{ "id": 6787411, "name": "STATE OF NORTH CAROLINA v. DANNY DALE GOSNELL", "name_abbreviation": "State v. Gosnell", "decision_date": "2013-12-03", "docket_number": "No. COA13-614", "first_page": "106", "last_page": "113", "citations": [ { "type": "official", "cite": "231 N.C. App. 106" } ], "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": "174 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351857 ], "opinion_index": -1, "case_paths": [ "/nc-app/174/0289-01" ] }, { "cite": "620 S.E.2d 903", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12634259 ], "weight": 11, "year": 2005, "pin_cites": [ { "page": "907" }, { "page": "907" }, { "page": "909" }, { "page": "908" }, { "page": "909" }, { "page": "909" }, { "page": "909" }, { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/se2d/620/0903-01" ] }, { "cite": "393 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1990, "pin_cites": [ { "page": "815" }, { "page": "816" }, { "page": "816" }, { "page": "816" }, { "page": "815" } ], "opinion_index": 0 }, { "cite": "327 N.C. 210", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2498848 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0210-01" ] }, { "cite": "101 S.E. 629", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 3, "year": 1919, "pin_cites": [ { "page": "631" }, { "page": "631" }, { "page": "631" } ], "opinion_index": 0 }, { "cite": "178 N.C. 785", "category": "reporters:state", "reporter": "N.C.", "weight": 3, "year": 1919, "pin_cites": [ { "page": "789-90" }, { "page": "790" }, { "page": "790" } ], "opinion_index": 0 }, { "cite": "257 S.E.2d 417", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "425" }, { "page": "425" } ], "opinion_index": 0 }, { "cite": "298 N.C. 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568643 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "147" }, { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/nc/298/0135-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 14-17", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2011, "opinion_index": 0 }, { "cite": "215 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "pin_cites": [ { "page": "88", "parenthetical": "the trial court \"should never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence\"" } ], "opinion_index": 0 }, { "cite": "287 N.C. 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562950 ], "year": 1975, "pin_cites": [ { "page": "421", "parenthetical": "the trial court \"should never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence\"" } ], "opinion_index": 0, "case_paths": [ "/nc/287/0408-01" ] }, { "cite": "457 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "721", "parenthetical": "citing State v. Buchanan, 287 N.C. 408, 421, 215 S.E.2d 80, 88 (1975) (the trial court \"should never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence\")" } ], "opinion_index": 0 }, { "cite": "340 N.C. 320", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790144 ], "year": 1995, "pin_cites": [ { "page": "331", "parenthetical": "citing State v. Buchanan, 287 N.C. 408, 421, 215 S.E.2d 80, 88 (1975) (the trial court \"should never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence\")" } ], "opinion_index": 0, "case_paths": [ "/nc/340/0320-01" ] }, { "cite": "174 N.C. App. 298", "category": "reporters:state", "reporter": "N.C. App.", "opinion_index": 0 }, { "cite": "723 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2012, "pin_cites": [ { "page": "334", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154240 ], "year": 2012, "pin_cites": [ { "page": "518", "parenthetical": "internal citation and quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0506-01" ] }, { "cite": "676 F.2d 995", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 562145 ], "year": 1982, "pin_cites": [ { "page": "1002", "parenthetical": "footnotes omitted" } ], "opinion_index": 0, "case_paths": [ "/f2d/676/0995-01" ] }, { "cite": "300 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "378", "parenthetical": "alterations in original" } ], "opinion_index": 0 }, { "cite": "307 N.C. 655", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565416 ], "year": 1983, "pin_cites": [ { "page": "660", "parenthetical": "alterations in original" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0655-01" ] }, { "cite": "174 N.C. App. 289", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8351857 ], "weight": 5, "pin_cites": [ { "page": "294" }, { "page": "295" }, { "page": "296" }, { "page": "298" }, { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/nc-app/174/0289-01" ] } ], "analysis": { "cardinality": 717, "char_count": 17828, "ocr_confidence": 0.685, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.18245619725319892 }, "sha256": "e673507141becf25f80ba4e47606da42e4d098c8130d11454e72a8f369a29591", "simhash": "1:16611608f72cfce6", "word_count": 3013 }, "last_updated": "2023-07-14T19:32:40.304740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges BRYANT and STROUD concur." ], "parties": [ "STATE OF NORTH CAROLINA v. DANNY DALE GOSNELL" ], "opinions": [ { "text": "McGEE, Judge.\nDanny Dale Gosnell (\u201cDefendant\u201d) was indicted for first-degree murder of Brenda Kay Roberts Williams (\u201cMs. Williams\u201d) on 9 January 2012. The facts relevant to a determination of the issues on appeal are presented in the analysis portion of this opinion. A jury found Defendant guilty of first-degree murder on 2 October 2012. Defendant appeals.