{ "id": 8374870, "name": "STATE OF NORTH CAROLINA v. SCOTT ROBERT ERICKSON", "name_abbreviation": "State v. Erickson", "decision_date": "2007-02-06", "docket_number": "No. COA06-173", "first_page": "479", "last_page": "491", "citations": [ { "type": "official", "cite": "181 N.C. App. 479" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "340 S.E.2d 430", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "435", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "315 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4720164 ], "year": 1986, "pin_cites": [ { "page": "731", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0724-01" ] }, { "cite": "428 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "133" } ], "opinion_index": 0 }, { "cite": "333 N.C. 350", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2549203 ], "year": 1993, "pin_cites": [ { "page": "379" } ], "opinion_index": 0, "case_paths": [ "/nc/333/0350-01" ] }, { "cite": "463 S.E.2d 176", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "342 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 796093 ], "year": 1995, "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nc/342/0123-01" ] }, { "cite": "389 S.E.2d 66", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "statements regarding victim's state of mind three weeks before her disappearance were relevant to the issue of her relationship with her husband" } ], "opinion_index": 0 }, { "cite": "326 N.C. 298", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5306390 ], "year": 1990, "pin_cites": [ { "parenthetical": "statements regarding victim's state of mind three weeks before her disappearance were relevant to the issue of her relationship with her husband" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0298-01" ] }, { "cite": "435 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1993, "pin_cites": [ { "parenthetical": "statements regarding defendant's threats to victim made six months prior to murder admissible" }, { "page": "302" }, { "page": "302", "parenthetical": "citations and quotations omitted" }, { "page": "302" }, { "page": "302" } ], "opinion_index": 0 }, { "cite": "334 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2531078 ], "weight": 5, "year": 1993, "pin_cites": [ { "parenthetical": "statements regarding defendant's threats to victim made six months prior to murder admissible" }, { "page": "637" }, { "page": "638" }, { "page": "637-38" }, { "page": "637" } ], "opinion_index": 0, "case_paths": [ "/nc/334/0627-01" ] }, { "cite": "495 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "185" } ], "opinion_index": 0 }, { "cite": "128 N.C. App. 265", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11653744 ], "year": 1998, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/nc-app/128/0265-01" ] }, { "cite": "525 S.E.2d 793", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "805", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11240921 ], "year": 2000, "pin_cites": [ { "page": "547-48", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0531-01" ] }, { "cite": "224 F.2d 168", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 56382 ], "year": 1955, "pin_cites": [ { "page": "170" } ], "opinion_index": 0, "case_paths": [ "/f2d/224/0168-01" ] }, { "cite": "281 S.E.2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1981, "pin_cites": [ { "page": "742" }, { "page": "682" }, { "page": "683" }, { "page": "683" } ], "opinion_index": 0 }, { "cite": "53 N.C. App. 740", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523465 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "744" }, { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/nc-app/53/0740-01" ] }, { "cite": "573 S.E.2d 237", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "155 N.C. App. 342", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250148 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc-app/155/0342-01" ] }, { "cite": "382 S.E.2d 752", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "325 N.C. 232", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2491571 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/nc/325/0232-01" ] }, { "cite": "474 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204128 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/us/474/0284-01" ] }, { "cite": "343 S.E.2d 828", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "839" } ], "opinion_index": 0 }, { "cite": "316 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4694299 ], "year": 1986, "pin_cites": [ { "page": "682" } ], "opinion_index": 0, "case_paths": [ "/nc/316/0666-01" ] }, { "cite": "421 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "585", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "332 N.C. 439", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2507119 ], "year": 1992, "pin_cites": [ { "page": "453", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0439-01" ] }, { "cite": "557 S.E.2d 152", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "155" }, { "page": "155" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380945 