No. 305A03 SIXTEEN-B DISTRICTSUPREME COURT OF NORTH CAROLINA

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STATE OF NORTH CAROLINA ))

v. ) From Robeson)

DAVID JEROME MCCOLLUM )

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DEFENDANT-APPELLANT’S NEW BRIEF

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INDEX

QUESTIONS PRESENTED............................................................................................................1

STATEMENT OF THE CASE........................................................................................................1

STATEMENT OF GROUNDS FOR APPELLATE REVIEW......................................................2

STATEMENT OF THE FACTS.....................................................................................................2

A. The Evidence at Trial...........................................................2

B. The Proceedings on Appeal.................................................6

ARGUMENT...................................................................................................................................9

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO CHARGE THE JURY ON INVOLUNTARY MANSLAUGHTER................9

A. Substantial Evidence of Involuntary Manslaughter Was Introduced at Trial and the Trial Court Erred By Failing to Charge the Jury on this Offense...........................................9

B. The Trial Court’s Error in Failing to Charge the Jury on Involuntary Manslaughter Was Prejudicial Plain Error.....19

CONCLUSION..............................................................................................................................35

certificate of filing and service......................................................................................................36

TABLE OF AUTHORITIES

CASES

Beck v. Alabama, 447 U.S. 625, 65 L.Ed.2d 392 (1980)................................................................................19

Schad v. Arizona, 501 U.S. 624, 115 L.Ed.2d 555 (1991)..............................................................................21

State v. Allen, 186 N.C. 302, 119 S.E. 504 (1923)...................................................................................19

State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994).................................................................................9

State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973)...............................................................................19

State v. Bonds, 43 N.C. App. 467, 259 S.E.2d 377 (1979).........................................................................27

State v. Buck, 310 N.C. 602, 313 S.E.2d 550 (1984).................................................................................8

State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982)...............................................................................20

State v. Coble, 351 N.C. 448, 527 S.E.2d 45 (2000).................................................................................10

State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993)...................................................................................9

State v. Cope, 309 N.C. 47, 305 S.E.2d 676 (1983).................................................................................25

State v. Davis, 15 N.C. App. 395, 190 S.E.2d 434 (1972).........................................................................14

State v. DeGraffenreid, 223 N.C. 461, 27 S.E.2d 130 (1943).................................................................................19

State v. Ferrell, 300 N.C. 157, 265 S.E.2d 210 (1980)...............................................................................27

State v. Freeman, 275 N.C. 662, 170 S.E.2d 461 (1969)...............................................................................20

ii

State v. Gibbs, 335 N.C. 1, 436 S.E.2d 321 (1993)...................................................................................32

State v. Golden, 143 N.C. App. 426, 546 S.E.2d 163 (2001).......................................................................21

State v. Hales, 344 N.C. 419, 474 S.E.2d 328 (1996)...............................................................................27

State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990).................................................................................7

State v. Huggins, 338 N.C. 494, 450 S.E.2d 479 (1994)...............................................................................10

State v. Lowe, 150 N.C. App. 682, 564 S.E.2d 313 (2002).......................................................................32

State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995)...............................................................................20

State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987).............................................................................8, 9

State v. McCollum, ___ N.C. App. ___, 579 S.E.2d 467 (2003).....................................................................................................1, 6

State v. Millsaps, 356 N.C. 556, 572 S.E.2d 767 (2002).................................................................................9

State v. Montgomery, 341 N.C. 553, 461 S.E.2d 732 (1995)...............................................................................17

State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983)...............................................................................32

State v. Oxendine, 300 N.C. 720, 268 S.E.2d 212 (1980)...............................................................................15

State v. Pearce, 296 N.C. 281, 250 S.E.2d 640 (1979)...............................................................................19

State v. Poole, 298 N.C. 254, 258 S.E.2d 339 (1979)...............................................................................21

State v. Price, 344 N.C. 583, 476 S.E.2d 317 (1996)...............................................................................19

iii

State v. Ray, 299 N.C. 151, 261 S.E.2d 789 (1980)...............................................................................25

State v. Rich, 351 N.C. 386, 527 S.E.2d 299 (2000)...............................................................................27

State v. Riddick, 340 N.C. 338, 457 S.E.2d 728 (1995)...............................................................................28

State v. Riera, 276 N.C. 361, 172 S.E.2d 535 (1970)...............................................................................19

State v. Scott, 343 N.C. 313, 471 S.E.2d 605 (1996)...............................................................................20

State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168 (1971)...............................................................................14

State v. Thomas, 325 N.C. 583, 386 S.E.2d 555 (1989)...............................................................................21

State v. Tidwell, 112 N.C. App. 770, 436 S.E.2d 922 (1993).........................................................................7

State v. Tidwell, 323 N.C. 668, 374 S.E.2d 577 (1989)...............................................................................20

State v. Trott, 190 N.C. 674, 130 S.E. 627 (1925).....................................................................................6

State v. Wagner, 343 N.C. 250, 470 S.E.2d 33 (1996).................................................................................20

State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983)...........................................................................8, 10

State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986).........................................................................10, 19

State v. Wilkerson, 295 N.C. 559, 247 S.E.2d 905 (1978)...........................................................................6, 10

State v. Williams, 185 N.C. 685, 116 S.E. 736 (1923)...................................................................................19

State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971)...........................................................................6, 10

iv

State v. Young, 324 N.C. 489, 380 S.E.2d 94 (1989).................................................................................20

STATUTES

N.C. Gen. Stat. § 15-170................................................................................................................10

N.C. Gen. Stat. § 7A-30(2)..............................................................................................................2

OTHER AUTHORITI ES

N.C.P.I. 206.10..............................................................................................................................25

CONSTITUTIONAL PROVISIONS

N.C. Const. art. I, § 19.....................................................................................................................9

U.S. Const. amend. VIII................................................................................................................19

U.S. Const. amend. XIV..................................................................................................................9

v

No. 305A03 SIXTEEN-B DISTRICTSUPREME COURT OF NORTH CAROLINA

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STATE OF NORTH CAROLINA ))

v. ) From Robeson)

DAVID JEROME MCCOLLUM )

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DEFENDANT-APPELLANT’S NEW BRIEF

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QUESTIONS PRESENTED

I. WHETHER THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO CHARGE THE JURY ON INVOLUNTARY MANSLAUGHTER?

STATEMENT OF THE CASE

On August 14, 2000, the Robeson County Grand Jury indicted defendant-appellant David

McCollum for murder. (Rp. 4) This case came to be tried on Mr. McCollum’s not guilty plea at

the July 23, 2001 Criminal Session of Robeson County Superior Court before Superior Court

Judge Jack A. Thompson. (Rp. 1) On July 26, 2001, the jury found Mr. McCollum guilty of

second-degree murder. (Rp. 70) On that day, Judge Thompson entered Judgment and

Commitment, and sentenced Mr. McCollum to a minimum of 220 months imprisonment. (Rpp.

73-74) Mr. McCollum appealed to the Court of Appeals. (Rpp. 75-76) On May 6, 2003, a

Court of Appeals panel issued a decision in which the majority of the panel (Tyson, J. and

Steelman, J.) found no error in defendant’s trial, and in which Judge Wynn dissented on the issue

of whether the trial court erred in failing to instruct the jury on involuntary manslaughter. State

v. McCollum, ___ N.C. App. ___, 579 S.E.2d 467 (2003). On June 10, 2003, Mr. McCollum

filed notice of appeal in this Court based on Judge Wynn’s dissent, and filed a petition for

discretionary review based on other issues. On August 21, 2003, this Court denied Mr.

McCollum’s petition for discretionary review.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Defendant appeals as of right pursuant to N.C. Gen. Stat. § 7A-30(2) from a dissent in the

Court of Appeals.