\nI. \u201cPremeditation and Deliberation\u201d Instruction\nDefendant argues \u201cthe trial court committed plain error by failing to instruct the jury of its duty to return a not guilty verdict for first-degree murder based on the theory of premeditation and deliberation if the State failed to establish any essential element beyond a reasonable doubt.\u201d\nA. Standard of Review\n\u201cBecause defendant did not object at trial to the omission of the not guilty option from the trial court\u2019s final mandate to the jury, we review the trial court\u2019s actions for plain error.\u201d State v. McHone, 174 N.C. App. 289, 294, 620 S.E.2d 903, 907 (2005).\n[T]he plain error rule... is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a \u201cfundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,\u201d or \u201cwhere [the error] is grave error which amounts to a denial of a fundamental right of the accused,\u201d or the error has \u201c \u2018resulted in a miscarriage of justice or in the denial to appellant of a fair trial\u2019 \u201d or where the error is such as to \u201cseriously affect the fairness, integrity or public reputation of judicial proceedings\u201d or where it can be fairly said \u201cthe instructional mistake had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d\nState v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (alterations in original) (quoting United States v. McCaskill, 676 F.2d 995,1002 (4th Cir. 1982) (footnotes omitted)).\nTo show plain error, \u201ca defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice \u2014 that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty.\u201d State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (internal citation and quotation marks omitted).\nB. Analysis\n\u201cOur Supreme Court has held that the failure of the trial court to provide the option of acquittal or not guilty in its charge to the jury can constitute reversible error.\u201d McHone, 174 N.C. App. at 295, 620 S.E.2d at 907. This Court held that \u201c[Celling the jury \u2018not [to] return a verdict of guilty\u2019 as to each theory of first degree murder does not comport with the necessity of instructing the jury that it must or would return a verdict of not guilty[,]\u201d if it rejected the conclusion that the defendant committed first-degree murder. Id. at 297, 620 S.E.2d at 909.\nAs in McHone, we \u201cfirst consider the jury instructions on murder in their entirety in determining whether the failure to provide a not guilty mandate constitutes plain error.\u201d Id. The instructions on premeditation and deliberation, which Defendant challenges on appeal, are quoted below:\nIf you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant, acting with malice, killed the victim with a deadly weapon, thereby proximately causing the victim\u2019s death, that the defendant intended to kill the victim and that the defendant acted after premeditation and with deliberation, it would be your duty to return a verdict of \u201cguilty of first-degree murder[\u201d] on the basis of malice, premeditation and deliberation. If vou do not so find or have a reasonable doubt as to one or more of these things vou would not return a verdict of \u201cguilty of first-degree murder\u201d on the basis of malice-premeditation and deliberation, (emphasis added).\nAs to the theory of lying in wait, the trial court instructed the jury as follows:\nIf you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant assaulted the victim while lying in wait for her and that the defendant\u2019s act proximately caused the victim\u2019s death, it would be your duty to return a verdict of \u201cguilty of first-degree murder.\u201d If vou do not so find or if vou have a reasonable doubt, as to one or more of these things it would be vour duty to return a verdict of \u201cnot guilty.\u201d (emphasis added).\nAs to second-degree murder, the trial court instructed the jury as follows:\nIf you find from the evidence beyond a reasonable doubt that on or about the alleged date the defendant intentionally and with malice wounded the victim with a deadly weapon and that this proximately caused the victim\u2019s death, it would be your duty to return a verdict of \u201cguilty of second-degree murder.\u201d If you do not so find or have a reasonable doubt as to one or more of these things it, would be vour duty to return a verdict of \u201cnot guilty.\u201d (emphasis added).\nFrom our review of the entirety of the jury instructions on murder, it appears that, as to the theory of premeditation and deliberation, the trial court failed to comport precisely with the requirement to instruct that the jury would return a verdict of \u201cnot guilty\u201d if it rejected the conclusion that Defendant committed first-degree murder on the basis of premeditation and deliberation, per McHone. However, it further appears that the trial court, in its instructions, comported with the requirement regarding both lying in wait and second-degree murder.\nBy contrast, the trial court in McHone \u201cfailed to instruct the jury on the option of finding defendant not guilty during its final mandate.\u201d McHone, 174 N.C. App. at 296, 620 S.E.2d at 908. \u201cIndeed,, it neither stated that the jury could find [the] defendant not guilty of first degree murder, nor that it was their duty to do so should they conclude the State failed in its burden of proof.