{ "id": 4165751, "name": "STATE OF NORTH CAROLINA v. KYLE JARON BUNCH", "name_abbreviation": "State v. Bunch", "decision_date": "2009-04-21", "docket_number": "No. COA08-558", "first_page": "438", "last_page": "447", "citations": [ { "type": "official", "cite": "196 N.C. App. 438" } ], "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": "665 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12641792 ], "weight": 2, "year": 2008, "pin_cites": [ { "page": "756" } ], "opinion_index": 0, "case_paths": [ "/se2d/665/0751-01" ] }, { "cite": "638 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12637356 ], "weight": 4, "year": 2006, "pin_cites": [ { "page": "459" }, { "page": "459" }, { "page": "459-60" } ], "opinion_index": 0, "case_paths": [ "/se2d/638/0452-01" ] }, { "cite": "478 U.S. 570", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6210041 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/us/478/0570-01" ] }, { "cite": "481 U.S. 497", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6217454 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/us/481/0497-01" ] }, { "cite": "121 L. Ed. 2d 241", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1992, "opinion_index": 0 }, { "cite": "506 U.S. 915", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12001440, 12001636, 12000708, 12000837, 12000970, 12001711, 12001073, 12001394, 12001300, 12001559, 12000604, 12001500, 12001183 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/us/506/0915-09", "/us/506/0915-12", "/us/506/0915-02", "/us/506/0915-03", "/us/506/0915-04", "/us/506/0915-13", "/us/506/0915-05", "/us/506/0915-08", "/us/506/0915-07", "/us/506/0915-11", "/us/506/0915-01", "/us/506/0915-10", "/us/506/0915-06" ] }, { "cite": "410 S.E.2d 226", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "231" }, { "page": "228" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522544 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc-app/104/0498-01" ] }, { "cite": "208 S.E.2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "pin_cites": [ { "page": "508", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "285 N.C. 746", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569924 ], "year": 1974, "pin_cites": [ { "page": "750", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0746-01" ] }, { "cite": "337 S.E.2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "803", "parenthetical": "\"Knowledge being an essential element of the crime, the failure of the trial judge to instruct on this element must be held to be prejudicial error.\" (citation omitted) (emphasis added" } ], "opinion_index": 0 }, { "cite": "315 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4715685 ], "year": 1985, "pin_cites": [ { "page": "31", "parenthetical": "\"Knowledge being an essential element of the crime, the failure of the trial judge to instruct on this element must be held to be prejudicial error.\" (citation omitted) (emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/315/0001-01" ] }, { "cite": "144 S.E.2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 524", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576044 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0524-01" ] }, { "cite": "144 S.E.2d 572", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "265 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8576067 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0528-01" ] }, { "cite": "192 N.C. App. 359", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4160102 ], "year": 2008, "pin_cites": [ { "page": "368-69" } ], "opinion_index": 0, "case_paths": [ "/nc-app/192/0359-01" ] }, { "cite": "548 U.S. 212", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3500415 ], "weight": 3, "year": 2006, "opinion_index": 0, "case_paths": [ "/us/548/0212-01" ] }, { "cite": "542 U.S. 296", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5868041 ], "weight": 2, "year": 2004, "opinion_index": 0, "case_paths": [ "/us/542/0296-01" ] }, { "cite": "167 L. Ed. 2d 1114", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2007, "opinion_index": 0 }, { "cite": "550 U.S. 948", "category": "reporters:federal", "reporter": "U.S.", "year": 2007, "opinion_index": 0 }, { "cite": "361 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3736985 ], "year": 2006, "pin_cites": [ { "page": "52" } ], "opinion_index": 0, "case_paths": [ "/nc/361/0041-01" ] }, { "cite": "499 U.S. 279", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11318776 