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "650" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0646-01" ] }, { "cite": "439 S.E.2d 760", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 401", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526248 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0401-01" ] }, { "cite": "367 S.E.2d 639", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1988, "pin_cites": [ { "parenthetical": "distinguishing between evidence presented to support an insanity defense and evidence to negate premeditation and deliberation" } ], "opinion_index": 0 }, { "cite": "322 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2518702 ], "year": 1988, "pin_cites": [ { "parenthetical": "distinguishing between evidence presented to support an insanity defense and evidence to negate premeditation and deliberation" } ], "opinion_index": 0, "case_paths": [ "/nc/322/0243-01" ] }, { "cite": "252 S.E.2d 720", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "728" } ], "opinion_index": 0 }, { "cite": "296 N.C. 623", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569846 ], "year": 1979, "pin_cites": [ { "page": "636" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0623-01" ] }, { "cite": "388 S.E.2d 81", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "83" } ], "opinion_index": 0 }, { "cite": "326 N.C. 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305456 ], "year": 1990, "pin_cites": [ { "page": "257" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0253-01" ] }, { "cite": "567 S.E.2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "pin_cites": [ { "page": "454", "parenthetical": "internal quotations omitted" }, { "parenthetical": "internal quotations omitted" }, { "page": "455", "parenthetical": "holding an instruction on second-degree murder was not warranted when each element of first-degree murder was clearly established and the defendant's insanity defense did not negate any element" }, { "page": "456" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 358", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9250100 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "364", "parenthetical": "internal quotations omitted" }, { "page": "365" }, { "page": "366" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0358-01" ] }, { "cite": "445 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "885" }, { "page": "886", "parenthetical": "\"The ability to distinguish between right and wrong and the ability to premeditate and deliberate are entirely different considerations.\"" }, { "page": "886" }, { "parenthetical": "emphasis in original" } ], "opinion_index": 0 }, { "cite": "336 N.C. 617", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2535758 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "628" }, { "page": "629" }, { "page": "629-30" } ], "opinion_index": 0, "case_paths": [ "/nc/336/0617-01" ] }, { "cite": "572 S.E.2d 767", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "771", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511555 ], "year": 2002, "pin_cites": [ { "page": "560", "parenthetical": "internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0556-01" ] }, { "cite": "453 S.E.2d 824", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "339 N.C. 487", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557546 ], "year": 1995, "pin_cites": [ { "page": "514" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0487-01" ] }, { "cite": "493 S.E.2d 292", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1997, "pin_cites": [ { "page": "296", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 685", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799764 ], "year": 1997, "pin_cites": [ { "page": "691", "parenthetical": "internal quotations and citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0685-01" ] } ], "analysis": { "cardinality": 1138, "char_count": 30616, "ocr_confidence": 0.745, "pagerank": { "raw": 2.1032110615574094e-07, "percentile": 0.7621206873450923 }, "sha256": "218e277918f5bc6b389371b13bc3eb0db3d27aa6833e4b76e7974058f416df3e", "simhash": "1:c232512ab42e1cfe", "word_count": 4972 }, "last_updated": "2023-07-14T22:19:54.793724+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge TYSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. SCOTT ROBERT ERICKSON" ], "opinions": [ { "text": "CALABRIA, Judge.\nScott Robert Erickson (\u201cdefendant\u201d) appeals from judgment entered upon jury verdicts finding him guilty of first-degree murder and possession of a weapon of mass destruction. We find no error.