State v. Smith ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1268
Filed: 17 December 2019
Pitt County, No. 17 CRS 55157
STATE OF NORTH CAROLINA
v.
JAMES EDWARD SMITH
Appeal by defendant from judgment entered 16 February 2018 by Judge J.
Carlton Cole in Pitt County Superior Court. Heard in the Court of Appeals 8 May
2019.
Attorney General Joshua H. Stein, by Assistant Attorney General Alexandra M.
Hightower, for the State.
W. Michael Spivey for defendant-appellant.
ZACHARY, Judge.
Defendant James Edward Smith appeals from a judgment entered upon a
jury’s verdict finding him guilty of solicitation to commit first-degree murder. Upon
careful review, we conclude Defendant received a fair trial, free from error.
Background
On 20 July 2017, Defendant revealed to Clayton Edwards—an individual who
Defendant had recently met through a mutual connection—that he wanted his wife
to be killed, and he offered to pay Edwards to kill her. Defendant told Edwards to
“basically kill her in cold blood, walk up and shoot her,” and provided him with details
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Opinion of the Court
of where the killing should take place. These requests continued over the next three
days.
Edwards contacted Pitt County Crime Stoppers and informed them that he
“had information on someone who wanted someone killed.” In conjunction with the
Greenville Police Department, Edwards scheduled a meeting with Defendant for 23
July 2017, during which Edwards would wear audio and video recording devices. At
the meeting, the two men spoke “more in depth about what [Defendant] wanted
[Edwards] to do.”
Later that day, a Greenville police officer served Defendant with an arrest
warrant for solicitation to commit first-degree murder. Two weeks later, the Pitt
County grand jury returned an indictment formally charging him with the same
offense. Defendant’s case came on for trial before the Honorable J. Carlton Cole in
Pitt County Superior Court on 12 February 2018. After a four-day trial, the jury found
Defendant guilty of solicitation to commit first-degree murder, a Class C felony. The
trial court sentenced defendant, a prior record level I offender, to a presumptive term
of 73 to 100 months in the custody of the North Carolina Division of Adult Correction.
Defendant gave notice of appeal in open court.
Discussion
Defendant’s brief states the issue presented as follows: “The trial court erred
by sentencing [Defendant] for a Class C felony where the jury convicted [him] for
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Opinion of the Court
solicitation to commit second-degree murder but did not determine the nature of the
element of malice.” To properly analyze Defendant’s appeal, we first review the
crimes of solicitation and murder.
A. Solicitation
Our Supreme Court has “defined the crime of solicitation as counseling,
enticing or inducing another to commit a crime.” State v. Kemmerlin, 356 N.C. 446,
475, 573 S.E.2d 870, 890 (2002) (citation and quotation marks omitted). Solicitation
is a specific-intent crime, State v. Davis, 110 N.C. App. 272, 275, 429 S.E.2d 403, 404,
disc. review denied, 334 N.C. 436, 433 S.E.2d 180 (1993), and the offense is complete
upon the request. See generally 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW §
11.1, at 264 (3d ed. 2018) (“For the crime of solicitation to be completed, it is only
necessary that the actor, with intent that another person commit a crime, have
enticed, advised, incited, ordered or otherwise encouraged that person to commit a
crime.”). Thus, the crime is committed “even though the solicitation is of no effect and
the crime solicited is never committed.” State v. Furr, 292 N.C. 711, 720, 235 S.E.2d
193, 199, cert. denied, 434 U.S. 924, 54 L. Ed. 2d 281 (1977).
Solicitation to commit a felony is punished as follows:
Unless a different classification is expressly stated, a
person who solicits another person to commit a felony is
guilty of a felony that is two classes lower than the felony
the person solicited the other person to commit, except that
a solicitation to commit a Class A or Class B1 felony is a
Class C felony, a solicitation to commit a Class B2 felony is
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Opinion of the Court
a Class D felony, a solicitation to commit a Class H felony
is a Class 1 misdemeanor, and a solicitation to commit a
Class I felony is a Class 2 misdemeanor.
N.C. Gen. Stat. § 14-2.6(a).
B. Murder
North Carolina recognizes first-degree murder and second-degree murder.
State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694, 699 (1994), cert. denied, 514 U.S.
1071, 131 L. Ed. 2d 569 (1995).
The elements of first-degree murder are: (1) the unlawful
killing, (2) of another human being, (3) with malice, and (4)
with premeditation and deliberation. The elements of
second-degree murder, on the other hand, are: (1) the
unlawful killing, (2) of another human being, (3) with
malice, but (4) without premeditation and deliberation.
State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (citations omitted).
First-degree murder is a specific-intent crime because it includes as an
essential element the intent to kill, whereas second-degree murder is a general-intent
crime because it lacks the essential element of an intent to kill. State v. Jones, 339
N.C. 114, 148, 451 S.E.2d 826, 844 (1994) (noting that general-intent crimes “only
require the doing of some act”), cert. denied, 515 U.S. 1169, 132 L. Ed. 2d 873 (1995).
However, malice is an element of both first- and second-degree murder, and may be
established in at least three ways:
(1) actual malice, meaning hatred, ill-will or spite; (2) an
inherently dangerous act done so recklessly and wantonly
as to manifest a mind utterly without regard for human life
and social duty and deliberately bent on mischief; or (3)
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Opinion of the Court
that condition of mind which prompts a person to take the
life of another intentionally without just cause, excuse, or
justification.