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "307-08" }, { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/us/499/0279-01" ] }, { "cite": "527 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1248184 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "15" }, { "page": "51" } ], "opinion_index": 0, "case_paths": [ "/us/527/0001-01" ] }, { "cite": "150 S.E.2d 753", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "755", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "268 N.C. 423", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562637 ], "year": 1966, "pin_cites": [ { "page": "426", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/268/0423-01" ] }, { "cite": "164 S.E.2d 177", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 438", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560571 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0438-01" ] }, { "cite": "337 S.E.2d 582", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "parenthetical": "citing State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968)" } ], "opinion_index": 0 }, { "cite": "314 N.C. 671", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685667, 4694000, 4688436, 4686997, 4688408 ], "year": 1985, "pin_cites": [ { "parenthetical": "citing State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0671-01", "/nc/314/0671-03", "/nc/314/0671-04", "/nc/314/0671-02", "/nc/314/0671-05" ] }, { "cite": "331 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "222", "parenthetical": "citing State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968)" } ], "opinion_index": 0 }, { "cite": "75 N.C. App. 647", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526618 ], "year": 1985, "pin_cites": [ { "page": "648", "parenthetical": "citing State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/75/0647-01" ] }, { "cite": "13 S.E.2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "pin_cites": [ { "page": "345" }, { "page": "229", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "219 N.C. 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622195 ], "weight": 2, "pin_cites": [ { "page": "227", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/219/0226-01" ] }, { "cite": "144 S.E.2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1965, "pin_cites": [ { "page": "63" }, { "page": "64", "parenthetical": "quotation marks and additional citations omitted" } ], "opinion_index": 0 }, { "cite": "265 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575326 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/265/0344-01" ] }, { "cite": "456 S.E.2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "340 N.C. 262", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790210, 790099, 790235, 790109, 790206 ], "year": 1995, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0262-05", "/nc/340/0262-04", "/nc/340/0262-01", "/nc/340/0262-02", "/nc/340/0262-03" ] }, { "cite": "454 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "276", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 33", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916386 ], "year": 1995, "pin_cites": [ { "page": "41", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0033-01" ] }, { "cite": "595 S.E.2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "420" } ], "opinion_index": 1 }, { "cite": "358 N.C. 243", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987693 ], "year": 2004, "pin_cites": [ { "page": "304" } ], "opinion_index": 1, "case_paths": [ "/nc/358/0243-01" ] } ], "analysis": { "cardinality": 885, "char_count": 22442, "ocr_confidence": 0.726, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3557522079472587 }, "sha256": "7825b45f9ff1a67c4791a4b52a52ec737d3e5a9382aad578e126a817f426617e", "simhash": "1:8f32403b673f4bda", "word_count": 3728 }, "last_updated": "2023-07-14T15:08:58.268450+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge ELMORE dissents in a separate opinion.", "Judge ROBERT C. HUNTER concurs." ], "parties": [ "STATE OF NORTH CAROLINA v. KYLE JARON BUNCH" ], "opinions": [ { "text": "JACKSON, Judge.\nKyle Jaron Bunch (\u201cdefendant\u201d) appeals his 20 September 2006 conviction of first-degree murder and robbery with a dangerous weapon. For the reasons stated below, we hold any error harmless.\nOn 1 March 2004, three African-American men dressed in black and wearing black fabric masks over their faces entered a home occupied by James Arthur \u201cArt\u201d Bowen (\u201cBowen\u201d), Richard Preston Hewlin, Jr., and Brian Jarrod Pender (\u201cPender\u201d). One of the intruders had a handgun and another had a shotgun. The intruders ordered the men down and to surrender any cell phones or cash. One intruder repeatedly asked, \u201cWhere is it at?