{ "id": 4158744, "name": "STATE OF NORTH CAROLINA, Plaintiff v. MARLON GOODWIN, Defendant", "name_abbreviation": "State v. Goodwin", "decision_date": "2008-05-20", "docket_number": "No. COA07-1028", "first_page": "570", "last_page": "578", "citations": [ { "type": "official", "cite": "190 N.C. App. 570" } ], "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": "655 S.E.2d 402", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640208 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/se2d/655/0402-01" ] }, { "cite": "647 S.E.2d 679", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638976 ], "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/se2d/647/0679-01" ] }, { "cite": "643 S.E.2d 39", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638062 ], "year": 2007, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0039-01" ] }, { "cite": "361 N.C. 703", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3735905, 3743043, 3746508, 3743410, 3738611, 3744404, 3735988, 3737112, 3740671 ], "year": 2007, "opinion_index": 0, "case_paths": [ "/nc/361/0703-04", "/nc/361/0703-05", "/nc/361/0703-03", "/nc/361/0703-06", "/nc/361/0703-07", "/nc/361/0703-09", "/nc/361/0703-01", "/nc/361/0703-02", "/nc/361/0703-08" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-415.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "185 N.C. App. 227", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8209211 ], "pin_cites": [ { "page": "237" } ], "opinion_index": 0, "case_paths": [ "/nc-app/185/0227-01" ] }, { "cite": "519 S.E.2d 68", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "70-71", "parenthetical": "\"[0]ur legislature recognized the basic unfairness and constitutional restrictions on using the same convictions both to elevate a defendant's sentencing status to that of an habitual felon, and then to increase his sentencing level.\"" }, { "page": "70" } ], "opinion_index": 0 }, { "cite": "135 N.C. App. 107", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239266 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "111-12", "parenthetical": "\"[0]ur legislature recognized the basic unfairness and constitutional restrictions on using the same convictions both to elevate a defendant's sentencing status to that of an habitual felon, and then to increase his sentencing level.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/135/0107-01" ] }, { "cite": "516 S.E.2d 605", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "349 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 571526, 571542, 571528, 571582 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/349/0237-04", "/nc/349/0237-02", "/nc/349/0237-01", "/nc/349/0237-03" ] }, { "cite": "502 S.E.2d 49", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "pin_cites": [ { "page": "52" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11465606 ], "year": 1998, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0113-01" ] }, { "cite": "532 S.E.2d 235", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "237", "parenthetical": "\" '[S]ession' designates the typical one-week assignment to a particular location during the term.\"" } ], "opinion_index": 0 }, { "cite": "138 N.C. App. 605", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11080959 ], "year": 2000, "pin_cites": [ { "page": "607-08", "parenthetical": "\" '[S]ession' designates the typical one-week assignment to a particular location during the term.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/138/0605-01" ] }, { "cite": "182 N.C. App. 683", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8175550 ], "year": 2007, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0683-01" ] }, { "cite": "560 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 216", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220131, 219911, 219981, 219943 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0216-02", "/nc/355/0216-04", "/nc/355/0216-03", "/nc/355/0216-01" ] }, { "cite": "554 S.E.2d 413", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "416" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 69", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9377955 ], "year": 2001, "pin_cites": [ { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0069-01" ] } ], "analysis": { "cardinality": 736, "char_count": 17474, "ocr_confidence": 0.729, "pagerank": { "raw": 9.323115840049352e-08, "percentile": 0.5132490349823484 }, "sha256": "1669160fa08afbed9f9988a6e2b80215c4212dd2dc718c89453bda57ed6bb4cb", "simhash": "1:8f3aa223fe7a9446", "word_count": 2938 }, "last_updated": "2023-07-14T19:40:45.332452+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TYSON and GEER concur." ], "parties": [ "STATE OF NORTH CAROLINA, Plaintiff v. MARLON GOODWIN, Defendant" ], "opinions": [ { "text": "STROUD, Judge.