Appeal by defendant from judgment entered 9 March 1999 by
Judge Judson D. DeRamus, Jr. in Guilford County Superior Court.
Heard in the Court of Appeals 19 February 2001.
Attorney General Michael F. Easley, by Assistant Attorney
General John F. Maddrey, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defenders Beth S. Posner and Constance E.
Widenhouse, for the defendant-appellant.
EAGLES, Chief Judge.
Defendant Eddie Golden, Jr. was indicted, tried capitally and
convicted of common law robbery and first-degree murder under the
felony murder rule. Because the defendant was convicted of first-
degree murder based on the felony murder rule, the trial courtarrested judgment as to the common law robbery conviction.
Defendant was sentenced to life in prison.
The evidence tended to show the following. The victim, James
Golden, was defendant's uncle. Defendant's extended family,
including the victim, lived near to each other in Pleasant Garden,
N.C. Defendant's father was a heavy drinker and at a early age,
defendant went to live with his grandmother. All of defendant's
siblings have a history of abuse of either alcohol or drugs. Many
of defendant's relatives have a history of alcohol problems.
Defendant testified that he abuses alcohol and drugs, although he
testified he has never gone to work drunk. Defendant dropped out
of school after the eighth grade and has an IQ of 71 which is in
the low range of borderline intelligence.
Prior to 29 April 1997, defendant had temporarily separated
from his wife. He resided for a period of time with Joyce McSwain.
On the morning of 29 April 1997, defendant awoke between 7:30 a.m.
and 8:00 a.m. at Ms. McSwain's house. Defendant got dressed and
got a beer. Ms. McSwain told defendant that she had company coming
over and he would have to leave. While driving away from Ms.
McSwain's home, defendant saw a man he had purchased crack cocaine
from in the past. Defendant asked the man if he would “[l]et me
get two twenties 'till Friday.” Defendant testified that this
meant that the man would give defendant two twenty dollar rocks of
crack cocaine on credit until Friday. The man agreed and defendant
drove on to the house of his cousin, James T. Golden, also known as
“Nunnie.” Defendant unlocked the door, entered the house and
turned on the TV. Defendant called into work and was told that itwas too wet for him to work that day. Defendant then searched
Nunnie's refrigerator for beer. Hidden beside the refrigerator,
defendant found ½ a fifth of gin and two 16 ounce cans of Budweiser
beer. Defendant put one beer in the refrigerator and then returned
to the TV room. He began to drink the gin and “chase” it with the
other beer. Defendant had had three “drinks” when Nunnie and
Herman Benton, another relative, entered the house. The three
began talking about some needed repairs on Nunnie's truck and then
walked outside to look at the truck. While outside, Mary Whitsett
asked Herman Benton to go to the store. Defendant asked Herman to
bring back some Natural Light beer. Defendant went back into
Nunnie's house twice for more “drinks” of gin. Defendant then
spoke to and startled a man bringing Nunnie some materials. Next
defendant went over to Mary Whitsett's house and asked another
relative, Bonita if he could borrow $5. She refused and defendant
said “[w]ell, that's all right. Well, I know where I can get it,”
turned around and walked out.
Defendant went back over to Nunnie's house and continued
drinking. Defendant was not sure if Nunnie noticed that defendant
was drinking his liquor. Defendant finished the beer he had
earlier placed in the refrigerator. By that time, Herman Benton
had returned from the store and defendant began drinking a beer
that Mr. Benton had brought. A few minutes later, Nunnie left to
do some business errands. After defendant heard Nunnie leave, he
retrieved the crack cocaine and smoked one of the rocks he had
acquired that morning. Defendant then called his sister about some
problems she was having with her car. He told her to bring the carto him and he would take a look at it. He put down the phone and
finished the fifth of gin.
About that time, defendant's sister arrived with her daughter
and her daughter's boyfriend. Defendant and the boyfriend took the
car out about a quarter of a mile to try and determine what its
problems were. Defendant testified that he told his sister she
needed a new modulator valve. He further testified that even if he
was “passed out” he could tell if a car was “skipping.” His sister
then took him to the store and he purchased a 40 ounce Natural
Light beer. Defendant called Ms. McSwain to find out if he could
return to her house. She stated that she had not planned on him
returning to her house, so defendant went back to his truck and
smoked the other rock of crack cocaine.