\u201d Bowen, apparently unaware of what the intruder was referring to, responded that the men had nothing of value but that the intruders could take anything they wanted from the house, including the keys to Bowen\u2019s new truck. As the robbery was winding down and the intruders prepared to leave, the man holding the shotgun pointed it at Pender, \u201cracked\u201d the gun, and then pulled the trigger. The gun went off, killing Pender. Several men were involved in planning the robbery. Three of the other men involved identified defendant as the man holding the shotgun.\nDefendant was tried for first-degree murder, first-degree burglary, and robbery with a dangerous weapon. The State proceeded on two theories of first-degree murder: felony murder and first-degree murder by malice, premeditation, and deliberation. On 18 September 2006, a jury convicted defendant of (1) first-degree murder pursuant to the felony murder rule but not malice, premeditation, and deliberation; (2) first-degree burglary; and (3) robbery with a dangerous weapon. After hearing testimony as to sentence, the jury recommended defendant be sentenced to life imprisonment. The trial court sentenced defendant to life imprisonment without parole for the murder and an additional 103 to 133 months imprisonment as a Level III felon for robbery with a dangerous weapon. Defendant now appeals.\nDefendant argues that he is entitled to a new trial because the trial court failed to instruct the jury about two elements of felony murder, violating his constitutional right to a trial by jury. We disagree.\nThe State concedes that the trial court omitted two elements from its first-degree felony murder instructions, but argues that the jury instructions \u201cas a whole\u201d presented the law of felony murder fairly and clearly to the jury; any error was harmless error. Defendant, on the other hand, argues that the error is reversible per se pursuant to Article I, Section 24, of the North Carolina Constitution, and that no harmless error analysis is necessary. This appears to be an issue of first impression.\nArticle I, Section 24, establishes the right to have a jury trial in criminal cases. It states, in full, that \u201c[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court. The General Assembly may, however, provide for other means of trial for misdemeanors, with the right of appeal for trial de novo.\u201d N.C. Const, art. I, \u00a7 24 (2005). Unlike the right to a jury trial established by the Sixth Amendment of the U.S. Constitution, the right to a jury trial pursuant to Article I, Section 24, cannot be waived. State v. Thompson, 118 N.C. App. 33, 41, 454 S.E.2d 271, 276, disc. rev. denied, 340 N.C. 262, 456 S.E.2d 837 (1995) (citations omitted).\nDefendant contends that our Supreme Court\u2019s opinion in State v. Cox, 265 N.C. 344, 144 S.E.2d 63 (1965), demonstrates that a violation of the right to a jury trial pursuant to Article I, Section 24, requires automatic reversal of a conviction. In Cox, the defendant was convicted in district court of \u201cthe unlawful possession, transportation, and possession for the purpose of sale of 39 gallons of nontaxpaid whiskey.\u201d Id. at 344, 144 S.E.2d at 63. On appeal to the superior court, the defendant entered a plea of not guilty and waived a jury trial. Id. The superior court convicted the defendant, who appealed, \u201cassigning as error the admission of certain evidence and the failure of the court to allow his motion for nonsuit.\u201d Id. Our Supreme Court issued the following short per curiam opinion:\nOn the face of the record there appears a fatal error which the Court will notice ex mero mo tu. This case is controlled by State v. Muse, 219 N.C. 226, 13 S.E.2d 229, in which the Court said:\nWhen a defendant in a criminal prosecution in the Superior Court enters a plea of not guilty he may not, without changing his plea, waive his constitutional right of trial by jury, the determinative facts cannot be referred to the decision of the court even by consent \u2014 they must be found by the jury.\nSince the guilt of defendant has not been established by a verdict, the sentence imposed by the judge is a nullity. No trial has been had. The case is remanded to the- Superior Court for a trial by jury as the law provides.\nId. at 345, 144 S.E.2d at 64 (quotation marks and additional citations omitted).