\nThe State presented the following evidence: defendant, a Minnesota native, moved to North Carolina to live with his father, Scott Schneiderhan (\u201cMr. Schneiderhan\u201d) who lived in a trailer owned by Ms. Aliene Pierce (\u201cMs. Pierce\u201d), the victim. The trailer was located on Ms. Pierce\u2019s farm near her residence. Ms. Pierce allowed Mr. Schneiderhan and the defendant to live in the trailer rent-free in exchange for their help on the farm. During the spring of 2002, Ms. Pierce began having problems with Mr. Schneiderhan and defendant. Ms. Pierce discussed these problems with several people including her brother, sisters, and neighbors. Over the course of several conversations, Ms. Pierce told her friends that Mr. Schneiderhan and defendant were not completing their work as agreed and that she wanted them to leave. Ms. Pierce, however, indicated that she had not asked Mr. Schneiderhan and defendant to leave because she was afraid that defendant may harm her or her property. During the spring of 2002, Mr. Schneiderhan moved but the defendant continued to live in Ms. Pierce\u2019s trailer without working on Ms. Pierce\u2019s farm. During the summer of 2002, defendant also left Ms. Pierce\u2019s trailer and returned to Minnesota.\nOn 13 December 2002, at approximately 9:30 a.m., the Wilkes County Sheriff\u2019s Department received a 911 phone call from Ms. Pierce\u2019s residence. Law enforcement and emergency personnel were dispatched to Ms. Pierce\u2019s residence where they found Ms. Pierce lying face down on the floor of her kitchen. Later, it was determined that Ms. Pierce had been shot in the chest and that she died from the loss of blood. At approximately 10:30 a.m., on the same day, defendant arrived at the home of Ray Absher (\u201cMr. Absher\u201d) and knocked on the front door. When Mr. Absher opened the door, defendant asked for a pack of cigarettes. Mr. Absher testified that the defendant did not appear to be nervous and was not acting abnormally. After Mr. Absher gave defendant a pack of cigarettes, defendant left. As the defendant was driving away, his car became stuck at the end of Mr. Absher\u2019s driveway. The defendant got out of his car, went back to Mr. Absher\u2019s house and asked Mr. Absher if he could leave \u201csomething\u201d there. Mr. Absher testified that defendant had often left personal belongings at his home and he gave defendant permission to leave the item. The defendant walked back to his car and retrieved an object wrapped in a towel. Mr. Absher told defendant to take the object and place it in the back room of the basement. After the defendant placed the item in the basement, Mr. Absher drove the defendant to Robert Jones\u2019 (\u201cMr. Jones\u201d) home, where the defendant was staying.\nThat evening, police officers arrived at Mr. Absher\u2019s home and questioned him about the defendant\u2019s whereabouts, the defendant\u2019s car and whether Mr. Absher had seen the defendant with a gun. Mr. Absher responded to the officers\u2019 questions but indicated that he had not seen the defendant with a gun. After the officers left, Mr. Absher\u2019s wife reminded him that the defendant had stored an object in the basement earlier that morning. Mr. Absher retrieved the object and discovered that it was a gun. Mr. Absher immediately contacted the police. Defendant was arrested that evening at Mr. Jones\u2019 home.\nDefendant was indicted for first-degree murder and possession of a weapon of mass destruction. On 9 July 2003, defendant served the State with notice of his intent to raise the defense of insanity and to introduce expert testimony on mental health issues. After two competency evaluations, defendant was discharged to the custody of the Wilkes County Sheriff\u2019s Department on 17 February 2004 as being capable to stand trial.\nAt trial, defendant presented the testimony of Dr. Karla de Beck (\u201cDr. de Beck\u201d), a forensic psychiatrist at Dorothea Dix Hospital (\u201cDorothea Dix\u201d) in Raleigh, North Carolina. Pursuant to a court order, Dr. de Beck determined that defendant had schizophrenia, paranoid type, depressive disorder and a history of cannabis, cocaine and alcohol abuse. Dr. de Beck testified that, in her opinion, defendant experienced active symptoms of psychosis consistent with paranoid schizophrenia at the time of the alleged incident.\nDefendant also presented the testimonies of Dr. Cindy Cottle (\u201cDr. Cottle\u201d) and Dr. Mark Hazelrigg (\u201cDr. Hazelrigg\u201d), forensic psychologists at Dorothea Dix Hospital. Dr. Cottle and Dr. Hazelrigg examined defendant to determine whether defendant\u2019s symptoms of psychosis were malingered. Both doctors determined within a reasonable degree of psychological certainty that the defendant\u2019s symptoms of psychosis were not malingered.\nFinally, defendant presented the testimony of Dr. Moira Artigues, a psychiatrist in private practice, who determined defendant was not responsible for his actions due to the severity of his schizophrenia. Defendant also presented the testimony of Dr. John Frank Warren, III (\u201cDr. Warren\u201d), a licensed psychologist, who concluded that defendant\u2019s illness so impaired him at the time of the murder that he was unable to know right from wrong.\nOn 23 September 2004, a jury found defendant guilty of both first-degree murder and possession of a weapon of mass destruction. Wilkes County Superior Court Judge William Z. Wood, Jr. entered judgment upon jury verdicts and sentenced defendant to life imprisonment without parole in the North Carolina Department of Correction. Defendant appeals.