Opinion
No. COA09-1261
Filed 6 July 2010 This case not for publication
Appeal by defendant from judgment entered 11 February 2009 by Judge Thomas D. Haigwood in Edgecombe County Superior Court. Heard in the Court of Appeals 10 March 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Sue Genrich Berry for defendant-appellant.
Edgecombe County No. 07 CRS 53328.
Defendant Mario Antoine Dupree appeals from a judgment and commitment entered after a jury found him guilty of first degree murder. For the reasons stated herein, we hold no error.
Defendant was indicted on charges of first degree murder for the killing his wife, Yolanda Dupree. Yolanda died as a result of two gunshot wounds to her abdomen fired at close range. At trial, defendant testified that on 26 August 2007 he was living on Salisbury Drive in Rocky Mount, North Carolina, with his wife, his step-daughter, and his son. Defendant and Yolanda had been married for ten years, during which time defendant admitted he consistently abused alcohol. On Saturday, 26 August 2007, defendant visited friends and relatives and consumed beer. That evening, between 9:30 and 10:00 p.m., defendant came home where his wife noted the smell of alcohol on his breath. After midnight, a phone rang. Defendant checked the number and called back. Defendant described the voice on the other end as that of a man attempting to sound like a child. The person asked to speak to defendant's fifteen-year-old step-daughter. Defendant said his daughter was unavailable and hung up but later testified that he did not believe the initial call was for his daughter. Defendant confronted his wife, stating the phone number was one that he had seen on her phone record. Yolanda was angered by defendant's accusations and stated that she was leaving. Instead, defendant left and purchased two twenty-four-ounce beers and wine. After consuming the alcoholic beverages, defendant returned home. Defendant testified that Yolanda said she was willing to take the children and leave defendant, and she admitted to having an affair. Defendant admitted that, at this point, he retrieved his shotgun and shot Yolanda.
Officer Sean Joll of the New Bern Police Department arrived at the scene and placed defendant under arrest. While at the house, Officer Joll observed several beer cans, some of which were partially empty. Officer Joll indicated in his arrest report that defendant was under the influence of alcohol.
After the close of the evidence, during the charge conference, defendant requested that the trial court give the jury North Carolina Pattern Instructions, Criminal 305.11, on the defense of voluntary intoxication. The trial court gave the jury the following instruction:
Now, ladies and gentlemen of the jury, you may find that there is evidence which tends to show that the defendant was intoxicated and or lacked mental capacity at the time the acts [sic] — of the acts alleged in this case.
Generally, voluntary intoxication is not a legal excuse for a crime. However, if you find that the defendant was intoxicated or lacked mental capacity, you should consider whether this condition affected his ability to form the specific intent which is required for a conviction of first-degree murder.
In order for you to find the defendant guilty of first-degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual specific intent to kill formed after premeditation and deliberation.
If as a result of intoxication and or the lack of mental capacity the defendant did not have the specific intent to kill the deceased formed after premeditation and deliberation, his [sic] is not guilty of first-degree murder.
. . .
Therefore, I charge that if, upon considering the evidence with respect to the defendant's intoxication and or lack of mental capacity, you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first-degree murder, you will not return a verdict of guilty of first-degree murder.
The jury returned a verdict finding defendant guilty of first degree murder. The trial court entered judgment in accordance with the jury verdict. Defendant appeals.
On appeal, defendant raises two issues: did the trial court err in (I) admitting an exhibit; and (II) instructing the jury on the defense of voluntary intoxication. However, as defendant expressly abandons argument I, we address only argument II.
II
Defendant argues the trial court failed to adequately instruct the jury on the defense of voluntary intoxication. We disagree. After receiving the initial charge, the jury requested a written copy of the elements of first degree murder. The trial court declined to reduce the instruction to writing but elected to repeat the substantive charge including the instruction on diminished capacity. When first reciting the jury charge on the defense of voluntary intoxication, the trial court stated that the jury was to consider defendant's "intoxication and or the lack of mental capacity." When repeating the instruction, the trial court stated that the jury was to consider whether defendant was "intoxicated or lacked mental capacity."
Under North Carolina Rules of Appellate Procedure, Rule 10(b)(2), a party may not assign error to any portion of the jury charge unless he objects before the jury retires to consider its verdict. N.C. R. App. P. 10(b)(2) (2008).
[However,] a request for an instruction at the charge conference is sufficient compliance with the rule to warrant our full review on appeal where the requested instruction is subsequently promised but not given, notwithstanding any failure to bring the error to the trial judge's attention at the end of the instructions.
State v. Ross, 322 N.C. 261, 265, 367 S.E.2d 889, 891 (1988). Although, defendant requested and received an instruction on the defense of voluntary intoxication, defendant now contends the trial court's use of "and/or" to join "intoxication" and "lack of mental capacity" in the initial instruction was inconsistent with its use of "or" during the second recitation. However, defendant failed to raise an objection in the trial court, and thus, the trial court did not have an opportunity to address the inconsistency in the instructions prior to the conclusion of the jury's deliberations. Therefore, we review this matter for plain error. See N.C. R. App. P. 10(c)(4) (2008) ("In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule or law without any such action, nevertheless may be made the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error.").
Plain error is error so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached. We find plain error only in exceptional cases where, after reviewing the entire record, it can be said the claimed error is a fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done.
State v. Wilkerson, 363 N.C. 382, 412, 683 S.E.2d 174, 193 (2009) (internal citations and quotations omitted).
On appeal, defendant contends that the trial court failed to consistently instruct the jury that it was to consider defendant's intoxication and or lack of mental capacity at the time of the acts in question. "[A] lapsus linguae not called to the attention of the trial court when made will not constitute prejudicial error when it is apparent from a contextual reading of the charge that the jury could not have been misled by the instruction." State v. Baker, 338 N.C. 526, 565, 451 S.E.2d 574, 597 (1994) (citation omitted).
Here, the trial court correctly instructed the jury that "you may find that there is evidence which tends to show that the defendant was intoxicated and or lacked mental capacity at the time the acts — of the acts alleged in this case." In this context, "and or" indicates that at least one of the elements connected must be found. See American Heritage College Dictionary 50 (3d ed. 1993), (construing "and/or" to convey "that either or both of the items connected by it are involved"). In the re-instruction, the trial court stated that the jury must find that defendant was "intoxicated or lacked mental capacity" for the defense of voluntary intoxication to be applicable. In this context, "or" acts as a disjunctive conjunction allowing the jury to find that intoxication and lack of mental capacity are alternative elements, either of which may establish the defense of voluntary intoxication. See Id. at 959. We hold that the correct instruction was apparent from a contextual reading of the charge and that the jury could not have been misled by the instruction. However, even presuming that the trial court's initial instruction requiring the jury to find that "defendant's intoxication and or lack of mental capacity" was construed as requiring the jury to find that both intoxication and lack of mental capacity had to simultaneously exist for the defense of voluntary intoxication to apply, the trial court's re-instruction using the disjunctive conjunction "or" gave defendant the benefit of an alternative, rather than conjunctive, criteria on which to premise the voluntary intoxication defense. See State v. Carroll, 356 N.C. 526, 539, 573 S.E.2d 899, 909 (2002) (stating that the trial court's instruction on the defendant's intoxication, drug condition, or lack of capacity "provided defendant the benefit of all his evidence."). Thus, even presuming error, not only was such not prejudicial, it actually inured to defendant's benefit.
Accordingly, defendant's argument is overruled.
No error.
Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).