\nDefendant was convicted by a jury of second degree murder and attempted first degree murder. Defendant appeals. The issues before this Court are whether the trial court erred in not giving the jury an instruction on imperfect self-defense and in calculating defendant\u2019s prior record level. For the following reasons, we find no prejudicial error.\nI. Background\nThe State\u2019s evidence tended to show the following: On the evening of 6 January 2005, Kentrell Lamar Coleman (\u201cColeman\u201d) went to 214 Morgan Place to pick up several ounces of cocaine. Coleman entered the house with Alicia Herndon and saw Leonzo, defendant, and two other males, one of whom Coleman later learned was named John.\nColeman testified as follows: Coleman, Leonzo, and defendant talked for a bit, and then defendant left the room. Defendant returned with a gun, telling Coleman, \u201cThis is what\u2019s up, this is what it is[.]\u201d Coleman reached for his own gun and saw that Leonzo, John, and the other male also had guns out. Coleman thought Leonzo shot first and Coleman later fired five shots. Everyone was shooting. Coleman was shot five times and was hit in his shoulder, hip, knee, back, and thigh. Coleman saw that Herndon was dead. Coleman crawled into another room \u201cwaitin\u2019 to die.\u201d\nOn or about 7 January 2005, a warrant was issued for defendant\u2019s arrest for murder, attempted first degree murder, and robbery with a dangerous weapon. On 16 May 2005, defendant was indicted on all three counts. On or about 14 July 2006, defendant filed a \u201cNotice of Intent to assert the defense of Self Defense.\u201d Trial was held 11 to 25 September 2006. Defendant was convicted of second degree murder and attempted first degree murder.\nOn 25 September 2006, defendant was sentenced consecutively within the presumptive range on both counts, 251 to 311 months on the charge of second degree murder and 225 to 279 months on the charge of attempted first degree murder. Defendant appeals. The issues on appeal are whether the trial court erred by (1) failing to instruct the jury on imperfect self-defense and (2) miscalculating defendant\u2019s prior record level.\nII. Jury Instructions\nDefendant assigns error arguing (1) \u201cthe trial court committed plain error in failing to instruct the jury on imperfect self-defense\u201d, and (2) \u201cthe trial court erred in failing to instruct on imperfect self-defense after the jury\u2019s n\u00f3te, in violation of N.C. Gen. Stat. [\u00a7] 15A-1234(a)(4).\u201d For the following reasons, we disagree.\nA. Initial Jury Instructions\nOn 12 September 2006, before a jury had been chosen the following dialogue took place:\nTHE COURT: Does the defendant allege he acted in self-defense or not?\nMR. BRYANT: We\u2019ve given notice of self-defense in this case.\nTHE COURT: What do you want me to tell the jury that the defendant alleges he acted in self-defense?\nMR. BRYANT: Do not tell the jury that, I would ask, your Honor.\nTHE COURT: All right. I think I have to. If you ask for it, you know, alleged it, I think I\u2019ve got to tell them.\nMR. BRYANT: I\u2019m not asking.\nTHE COURT: But you\u2019ve given notice of it.\nMR. BRYANT: I\u2019ve given notice of it, your Honor.\nTHE COURT: Are you going to argue it?\nMR. BRYANT: I don\u2019t know at this particular time, your Honor.\nTHE COURT: Well, okay. Let me see what your client says. Mr. Goodwin, stand up.\n(Defendant stands)\nTHE COURT: Mr. Goodwin, your attorney just told me that although you have alleged or given notice of self-defense that he does not want me to tell the jury that you have alleged that you acted in self-defense. Do you want me to tell the jury that you allegedly acted in self-defense or not?\nTHE DEFENDANT: Can I talk with my attorney first?\nTHE COURT: For a minute.\n(Defendant and counsel confer momentarily)\n(Defendant stands)\nTHE COURT: Okay.\nTHE DEFENDANT: I trust my lawyer. I don\u2019t wish the jury to be informed of self-defense.\nTHE COURT: Okay. Thank you, sir. Mr. Bryant, I did notice in the file that you raised self-defense. Don\u2019t you think I should tell the jury about any possible issues that might come up, so they will have, uh, be ready for the case, know what it\u2019s about?\nMR. BRYANT: I don\u2019t think you need to at this particular time, your Honor. At this particular time, our position on whether or not we put on evidence may or may not change, your Honor.\nTHE COURT: Well, you may be able to draw self-defense from the cross-examination. I don\u2019t know.