STATEMENT OF THE FACTS

A. The Evidence at Trial.

In December of 1999, Kenyatta McNeill was dating David McCollum, but had a two-

year-old child by another man, Vander Leach. Mr. McCollum and Mr. Leach were often at

Kenyatta’s home at the same time and got along well. Sometimes they would even “go places

together” and “h[a]ng out.” On December 27, 1999, after Kenyatta returned from an out-of-town

trip, several people, including Mr. Leach, Kenyatta’s cousin Phillip McNeill, and her friends

Bryan Howell and Tommy Davis came to Kenyatta’s house for a small party. There was

evidence that some of the party-goers were using marijuana and alcohol. Mr. McCollum stopped

by to see if Kenyatta wanted to stay with him that night. Mr. McCollum was going to leave and

come back for her. As Mr. McCollum was leaving, Leach said something smart to him, and a

fight started between six-foot-six-inch Leach and five-foot-nine-inch McCollum. During the

course of the fight, Mr. Collum drew a gun to try and hit Leach with it. Two shots were fired

during the fight, with the second shot fatally wounding Leach. (Tpp. 239, 246-54, 266-70, 368-

69, 422, 428, 458, 482, 504)

Mr. McCollum left Kenyatta’s house and police could not locate him for a few days.

However, on January 3, 2000, defendant turned himself in at the Robeson County Sheriff’s

Department and made a statement:

2

On December the 27th, 1999, around 10:00 p.m. I, David McCollum, went to 400 Holly Street in Lumberton. After I got to the apartment at 400, I knocked on the door and a black male let me in. I went to the apartment to see Kenyatta. Once I was in the apartment, I asked to see Kenyatta and Phillip told me she was upstairs.

I went upstairs to where Kenyatta was at and asked her if she was going to stay with me that night; and she said yes.

I told Kenyatta that I would be back later to get her. I left and went back downstairs, and went in the kitchen and got some water to drink, and I played with Kenyatta’s baby.

I started back through the living room to leave when Vander Leach said something smart to me. I asked him what he had said. And we then started fighting. Vander was trying to get up out of a chair and I pushed him back down. I pulled my gun out of my coat pocket and tried to hit him (Vander) with it, but I missed him and hit the chair. Vander and me were fighting, and we were in the living room and the gun went of. We rumbled to the kitchen and Vander fell to the floor.

After Vander fell, I left the apartment and went to my residence. I turned myself in on 1/3/2000.

(Tpp. 492-94, 504) The State introduced Mr. McCollum’s statement in its case-in-chief at trial.

(Tp. 504)

Immediately after the shooting, Kenyatta gave a statement to police, which was read

aloud at trial: “I was upstairs asleep, me and my son, and heard somebody fights. Then I ran

downstairs. And was – My cousin was playing a game and said he ran. And then I went to the

hospital. His sister started arguing at me; so I left. And my cousin – that Vander was shot by

Jerome McCollum.” (Tpp. 357-58) However, Kenyatta testified to something very different at

trial. Kenyatta testified that during the party at her house on December 27, 1999, she went

upstairs and fell asleep, and that at some point Mr. McCollum came to her room and asked if she

would stay with him. Kenyatta testified that she told him she did not feel like going anywhere,

and that Mr. McCollum got mad because he “thought something was going on because of who

3

was there.” Kenyatta testified that Mr. McCollum then went downstairs and she heard a gun

being cocked, but did not think anything of it. She testified that she heard Mr. McCollum say

something to Howell, and then heard a gunshot. Phillip came upstairs and he and Kenyatta went

down together and found that Leach was shot. Leach said, “Jerome McCollum shot me.” (Tpp.

250-263, 266-67, 276-78)

Sixteen-year-old Phillip also gave a statement to police right after the incident, and the

statement was read aloud at trial: “I, Phillip, let Jerome in to see my cousin. He came back

downstairs and started talking with the – and I Phillip, went up to get my cousin for her son and I

heard shots.” (Tp. 360) Nevertheless, Phillip testified at trial that after Mr. McCollum went

upstairs to talk to Kenyatta, he (Phillip) went upstairs to get Kenyatta, passed Mr. McCollum on

the stairs, and heard McCollum say “Is you playing me?” and Leach say “I can’t come see my

kid?” Phillip testified that he then heard a clicking noise, then a gunshot, then either seconds or

minutes later, heard another gunshot. Phillip also testified that he had just dropped out of school,

was not working, had been convicted of marijuana charges twice, and was “tight” with Leach

and had known him since he was twelve. Phillip had once seen Leach beat up a police officer.

(Tpp. 294-96, 319-20, 327, 337)

Police testified that when they arrived at Kenyatta’s house, Mr. Leach was still conscious

and told them that “Jerome McCollum” shot him. Leach had been shot in his back shoulder area.

Police also noticed signs of a struggle in the living room – chairs were out of place and there

were footprints and marks in liquid that was spilled on the floor. Police did not find a gun, and

Mr. McCollum later told police he did not know where the gun was. (Tpp. 229-46, 353-73, 380-

84, 418, 505)

The lead from a bullet was under one of the couches in the living room and a shell casing

was on top of the couch. There was another shell casing near a window in the living room.

4

(Tpp. 423-25, 444-48, 468) State Bureau of Investigation Special Agent David Santora testified

that the bullet recovered from Leach and the bullet jacket from under the couch were fired from

the same gun, and the two shell casings were fired from the same gun. Santora also testified that

the gun that fired the bullets was semi-automatic, and either single action or double action. Such

a gun can fire accidentally if it is damaged internally. A single action firearm has a lighter

trigger pull than a double action weapon. (Tpp. 516-29)

Pathologist Richard Johnson testified that Leach died from a gunshot wound to the upper

left back. The wound was a contact wound, and was consistent with Leach being shot while

seated, or moving forward in a seated position. The wound track was downward and back to

front. Powder marks around the wound were consistent with close proximity between victim and

shooter. The person holding the gun would have to be higher than the other person, and the

victim could have been seated in an upright position or could have been bent somewhat. A

person could walk ten to fifteen feet after sustaining that type of wound. The wound was

situated such that Leach could have reached his hand to the area of the wound. (Tpp. 535-66) A

State Bureau of Investigation toxicology report showed that marijuana was present in Leach’s

body. (Tp. 585)

The defense presented evidence that someone had shot at Leach’s brother Terry and a

person named Gene Mitchell as they were walking down the street in November, 1999. Leach

later went to Mitchell’s home and attacked him, saying that Terry had been shot and asking what

happened. Leach eventually left and later apologized when Mitchell confronted him about the

incident. (Tpp. 575-81) The State presented evidence in rebuttal that a month before Leach’s

death, Kenyatta and Mr. McCollum returned home to find Leach and two friends in the yard next

door. Mr. McCollum took out a gun and started shooting, but did not hit anyone. Kenyatta did

not tell police about the incident, and only revealed it to the District Attorney a few days before

5

trial. (Tpp. 586-90) Kenyatta had testified during the State’s case-in-chief that Mr. McCollum

and Mr. Leach had “never had an argument.” (Tp. 269)

The Trial Court submitted verdicts of first-degree murder (premeditation and

deliberation), second-degree murder, voluntary manslaughter (heat of passion and imperfect self-

defense), and not guilty, and instructed on self-defense. The jury convicted Mr. McCollum of

second-degree murder. (Rp. 70)

B. The Proceedings on Appeal.

Mr. McCollum appealed his conviction to the North Carolina Court of Appeals. Mr.

McCollum argued, inter alia, that the Trial Court committed plain error by failing to instruct the

jury on involuntary manslaughter. In an opinion filed on May 6, 2003, a majority of the Court of

Appeals panel, (Tyson, J. and Steelman, J.) found no error with defendant’s conviction. State v.

McCollum, ___ N.C. App. ___, 579 S.E.2d 467 (2003). The majority opinion focused on

whether the presence of implied malice precluded an involuntary manslaughter instruction. The

majority stated that “[t]he difference between second-degree murder and manslaughter is the

presence of malice in the former and its absence in the latter,” id. at ___, 579 S.E.2d at 470

(citing State v. Wilkerson, 295 N.C. 559, 577-78, 247 S.E.2d 905, 915 (1978) (quoting State v.

Wrenn, 279 N.C. 676, 681-82, 185 S.E.2d 129, 132 (1971)); that “[m]alice can be implied from

the circumstances ‘when an act which imports danger to another is done so recklessly or

wantonly as to manifest depravity of mind and disregard of human life;’” and that “[i]n such a

case, the homicide ‘cannot be involuntary manslaughter,’ even if the assailant did not intend to

kill the victim.” Id. at ___, 579 S.E.2d at 470 (quoting State v. Trott, 190 N.C. 674, 679, 130

S.E. 627, 629 (1925)). The majority then held that in Mr. McCollum’s case there was no plain

error “[i]n light of overwhelming evidence of defendant’s guilt” -- that Mr. McCollum brought a

6

loaded weapon to the home of his girlfriend and her child, drew the gun while Leach was seated,

and tried to use the gun to hit Leach. Id.