\nHere, defendant reasons that the deficient jury instruction resulted in the waiver of his right to a jury trial because his guilt was not established by a jury verdict; therefore, the sentence is a nullity and \u201c[n]o trial has been had.\u201d\n\u201c[0]ne charged with crime in this state is entitled as a matter of right, under both the federal and state Constitutions, to a jury trial as to every essential element of the crime charged.\u201d State v. Field, 75 N.C. App. 647, 648, 331 S.E.2d 221, 222, disc. rev. denied, appeal dismissed, 314 N.C. 671, 337 S.E.2d 582 (1985) (citing State v. Lewis, 274 N.C. 438, 164 S.E.2d 177 (1968)). \u201c[T]he determinative facts cannot be referred to the decision of the court even by consent \u2014 they must be found by the jury.\u201d State v. Muse, 219 N.C. 226, 227, 13 S.E.2d 229, 229 (1941) (citation omitted). That defendant potentially may have waived his right through his attorney\u2019s carelessness does not affect the outcome. \u201c[A]n attorney has no right, in the absence of express authority, to waive or surrender by agreement or otherwise the substantial rights of his client.\u201d State v. Mason, 268 N.C. 423, 426, 150 S.E.2d 753, 755 (1966) (citation omitted). Certainly, the right to a jury trial is a substantial one.\nThe State concedes that the right to a jury trial pursuant to Article I, Section 24 cannot be waived, but contends that the omission of essential elements of a crime from a jury instruction is not the equivalent of a waiver. The United States Supreme Court has held that the omission of an essential element from jury instructions does not constitute structural error and is subject to harmless error analysis. Neder v. United States, 527 U.S. 1, 15, 144 L. Ed. 2d 35, 51 (1999). The Court did not address the possibility of multiple omissions in Neder, but it appears that the number of omissions could be a factor in harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 307-08, 113 L. Ed. 2d 302, 330 (1991) (noting that all of the cases involving constitutional errors that the U.S. Supreme Court used harmless error to evaluate \u201cinvolved \u2018trial error\u2019 \u2014 error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt\u201d). However, we note that Neder and Fulminante were decided pursuant to the Sixth Amendment, not Article I, Section 24.\nOur Supreme Court reached the threshold of this question in State v. Blackwell, 361 N.C. 41, 52, 638 S.E.2d 452, 459 (2006), cert. denied, 550 U.S. 948, 167 L. Ed. 2d 1114 (2007), but did not cross it. In Blackwell, the defendant alleged constitutional errors pursuant to the Sixth Amendment and Article I, Section 24, because the judge at his trial did not submit aggravated sentencing factors to a jury. Our Supreme Court held that this failure constituted an error pursuant to Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403 (2004), but that Blakely errors are subject to federal harmless error review. Id. at 51, 638 S.E.2d at 459. Our Supreme Court held that, in the defendant\u2019s case, the error was harmless and no new trial was necessary pursuant to the Sixth Amendment. Id. The defendant also argued that \u201cthe trial court\u2019s failure to submit an aggravated sentencing factor to the jury [was] reversible per se\u201d pursuant to Article I, Section 24 because \u201cthe State Constitution provides additional protection to criminal defendants above and beyond [Washington v.] Recuenco, [548 U.S. 212, 165 L. Ed. 2d 466 (2006)] and therefore, Blakely-type error is reversible per se under state law.\u201d Id. The Court did not reach the question \u201cof whether harmless error or structural error would apply under this provision of the State Constitution\u201d because \u201caggravating factors are not, and have never been, elements of a \u2018crime\u2019 for purposes of Article I, Section 24 analysis.\u201d Id. at 51-52, 638 S.E.2d at 459-60.\nNeither this Court nor our Supreme Court has addressed the question since Blackwell, and Blackwell certainly leaves open the possibility that the omission of an essential element of a crime during a jury instruction is reversible error per se. However, this Court recently explained that a violation of Article I, Section 24\u2019s \u201ctwelve juror\u201d requirement \u201crequires automatic reversal only where a jury was \u2018improperly constituted\u2019 in terms of its numerical composition. . . . [W]here the verdict was rendered by a jury of less than twelve fully-participating jurors . . . the verdict is a nullity.