\nMR. BRYANT: May be able to. We just don\u2019t know as yet.\nTHE COURT: Okay. Mr. Beasley, have you got anything on this?\nMR. BEASLEY: No, sir. I received notice for a defense of self-defense when it was filed.\nTHE COURT: I think if it\u2019s in the file, I should give it. And if it doesn\u2019t come up, we can always, you know, I\u2019ll also be glad to tell the jury at the appropriate time, and probably several times, at least once or twice, that the defendant doesn\u2019t have to put on any evidence, and that\u2019s not to be held against him, you know, if that\u2019s wh\u00e1t you elect, Mr. Bryant. You can certainly talk about that in jury selection.\nMR. BRYANT: Your Honor, if you are intending to do that, I object to your intentions to do so at this particular time.\nTHE COURT: If you\u2019ve given notice, I think I should.\nMR. BRYANT: In that event, we withdraw that notice.\nTHE COURT: You withdraw it?\nMR. BRYANT: Yes, sir.\nTHE COURT: Talk to your client, make sure he knows and understands.\nMR. BRYANT: He understands.\nTHE COURT: I know, but I want to make sure.\n(Defendant and counsel confer)\nMR. BRYANT: I believe he understands, your Honor. We have had the discussion before, but you\u2019re welcome to inquire.\nTHE COURT: I probably have to. Mr. Goodwin, I hate to bother you again. I need to ask you to stand up.\n(Defendant stands)\nTHE COURT: Your attorney, Mr. Bryant, just told me that you are withdrawing the notice of self-defense, or the intention to allege self-defense in your case. Do you agree to this?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: And this is something you\u2019ve thought about for some time?\nTHE DEFENDANT: Yes, sir.\nTHE COURT: Okay. Thank you very much, sir. And thank you, Mr. Bryant.\nMR. BRYANT: Thank you, your Honor.\nDuring the charge conference defendant\u2019s attorney stated, \u201cYou asked us about self-defense. We are not requesting that instruction.\u201d\n\u201cA defendant is not prejudiced by the granting of relief which he has sought pr by error resulting from his own conduct.\u201d N.C. Gen. Stat. \u00a7 15A-1443(c) (2005). \u201cThus, a defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review.\u201d State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001), rev. dismissed, 355 N.C. 216, 560 S.E.2d 142 (2002).\nHere defendant\u2019s attorney specifically stated that defendant was not requesting a jury instruction on self-defense. Furthermore, defendant\u2019s attorney had earlier objected to the trial court informing the jury that defendant might possibly claim self-defense and withdrew defendant\u2019s notice of self-defense with defendant\u2019s explicit consent. Defendant\u2019s attorney specifically requested that the jury not be instructed as to self-defense, and thus defendant \u201chas waived his right to all appellate review concerning the invited error, including plain error review.\u201d See id.\nB. Additional Jury Instructions\nDuring jury deliberations the jury sent a note to the trial court which read,\nCan we hear more specifics on what constitutes \u201cassault\u201d? Is pointing a gun \u201cassault\u201d? Is firing a gun in response to gunfire \u201cassault\u201d? Are there excuses or causes we should consider that would make firing a gun at someone not \u201cassault\u201d? ....\nAfter the jury\u2019s note, which could certainly be construed as raising issues of self defense, defendant still did not retract his initial pretrial request that the jury not be instructed on self-defense. During the discussion between the trial court and the attorneys on how the court should respond to the jury\u2019s note defendant\u2019s attorney stated, \u201cI think that it\u2019s dangerous territory to try to answer those questions.\u201d Near the end of the discussion, defendant\u2019s attorney stated he was \u201cbatting . . . around\u201d the idea of an instruction on self-defense, but ultimately, never changed his originally stated position that the trial court should not instruct on this issue.\nAs to the additional jury instructions, defendant waived his right to appellate review as his attorney specifically stated he did not want jury instructions regarding self-defense and never explicitly changed his position on that decision though given ample opportunities to at both the charge conference and upon being informed of the jury\u2019s note. See id. Defendant will not now be heard to complain that his request was granted. See id.