The majority also cited State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990), in which

this Court held that any error in failing to charge on involuntary manslaughter is harmless where

the trial court submits first-degree murder and second-degree murder to the jury and the jury

convicts the defendant of first-degree murder. Id. at 655, 392 S.E.2d at 369. This Court

reasoned in Hardison that “[t]o reach its verdict of first-degree murder on the theory of

premeditation and deliberation, the jury was required to find a specific intent to kill, formed with

premeditation and deliberation, which would preclude a finding that the killing occurred as a

result of criminal negligence . . . .” Id. The Court of Appeals majority held in Mr. McCollum’s

case that any error in failing to submit involuntary manslaughter was harmless because the jury

rejected voluntary manslaughter and convicted Mr. McCollum of second-degree murder. Id. at

___, 579 S.E.2d at 470-71.

Judge Wynn wrote a lengthy dissent maintaining that the Trial Court’s failure to submit

an involuntary manslaughter verdict was plain error. Judge Wynn addressed each of the

majority’s grounds for finding no error. First, Judge Wynn found that the evidence was

sufficient to support an involuntary manslaughter verdict, and that the majority’s own

characterization of the evidence -- “Defendant and Leach struggled in the presence of multiple

people with defendant holding his loaded gun and attempting to use it as a weapon to strike

Leach” -- required submission of such an instruction. Id. at ___, 579 S.E.2d at 473 (citing State

v. Tidwell, 112 N.C. App. 770, 775-76, 436 S.E.2d 922, 926 (1993)).

Second, Judge Wynn pointed out that under longstanding case law, where the jury has

convicted the defendant of second-degree murder, the failure to submit a supported involuntary

manslaughter verdict is reversible error even if the jury was charged on voluntary manslaughter.

7

Id. at ___, 579 S.E.2d at 472-73 (citing State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987);

State v. Buck, 310 N.C. 602, 313 S.E.2d 550 (1984); State v. Wallace, 309 N.C. 141, 305 S.E.2d

548 (1983)). Judge Wynn explained that while “the elements and circumstances constituting

voluntary manslaughter differ from those constituting involuntary manslaughter,” there is a close

relationship between second-degree murder and involuntary manslaughter. Id. at ___, 579

S.E.2d at 473-74. Thus, “[b]oth [second-degree murder and involuntary manslaughter] can

involve an act of ‘culpable negligence’ that proximately causes death.” Id. at ___, 579 S.E.2d at

473 (quoting Wilkerson, 295 N.C. at 582, 247 S.E.2d at 918). When the act of culpable

negligence “imports danger to another [and] is done so recklessly or wantonly as to manifest

depravity of mind and disregard of human life it will support a conviction for second degree

murder.” Id. (quoting State v. Wilkerson, supra). In this case, Judge Wynn found that “the jury

was not given the option of deciding whether defendant’s conduct, although reckless and

wanton, constituted involuntary manslaughter.” Id. Therefore, “if the jury did not believe that

the shooting was a nonnegligent accident, then under the evidence and instructions it was left

with no alternative other than a verdict of murder in the second degree.” Id. at ___, 579 S.E.2d

at 474. Finally, Judge Wynn noted that

the majority eviscerates the existing law in North Carolina that evidence must be viewed in the light most favorable to the defendant in determining whether an instruction on a lesser-included offense should have been given . . . . [U]nder the new rule now made by the majority, a defendant would not be entitled to an involuntary manslaughter instruction once the evidence showed that malice could be implied from the circumstances of the killing. . . . In essence, the majority’s rule would now preclude any lesser-included offense instructions if the evidence merely shows that there was sufficient evidence of the greater offense.

Id. Mr. Williams appealed his conviction to this Court on the basis of Judge Wynn’s dissent.

8

ARGUMENT

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO CHARGE THE JURY ON INVOLUNTARY MANSLAUGHTER.

Assignment of Error No. 31, Rp. 84

In this case, there was substantial evidence presented at trial that the gun that killed the

decedent was discharged unintentionally during a struggle. However, the Trial Court

erroneously failed to charge the jury on involuntary manslaughter. The Trial Court’s error was

prejudicial plain error, and Mr. McCollum must be granted a new trial. State v. Collins, 334

N.C. 54, 431 S.E.2d 188 (1993); State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987); U.S.

Const. amend. XIV; N.C. Const. art. I, § 19.

A. Substantial Evidence of Involuntary Manslaughter Was Introduced at Trial and the Trial Court Erred By Failing to Charge the Jury on this Offense.

This Court recently reaffirmed several basic principles of North Carolina law:

[A] lesser included offense instruction is required if the evidence would permit a jury rationally to find [the defendant] guilty of the lesser offense and acquit him of the greater. . . . 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 the less grievous offense. . . . [T]he trial court need not submit lesser included degrees of a crime to the jury when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime. . . . Such conflicts may arise from evidence introduced by the State . . . or the defendant.

State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations and internal

quotation marks omitted; first emphasis added). Specifically, this Court stated that “if the trial

court instructs on premeditated and deliberate murder, it must instruct on all lesser-included

offenses within premeditated and deliberate murder supported by the evidence.” Id. at 566, 572

S.E.2d at 774. See also State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994) (when

9

determining if evidence sufficient for submission of lesser-included offense, evidence must be

viewed in light most favorable to defendant); State v. Whitaker, 316 N.C. 515, 522, 342 S.E.2d

514, 519 (1986) (trial court must submit lesser included offense unless evidence “point[s]

inexorably and unerringly” to greater offense); N.C. Gen. Stat. § 15-170.

“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.” State v. Coble, 351 N.C.

448, 449, 527 S.E.2d 45, 47 (2000) (citations omitted). “The elements of second-degree murder .

. . are: “(1) the unlawful killing, (2) of another human being, (3) with malice, but (4) without

premeditation and deliberation.” Id. (citations omitted). There is an important distinction

between the intent elements of first-degree murder and second-degree murder:

First degree murder, which has as an essential element the intention to kill, has been called a specific intent crime. Second degree murder, which does not have this element, has been called a general intent crime. . . . In connection with [second-degree murder and voluntary manslaughter], the phrase ‘intentional killing’ refers not to the presence of a specific intent to kill, but rather to the fact that the act which resulted in death is intentionally committed.

Id. at 449-50, 527 S.E.2d at 47 (citations omitted).

“Voluntary manslaughter is the unlawful killing of a human being without malice and

without premeditation and deliberation.” State v. Wilkerson, 295 N.C. 559, 578, 247 S.E.2d 905,

915 (1978) (quoting State v. Wrenn, 279 N.C. 676, 682, 185 S.E.2d 129, 132 (1971)). A killing

is committed without malice if it is “committed in the heat of passion suddenly aroused by

adequate provocation, or in the imperfect exercise of the right of self-defense.” State v. Huggins,

338 N.C. 494, 497, 450 S.E.2d 479, 481 (1994) (citation omitted). Involuntary manslaughter is

“the unlawful and unintentional killing of another human being, without malice, which

proximately results from . . . an act or omission constituting culpable negligence.” State v.

Wallace, 309 N.C. 141, 145, 305 S.E.2d 548, 551 (1983). “[E]very unintentional killing of a

10

human being proximately caused by a wanton or reckless use of firearms, in the absence of intent

to discharge the weapon, . . . and under circumstances not evidencing a heart devoid of a sense of

social duty, is involuntary manslaughter.” Wrenn, 279 N.C. at 683, 185 S.E.2d at 133. “[T]he

difference between second-degree murder and manslaughter is that malice, express or implied, is

present in the former and not in the latter.” Wilkerson, 295 N.C. at 578, 247 S.E.2d at 916 (citing

Wrenn, 279 N.C. at 681-82, 185 S.E.2d at 132 (Sharp, J., dissenting)).