\nThere was no question that defendant fired the shot that killed Ms. Pierce. The issue in this case was whether defendant was legally insane and whether he killed the victim after forming the specific intent to kill.\nDefendant begins by arguing that an instruction on second-degree murder should have been given, despite his failure to request it, because there was evidence that defendant did not have the ability to form the requisite intent to commit first-degree murder. Because defendant did not request an instruction on second-degree murder, we review for plain error.\n\u201c[I]n exceptional cases, where the claimed instructional error is fundamental, or where it can be fairly said the instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty, absence of the required instruction, even when there is no objection, will justify reversal under the plain error rule.\u201d State v. Connell, 127 N.C. App. 685, 691, 493 S.E.2d 292, 296 (1997) (internal quotations and citations omitted). \u201cIn order to show the existence of plain error in the trial court\u2019s charge, the defendant must establish that but for the erroneous charge the jury probably would have reached a different verdict.\u201d Id. \u201cThe test for determining whether the jury must be instructed on second-degree murder is whether there is any evidence in the record which would support a verdict of second-degree murder.\u201d State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841 (1995). \u201cIt is unquestioned that the trial judge must instruct the jury as to a lesser-included offense of the crime charged, when there is evidence from which the jury could find that the defendant committed the lesser offense.\u201d Id. However, \u201c[i]f the evidence is sufficient to fully satisfy the State\u2019s burden of proving each and every element of the offense of murder in the first-degree, including premeditation and deliberation, and there is no evidence to negate these elements . . . the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.\u201d State v. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 771 (2002) (internal quotations omitted) (emphasis in original). \u201cOnly where defendant has brought forth evidence to negate the element of premeditation and deliberation, or where the evidence is equivocal as to premeditation and deliberation, is defendant entitled to an instruction on second-degree murder.\u201d State v. Ingle, 336 N.C. 617, 628, 445 S.E.2d 880, 885 (1994).\n\u201cFirst degree murder is defined as the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.\u201d State v. Hornsby, 152 N.C. App. 358, 364, 567 S.E.2d 449, 454 (2002) (internal quotations omitted). \u201cMurder in the second degree, on the other hand, is the unlawful killing of a human being with malice but without premeditation and deliberation.\u201d Id. (internal quotations omitted). \u201cPremeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation.\u201d State v. Bullock, 326 N.C. 253, 257, 388 S.E.2d 81, 83 (1990). \u201cDeliberation means an intention to kill executed by one in a cool state of blood, in furtherance of a fixed design to gratify a feeling of revenge or to accomplish some unlawful purpose ....\u201d State v. Ruof, 296 N.C. 623, 636, 252 S.E.2d 720, 728 (1979).\nThe evidence in the present case tended to show that during the summer of 2002, Ms. Pierce expressed to several people that she was afraid defendant would harm her. Also, defendant was upset with Ms. Pierce because she had taken his belongings and cut down his marijuana plants. Defendant believed he was being told to shoot Ms. Pierce and that messages from television and radio programs were telling him to return to North Carolina and kill Ms. Pierce. When defendant returned to North Carolina, he went to Ms. Pierce\u2019s house and shot her. Further, there was no evidence that Ms. Pierce provoked defendant. The State\u2019s evidence clearly established each element of first-degree murder and there was no evidence to negate these elements. Accordingly, the trial court did not commit plain error by not submitting an instruction on second-degree murder to the jury. See Hornsby, 152 N.C. App. at 365, 567 S.E.2d at 455 (holding an instruction on second-degree murder was not warranted when each element of first-degree murder was clearly established and the defendant\u2019s insanity defense did not negate any element).\nDefendant contends that the testimony of Dr. Warren regarding defendant\u2019s mental state at the time of the crime negated the elements of premeditation and deliberation thereby requiring an instruction on second-degree murder and the failure to give such instruction was plain error. We disagree.\nA careful review of the transcript reveals that Dr. Warren\u2019s testimony tended to establish defendant was unable to understand whether his actions were right or wrong. Dr. Warren testified that defendant was diagnosed with paranoid schizophrenia and that defendant\u2019s symptoms included a delusional system which affected defendant\u2019s cognitive abilities. Dr. Warren also testified that because of defendant\u2019s delusional system, he did not know the natural consequences of shooting Ms. Pierce \u2014 i.e. that Ms. Pierce would actually die. Dr. Warren testified that in defendant\u2019s delusional state, he did not understand that Ms. Pierce would in fact actually die, but because Ms. Pierce was \u201cwatching him on TV\u201d and knew he was coming to kill her, that she would \u201cnot really be dead.