\u201d State v. Wilson, 192 N.C. App. 359, 368-69, 665 S.E.2d 751, 756 (2008). If \u201cthe error did not affect the numerical structure of the jury, but rather resulted in jurors acting on unequal instructions from the trial court in reaching a verdict,\u201d then the error is subject to harmless error review. Id.\nWe note that several older cases ordered new trials following the omission of an essential element of the crime charged from the jury instructions. For example, in State v. Mundy, 265 N.C. 528, 144 S.E.2d 572 (1965), the defendant was tried for armed robbery, but the trial judge did not submit the element of a \u201ctaking of personal property with felonious intent,\u201d which \u201cis an essential element of the offense of armed robbery.\u201d Id. at 529, 144 S.E.2d at 574. The Court did not engage in any constitutional analysis or even refer to either constitution, and instead concluded simply, \u201cAn instruction [on felonious intent], though not necessarily in these words, is essential in robbery cases. New trial.\u201d Id. at 530, 144 S.E.2d at 574 (emphasis added). Mundy relies upon State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 (1965), in which the defendant also was charged with armed robbery. Id. at 525, 144 S.E.2d at 571. About defendant Spratt\u2019s trial the Supreme Court stated:\nA taking with \u201cfelonious intent\u201d is an essential element of the offense of armed robbery, of attempt to commit armed robbery, and of common law robbery, and it is prejudicial error for the court to charge that defendant may be convicted of such offense even though the taking was without felonious intent.\nId. at 526, 144 S.E.2d at 571 (citation omitted) (emphasis added). See also State v. Avery, 315 N.C. 1, 31, 337 S.E.2d 786, 803 (1985) (\u201cKnowledge being an essential element of the crime, the failure of the trial judge to instruct on this element must be held to be prejudicial error.\" (citation omitted) (emphasis added). These cases suggest that no further analysis is necessary once we have determined that the trial court omitted an essential element from the jury trial.\nAlthough the term \u201cstructural error\u201d as we understand it today did not exist when Mundy and Spratt were decided, the analytical process is identical: Upon identifying the error, we order a new trial. Although, we may infer that these prior decisions indicate \u201cstructural error,\u201d we just as easily could infer that in applying harmless error analysis the errors in those cases were not \u201charmless;\u201d they were prejudicial. Intent is a mental attitude which rarely is provable by direct evidence but ordinarily must be shown by circumstances from which it may be inferred. State v. Bell, 285 N.C. 746, 750, 208 S.E.2d 506, 508 (1974) (citations omitted). It is understandable why our Courts previously have ordered a new trial based upon the absence of instructions on such a subjective element.\nIn State v. Wallace, 104 N.C. App. 498, 410 S.E.2d 226 (1991), cert. denied, 506 U.S. 915, 121 L. Ed. 2d 241 (1992), this Court stated that \u201c[a]n instructional error of the type here presented is not unlike the errors at issue in Pope and Rose and is not, as defendant urges, reversible error per se; instead, such an error is subject to either a harmless error or plain error analysis . ...\u201d Id. at 505-06, 410 S.E.2d at 231 (referring to Pope v. Illinois, 481 U.S. 497, 95 L. Ed. 2d 439 (1987)\u2014in which harmless error analysis was applied to an obscenity instruction which erroneously charged the jury to apply a contemporary community standard to the \u201cvalue\u201d element of the offense \u2014 and Rose v. Clark, 478 U.S. 570, 92 L. Ed. 2d 460 (1986)\u2014in which harmless error analysis was applied to a malice instruction in a murder trial which unconstitutionally shifted the burden of proof to the defendant). In Wallace, the trial court failed to instruct the jury on actual or constructive presence to prove a theory of acting in concert. Id. at 501, 410 S.E.2d at 228.\nGiven this Court\u2019s recent opinion in Wilson, and our prior opinion in Wallace, it appears that failure to instruct on an essential element of a crime is not structural error, reversible per se, but rather an error to which we may apply harmless error review.