Here, substantial evidence was introduced at trial showing that Mr. McCollum

unintentionally shot Leach and that the circumstances of the shooting, although demonstrating

wantonness and recklessness, did not “evidence a heat devoid of social duty.” The State

introduced during its case-in-chief Mr. McCollum’s statement to police, in which Mr. McCollum

stated:

I started back through the living room to leave when Vander Leach said something smart to me. I asked him what he had said. And we then started fighting. Vander was trying to get up out of a chair and I pushed him back down. I pulled my gun out of my coat pocket and tried to hit him (Vander) with it, but I missed him and hit the chair. Vander and me were fighting, and we were in the living room and the gun went off. We rumbled to the kitchen and Vander fell to the floor.

Police testimony that it looked like there had been a struggle because there were footprints and

marks in the liquid on the floor and chairs out of place supports Mr. McCollum’s contention that

the gun went off during a struggle. Phillip’s testimony that there was up to one to two minutes

between the gunshots is also consistent with there having been a struggle when the second shot

went off.1 Additionally, Kenyatta said in her statement to police that when she was upstairs “she

heard somebody fights.” Further, the pathologist’s testimony that the wound track was

consistent with Leach being shot while seated and moving forward, that the powder marks

around the wound were consistent with close proximity between defendant and Leach, and that

1 The State argued during its closing statement that Mr. Leach “grappled” with Mr. McCollum immediately before the second gunshot. (Tp. 612)

11

Leach could have reached his hand to the area of the wound also support the idea that Mr.

McCollum and Mr. Leach were struggling over the gun when it went off and shot Leach in the

back. Still further, SBI Special Agent Santora testified that it is possible for a semi-automatic

handgun to fire accidentally.

Moreover, the State introduced no evidence that Mr. McCollum did not have a right to

carry a weapon with him. There was no evidence that Mr. McCollum brought the gun to

Kenyatta’s house for the purpose of shooting Leach or anyone else. To the contrary, the

evidence showed that Mr. McCollum and Mr. Leach were often at Kenyatta’s house at the same

time and got along well, and that on this occasion, Mr. McCollum came to see Kenyatta after her

trip to see if she wanted to spend the night with him. Mr. Leach just happened to be there.

Further, the evidence is equivocal about who “started” the fight or who spoke the first “fighting

words.” There was no evidence introduced that Mr. McCollum intentionally pointed the gun at

Mr. Leach or that he threatened to kill Mr. Leach with the gun or otherwise.

Mr. McCollum also notes that the Court of Appeals majority’s characterization of the

evidence -- that “[d]efendant’s statement admits that he pulled his loaded weapon on Leach

while Leach was seated” – is misleading. Mr. McCollum stated in his statement that he and

Leach exchanged words and “we then started fighting.” Mr. McCollum’s statement continued,

“Vander was trying to get up out of a chair and I pushed him back down. I pulled my gun out of

my coat pocket and tried to hit him with it, but I missed him and hit the chair. Vander and me

were fighting and we were in the living room and the gun went off.” Therefore, the fight started

before Mr. McCollum drew his gun, and Leach was “trying to get up out of a chair” just before

Mr. McCollum took out the gun; Leach was not simply “seated,” as the Court of Appeals’

majority stated. This difference is significant because the jurors could have seen Leach’s actions

in getting out of the chair as a threatening advance toward Mr. McCollum, especially considering

12

the differing heights of the two men, and that Mr. McCollum’s taking out the gun was a reaction

to this. This would support the notion that the circumstances surrounding the crime did not show

a “manifest depravity of mind and disregard of human life.” It is also notable that Mr.

McCollum took out the gun to hit Leach with it, not to shoot him. Although admittedly not the

smartest thing to do, taking a gun out of one’s pocket to hit a person with whom one is engaged

in a fight could be seen by a jury as more akin to culpable negligence than an act “evidencing a

heart devoid of social duty.”

A reasonable jury could easily find from the above evidence that although Mr.

McCollum’s use of the firearm was wanton and reckless, he did not intentionally pull the trigger

and his actions did not show a “manifest depravity of mind and disregard of human life” or “a

heart devoid of social duty.” In such a case, “[t]he credibility of the evidence and whether in fact

defendant did or did not possess the requisite intent is for the jury to decide.” Barlowe, 337 N.C.

at 378, 446 S.E.2d at 357.

Further, this Court’s prior decisions show that there was sufficient evidence of

involuntary manslaughter in this case to require a jury instruction. In State v. Wrenn, supra, this

Court found that an involuntary manslaughter verdict should have been submitted where the

defendant killed his estranged wife at the couple’s trailer. Police found a note that the defendant

had written: “I can’t live with a woman that does me like she does so I’ll end it all. Please you

or all (illegible) to take what I’m going to do and bury us together.” The defendant presented

evidence that he fired a gun several times in the presence of his wife and young children for the

purpose of “scar[ing]” the wife and “mak[ing] her do better.” After his wife retreated to behind

the trailer, the defendant followed and asked, “Tell me why in the world I shouldn’t just kill you

laying right there?” The couple struggled over the gun and it went off during the fight, killing

the wife. This Court held that “the evidence offered by the defendant, if believed by the jury, is

13

sufficient to support a verdict of involuntary manslaughter.” 279 N.C. at 683, 185 S.E.2d at 683.

See also State v. Stimpson, 279 N.C. 716, 185 S.E.2d 168 (1971) (trial court erred by failing to

charge on involuntary manslaughter where defendant’s evidence showed defendant drew pistol,

decedent hit defendant’s hand while attempting to grab pistol, and gun went off); State v. Davis,

15 N.C. App. 395, 190 S.E.2d 434 (1972) (trial court erred by failing to charge on involuntary

manslaughter where defendant’s evidence showed defendant’s gun went off when defendant and

decedent struggled over it).

Further, the facts of the instant case are analogous to the facts in State v. Lytton, supra,

where this Court granted the defendant a new trial because of the trial court’s failure to submit an

involuntary manslaughter verdict. In Lytton, the defendant was riding around town in the middle

of the night in a car with a loaded pistol. While holding the gun, the defendant left his car and

entered into a struggle with an intoxicated, angry, and much larger pedestrian, and shot the

pedestrian twice and killed him. The defendant claimed that these shots were fired during the

struggle and that he did not intend to fire the gun. At trial, the trial court instructed the jury on

first-degree murder, second-degree murder, voluntary manslaughter, and self-defense, and the

jury found the defendant guilty of second-degree murder. This Court held that the trial court

should have instructed the jury on involuntary manslaughter, and that the defendant was entitled

to a new trial because the evidence supported a finding that the defendant did not intend to shoot

the decedent. This Court also found that the defendant’s conduct in riding around town with a

loaded pistol, “voluntarily le[aving] the car,” and willingly engaging in an altercation with “an

obviously intoxicated, angry, and much larger man” did not did not show “either a heart devoid

of social responsibility or a depravity of mind and a disregard for human life.” Id. at 427-48, 355

S.E.2d at 488.

14

The facts of Wrenn and Lytton may be contrasted with those of State v. Oxendine, 300

N.C. 720, 268 S.E.2d 212 (1980). In that case, the defendant engaged in an altercation with the

decedent, left, returned five to fifteen minutes later with a loaded rifle, and “walked over to

where the victim was, using words which manifested a desire to continue to fight with weapons.”

Id. at 724, 268 S.E.2d at 215. The defendant claimed that the gun went off unintentionally

during the course of the subsequent struggle. This Court found that the defendant was not

entitled to an involuntary manslaughter instruction because he returned to the scene armed

“manifesting a desire to resume the affray” although the fight had been concluded for some time.

Id. In Lytton, this Court noted that Oxendine was distinguishable because “the events leading up

to the shooting [in Lytton] progressed very rapidly, without a delay between the initial fight and

the ultimate shooting.” 319 N.C. at 428, 355 S.E.2d at 488. Further, in Oxendine, the defendant

“advance[d] with a weapon” under circumstances showing “an intention to kill.” 300 N.C. at

724, 268 S.E.2d at 215.

The instant case is much more like Wrenn and Lytton than it is like Oxendine. As in

Wrenn and Lytton, in the instant case there was evidence presented that the gun went off during a

struggle between Mr. McCollum and the decedent, and that Mr. McCollum did not intend to

shoot the decedent. Further, as in Lytton, all the evidence in this case showed that the events

leading up to the shooting progressed rapidly – that Mr. McCollum argued with, struggled with,

and shot Leach during a short period of time. Additionally, the facts showing malice in Wrenn,

even viewed in the light most favorable to the defendant, are much closer to showing malice than

those in the instant case – in Wrenn, the defendant intentionally fired the gun several times in the

presence of his wife and their two young children, then followed his wife around to the back of

their trailer and asked her, “Tell me why in the world I shouldn’t just kill you laying right

15

there?”2 In this case, Mr. McCollum’s gun was drawn during the course of the struggle, and Mr.