\u201d Dr. Warren did not testify that defendant was unable to plan his actions or that he lacked the ability to premeditate and deliberate.\nDr. Warren\u2019s testimony established defendant\u2019s mental state at the time of the crime \u2014 that defendant was incapable of understanding whether his actions were right or wrong. However, Dr. Warren\u2019s testimony did not negate defendant\u2019s ability to premeditate and deliberate. See Ingle, 336 N.C. at 629, 445 S.E.2d at 886 (\u201cThe ability to distinguish between right and wrong and the ability to premeditate and deliberate are entirely different considerations.\u201d); see also, State v. Shank, 322 N.C. 243, 367 S.E.2d 639 (1988) (distinguishing between evidence presented to support an insanity defense and evidence to negate premeditation and deliberation).\nIn Ingle, our Supreme Court upheld the trial court\u2019s denial of the defendant\u2019s request for an instruction on second-degree murder. The defendant claimed the instruction was supported by expert testimony regarding his mental state at the time of the alleged crime. Id., 336 N.C. at 629-30, 445 S.E.2d at 886. Justice Meyer, writing for the Court reasoned:\nTestimony that defendant lacked the ability to engage in the higher function of determining the moral acceptability of his actions, even if believed, does not negate or call into question his ability to plan his actions. Accordingly, such evidence does not justify the submission of an instruction on second-degree murder.\nId. (emphasis in original). As in Ingle, Dr. Warren\u2019s testimony, did not negate or call into question defendant\u2019s ability to plan his actions but-tended to establish that defendant lacked the ability to know right from wrong. Because defendant did not present evidence that he was unable to premeditate or deliberate, an instruction on second-degree murder was not required. Accordingly, the trial court did not commit plain error and this assignment of error is overruled. See State v. Adams, 335 N.C. 401, 439 S.E.2d 760 (1994).\nDefendant next argues the trial court erred by not granting a mistrial when the State\u2019s witness, Agent Chris Laws (\u201cAgent Laws\u201d), commented on defendant\u2019s invocation of his constitutional right to counsel and the trial court compounded the problem by giving a curative instruction to the jury. We disagree.\n\u201cA trial court should grant a defendant\u2019s motion for mistrial only when there are improprieties in the trial so fundamental that they substantially and irreparably prejudice the defendant\u2019s case, making it impossible for the defendant to receive a fair and impartial verdict.\u201d State v. Diehl, 147 N.C. App. 646, 650, 557 S.E.2d 152, 155 (2001). \u201c[T]he decision of whether to grant a mistrial rests in the sound discretion of the trial judge and will not be disturbed on appeal absent a showing of an abuse of discretion.\u201d State v. Upchurch, 332 N.C. 439, 453, 421 S.E.2d 577, 585 (1992) (internal quotations omitted). \u201c[A] trial court may be reversed for an abuse of discretion only upon a showing that its ruling was so arbitrary that it could not have been the result of a reasoned decision.\u201d State v. Barts, 316 N.C. 666, 682, 343 S.E.2d 828, 839 (1986).\nDuring cross-examination, the following exchange took place between the defense attorney, Maitri Klinkosum (\u201cMr. Klinkosum\u201d), and Agent Laws:\n[Mr. Klinkosum]: In regards to his luggage, you never determined whether he simply just didn\u2019t unpack or whether they had been packed up, correct, while he was here in North Carolina?\n[Agent Laws]: He asked for an attorney. I couldn\u2019t ask him that.\nDefendant argues Agent Laws\u2019 response regarding defendant\u2019s invocation of his constitutional right to counsel tainted the jury\u2019s ability to fairly assess whether defendant was mentally insane at the time of the crime. Defendant relies upon Wainwright v. Greenfield, 474 U.S. 284 (1986), in which the United States Supreme Court held that a defendant\u2019s invocation of his right to remain silent could not be used by the state as proof of defendant\u2019s sanity. Defendant also relies upon State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989), in which our Supreme Court held it improper for the State to comment on a defendant\u2019s silence and State v. Shores, 155 N.C. App. 342, 573 S.E.2d 237 (2002), in which this Court held the prosecutor\u2019s arguments and comments to the jury violated defendant\u2019s right to remain silent.