\nIII. Prior Record Level\nDefendant also contends his prior record level was miscalculated. He argues he was (1) \u201cassigned one point for each of two offenses for which he was convicted in the same district court session[,]\u201d and (2) \u201cassigned points for the felony of possession of a firearm by a felon and points for the felony charge underlying that offense.\u201d The trial court assigned 15 points, finding defendant to be at level V for sentencing purposes.\nA. Same District Court Session\nErrors based upon any of the following grounds, which are asserted to have occurred, may be the subject of appellate review even though no objection, exception or motion has been made in the trial division.\nThe sentence imposed was unauthorized at the time imposed, exceeded the maximum authorized by law, was illegally imposed, or is otherwise invalid as a matter of law.\nN.C. Gen. Stat. \u00a7 15A-1446(d)(I8) (2005). The trial court\u2019s assignment of a prior record level is a conclusion of law which we review de novo. State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, 44 (2007).\nDefendant\u2019s prior conviction worksheet, to which defendant stipulated, see generally N.C. Gen. Stat. \u00a7 15A-1340.14(f)(1) (2005), shows he was convicted of (1) three class A1 misdemeanor offenses on 13 May 1997 and 3 September 2004, (2) three class I felony offenses on 17 December 1997, 19 May 1999, and 13 December 2005, (3)one class G felony offense on 17 May 2000, and (4) three class 1 misdemeanors on 30 May 2003, 29 October 2004, and 13 August 2004. In its brief the State concedes that the record \u201cinaccurately shows that defendant was convicted of \u2018Asst on Female (\u201803CRS73319\u2019) on \u201809/03/2004.\u2019 \u201d The correct date for one of defendant\u2019s class A1 misdemeanor offenses was in fact 30 May 2003.\n(a) Generally. \u2014 The prior record level of a felony offender is determined by calculating the sum of the points assigned to each of the offender\u2019s prior convictions that the court, or with respect to subdivision (b)(7) of this section, the jury, finds to have been proved in accordance with this section.\n(b) Points. \u2014 Points are assigned as follows:\n(3) For each prior felony Class E, F, or G conviction, 4 points.\n(4) For each prior felony Class H or I conviction, 2 points.\n(5) For each prior misdemeanor conviction as defined in this subsection, I point. For purposes of this subsection, misdemeanor is defined as any Class Al and Class 1 nontraffic misdemeanor offense[.]\n(c)Prior Record Levels for Felony Sentencing. \u2014 The prior record levels for felony sentencing are:\n(5) Level V \u2014 At least 15, but not more than 18 points.\n(d) Multiple Prior Convictions Obtained in One Court Week.\u2014 For purposes of determining the prior record level, if an offender is convicted of more than one offense in a single superior court during one calendar week, only the conviction for the offense with the highest point total is used. If an offender is convicted of more than one offense in a single session of district court, only one of the convictions is used.\nN.C. Gen. Stat. \u00a7 16A-1340.14 (a)-(d) (2005).\n30 May 2003 is the only session during which defendant was convicted for two offenses, one a class A1 misdemeanor and one a class 1 misdemeanor. See State v. Smith, 138 N.C. App. 605, 607-08, 532 S.E.2d 235, 237 (2000) (\u201c \u2018[S]ession\u2019 designates the typical one-week assignment to a particular location during the term.\u201d). Pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14(d), only one of those two convictions may be used to calculate defendant\u2019s prior record level. See N.C. Gen. Stat. \u00a7 15A-1340.14(d).\nDefendant\u2019s three class A1 offenses would be three points.. See N.C. Gen. Stat. \u00a7 15A-1340.14(b)(5). Defendant\u2019s three class I offenses total six points. See N.C. Gen. Stat. \u00a7 15A-1340.14(b)(4). Defendant\u2019s class G offense is four points, see N.C. Gen. Stat. \u00a7 15A-1340.14(b)(3), and defendant\u2019s three class 1 misdemeanors would be two points, as only two of the offenses may be counted because one was in the same session as an A1 offense. See N.C. Gen. Stat. \u00a7 15A-1340.14(b)(5), (d). This brings defendant\u2019s total to fifteen points which places him at a prior record level five, see N.C. Gen. Stat. \u00a7 15A-1340.14(c)(5), the same as found by the trial court.\nEven if the defendant were correct in contending the trial court improperly calculated this number \u201cdefendant\u2019s prior record point total would still yield a prior record level of V[] and he has suffered no prejudice.\u201d State v. Rick, 130 N.C. App. 113, 118, 502 S.E.2d 49, 52, disc. rev. denied, 349 N.C. 237, 516 S.E.2d 605 (1998). This assignment of error is overruled.