McCollum did not intentionally fire the gun at Mr. Leach or threaten to kill him.

Further, unlike in Oxendine, the defendant here did not “advance with a weapon” under

circumstances showing “an intention to kill.” He did not engage in an altercation with Leach,

then go home to get a gun and resume the fight. Instead, Mr. McCollum drew his gun during the

fight, and for the purpose of hitting Leach, not shooting him.

As shown above, the Court of Appeals majority rejected Mr. McCollum’s claim because

of the “overwhelming evidence of defendant’s guilt.” The majority listed several facts in support

-- that Mr. McCollum brought a loaded weapon to the home of his girlfriend and her child, drew

the gun while Leach was seated, and tried to use the gun to hit Leach. However, as Judge Wynn

pointed out in his dissent, the reviewing court “should focus on whether the jury could find that

the killing was committed without malice, not whether the jury could find that the killing was

committed with malice.” ___ N.C. App. at ___, 579 S.E.2d at 474 (Wynn, J., dissenting). This

analysis applies even when a plain error standard is used. See State v. Collins, 334 N.C. 54, 431

S.E.2d 188 (1993) (considering first “whether the evidence before the trial court was substantial

evidence from which a jury reasonable could find that the defendant had committed a crime of a

lesser degree” to determine if error in failing to submit lesser verdict, and then concluding that

the error was plain).

To the extent the Court of Appeals majority has concluded that there was no error in this

case because there was sufficient evidence of the greater offense, their analysis is clearly

erroneous. Millsaps, 356 N.C. at 562, 572 S.E.2d at 772 (trial court must submit lesser offense

2 This version of facts is based on the defendant’s testimony at trial. In the defendant’s statement to police, he admitted that he shot the gun at his wife inside the house, chased his wife behind the trailer, then shot at her again, but the gun jammed. At the point, the struggle ensued in which the defendant shot his wife. Wrenn, 279 N.C. at 678, 185 S.E.2d at 130.

16

unless State’s evidence positive as to each and every element of charged crime and no conflicting

evidence relating to any element of charged crime); State v. Montgomery, 341 N.C. 553, 567,

461 S.E.2d 732, 739 (1995) (trial court may refrain from submitting lesser offense only when

evidence is clear and positive as to each element of offense charged and there is no evidence

supporting lesser offense); Barlowe, 337 N.C. at 378, 446 S.E.2d at 357 (evidence must be

viewed in light most favorable to defense in determining whether lesser offense instruction

warranted). See ___ N.C. App at ___, 579 S.E.2d at 474 (Wynn, J., dissenting) (“Under the new

rule now made by the majority, a defendant would not be entitled to an involuntary manslaughter

instruction once the evidence showed that malice could be implied for the circumstances of the

killing. . . . In essence, the majority’s rule would now preclude any lesser-included offense

instructions if the evidence merely shows that there was sufficient evidence of the greater

offense.”).

To the extent the Court of Appeals majority skipped any error analysis and simply

determined that if there was error, there was no plain error because there was overwhelming

evidence of Mr. McCollum’s guilt of second-degree murder, the majority is also incorrect. The

evidence listed by the majority was by no means “overwhelming.” As shown above, the

majority’s statement that Mr. McCollum “pulled his loaded weapon on Leach while Leach was

seated” was misleading, and the jury could have easily viewed the evidence in Mr. McCollum’s

favor, rather than as evidence of his guilt. The fact that Mr. McCollum brought the gun to “the

home of his girlfriend, who resided with her two-year-old child” shows no more malice than

what occurred in Wrenn, where the defendant intentionally discharged a shotgun in the presence

of his wife and two young children for the purpose of scaring the wife. The fact that Mr.

McCollum and “Leach struggled in the presence of multiple people with defendant holding his

loaded gun and attempting to use it as a weapon to strike Leach” supports a finding of culpable

negligence more than it does a finding of a “manifest depravity of mind and disregard of human

17

life.” See ___ N.C. App. at ___, 579 S.E.2d at 473 (Wynn, J., dissenting) (majority’s

characterization of the evidence supports involuntary manslaughter); Wallace, 309 N.C. at 145,

305 S.E.2d at 551 (jury could have found that defendant’s actions in attempting to throw loaded

and cocked gun across the room was culpable negligence). Therefore, the evidence cited by the

majority was far from overwhelming.3

In sum, because there was substantial evidence that Mr. McCollum unintentionally,

wantonly, and recklessly discharged the gun during a struggle with the decedent, the Trial Court

erred by failing to charge the jury on involuntary manslaughter.

B. The Trial Court’s Error in Failing to Charge the Jury on Involuntary Manslaughter Was Prejudicial Plain Error.

This Court’s jurisprudence on prejudice in cases where the trial court erroneously fails to

submit a lesser-included verdict to the jury engenders several theories and considerations – that if

the jury believes the defendant is guilty of a crime, but that crime is not submitted as a verdict, it

cannot be known what the jury would have done had the lesser offense been submitted; that if

the jury believes the defendant is guilty of a crime, but that crime is not submitted as a verdict,

the jury will likely convict the defendant of one of the charged crimes anyway rather than choose

not guilty; and that the likelihood that the jury would have chosen to convict the defendant of a

lesser offense, and thus the likelihood of prejudice, coercion, and compromise, can be divined

from the jury’s choice of verdict. As shown below, these theories all center on discerning the

jury’s reasoning in reaching its verdict and ensuring the reliability of that verdict. Hence, the

legal rules that evolved from these considerations demand reversal if the reviewing court cannot

be confident of the jury’s “certainty of [the defendant’s] guilt” of the offense of which they chose

to convict him. State v. Price, 344 N.C. 583, 592, 476 S.E.2d 317, 322 (1996). As also shown

3 Reasons why the error here was plain error are further discussed in Section B.3.

18

below, this Court cannot be confident of the jury’s verdict in this case, and Mr. McCollum must

be granted a new trial.

1. Applicable Legal Principles.

The general common law rule in North Carolina concerning whether a verdict of guilty of

a greater offense renders the failure to submit a lesser offense harmless has been stated by this

Court many times: “The error in failing to submit a lesser verdict is not cured by the guilty

verdict of a greater offense since it cannot be known whether the jury would have convicted

defendant of the lesser offense had it been properly instructed.” State v. Riera, 276 N.C. 361,

368, 172 S.E.2d 535, 540 (1970); accord Montgomery, 341 N.C. at 567, 461 S.E.2d at 739; State

v. Whitaker, 316 N.C. 515, 520, 342 S.E.2d 514, 518 (1986); State v. Pearce, 296 N.C. 281, 294,

250 S.E.2d 640, 649 (1979); State v. Bell, 284 N.C. 416, 200 S.E.2d 601 (1973); State v.

DeGraffenreid, 223 N.C. 461, 463-64, 27 S.E.2d 130, 132 (1943); State v. Allen, 186 N.C. 302,

307-08, 119 S.E. 504, 506-07 (1923); State v. Williams, 185 N.C. 685, 689, 116 S.E. 736, 738

(1923).

In Beck v. Alabama, 447 U.S. 625, 65 L.Ed.2d 392 (1980), the U.S. Supreme Court

adopted a similar rule for capital cases, finding that the failure to submit a supported lesser-

included offense to the jury in a capital case violates the Eighth Amendment and the Due Process

Clause of the Fourteenth Amendment. The Court based the rationale for the rule on ensuring

reliability of the verdict and preventing coercion of the jury, and held that failure to submit a

supported lesser verdict “enhance[s] the risk of an unwarranted conviction” because “where one

of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of

some offense, the jury is likely to resolve its doubts in favor of conviction.” Id. at 634, 637, 65

L.Ed.2d at 401-02.