\nWe find the decisions of Wainwright, Hoyle, and Shores distinguishable from the facts of this case. In each of the above cases, the prosecutor either elicited testimony regarding the defendant\u2019s invocation of his constitutional rights or argued to the jury that the defendant invoked his right to remain silent. In the case before us, the prosecutor did not elicit testimony from Agent Laws regarding defendant\u2019s request. Rather, Agent Laws\u2019 comment was made in response to the defense attorney\u2019s question. Further the prosecutor did not argue to the jury that an inference could be made regarding defendant\u2019s request for an attorney that would reflect on defendant\u2019s mental state at the time of the murder.\nThe facts of this case are similar to those of State v. Hamilton, 53 N.C. App. 740, 281 S.E.2d 680 (1981). In Hamilton, the State\u2019s witness responded to a question regarding how he determined the defendant was using an alias. Id. at 742, 281 S.E.2d at 682. While answering the question, the witnesses stated that the defendant said he did not want to talk. Id. We adopted the test set out in Knowles v. United States, 224 F.2d 168, 170 (10th Cir. 1955), which requires us to consider whether \u201cthe language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment\u201d on defendant\u2019s exercise of his right to silence. Hamilton, 53 N.C. App. at 744, 281 S.E.2d at 683. In so doing, we concluded that the witness\u2019 statement, taken in context, was not intended to be a comment on the defendant\u2019s invocation of his right to silence. Id.\nApplying the test adopted in Hamilton to the case before us, we do not find that Agent Laws\u2019 comment, taken in context, was of such character that the jury would have concluded it was a comment on defendant\u2019s exercise of his right to counsel. As in Hamilton, \u201ca jury would likely treat [the comment] as nothing more than an insignificant remark of little consequence.\u201d Id., 53 N.C. App. at 744, 281 S.E.2d at 683.\nDefendant argues that Hamilton is distinguishable from the present case because Hamilton did not involve an insanity defense. Defendant also argues that informing the jury that defendant requested an attorney when he was arrested bears directly upon the plausibility of his insanity defense. Defendant\u2019s argument is not without merit. However, taking Agent Laws\u2019 statement in context, its purpose was not to shed doubt on defendant\u2019s insanity defense but was an attempt to explain why he was unable to determine when defendant\u2019s luggage was packed. Again, taken in context, it is doubtful that the jury would have considered Agent Laws\u2019 statement to be more than an offhand remark with little implication regarding defendant\u2019s mental state at the time of the crime.\nAssuming, arguendo, Agent Laws\u2019 comment was improper, defendant further contends that the trial court\u2019s curative instruction, given over objection, only acted to compound the effects of the comment. We disagree.\n\u201cGenerally, when a trial court properly instructs jurors to disregard incompetent or objectionable evidence, any error in the admission of the evidence is cured.\u201d Diehl, 147 N.C. App. at 650, 557 S.E.2d at 155. \u201c[I]n deciding whether the instruction did in fact cure any error, the crucial inquiry is into the nature of the evidence and its probable influence upon the mind of the jury in reaching a verdict as well as the probable difficulty in erasing it from the mind.\u201d State v. Griffin, 136 N.C. App. 531, 547-48, 525 S.E.2d 793, 805 (2000) (internal quotations omitted). Additionally, an objectionable comment may be rendered harmless' beyond a reasonable doubt \u201c[i]f the State shows overwhelming evidence of the defendant\u2019s guilt. . . .\u201d State v. Riley, 128 N.C. App. 265, 270, 495 S.E.2d 181, 185 (1998).\nAs already stated, given the context of Agent Laws\u2019 comment, the jury probably treated Agent Laws\u2019 comment as nothing more than an offhand remark. Also, the jury poll conducted by the trial court after the curative instruction was given indicated that the members of the jury understood the instruction to disregard Agent Laws\u2019 comment and would in fact disregard the comment. Finally, the State presented overwhelming evidence of defendant\u2019s guilt.\nDefendant\u2019s final argument is that the trial court erred by admitting testimony regarding Ms.. Pierce\u2019s state of mind because it was irrelevant and highly prejudicial. During the guilt-innocence phase of the trial, the State presented the testimonies of Bernice Mathis, Dale Pierce, Betty Roberts, and Sydney Johnson concerning statements made by Ms. Pierce to them regarding her fear of defendant. Defendant contends that these statements were inadmissible under North Carolina Rules of Evidence Rule 803(3) because they were not statements of Ms. Pierce\u2019s mind as of the date of her death. We disagree.\nRule 803 of the North Carolina Rules of Evidence allows \u201c[a] statement of the declarant\u2019s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health)\u201d to be admitted into evidence. N.C. Gen. Stat. \u00a7 8C-1, Rule 803 (2005).