Defendant then decided he needed some more money to buy more
crack. Defendant walked over to victim's house because he saw the
door open. Defendant asked if “he could borrow $20.00.” Victim
said he did not have any money. Defendant asked again and victim
stated he did not have any money. Defendant asked again and at
this point victim told defendant that if defendant did not leave,
victim was going to shoot defendant. According to testimony of
many of defendant's and victim's relatives, victim was reputed to
keep guns in his house. Defendant then testified that the victim
began to head toward victim's bed and defendant reached out and
grabbed him. Defendant testified that he does not “really remember
what happened” but that defendant held the victim on the bed until
the victim quit moving. Defendant then let go, took victim's
wallet out of his pocket and about $30.00 in change from the deskdrawer. The officers who secured the scene found no guns in the
house, but found the victim's wallet in the wood stove. A second
wallet was found in the crawl space of the victim's house. The
defendant does not remember placing a wallet in either location.
Defendant then got into his truck and after refusing his
cousin Mary Whitsett's request to check on his uncle, defendant
drove towards Randleman. He went to Ms. McSwain's house and the
two arranged to purchase a $20 rock of crack cocaine. They smoked
the rock and then drank a beer. Later that evening, he turned his
pager on and noticed that his nephew “Heavy” had called him. He
drove to Heavy's house and was told that someone had killed his
uncle. Defendant cried and then Heavy and his wife drove defendant
home. The next day, defendant was contacted by Detectives Byrd and
McBride of the Guilford County Sheriff's Department. Defendant did
not confess at that time. On 2 May 1997 defendant spoke again with
Detective McBride. Defendant admitted nothing. Defendant was
questioned again in August of 1997 and admitted nothing. Defendant
was arrested in October of 1997 for failing to appear for driving
without a license in Randolph County. Defendant was questioned by
Detectives McBride and Byrd about his uncle's death and at that
time admitted his involvement. The officers wrote down what the
defendant said, read it back to him and the defendant signed the
written statement. Each time the defendant agreed to speak with
the police, he voluntarily did so without his lawyer present.
During the charge conference defendant requested instructions
on voluntary intoxication for the premeditated and deliberated
portion of the first-degree murder charge. Defendant alsorequested a voluntary intoxication instruction for the felony
murder portion of the charge. The trial court instructed on
voluntary intoxication in the premeditation and deliberation
portion but refused to give the instruction with the felony murder
portion. The trial court held that as a matter of law the
defendant had the specific intent to rob the victim when the
defendant took the money. The defendant also requested a second-
degree murder instruction based on the diminished capacity of
defendant. The trial court refused. Because we believe that the
defendant produced enough evidence of his intoxication for a
reasonable juror to find that defendant did not have the capacity
to form the specific intent to rob the victim, we hold that the
trial court should have instructed the jury on voluntary
intoxication. Because we believe that on this record the defendant
produced sufficient evidence for a reasonable juror to find that
the defendant did not have the capacity to commit first-degree
murder, we hold that the trial court should have instructed on the
lesser included offense of second-degree murder. Accordingly we
hold that defendant is entitled to a new trial.
I. Voluntary Intoxication
[1]Defendant argues that the voluntary intoxication
instruction should have been given as a possible defense to the
robbery charges. The common law robbery conviction was used as the
underlying felony for the felony murder charge. The voluntary
intoxication instruction was given as a possible defense to the
premeditation and deliberation charge but not as a possible defense
to the robbery charge. Robbery with a dangerous weapon is a specific intent crime.
Voluntary intoxication in and of itself is not a legal defense.
State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d 312, 318 (1981). It
is only a viable defense if the degree of intoxication is such that
a defendant could not form the specific intent required for the
underlying offense. Id. Our Supreme Court, in the context of
first-degree murder, explained the proper usage of a voluntary
intoxication instruction.
It is "well established that an instruction on voluntary
intoxication is not required in every case in which a
defendant claims that he killed a person after consuming
intoxicating beverages or controlled substances." State
v. Baldwin, 330 N.C. 446, 462, 412 S.E.2d 31, 41 (1992).
Evidence of mere intoxication is not enough to meet
defendant's burden of production. State v. Mash, 323 N.C.
339, 346, 372 S.E.2d 532, 536 (1988). Before the trial
court will be required to instruct on voluntary
intoxication, defendant must produce substantial evidence
which would support a conclusion by the trial court that
at the time of the crime for which he is being tried
"defendant's mind and reason were so completely
intoxicated and overthrown as to render him utterly
incapable of forming a deliberate and premeditated
purpose to kill. In absence of some evidence of
intoxication to such degree, the court is not required to
charge the jury thereon." State v. Strickland, 321 N.C.
31, 41, 361 S.E.2d 882, 888 (1987) (quoting State v.
Medley, 295 N.C. 75, 79, 243 S.E.2d 374, 377 (1978)).
State v. Cheek, 351 N.C. 48, 74-75, 520 S.E.2d 545, 560 (1999). In
Cheek the defendant testified that on the morning of the murder,
defendant took a “hit of acid.” Id. at 75, 520 S.E.2d at 561.
