State v. Moore

An unpublished opinion of the North Carolina Court of Appeals does not constitute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
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S.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”). Defendant, an indigent, was appointed
counsel and asserted 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. Agent
Harvey arrived at the jail around 5:15 a.m. to interview
Defendant. Defendant was read his Miranda rights, voluntarily
signed a Miranda waiver, and then Agent Harvey interviewed
Defendant. 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,
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lowered 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. Defendant led officers to a wooded location to
find the 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 Chief Medical Examiner Dr. Johnathan David
Privette (“Dr. Privette”) testified next about Hampton’s
autopsy, Hampton’s gunshot wounds, and the range at which the
gunshot wounds were inflicted. Dr. Privette testified that the
cause of death for Hampton was multiple gunshot wounds to
Hampton’s head, each of which alone had the potential to be
fatal. After Dr. Privette’s testimony, the State rested its
case. 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,
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scaring defendant. Defendant testified the second fight
occurred around a week after the first 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, when asked “[d]id you not mean to kill [Hampton],”
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 due to his poor grades. 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
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grade 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.” Angelia stated that Defendant engaged in strange
behavior 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 Defendant with “borderline intellectual
functioning.” Dr. Herfkens said Defendant’s 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 strong. Defendant’s ability to reason in the
abstract and to reason pragmatically were in the sixth
percentile (also considered impaired) and Dr. Herfkens said
these attributes could potentially affect his decision-making
processes.
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Dr. 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
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ability 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.
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II. Jurisdiction & Standard of Review
Defendant appeals as of right from a decision of the trial
court pursuant to N.C. Gen. Stat. §§ 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
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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).
III. Analysis
Defendant argues that the trial court’s instruction
regarding whether Defendant “lacked mental 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
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the language “lack of mental capacity” in his own closing
argument. Id.; see also State v. Roache, 358 N.C. 243, 304, 595
S.E.2d 381, 420 (2004) (holding N.C.P.I.—Crim. 305.11 is an
accurate statement of the law).
Similarly, Defendant was the party who requested the
delivery of the pattern jury instruction for lack of mental
capacity. Carroll, 356 N.C. at 540, 573 S.E.2d at 909.
Defendant asked the trial court “to add diminished capacity
instruction, standard instruction from the Pattern Jury
Instruction.” After the trial court told Defendant that it
would deliver N.C.P.I. Crim. 305.11, the trial court asked
Defendant if that was the instruction he sought. 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 and Defendant was the party requesting this
instruction, the trial court did not err in its jury
instructions.
IV. Conclusion
For the reasons stated above, we find
NO PLAIN ERROR.
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Judges ERVIN and DAVIS concur.
Report per Rule 30(e).