\nBernice Mathis (\u201cMs. Mathis\u201d), Ms. Pierce\u2019s friend, testified that during the summer of 2002, Ms. Pierce said that she was afraid of defendant. Ms. Pierce told Ms. Mathis that she heard shots being fired at the trailer and that she was afraid defendant would burn her out of her home. Dale Pierce (\u201cMr. Pierce\u201d) testified that he had known Ms. Pierce and had conducted business with her for twenty-five years. Mr. Pierce testified that on one occasion approximately four months prior to defendant shooting Ms. Pierce, Ms. Pierce told him that she was afraid of defendant. Ms. Pierce told Mr. Pierce that defendant had \u201cshot her trailer up.\u201d After Mr. Pierce promised Ms. Pierce that he would not tell anyone, she stated, \u201cI\u2019m scared to run him off or call a deputy. He\u2019ll come back and kill me.\u201d\nBetty Roberts (\u201cMs. Roberts\u201d), Ms. Pierce\u2019s friend, also testified that during the summer of 2002 Ms. Pierce told her that she was afraid of defendant and that she was afraid he would kill her cows or \u201cburn her out.\u201d Sidney Johnson (\u201cMr. Johnson\u201d), Ms. Pierce\u2019s nephew, testified that he visited his aunt once or twice per week and that on each occasion she told him that she was afraid of defendant. During the period of time after defendant moved from of Ms. Pierce\u2019s trailer, Ms. Pierce told Mr. Johnson on several occasions that she was afraid defendant would come back and harm her.\n\u201cEvidence tending to show state of mind is admissible as long as the declarant\u2019s state of mind is a relevant issue and the possible prejudicial effect of the evidence does not outweigh its probative value.\u201d State v. McHone, 334 N.C. 627, 435 S.E.2d 296 (1993) (statements regarding defendant\u2019s threats to victim made six months prior to murder admissible); State v. Cummings, 326 N.C. 298, 389 S.E.2d 66 (1990) (statements regarding victim\u2019s state of mind three weeks before her disappearance were relevant to the issue of her relationship with her husband). The witnesses\u2019 testimonies related directly to Ms. Pierce\u2019s fear of defendant and were admissible to show her then existing state of mind at the time she made the statements. See McHone, 334 N.C. at 637, 435 S.E.2d at 302.\nDefendant further contends that the prejudicial effect of Ms. Pierce\u2019s statements outweighed any probative value because the statements were made long before the date she was murdered and the most recent statements were made during the summer of 2002.\n\u201cWhether or not to exclude evidence under Rule 403 of the Rules of Evidence is a matter within the sound discretion of the trial court and its decision will not be disturbed on appeal absent a showing of an abuse of discretion.\u201d State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995). \u201cAbuse of discretion occurs where the court\u2019s ruling is manifestly unsupported by reason or is so arbitrary it could not have been the result of a reasoned decision.\u201d State v. Syriani, 333 N.C. 350, 379, 428 S.E.2d 118, 133 (1993).\n\u201cNotwithstanding its relevancy, evidence may nevertheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.\u201d McHone, 334 N.C. at 638, 435 S.E.2d at 302 (citations and quotations omitted); N.C. Gen. Stat. \u00a7 8C-1, Rule 403 (2005). \u201cUnfair prejudice has been defined as an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.\u201d State v. Mason, 315 N.C. 724, 731, 340 S.E.2d 430, 435 (1986) (internal quotations omitted).\nIn the case before us, Ms. Pierce told several witnesses on numerous occasions that she was afraid to ask defendant to leave because she was afraid that he may harm her. Also, Mr. Johnson testified that after defendant moved to Minnesota, Ms. Pierce continued to tell him that she was afraid defendant would return to North Carolina and harm her. The evidence tended to show that Ms. Pierce was afraid of defendant and that fear caused her to allow defendant to continue to live in her trailer even after defendant stopped working on her farm. The fact that the last statements Ms. Pierce made regarding her fear of defendant happened some time prior to the murder does not deprive the evidence of its probative value. See McHone, 334 N.C. at 637-38, 435 S.E.2d at 302.\nDefendant also contends that because an insanity defense was presented, the only relevant evidence that should have been admitted was evidence that would rebut the insanity defense and that the testimony of the witnesses regarding Ms. Pierce\u2019s state of mind was irrelevant and highly prejudicial because it did not tend to rebut an insanity defense. We disagree.\n\u201cThe defense [of insanity] is unrelated to the existence or nonexistence of the elements of the criminal act; thus, where a defendant raises the defense of insanity, the burden remains upon the State ... to prove . . . the existence of each element of the offense beyond a reasonable doubt.