Defendant next testified that when his friend “freaked out” it
“killed [his] buzz.” Id. The testimony further showed that
defendant was able to drive a stolen cab for 51 miles, and was able
to discuss, in detail, the events both before and after the murder.
Id. Here, defendant consumed ½ a fifth of gin, several beers and
2 rocks of crack cocaine in four hours. Further, defendant cannotremember the details of the actual killing or what he did
afterwards.
In addition defendant's expert, qualified in the fields of
addiction medicine and addiction psychiatry, testified as to the
psychological effects of the overuse of alcohol, both in the short
and long terms. According to Dr. Roy Jacob Mathew's testimony, the
long term effect of alcohol abuse can manifest itself in several
ways, ranging from memory loss to dementia. Dr. Mathew testified
further that the “disinhibiting effects” of cocaine and alcohol
together are “something similar to releasing the breaks in the car
and stepping on the gas pedal. Alcohol takes the inhibition off
and the cocaine stimulates directly the primitive impulses.” Dr.
Mathew further testified that defendant has an I.Q. of 71 which is
one point above retarded. This is relevant because “[l]ow I.Q.
basically means malfunction of the neurons. It is the same neurons
that inhibit the animal deeper down. So, people who have low I.Q.
are usually more prone to the disinhibiting effects of alcohol and
Valium, that group of drugs, and, in that sense, I thought the I.Q.
of 71 was relevant.” When asked if the defendant, under the
conditions present that day, would have been able to form a
specific intent to kill or a specific intent to rob, Dr. Mathew
testified as follows:
DR. MATHEW: At the time of the commission of the crime,
he was intoxicated, and he had basically lost control,
all inhibitory control, and in that frame of mind, he
would be unable to weigh the consequences of his actions.
QUESTION: And, finally, would these conditions you
described taken together have impaired the defendant's
ability to form a specific intent to kill or a specific
intent to rob?
DR. MATHEW: Again, at the time of commission of the
crime, it would have interfered with his ability. It
would be like a horse with blinders on. It would be
unfocused pure fury. It would have interfered.
In State v. Lancaster, 137 N.C. App. 37, 44, 527 S.E.2d. 61,
67 (2000), the defendant argued that the “evidence of defendant's
history of drug addiction, as testified to by his drug counselors
and employer, along with evidence of defendant's mental condition
on the night of the robbery, constituted sufficient evidence such
that a jury instruction on diminished capacity was warranted.” Id.
On the Lancaster facts, the Court held that the testimony was not
sufficient to warrant the instruction. In Lancaster, the expert
was not able to testify as to the capacity of the defendant.
Mr. Bancroft was certified as an expert in the fields of
substance abuse addictions and cognizant behaviors. He
testified that defendant could have been impaired at the
time of the robbery, but that "the euphoric high would
have probably been over." Additionally, Bancroft
testified that such an impairment "could have had a
negative impact" upon the defendant's ability to form a
plan or course of conduct. In a voir dire examination of
Bancroft, he stated that he could not testify about the
defendant's ability to think, make judgments, and
distinguish right from wrong at the time these acts
occurred. Bancroft's testimony only referred to the
effect cocaine could have had on the defendant, based on
his experience of how cocaine affects people in general.
Id. at 44-45, 527 S.E.2d at 67. Here, Dr. Mathew testified
directly that defendant's intoxication would impair defendant's
ability to form the specific intent to kill or rob.
The State argues that when the defendant was cross-examined by
the district attorney, defendant testified that he intended to keep
the money when he took it, to wit:
Question: You remember stealing all of that money
from
him, don't you?
Answer: Yes, I do. Question: And you knew when you got that money t
hat you
weren't entitled to that money?
Answer: Yes; I reckon I did.
Question: And you knew it was wrong to take that money?
Answer: I reckon I did.
Question: And you knew that when you left out of that
house with that money that you weren't going to
give it back to him, that you were taking it
for yourself?
Answer: I reckon so.
The State argues that from this testimony, no reasonable juror
could find that the defendant did not have the intent to
permanently deprive the victim of his property. We disagree. The
defense presented substantial evidence that defendant was
intoxicated from consuming a number of beers, a ½ of a fifth of gin
and two rocks of crack cocaine in roughly four hours, having eaten
nothing. Dr. Mathew testified that this amount of alcohol,
combined with his past alcohol abuse, drug use and low I.Q. would
impair defendant's ability to form the specific intent to rob. In
State v. Robertson, 138 N.C. App. 506, 531 S.E.2d 490 (2000), this
Court held that “whether defendant was so intoxicated as to
prevent his forming the specific intent to rob and assault [the
victim] was a question of fact, to be determined by the jury.” Id.
at 508, 531 S.E.2d at 492; State v. Caldwell, 616 So.2d 713, 721
(La.Ct.App. 1993); Bryant v. State, 574 A.2d 29, 35 (Md.Ct.App.