\nHere, in its first mention of the first-degree murder charge during the jury instructions, the trial court stated:\nIn case number 04 CRS 50597, you will be called upon to answer by your unanimous verdict whether [defendant] is guilty of first degree murder and if you answer that yes, was it on the basis of malice, premeditation,-and deliberation, or under the first degree felony murder rule or both or whether he is guilty of second degree murder or not guilty.\nAfter giving the jury an overview of the charges, the trial court then instructed the jury on first-degree murder based upon a theory of malice, premeditation, and deliberation, including an instruction on acting in concert. The trial court then instructed:\nNow I further charge that for you to find the Defendant guilty of first degree murder under the first degree felony murder rule, the State must prove three [3] things beyond a reasonable doubt.\nFirst, that the Defendant or someone with whom he was acting in concert committed first degree burglary and/or robbery with a dangerous weapon.\nThe trial court then, instructed on the elements of first-degree burglary and robbery with a dangerous weapon without enumerating the other two elements of first-degree felony murder; it gave the mandate and continued to the instructions for second-degree murder. However, these elements are not absent from the instructions as a whole.\nPursuant to the North Carolina Pattern Jury Instructions, after instructing on the underlying felonies, the trial court should have continued:\nSecond, that while committing or attempting to commit first-degree burglary or robbery with a dangerous weapon, the defendant killed the victim with a deadly weapon.\nAnd Third, that the defendant\u2019s act was a proximate cause of the victim\u2019s death. A proximate cause is a real cause, a cause without which the victim\u2019s death would not have occurred.\nN.C.P.I. Crim. 206.14.(2006). Although these elements were not included in the felony .murder rule instructions, the jury was instructed on these elements as part of the jury instructions in toto.\nAs part of the instructions with respect to first-degree murder by malice, premeditation, and deliberation, the jury was instructed that \u201cthe State must prove . . . beyond a reasonable doubt . . . that the Defendant or someone with whom he was acting in concert. . . killed the victim with a deadly weapon.\u201d This instruction, combined with the instructions given on acting in concert and first-degree burglary sufficiently instructs the jury as to the second element of first-degree murder by the felony murder rule.\nAlso as part of the first-degree murder by malice, premeditation, and deliberation instructions, the jury was instructed that \u201cthe State must prove that the Defendant\u2019s act or the act of someone with whom he was acting in concert was [the] proximate cause of the victim\u2019s death. A proximate cause is a real cause. A cause without which the victim\u2019s death would not have occurred.\u201d This instruction sufficiently instructs the jury as to the third element of first-degree murder by the felony murder rule.\nPursuant to harmless error analysis, the evidence is quite clear that one of the robbers, with whom defendant was acting in concert, shot Pender with a shotgun (a deadly weapon) and that this shot was the proximate cause of his death. Further, the jury found defendant guilty of robbery with a dangerous weapon. This demonstrates that the jury found beyond a reasonable doubt that defendant used a dangerous weapon, by at least acting in concert.\nThe fact that the jury did not find defendant guilty of first-degree murder by malice, premeditation and deliberation does not detract from the effectiveness of the trial court\u2019s instructions. The element of malice, premeditation, and deliberation, like felonious intent, is a subjective element. Had the trial court not instructed on it, and the jury found defendant guilty by that theory, we may be more inclined to determine that the error was not harmless and a new trial is warranted. Further, had the omitted instructions not been given at any time during the jury charge, we might be more inclined to so rule. However, because in this case the instructions, in toto, were sufficient, and there was overwhelming evidence to satisfy the two elements on which the trial court failed to instruct as to the theory of felony murder, any error was harmless.\nNo prejudicial error.\nJudge ELMORE dissents in a separate opinion.\nJudge ROBERT C. HUNTER concurs.", "type": "majority", "author": "JACKSON, Judge." }, { "text": "ELMORE, Judge,\ndissenting.