\u201d Hornsby, 152 N.C. App. at 366, 567 S.E.2d at 456. The State was required to present evidence to prove each element of first-degree m\u00farder. The conversations between Ms. Pierce and the witnesses related directly to Ms. Pierce\u2019s fear of defendant and were admissible to show Ms. Pierce\u2019s then existing state of mind at the time she made the statements. See McHone, 334 N.C. at 637, 435 S.E.2d at 302. The trial court did not abuse its discretion by admitting the witnesses\u2019 testimonies of Ms. Pierce\u2019s statements regarding her fear of the defendant.\nBecause defendant failed to present any argument as to his remaining assignments of error, they are deemed abandoned pursuant to N.C. R. App. P. 28(b)(6). For the foregoing reasons, we find no error.\nNo error.\nChief Judge MARTIN and Judge TYSON concur.", "type": "majority", "author": "CALABRIA, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the State.", "Winston & Maher, by Thomas K. Maher, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. SCOTT ROBERT ERICKSON\nNo. COA06-173\n(Filed 6 February 2007)\n1. Homicide\u2014 first-degree murder \u2014 failure to instruct on second-degree murder\nThe trial court did not commit plain error in a first-degree murder case by failing to give an instruction ex meru motu on second-degree murder based on alleged evidence that defendant did not have the ability to form the requisite intent to commit first-degree murder, because the State established each element of first-degree murder including evidence that: (1) during the summer of 2002, the victim expressed to several people that she was afraid defendant would harm her based on the fact she cut down his marijuana plants and removed some of his belongings; (2) defendant believed he was being told to shoot the victim and that messages from television and radio programs were telling him to return to North Carolina and kill the victim; (3) defendant returned to North Carolina, went to the victim\u2019s house, and shot her without any provocation; and (4) although a psychologist\u2019s testimony tended to establish defendant was unable to understand whether his actions were right or wrong, he did not testify that defendant was unable to plan his actions or that he lacked the ability to premeditate and deliberate.\n2. Constitutional Law\u2014 right to counsel \u2014 offhand remark\nThe trial court did not abuse its discretion in a first-degree murder and possession of a weapon of mass destruction case by failing to grant a mistrial when the State\u2019s witness allegedly commented on defendant\u2019s invocation of his constitutional right to counsel, because: (1) the prosecutor did not elicit testimony from the agent witness regarding defendant\u2019s request to invoke his right to remain silent, but instead the agent\u2019s comment was made in response to defense counsel\u2019s question; (2) the prosecutor did not argue to the jury that an inference could be made regarding defendant\u2019s request for an attorney that would reflect on defendant\u2019s mental state at the time of the murder; (3) the agent\u2019s comment, taken in context, was not of such character that the jury would have concluded it was a comment on defendant\u2019s exercise of his right to counsel; (4) the agent\u2019s statement taken in context was not made to shed doubt on defendant\u2019s insanity defense, but was an attempt to explain why the agent was unable to determine when defendant\u2019s luggage was packed; (5) assuming arguendo the agent\u2019s comment was improper, the jury poll conducted by the trial court after the curative instruction was given indicated the members of the jury understood the instruction to disregard the comment and that they would in fact disregard the comment; and (6) the State presented overwhelming evidence of defendant\u2019s guilt.\n3. Evidence\u2014 hearsay \u2014 state of mind exception\nThe trial court did not abuse its discretion in a first-degree murder case by admitting testimony regarding the victim\u2019s state of mind, because: (1) the fact that the last statements the victim made regarding her fear of defendant happened some time prior to the murder does not deprive the evidence of its probative value; (2) although defendant presented an insanity defense, the defense is unrelated to the existence or nonexistence of the elements of the criminal act, and thus, the State was required to prove each element of first-degree murder; and (3) the conversations between the victim and the witnesses related directly to the victim\u2019s fear of defendant and were admissible to show the victim\u2019s then existing state of mind at the time she made the statements.\n4. Appeal and Error\u2014 preservation of issues \u2014 failure to argue\nThe remaining assignments of error that defendant failed to present in his brief are deemed abandoned under N.C. R. App. P. 28(b)(6).\nAppeal by defendant from judgment entered 23 September 2004 by Judge William Z. Wood, Jr. in Wilkes County Superior Court. Heard in the Court of Appeals 30 October 2006.\nAttorney General Roy Cooper, by Special Deputy Attorney General Neil Dalton, for the State.\nWinston & Maher, by Thomas K. Maher, for defendant-appellant." }, "file_name": "0479-01", "first_page_order": 511, "last_page_order": 523 }