1990); State v. Givens, 631 S.W.2d 720, 721 (Tenn.Crim.App. 1982).
In State v. Kyle, 333 N.C. 687, 699, 430 S.E.2d 412, 418
(1993), the defendant requested that the trial court instruct on
the defense of voluntary intoxication. Id. Our Supreme Courtconcluded that it was error for the trial court to limit the
voluntary intoxication instruction only to the murder charge. Id.
Defendant was entitled, upon his request, to have the trial court
instruct the jury on the law regarding voluntary intoxication as it
applied to the offenses of burglary and kidnaping as well as
premeditated and deliberated murder. Id. However, in Kyle, the
error was harmless because the jury returned a verdict of
first-degree murder on the basis of premeditation and deliberation
and the felony murder rule. Id. “By finding defendant guilty of
first-degree, premeditated and deliberated murder, the jury failed
to find that defendant was intoxicated to a degree sufficient to
negate his ability to form the specific intent to kill, thus
rejecting defendant's voluntary intoxication defense.” Id. at 699,
430 S.E.2d at 418-19. “The jury's first-degree murder conviction
based on premeditation and deliberation indicates that it
considered defendant capable of forming specific intent.” Id.
Here, unlike Kyle, the jury found the defendant not guilty of
premeditated and deliberated murder. The same jury, without a
voluntary intoxication instruction as to robbery, determined that
the defendant was capable of the specific intent to rob. There is
no indication that the jury rejected the voluntary intoxication
defense. Therefore, this error is prejudicial. This Court has
held that if a "request be made for a special instruction, which is
correct in itself and supported by evidence, the court must give
the instruction at least in substance." State v. Lamb, 321 N.C.
633, 644, 365 S.E.2d 600, 605-06 (1988); State v. Hooker, 243 N.C.429, 431, 90 S.E.2d 690, 691 (1956).
II. Second-Degree Murder
[2]Defendant next assigns error to the trial court's refusal
to instruct the jury on second-degree murder. Defendant asserts
that there was conflicting evidence as to the defendant's ability
to form the specific intent to premeditate and deliberate the
murder. On this record, we agree.
Jury instructions of a lesser included offense are required
"if the evidence would permit the jury rationally to find defendant
guilty of the lesser offense and acquit him of the greater." State
v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 67 (1998). The test is
whether there "is the presence, or absence, of any evidence in the
record which might convince a rational trier of fact to convict the
defendant of a less grievous offense." State v. Wright, 304 N.C.
349, 351, 283 S.E.2d 502, 503 (1981). In State v. Brooks, 136 N.C.
App. 124, 523 S.E.2d 704 (1999), this Court held that in a trial
for first-degree murder where there was evidence warranting an
instruction on voluntary intoxication, an instruction of second-
degree murder is proper. Brooks, 136 N.C. App. at 131, 523 S.E.2d
at 709. On this record, the trial court gave the voluntary
intoxication instruction in conjunction with the premeditated and
deliberated portion of the first-degree murder instruction. If the
defendant presented sufficient evidence showing that “defendant's
mind and reason were so completely intoxicated and overthrown as to
render him utterly incapable of forming a deliberate and
premeditated purpose to kill,” an instruction on second-degree
murder is proper. Cheek, 351 N.C. at 74-75, 520 S.E.2d at 561. On this record, however, the error is harmless. Defendant was
acquitted of premeditated and deliberated murder. Murder in the
first-degree is the unlawful killing of a human being with malice
and with premeditation and deliberation. G.S. 14-17; State v.
Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950). Murder in the second-
degree is the unlawful killing of a human being with malice but
without premeditation and deliberation. State v. Foust, 258 N.C.
453, 128 S.E.2d 889 (1963). Malice is not an element of felony
murder. Therefore, second-degree murder cannot be a lesser
included offense of first-degree murder based on felony murder
alone. State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 379
(1982), overruled on other grounds, State v. Collins, 334 N.C. 54,
431 S.E.2d 188 (1993). There is no offense of felony murder in
the second-degree in this jurisdiction. State v. Davis, 305 N.C.
400, 422, 290 S.E.2d 574, 590 (1982). Thus, when the defendant was
acquitted of premeditated and deliberated murder, but convicted of
felony murder, the jurors, following their instructions, found that
all the elements of felony murder were present. The jurors
determined that no malice or degree of malice was necessary to find
the defendant guilty of felony murder. Thus, on this record, that
the jury was not instructed as to second-degree murder is harmless
error.
Because this case is remanded to the trial court for a new
trial, we need not address the remaining issues. Accordingly, the
judgment of the trial court is vacated and the case is remanded for
a
New trial. Judges HUNTER and CAMPBELL concur.
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