19

This Court has carved out an exception to the general common law rule that failure to

charge on a supported lesser offense constitutes error. This Court has held that where the jury

was charged on first-degree premeditated and deliberate murder and second-degree murder and

convicts the defendant of first-degree murder, and where the defendant claims on appeal that he

was entitled to the submission of a voluntary or involuntary manslaughter verdict, the defendant

is not prejudiced by the trial court’s failure to submit a manslaughter verdict. State v. Young, 324

N.C. 489, 380 S.E.2d 94 (1989). Accord State v. Lyons, 340 N.C. 646, 459 S.E.2d 770 (1995);

State v. Scott, 343 N.C. 313, 471 S.E.2d 605 (1996); State v. Freeman, 275 N.C. 662, 170 S.E.2d

461 (1969).

This Court has advanced two related rationales for this rule. First, in reaching a verdict

of guilty of first-degree rather than second-degree murder, the jury found beyond a reasonable

doubt that the defendant had a specific intent to kill and, in rejecting second-degree murder,

rejected the possibility that the killing was unintentional, was carried out in the heat of passion,

or was the result of imperfect self-defense. Young, 324 N.C. at 493, 380 S.E.2d at 97; State v.

Bush, 307 N.C. 152, 164, 297 S.E.2d 563, 571 (1982). In other words, because the jury found

not only that the crime was committed with malice, but also that the crime was committed with a

specific intent to kill, it is reasonable to believe that the jury would not have chosen voluntary or

involuntary manslaughter if those options had been available. State v. Wagner, 343 N.C. 250,

259, 470 S.E.2d 33, 38 (1996); State v. Tidwell, 323 N.C. 668, 674-75, 374 S.E.2d 577, 581

(1989).

It is notable that this reasoning only applies if second-degree murder was submitted to the

jury along with first-degree murder. Thus, if the jury is instructed on first-degree murder only,

then failure to submit a lesser offense is not rendered harmless by the jury’s finding of specific

intent to kill. See, e.g., State v. Millsaps, supra; State v. Poole, 298 N.C. 254, 258 S.E.2d 339

20

(1979); State v. Golden, 143 N.C. App. 426, 546 S.E.2d 163 (2001); see also State v. Thomas,

325 N.C. 583, 386 S.E.2d 555 (1989) (failure to submit supported involuntary manslaughter

verdict prejudicial error where defendant convicted of felony murder). Where only first-degree

murder is submitted, the reliability of the verdict is in question because the jury has not

specifically rejected second-degree murder, and hence has not specifically rejected the possibility

that the crime was committed with malice but without a specific intent to kill. See Young, 324

N.C. at 493, 380 S.E.2d at 97. Further, the verdict will be considered unreliable because the jury

may have convicted the defendant of first-degree murder because they thought he was guilty of

some level of homicide, but they had no other options besides first-degree murder. See Beck v.

Alabama, supra. Therefore, it is the combination of the jury’s finding of premeditation and

deliberation beyond a reasonable doubt and the jury’s rejection of second-degree murder that

gives a reviewing court confidence that the jury would not have chosen voluntary or involuntary

manslaughter if they had been given the chance.

This Court’s second rationale for the “no prejudice” rule is closely related to the first

rationale and addresses the jury coercion concern that was the basis for Beck. This Court stated

in State v. Price:

A verdict of murder in the first degree shows clearly that the jurors were not coerced, for they had the right to convict in the second degree. That they did not indicates their certainty of his guilt of the greater offense. The failure to instruct them that they could convict of manslaughter therefore could not have harmed the defendant.

344 N.C. at 590-91, 476 S.E.2d at 321 (citations omitted) (defendant convicted of felony

murder). This Court alluded to the U.S. Supreme Court’s decision in Schad v. Arizona, 501 U.S.

624, 115 L.Ed.2d 555 (1991), a capital case in which the jury was instructed on first-degree

murder under theories of premeditation and deliberation and felony murder and second-degree

21

murder, and found the defendant guilty of first-degree murder.4 The defendant claimed on

appeal that the verdict was constitutionally infirm because the jury should have been instructed

on robbery as a lesser-included offense of felony murder. The U.S. Supreme Court rejected this

claim, stating that in order to accept the defendant’s claim that the verdict was unreliable, they

“would have to assume that a jury unconvinced that [the defendant] was guilty of either capital

or second-degree murder, but loath to acquit him completely (because it was convinced he was

guilty of robbery), might choose capital murder rather than second-degree murder as its means of

keeping him off the streets.” Id. at 647, 115 L.Ed.2d at 575. The Court concluded, “Because we

can see no basis to assume such irrationality, we are satisfied that the second-degree murder

instruction in this case sufficed to ensure the verdict’s reliability.” Id.

This Court has never held that either rationale of the “no prejudice” rule applies where

the jury was instructed on first-degree murder, second-degree murder, and voluntary

manslaughter and found the defendant guilty of second-degree murder, and the defendant

claimed on appeal that he was entitled to an instruction on involuntary manslaughter. See, e.g.,

State v. Lytton, supra. An analysis of the rationales advanced in Young and Schad in this context

shows that the “no prejudice” rule should not be applied to this situation. Further, the rule

should not be applied in this case in particular because the jury instructions on malice were

faulty, undercutting any confidence in the jury’s verdict provided by the reasoning of Young or

Schad.

2. Application of the Reasoning of Young and Schad Where the Jury Finds the Defendant Guilty of Second-Degree Murder and Rejects Voluntary Manslaughter.

As shown above, where the jury finds beyond a reasonable doubt that the defendant

killed with malice and with a specific intent to kill (first-degree murder) and rejects the

4 In Arizona the jury need not agree on the theory of guilt of first-degree murder.

22

possibility that he killed with malice but without a specific intent to kill (second-degree murder),

“the jury necessarily rejected, beyond a reasonable doubt, the possibilities that the defendant

acted in the heat of passion or in imperfect self-defense (voluntary manslaughter) or that the

killing was unintentional (involuntary manslaughter).” Price, 344 N.C. at 590, 476 S.E.2d at 321

(citing Young, 324 N.C. at 492-94, 380 S.E.2d at 96-97; Bush, 307 N.C. at 164-65, 297 S.E.2d at

571). In other words, a jury in such a case is faced with a simple choice – did the defendant act

with malice and a specific intent to kill formed after premeditation and deliberation or with

malice and the mere intent to do the act which resulted in death (or is he not guilty)? By

rejecting second-degree murder, the jury rejects the notion that the defendant’s intent was not to

kill but merely to do the act which resulted in death. In this way, the jury is undoubtedly

rejecting the possibility that the act was unintentional or committed in the heat of passion or in

imperfect self-defense.

Here, the jury rejected first-degree murder, and thus rejected that Mr. McCollum acted

with a specific intent to kill. The Court of Appeals majority applied the Young rule to find that

the jury’s verdict of guilty of second-degree murder (and finding of malice beyond a reasonable

doubt) and rejection of voluntary manslaughter meant there was no prejudice in Mr. McCollum’s

case. However, this Court has specifically stated that the Young analysis does not apply unless

the defendant has been convicted of first-degree premeditated and deliberate murder. Price, 344

N.C. at 590, 476 S.E.2d at 321 (expressly stating that Young rationale not applicable where jury

rejected verdict of first-degree murder based on premeditation and deliberation).

Moreover, where a jury is choosing between second-degree murder and voluntary

manslaughter, their choice is more complex than the choice faced by the jurors in Young. In the

former situation, the jurors must decide whether the defendant acted with malice and the general

intent to do the act which resulted in death, or whether he acted with the general intent to commit

23

the act which resulted in death, and in the heat of passion suddenly aroused by adequate

provocation or in the imperfect exercise of the right of self-defense. See State v. Coble, supra.

In this situation, if the jury chooses second-degree murder and does not choose voluntary

manslaughter, the jury has rejected the idea that the defendant killed in the heat of passion or in

the exercise of the right of self-defense, but has not necessarily rejected the idea that the

defendant killed without malice.

Pursuant to our pattern jury instructions, the trial court charges that voluntary

manslaughter is an unlawful killing without malice and without premeditation and deliberation,

and that a lack of malice only exists where there was a killing in the heat of passion or in

imperfect self-defense:

Voluntary Manslaughter is the unlawful killing of a human being without malice and without premeditation and without deliberation. A killing is not committed with malice if the defendant acts in the heat of passion upon adequate provocation.

. . . .

Voluntary manslaughter is also committed if the defendant kills in self-defense but uses excessive force under the circumstances or was the aggressor without murderous intent in bringing on the fight in which the killing took place. . . .