\nFor the reasons stated below, I respectfully dissent from the majority opinion and would vacate defendant\u2019s conviction.\nThe majority notes that we could as easily infer from Mundy and Spratt that the omission of essential elements from a jury instruction is an error per se as we could infer that the omission was not harmless error. I would argue that inferring harmless error analysis where there is none requires reading significant language into Mundy and Spratt that does not otherwise exist. In those cases, the Court noted that essential elements were omitted from the jury instructions and then, without further analysis, ordered new trials. Accordingly, I would hold that the trial court\u2019s failure to instruct the jury on two of the three elements of felony murder is reversible error per se, or \u201cstructural error\u201d in the current parlance, and requires a new trial. Our state Constitution guarantees all felony defendants a nonwaivable right to a jury trial; omitting two-thirds of the elements from the jury instructions amounts to the judge, not the jury, having the final say on those elements.\nFurthermore, if I were to apply harmless error analysis to defendant\u2019s case, I would still grant defendant a new trial. The jury delivered a verdict sheet indicating that it had found defendant guilty of first degree murder on the basis of the first degree felony murder rule, but not on the basis of malice, premeditation, and deliberation. The jury had the option of returning a verdict finding defendant guilty of both types of first degree murder, just one of the two types, neither type, or second degree murder. Of course, the jury also had the option of finding defendant not guilty. The trial court\u2019s felony murder instruction was limited to whether \u201c[defendant or someone with whom he was acting in concert committed first degree burglary and/or robbery with a dangerous weapon.\u201d Although the majority argues that the two missing elements were adequately covered by the jury instructions for first degree murder on the basis of malice, premeditation, and deliberation, I cannot agree. It is untenable to encourage or allow a jury to reach a guilty verdict for a particular crime by substituting elements of other crimes for which the defendant is charged. Even though the two missing elements are nearly identical to two of the five elements of premeditated murder, it is unclear to me how the jury would have known to apply those two elements during its felony murder analysis. The trial court discussed the felony murder rule several times in its instructions, but did not accurately describe the rule or the elements during any of them. Although we will uphold instructions that, when \u201cviewed in their entirety, present the law fairly and accurately to the jury,\u201d State v. Roache, 358 N.C. 243, 304, 595 S.E.2d 381, 420 (2004), in my opinion, these instructions fall outside the intended scope of that rule. I cannot uphold a verdict that is based upon an assumption that a jury cobbled together a fair and accurate representation of the felony murder rule from the instructions given on premeditated murder.\nAccordingly, for the reasons stated above, I would vacate defendant\u2019s conviction and order a new trial.", "type": "dissent", "author": "ELMORE, Judge," } ], "attorneys": [ "Attorney General Roy A. Cooper, III, by Special Deputy Attorney General Steven M. Arbogast, for the State.", "Appellate Defender Staples Hughes, by Benjamin Dowling-Sendor, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KYLE JARON BUNCH\nNo. COA08-558\n(Filed 21 April 2009)\nConstitutional Law\u2014 trial by jury \u2014 error in instructions \u2014 not structural \u2014 harmless error review\nFailure to instruct on an essential element of a crime is not structural error, reversible per se, but subject to harmless error review. Here, the omission of two of the elements of the crime from a felony murder instruction was harmless error because the instructions were sufficient overall and there was overwhelming evidence to satisfy the two elements.\nJudge ELMORE dissenting.\nAppeal by defendant from judgments entered 20 September 2006 by Judge Clifton W. Everett, Jr., in Pasquotank County Superior Court. Heard in the Court of Appeals 19 November 2008.\nAttorney General Roy A. Cooper, III, by Special Deputy Attorney General Steven M. Arbogast, for the State.\nAppellate Defender Staples Hughes, by Benjamin Dowling-Sendor, for defendant." }, "file_name": "0438-01", "first_page_order": 466, "last_page_order": 475 }