State v. Collins

*64 Justice Meyer

concurring in part and dissenting in part.

I concur in the majority’s holding that attempted murder is a lesser included offense of the crime of first-degree murder and is punishable as a felony. I dissent from the majority’s holding that under a plain error analysis, defendant is entitled to a new trial for the trial court’s failure to charge the jury on attempted murder.

On the face- of the transcript of this case, it is as plain as plain can be that this defendant did not want the trial judge to submit any lesser included offense and that this was calculated trial strategy. Defendant’s defense was simply and solely that he was not guilty of first-degree murder. His trial strategy was two-pronged. First, defendant believed that the State could not prove to the satisfaction of the jury beyond a reasonable doubt that he was the person who shot the victim. Defendant took the stand and testified categorically that although he was at the Wessex party with his friends, he did not fire the gun and did not see who fired it because the shot came from behind him. Second, defendant believed that even if the jury was convinced that he fired the shot, the State could not satisfy the jury beyond a reasonable doubt that the gunshot wound in any way caused or contributed to the victim’s death. Defendant mounted an attack on the element of the “killing” of another human being, through the testimony of his pathology expert, who, contrary to the State’s expert witness, gave his expert opinion that the victim would have died on 25 January 1992 of gallbladder disease and ensuing complications even had he not been shot.

At the. charge conference, the trial court announced that it would submit first-degree murder and not guilty as possible verdicts and specifically inquired of defense counsel whether he had any request for special instructions or any recommended alternative verdicts to be submitted to the jury. When this inquiry was made, defense counsel asked for confirmation that the trial court would give a charge on the definition of “reasonable doubt,” and when he received an affirmative answer, he stated that' he had no objections or additions.

The transcript demonstrates to me that defendant in no way wished to have the jury consider whether he was guilty of some lesser included offense. Defendant wanted the jury to consider only two possible verdicts: guilty of first-degree murder or not *65 guilty. Defendant obviously felt that the jury would not convict him of first-degree murder and that he would walk away a free man. He relied solely on the State’s inability to prove first-degree murder. Though defendant’s trial strategy failed him, he knowingly chose to rely upon introducing reasonable doubt as to whether he, in fact, shot the victim and whether the shot, in fact, killed the victim.

It is familiar learning that' trial counsel should be given wide latitude in matters of strategy. Although a defendant may always show not only his innocence under the theory of prosecution chosen by the State, but also his possible guilt of some lesser offense, there is no law forcing him to do so, and it is obvious that this defendant deliberately chose not to do so.

It is true that this Court has held that where there is evidence of a defendant’s guilt of a lesser included offense of the crime set forth in the bill of indictment, the defendant is entitled to have the question submitted to the jury even in the absence of a specific request for the instruction. It is clear from the text of the opinions in those cases, however, that the defendants did, in fact, request instructions on lesser included offenses, or made motions for dismissal, as part of their trial strategy. This Court, therefore, determined in each case whether the trial court had erred in refusing to give the requested instructions to the jury. See, e.g., State v. Moore, 300 N.C. 694 , 268 S.E.2d 196 (1980) (and cases cited therein); State v. Riera, 276 N.C. 361 , 172 S.E.2d 535 (1970) (and cases cited therein). In short, in those cases, the Court was not ascertaining whether plain error was present. Thus, in that regard, this case is distinguishable.

Defendant clearly waived his right to assign error to the omission from the charge. Rule 10(b)(2) of our Rules of Appellate Procedure provides as follows:

(2) Jury Instructions; Findings and Conclusions of Judge. A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury.

*66 In State v. Odom, 307 N.C. 655 , 300 S.E.2d 375 (1983), we said:

The adoption of the “plain error” rule does not mean that every failure to give a proper instruction mandates reversal regardless of the defendant’s failure to object at trial. To hold so would negate Rule 10(b)(2) which is not the intent or purpose of the “plain error” rule. See United States v. Ostendorff, 371 F.2d 729 (4th Cir.), cert. denied, 386 U.S. 982 , 18 L. Ed. 2d 229 , 87 S. Ct. 1286 (1967). The purpose of Rule 10(b)(2) is to encourage the parties to inform the trial court of errors in its instructions so that it can correct the instructions and cure any potential errors before the jury deliberates on the case and thereby eliminate the need for a new trial. Indeed, even when the “plain error” rule is applied, “[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.” Henderson v. Kibbe, 431 U.S. 145, 154 , 52 L. Ed. 2d 203, 212 , 97 S. Ct. 1730, 1736 (1977).

Odom, 307 N.C. at 660-61 , 300 S.E.2d at 378 .

Because this issue is considered by this Court under the plain error rule, the defendant should not be entitled to relief by reason of his deliberately chosen strategy at trial of withholding from the jury’s consideration any lesser included offense. See State v. Liner, 98 N.C. App. 600 , 391 S.E.2d 820 (defendant who knowingly, intelligently, and voluntarily waives right to have trial court submit possible verdicts of lesser included offense may not thereafter assign as error on appeal trial court’s failure to do so, even though evidence would support same), disc. rev. denied, 327 N.C. 435 , 395 S.E.2d 693 (1990).

N.C.G.S. § 15A-1443, “Existence and showing of prejudice,” specifically provides: “A defendant is not prejudiced ... by error resulting from his own conduct.” N.C.G.S. § 15A-1443(c) (1988). I find no plain error in this case.

The majority’s holding in this case will many times prove detrimental to criminal defendants, as they will be deprived of the trial strategy relied upon by the defendant here, and it is no secret that this strategy oftentimes proves successful. Because our trial judges are forced to charge on all lesser included offenses supported by the evidence and, under the majority’s holding, defendants may not waive submission of such charges, defendants *67 are deprived of the strategy employed in this case. While it is true, as the majority observes, that juries often convict because of their reluctance to allow a defendant to go free when they strongly “suspect” he is guilty, juries also tend to convict a defendant of a lesser included offense rather than find him not guilty of the crime charged in the indictment when they are not convinced beyond a reasonable doubt of his guilt of the greater offense.