evidence. We disagree.

"It is well established that when a defendant requests a special instruction which is correct in law and supported by the evidence, the trial court must give the requested instruction, at least in substance." State v. Tidwell, 112 N.C. App. 770, 773, 436 S.E.2d 922, 924 (1993). If a trial court refuses to give a requested instruction, a defendant on appeal must show "the requested instruction was not given in substance, and that substantial evidence supported the omitted instruction." State v. White, 77 N.C. App. 45, 52, 334 S.E.2d 786, 792, cert. denied, 315 N.C. 189, 337 S.E.2d 864 (1985). "`Substantial evidence' is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Gray, 337 N.C. 772, 777-78, 448 S.E.2d 794, 798 (1994) (citation omitted).

Defendant has failed to show that "substantial evidence supported the omitted instruction." To the contrary, the evidence showed that defendant fled the scene after shooting the victim. In fact, defendant testified at trial that after he shot Worley, he ran back to his vehicle and drove to his step-father's house. This evidence does not support defendant's special instruction of "lack of flight." Accordingly, the trial court properly denied defendant's request.

Finally, defendant contends the "short-form" indictment for murder was inadequate in that it did not allege the elements of first degree murder, but only alleged the elements for second degree murder, and therefore his rights under the United States Constitution and the Constitution of North Carolina were violated. Defendant concedes our Supreme Court has repeatedly upheld the short-form indictments, authorized under N.C. Gen. Stat. § 15-144. Nevertheless, defendant argues there was a fatal variance between his short-form murder indictment and the verdict and judgment for first degree murder. We disagree.

We are bound by our Supreme Court decisions rejecting constitutional challenge to the short-form indictment. See State v. Wallace, 351 N.C. 481, 528 S.E.2d 326, cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000) (holding short-form indictments based on G.S. § 15-144 are in compliance with both the North Carolina and United States Constitutions); State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 148 L.Ed.2d 797 (2001) (short-form indictment is sufficient to allege first degree murder under the United States Constitution in light of Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435 (2000)); State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003) (holding Ring v. Arizona, 536 U.S. 584, 153 L.Ed.2d 556 (2002), did not render North Carolina's short-form murder indictment unconstitutional). Accordingly, we reject defendant's argument that the short-form murder indictment violates his constitutional rights and overrule his assignment of error.

Defendant fails to present an argument in support of his first assignment of error; therefore, in accordance with N.C.R. App. P. 28(b)(6), this assignment of error is deemed abandoned.

No error.

Chief Judge MARTIN and Judge BRYANT concur.

Report per Rule 30(e).