\nB. Points for Possession of Firearm by A Felon and for Felony Underlying that Offense\nDefendant relies on State v. Gentry, 135 N.C. App. 107, 519 S.E.2d 68 (1999) in asserting that\nMr. Goodwin\u2019s prior record level worksheet assigned four points to the felony of possession of firearm by a felon in case 00 CRS 83227, conviction date May 17, 2000; and two points for the felony of manufacture marijuana, 97 CRS 16855, conviction date December 17, 1997. . . . Prior record level points cannot fairly be imposed both for the possession of firearm by a felon offense and for the felony underlying that offense.\nIn State v. Gentry this Court concluded that a defendant\u2019s prior record level for sentencing for habitual DWI may not be calculated using previous DWI convictions because they were the same convictions upon which her habitual DWI charge was based. See State v. Gentry, 135 N.C. App. 107, 111-12, 519 S.E.2d 68, 70-71 (1999) (\u201c[0]ur legislature recognized the basic unfairness and constitutional restrictions on using the same convictions both to elevate a defendant\u2019s sentencing status to that of an habitual felon, and then to increase his sentencing level.\u201d).\nHere the same conviction is not being used \u201cto elevate defendant\u2019s sentencing status ... and then to increase his sentencing level.\u201d See Gentry at 111, 519 S.E.2d at 70. Possession of a firearm by a felon is a separate substantive offense from the defendant\u2019s prior felony upon which his status as a felon was based. See State v. Wood, 185 N.C. App. 227, 237, 647 S.E.2d 679, 687 (\u201cN.C. Gen. Stat. \u00a7 14-415.1[, entitled \u201cPossession of firearms, etc., by felon prohibited[,]\u201d] . . . creates a new substantive offense\u201d), disc. rev. denied, 361 N.C. 703, 655 S.E.2d 402 (2007). Defendant\u2019s prior record level was correctly calculated pursuant to N.C. Gen. Stat. \u00a7 15A-1340.14, see N.C. Gen. Stat. \u00a7 15A-1340.14, and thus this assignment of error is overruled.\nIV. Conclusion\nFor the foregoing reasons, we find the trial court did not commit prejudicial error in not giving the jury an instruction on self-defense and in calculating defendant\u2019s prior record level.\nNO ERROR.\nJudges TYSON and GEER concur.\n. The evidence from witnesses as to which of the four men shot first was not consistent; however, such differences are not dispositive of the issues presented on appeal.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Attorney General Roy A. Cooper, III by Special Deputy Attorney General Edwin W. Welch, for the State.", "Kathryn L. VandenBerg, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA, Plaintiff v. MARLON GOODWIN, Defendant\nNo. COA07-1028\n(Filed 20 May 2008)\n1. Appeal and Error\u2014 invited error \u2014 failure to instruct on self-defense \u2014 defense request that instruction not be given\nDefendant waived any appellate review of the court\u2019s failure to instruct on imperfect self-defense where he specifically requested that the jury not be instructed on self-defense.\n2. Appeal and Error\u2014 jury question \u2014 instruction on self-defense not given \u2014 defense opposition to instruction\nDefendant waived his right to appellate review of whether the trial court erred by not giving an instruction on self-defense in response to the jury\u2019s question that could be construed as raising issues of self-defense where his attorney specifically stated that he did not want jury instructions on self-defense and never explicitly changed his position even though he was given ample opportunities to do so.\n3. Sentencing\u2014 prior record level \u2014 assignment of points \u2014 no prejudice\nThere was no prejudicial error in the trial court\u2019s calculation of defendant\u2019s prior record level where defendant argued that he was assigned one point for each of two convictions in the same district court session, and points for both possession of a firearm by a felon and the underlying offense. Defendant\u2019s prior record point total would be the same even if defendant was correct about the convictions in the same session, and possession of a firearm by a felon is a separate substantive offense from the underlying felony.\nAppeal by defendant from judgment entered 25 September 2006 by Judge William Z. Wood, Jr. in Superior Court, Guilford County. Heard in the Court of Appeals 7 February 2008.\nAttorney General Roy A. Cooper, III by Special Deputy Attorney General Edwin W. Welch, for the State.\nKathryn L. VandenBerg, for defendant-appellant." }, "file_name": "0570-01", "first_page_order": 602, "last_page_order": 610 }