State v. Arrington, 371 N.C. 518, 523, 819 S.E.2d 329, 332 (2018) (quotation marks
omitted).
Prior to 2012, all second-degree murders in North Carolina were classified as
Class B2 felonies. See N.C. Gen. Stat. § 14-17 (2011). However, in 2012, the General
Assembly amended N.C. Gen. Stat. § 14-17 by adding subsection (b), thereby
elevating most second-degree murders to Class B1 felonies, save for two statutory
exceptions. See 2012 N.C. Sess. Laws 781, 782, ch. 165, § 1. Subsection (b) provides
that:
(b) A murder other than described in subsection (a) [first-
degree murder defined] or (a1) [presumption of first-degree
murder where prior conviction for an act of domestic
violence against the victim] of this section or in G.S. 14-
23.2 [murder of an unborn child] shall be deemed second
degree murder. Any person who commits second degree
murder shall be punished as a Class B1 felon, except that
a person who commits second degree murder shall be
punished as a Class B2 felon in either of the following
circumstances:
(1) The malice necessary to prove second degree
murder is based on an inherently dangerous act or
omission, done in such a reckless and wanton
manner as to manifest a mind utterly without
regard for human life and social duty and
deliberately bent on mischief.
(2) The murder is one that was proximately caused
by the unlawful distribution of [certain controlled
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Opinion of the Court
substances], and the ingestion of such substance
caused the death of the user.
N.C. Gen. Stat. § 14-17(b) (2017).
Our Supreme Court has observed that the text of N.C. Gen. Stat. § 14-17 shows
the legislature’s intent “to elevate second-degree murder to a B1 offense, except in
the two limited factual scenarios” addressed in subsection (b). Arrington, 371 N.C. at
523-24, 819 S.E.2d at 333. With this amendment, “the legislature assigned culpability
to convicted offenders depending upon the nature of their conduct at the time of the
homicide resulting in their second-degree murder convictions and the intent with
which they acted at that time.” Id. at 522-23, 819 S.E.2d at 332. In doing so, “the
legislature distinguishe[d] between second-degree murders that involve an intent to
harm (actual malice or the intent to take a life without justification) versus the less
culpable ones that involve recklessness (an inherently dangerous act or omission) or
a drug overdose.” Id. at 524, 819 S.E.2d at 333.
C. Analysis
The parties are in disagreement over the issue before us. Defendant asserts
that the trial court erred in sentencing him. The State counters that this is actually
an unpreserved challenge to the jury instructions. We agree with the State.
Defendant’s argument is this: that although the jury was instructed on
solicitation to commit the felony of common-law (or second-degree) murder, the trial
court failed to instruct the jury “to make any special finding about the nature of the
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Opinion of the Court
malice supporting its finding that [Defendant] solicited second-degree murder.”
Absent any special findings, Defendant contends that he should have been convicted
of soliciting a Class B2 felony. He would accordingly have us conclude that he should
have been sentenced for a Class D felony, and that we should review his sentence de
novo.
Defendant creatively sidesteps the fact that he was not charged with murder,
but with solicitation to commit murder. The jury was not required to find any of the
elements of murder. As previously explained, one may be guilty of solicitation
regardless of whether the solicited crime—murder, in this case—actually occurs. See
Furr, 292 N.C. at 720, 235 S.E.2d at 199. The crime was in the asking. Thus,
Defendant’s appeal begins and ends with the jury instruction on the offense of
solicitation, and not with his subsequent sentencing.
Here, the trial court properly instructed the jury on the offense of solicitation
to commit murder:
The Defendant has been charged with solicitation to
commit murder. For you to find the Defendant guilty of this
offense, the State must prove two things beyond a
reasonable doubt:
First, that the Defendant solicited, that is, urged or tried
to persuade another person to murder the victim. Murder
is the unlawful killing of another with malice.
And second, that the Defendant intended that the person
he solicited—solicited murder—that the Defendant
intended that the person he solicited murder the victim.
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Defendant failed to object to these instructions at trial. Our appellate rules
make clear that “to preserve an issue for appellate review, a party must have
presented to the trial court a timely request, objection, or motion[.]” N.C.R. App. P.
10(a)(1). Unpreserved issues related to jury instructions in criminal cases may
nevertheless be reviewed where “the judicial action questioned is specifically and
distinctly contended to amount to plain error.” N.C.R. App. P. 10(a)(4); see also State
v. Lawrence, 365 N.C. 506, 516, 723 S.E.2d 326, 333 (2012). “However, since
Defendant’s brief failed to specifically and distinctly allege that the jury instruction
amounted to plain error, he is not entitled to appellate review under this rule either.”
State v. Christian, 150 N.C. App. 77, 84, 562 S.E.2d 568, 573, disc. review denied, 356
N.C. 168, 568 S.E.2d 618 (2002). Therefore, he has waived appellate review.
Conclusion
In that Defendant’s entire appeal was predicated on an unpreserved issue and
he failed to request plain error review, his conviction and subsequent sentence shall
remain undisturbed.
NO ERROR.
Judges DILLON and BERGER concur.
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