N.C.P.I. 206.10. Therefore, voluntary manslaughter is not simply a killing without malice – the

lack of malice can only be arrived at through the specific mechanisms of heat of passion or

imperfect self-defense. See Huggins, 338 N.C. at 497, 450 S.E.2d at 481 (for defendant to be

entitled to involuntary manslaughter instruction, evidence must support either imperfect self-

defense or heat of passion); State v. Ray, 299 N.C. 151, 158, 261 S.E.2d 789, 794 (1980). See

also State v. Cope, 309 N.C. 47, 62, 305 S.E.2d 676, 685 (1983) (in voluntary manslaughter,

circumstances of crime “displace malice”); McCollum, ___ N.C. App. at ___, 579 S.E.2d at 474

24

(Wynn, J., dissenting) (“it is only through mitigation that one is convinced of voluntary

manslaughter”);

In contrast, our pattern instructions on second-degree murder are much more opened-

ended – murder in the second degree occurs where the defendant acts with malice and the

general intent to wound with a deadly weapon:

Second Degree Murder differs from first degree murder in that neither specific intent to kill, premeditation, nor deliberation are necessary elements. For you to find the defendant guilty of second degree murder, the State must prove beyond a reasonable doubt that the defendant unlawfully, intentionally and with malice wounded the victim with a deadly weapon thereby proximately causing his death . . . .

N.C.P.I. 206.10. The court also instructs that malice “means not only hatred, ill will, or spite, as

it is ordinarily understood,” but also “the condition of mind which prompts a person to take the

life of another intentionally or to intentionally inflict serious bodily harm which proximately

results in his death without just cause, excuse or justification.” Id.

In a case where there is evidence that the act resulting in death was unintentional, and

where the jury is correctly instructed, the jury is given the option of choosing involuntary

manslaughter if they believe that 1) the killing was without malice, 2) heat of passion and

imperfect self-defense do not apply, and 3) the defendant was culpably negligent. The inclusion

of an involuntary manslaughter instruction in the charge focuses the jury’s attention on the issue

of whether the defendant committed an intentional act resulting in the victim’s death, or whether

he committed an unintentional but culpably negligent act that resulted in the victim’s death.

However, where the judge erroneously fails to charge the jury on involuntary

manslaughter, this choice has not been placed squarely before the jury. If the jury concludes, as

it did in Mr. McCollum’s case, that the defendant did not act with a specific intent to kill, then it

can eliminate first-degree murder as a choice. At that point, a jury hearing our pattern

25

instructions on voluntary manslaughter and second-degree murder could easily conclude that an

unintentional but culpably negligent killing sounds like second-degree murder much more than it

does voluntary manslaughter. This possibility is even more likely in this case, where the jury

instructions for malice were incorrect and made it sound like the concept of malice encompassed

culpable negligence.

In the instant case, the jury was told that “[m]alice means not only hatred, ill will, or

spite, as it is ordinarily understood. To be sure, that is malice, but it also means the condition of

mind that prompts a person to take the life of another intentionally, or to inflict serious bodily

harm which proximately results in his death without just cause, excuse or justification.” (Rp. 62)

Significantly, the Trial Court left out the second “intentionally” from the second sentence of the

malice instruction, which should read: “[Malice] also means the condition of mind which

prompts a person to take the life of another intentionally or to intentionally inflict serious bodily

harm which proximately results in his death without just cause, excuse or justification.” N.C.P.I.

206.10.

The jury in Mr. McCollum’s case, after ruling out that the defendant acted in the heat of

passion or imperfect self-defense, could have construed the second-degree murder and malice

instructions in his case to encompass culpable negligence. The jury could have interpreted Mr.

McCollum’s culpably negligent actions – bringing a loaded gun to the house, drawing the gun

during the fight, and attempting to hit Leach with the gun – as sufficient to demonstrate an intent

to wound Mr. Leach with the gun and as evidencing “the condition of mind that prompts a

person . . . to inflict serious bodily harm which proximately results in his death without just

cause, excuse or justification.” In this way, even if they believed the shooting was

unintentional, the jury could have found Mr. McCollum guilty of second-degree murder based on

culpable negligence. See State v. Ferrell, 300 N.C. 157, 162-63, 265 S.E.2d 210, 213-14 (1980)

26

(uncorrected error in jury instructions that malice not required for second-degree murder

reversible error); State v. Bonds, 43 N.C. App. 467, 473, 259 S.E.2d 377, 380 (1979) (reversal

for instruction from which jury could have understood that malice not element of second-degree

murder). See also State v. Rich, 351 N.C. 386, 396, 527 S.E.2d 299, 304 (2000) (trial court’s

instructions did not blur distinction between second-degree murder and involuntary manslaughter

where second-degree murder instructions “clearly required a finding of malice”).

In sum, the jury’s rejection of voluntary manslaughter in a situation like that of the instant

case does not necessarily mean that the jury believed the defendant acted with malice. Instead,

the rejection of voluntary manslaughter merely means that the jury rejected that the defendant

acted in the heat of passion or in imperfect self-defense. Thus, the jury in this case did not, in

contrast to the jury in Young, simultaneously find the definitive element of the greater offense

beyond a reasonable doubt (here, malice) and reject finding an absence of that element in a lesser

offense. In the instant case, there was no true finding of malice because the Trial Court’s malice

instruction was erroneous. Further, the jury’s rejection of voluntary manslaughter did not

necessarily represent a rejection of a finding of “no malice.” Because this Court cannot be

confident that the jury found Mr. McCollum guilty of second-degree murder beyond a reasonable

doubt, and because the jury only rejected the notions that the killing occurred in the heat of

passion or in imperfect self-defense, but did not necessarily reject the notion that the killing was

accomplished without malice, this Court must apply the rule that the error in failing to submit an

involuntary manslaughter verdict is not cured by the jury’s verdict of guilty of second-degree

murder. See State v. Hales, 344 N.C. 419, 425, 474 S.E.2d 328, 331-32 (1996) (Young “no

prejudice” rule only applies where jury properly instructed on first- and second-degree murder,

rejects second-degree murder, and convicts of first-degree murder); State v. Riddick, 340 N.C.

338, 343, 457 S.E.2d 728, 732 (1995) (Young rule applies where jury given correct instructions

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on first- and second-degree murder); Young, 324 N.C. at 492, 380 S.E.2d at 96 (jury given

correct instructions on first- and second-degree murder).

This Court has found that the error in failing to submit involuntary manslaughter to be

prejudicial in cases similar to Mr. McCollum’s case. In State v. Lytton, supra, evidence at trial

showed that the defendant unintentionally shot the victim during a struggle. The trial court

instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, and

self-defense, and the jury found the defendant guilty of second-degree murder. This Court held

that the trial court erred by failing to instruct the jury on involuntary manslaughter. This Court

did not find that the fact that the jury found the defendant guilty of second-degree murder and

rejected voluntary manslaughter cured the error. Instead, this Court applied the general rule that

a verdict of guilt of the greater offense does not cure the failure to charge on a supported lesser

offense, and held that the defendant was entitled to a new trial.

Similarly, in State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983), the trial court

submitted verdicts of second-degree murder, voluntary manslaughter, and not guilty, along with

the defenses of accident and self-defense. After finding that there was substantial evidence to

support an involuntary manslaughter verdict, this Court specifically stated that “[t]he error in

failing to instruct on involuntary manslaughter in this case was not cured by the verdict of

murder in the second degree.” Id. at 146, 305 S.E.2d at 552. This Court recited the general rule

concerning prejudice from State v. Wrenn, supra:

Erroneous failure to submit the question of defendant’s guilt of lesser degrees of the same crime is not cured by a verdict of guilty of the offense charged because, in such case, it cannot be known whether the jury would have convicted of a lesser degree if the different permissible degrees arising on the evidence had been correctly presented in the court’s charge.

Id. at 146-47, 305 S.E.2d at 552. This Court additionally stated:

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Even though the concept of culpable negligence was not defined to the jury, they nevertheless could believe . . . that [the defendant’s] handling of the gun constituted what would amount to culpable negligence. Under the instructions as given, the jury would be in a quandary as to which verdict to return. A culpably negligent act would not fit the definition of accident, self-defense, voluntary manslaughter or murder in the second degree.

Id. at 146, 305 S.E.2d at 552. This Court then contrasted the situation in Wallace with one in

which the defendant had been convicted of first-degree murder and claimed that a manslaughter

verdict should have been submitted: “an error in an instruction on manslaughter may be cured

by a verdict of murder in the first degree when there was a proper instruction as to murder in the

first degree and murder in the second degree.” Id. at 147, 305 S.E.2d at 552.

The Court of Appeals majority found it significant that the Wallace court noted that the

evidence did not support a voluntary manslaughter verdict or self-defense. See McCollum, ___

N.C. App. at ___, 579 S.E.2d at 470. However, in Wallace this Court did not make the lack of

evidence of voluntary manslaughter or self-defense a requirement of showing prejudice. Instead,

this Court stated that the general rule on prejudice was “particularly applicable” in Wallace

because of the additional prejudice from lack of evidence of voluntary manslaughter and self-

defense:

The principle that the error is not cured by the verdict of guilty of murder in the second degree is particularly applicable in the present case. If the jury did not believe that the shooting was a nonnegligent accident, then under the evidence and the instructions it was left with no alternative other than a verdict of murder in the second degree. Although the instructions were given, the evidence in this case would not support a verdict of not guilty by reason of self-defense or a verdict of guilty of voluntary manslaughter.

309 N.C. at 147, 305 S.E.2d at 552. This comment in Wallace merely drives home the fact that

if the jury in Mr. McCollum’s case believed that the evidence did not show voluntary

manslaughter, “it was left with no alternative other than a verdict of murder in the second

degree.”

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The fact that there is no requirement of a lack of evidence of voluntary manslaughter for

the general common law prejudice rule to apply is also shown by this Court’s decision in State v.

Buck, 310 N.C. 602, 313 S.E.2d 550 (1984). In that case, verdicts of second-degree murder,

voluntary manslaughter, and not guilty were submitted, along with the defenses of accident and

self-defense. The defendant was convicted of second-degree murder. Evidence at trial showed

that the deceased was stabbed over a struggle with the defendant over a knife, and that the

defendant did not intentionally stab the deceased. After concluding that this evidence supported

the submission of an involuntary manslaughter verdict, this Court awarded the defendant a new

trial, even though the jury had rejected voluntary manslaughter. This Court specifically noted

that the evidence supported both voluntary manslaughter and self-defense. See also State v.

Lytton, supra (granting new trial although no contention that voluntary manslaughter was

unsupported verdict); State v. Stimpson, supra (trial court submitted verdicts of second-degree

murder and voluntary manslaughter and jury convicted defendant of second-degree murder; trial

court erred by failing to submit involuntary manslaughter; new trial awarded); State v. Davis,

supra (same).

The above cases show that the general common law rule – that failure to instruct on a

supported lesser-included offense is prejudicial error – must be applied in this case, and that the

Young “no prejudice” rule does not apply.

As shown above, there is a second rationale for the “no prejudice” rule which is based on

Schad v. Arizona – that a jury would choose second-degree murder over first-degree murder if it

believed that the defendant was not guilty of either offense, but was clearly guilty of some lesser

charge. 501 U.S. at 647, 115 L.Ed.2d at 575. Where the jury in such a situation chooses first-

degree murder, a reviewing court can be confident of the jury’s “certainty of [the defendant’s]

guilt of the greater offense.” Price, 344 N.C. at 592, 476 S.E.2d at 322. The Schad rule is based

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on determining the likelihood that the jury would choose a greater offense over a lesser offense

where the offense of which the jury actually believes the defendant is guilty is not offered as a

choice, but where the jury wants to “keep[ ] [the defendant] off the streets.” Schad, 501 U.S. at

647, 115 L.Ed.2d at 575.

In Schad, the jury was instructed on first- and second-degree murder and convicted the

defendant of first-degree capital murder. The defendant claimed on appeal that a robbery verdict

should have been submitted as a lesser-included offense of felony murder. He maintained that if

the jurors did not believe him guilty of first-degree or second-degree murder, but believed he was

guilty of robbery, they could have found him guilty of first-degree murder to avoid setting him

free. The majority of the U.S. Supreme Court could “see no basis to assume such irrationality”

and held that “the second-degree murder instructions . . . sufficed to ensure the verdict’s

reliability.” Id. at 647-48, 115 L.Ed.2d at 575.

Mr. McCollum agrees that it is indeed irrational to think that jurors believing a defendant

guilty of robbery would choose first-degree capital murder over second-degree murder to avoid

acquitting the defendant. It seems probable that jurors in that situation would choose to acquit

the defendant altogether rather than convict him of either level of murder. The fact that the

jurors convicted the defendant in Schad of capital murder shows they were certain of his guilt of

that offense.

Because of the extreme nature of the fact situation in Schad, this Court should not apply

this case to all claims of failure to submit a lesser-included offense. Further, because the Schad

situation differs markedly from that of the instant case, Schad must not be applied to find no

prejudice here. In contrast to the situation in Schad – where the defendant claimed that jurors

who thought him guilty of robbery might choose to convict him of first-degree murder rather

than second-degree murder - it is much more probable that jurors convinced that a defendant was

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guilty of recklessly shooting someone might choose second-degree murder over voluntary

manslaughter. As shown above, after determining that the specific prongs of voluntary

manslaughter did not apply, the jurors could have latched onto part of the Trial Court’s malice

instruction – that malice is “that condition of mind which prompts a person . . . to inflict serious

bodily harm.” Thus, the Trial Court’s leaving out the word “intentionally” from the malice

instruction interposes an element of uncertainty in the jury’s verdict not present in Schad.

In sum, although it may well be considered “irrational” for jurors to find a defendant

guilty of first-degree murder where they are convinced he is really only guilty of robbery, it is far

more probable that jurors would convict a defendant of second-degree murder if they are

convinced that he wantonly, recklessly, and unintentionally shot someone, especially where the

trial court’s erroneous instructions are open to such an interpretation. Therefore, Schad should

not be applied in this case, and the Trial Court’s error in failing to submit an involuntary

manslaughter verdict was prejudicial.

3. The Trial Court’s Error Was Plain Error.

Not only was the error in his case prejudicial, it was plain error because it “had a

probable impact on the verdict.” State v. Gibbs, 335 N.C. 1, 54, 436 S.E.2d 321, 351 (1993)

(citing State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983)); State v. Lowe, 150 N.C.

App. 682, 685, 564 S.E.2d 313, 315 (2002). As shown above, the evidence cited by the Court of

Appeals majority as “overwhelming evidence” of Mr. McCollum’s guilt of second-degree

murder was by no means overwhelming, and in many respects supported a finding of culpable

negligence. Further, as shown in the Statement of Facts, there were no eyewitnesses who

testified as to what occurred between Mr. McCollum and Mr. Leach immediately prior to the

shooting. Thus, the only statement in evidence as to what occurred was Mr. McCollum’s

statement, which the State introduced in its case-in-chief, and which supports a verdict of

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involuntary manslaughter. Additionally, Mr. McCollum’s version of events was consistent with

the police and forensic testimony concerning the physical evidence and the condition of Leach’s

body. Even the State postulated during its closing argument that Mr. McCollum and Mr. Leach

were “grappling” for the gun immediately before Leach was killed.

In addition, the State’s two main witnesses against Mr. McCollum, Kenyatta and Phillip,

changed their stories significantly between the shooting and trial. Both had obvious motives to

prevaricate or embellish– Kenyatta, because Mr. McCollum killed the father of her child, and

Phillip, because he was “tight” with Leach and had known him for several years. Under these

circumstances, the Trial Court’s failure to submit an involuntary manslaughter verdict probably

impacted upon the verdict, and was therefore plain error. Accordingly, Mr. McCollum must be

granted a new trial.

CONCLUSION

For all the foregoing reasons, defendant respectfully contends he must be granted a new

trial.

Respectfully submitted this the 22nd day of September, 2003.

Electronic Submission Anne M. GomezAssistant Appellate Defender

Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 600Durham, North Carolina 27701(919) 560-3334

ATTORNEYS FOR DEFENDANT

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s New Brief has been filed pursuant to Rule 26 by electronic means with the Clerk of the Supreme Court of North Carolina.

I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s New Brief has been duly served upon Ms. Celia Grasty Lata, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by first-class mail, postage prepaid.

This the 22nd day of September, 2003.

Electronic Submission Anne M. GomezAssistant Appellate Defender

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