\u201d Id. Rather, the trial court \u201cessentially pitted one theory of first degree murder against the other, and impermissibly suggested that the jury should find that the killing was perpetrated by [the] defendant on the basis of at least one of the theories.\u201d Id. at 297, 620 S.E.2d at 909.\nIn McHone, this Court also stated that \u201c[s]econdly, we consider the content and form of the first degree murder verdict sheet in determining whether the failure to provide a not guilty mandate constitutes plain error.\u201d Id. The verdict sheet in the present case is structured as follows:\n1._GUILTY OF FIRST DEGREE MURDER by\n(you may check one, both or neither of the following:)\n_MALICE, PREMEDITATION AND DELIBERATION and/or\nLYING IN WAIT.\n2._GUILTY OF SECOND DEGREE MURDER.\n3._NOT GUILTY.\nBy contrast, the verdict sheet in McHone \u201cdid not provide a space or option of \u2018not guilty.\u2019 \u201d McHone, 174 N.C. App. at 298, 620 S.E.2d at 909.\nThis Court in McHone considered the instructions and verdict sheet for the other offenses with which the defendant was charged.\nRather than help correct the failure to provide a similar not guilty mandate with respect to the first degree murder charge, the presence of a not guilty final mandate as to the taking offenses likely reinforced the suggestion that the jury should return a verdict of first degree murder based upon premeditation and deliberation and/or felony murder.\nMcHone, 174 N.C. App. at 298, 620 S.E.2d at 909. Additionally, this Court noted that the verdict sheet for the other offenses, \u201cwhich did afford a space for a not guilty verdict, also likely reinforced the suggestion that [the] defendant must have been guilty of first degree murder on some basis[.]\u201d McHone, 174 N.C. App. 298, 620 S.E.2d at 909.\nIn the present case, there are no other offenses to analyze in the course of our plain error review. The verdict sheet provided a space for a \u201cnot guilty\u201d verdict, and the trial court\u2019s instructions on second-degree murder and the theory of lying in wait comported with the requirement in McHone. The trial court did not commit plain error in failing to instruct that the jury would or must return a \u201cnot guilty\u201d verdict if it did not conclude that Defendant committed first-degree murder on the basis of premeditation and deliberation.\nII. \u201cLying in Wait\u201d Instruction\nDefendant also argues the trial court erred by instructing the jury that it could convict Defendant of first-degree murder based on the theory of lying in wait.\n\u201cWhere jury instructions are given without supporting evidence, a new trial is required.\u201d State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995) (citing State v. Buchanan, 287 N.C. 408, 421, 215 S.E.2d 80, 88 (1975) (the trial court \u201cshould never give instructions to a jury which are not based upon a state of facts presented by some reasonable view of the evidence\u201d)).\n\u201cA murder which shall be perpetrated by means of... lying in wait . . . shall be deemed to be murder in the first degree[.]\u201d N.C. Gen. Stat. \u00a7 14-17 (2011). \u201c[W]hen G.S. 14-17 speaks of murder perpetrated by lying in wait, it refers to a killing where the assassin has stationed himself or is lying in ambush for a private attack upon his victim.\u201d State v. Allison, 298 N.C. 135, 147, 257 S.E.2d 417, 425 (1979).\nHowever, it is not necessary that he be actually concealed in order to he in wait. If one places himself in a position to make a private attack upon his victim and assails him at a time when the victim does not know of the assassin\u2019s presence or, if he does know, is not aware of his purpose to kill. him, the killing would constitute a murder perpetrated by lying in wait.\nId. at 148, 257 S.E.2d at 425 (citing State v. Wiseman, 178 N.C. 785, 789-90, 101 S.E. 629, 631 (1919)). \u201cCertainly one who has lain in wait would not lose his status because he was not concealed at the time he shot his victim. The fact that he reveals himself or the victim discovers his presence will not prevent the murder from being perpetrated by lying in wait.\u201d Allison, 298 N.C. at 148, 257 S.E.2d at 425.\nIn State v. Wiseman, supra, the evidence showed that the victim, \u201calmost immediately on getting off the train, was fired upon by one or more persons, at short range[.]\u201d Wiseman, 178 N.C. at 790, 101 S.E. at 631. Our Supreme Court concluded that \u201cthe killing, in any aspect of this case, was an assassination by lying in wait, and by taking the victim unawares without opportunity to defend himself.\u201d Wiseman, 178 N.C. at 790,101 S.E. at 631.\nIn the present case, Defendant\u2019s vehicle was parked on \u201cthe other side of the bam\u201d from Ms. Williams\u2019 house (\u201cthe house\u201d) at about 7:20 or 7:25 a.m. One of Ms. Williams\u2019 daughters, Amanda Williams (\u201cAmanda\u201d), testified that Ms. Williams received \u201cthree or four\u201d phone, calls from Defendant on the morning of the offense. Amanda was inside the house with her mother and her sister, Amber Williams (\u201cAmber\u201d).\nAmanda testified that, at 7:48 a.m., Ms. Williams told Amanda that she was running late and, shortly thereafter, left for work. Amber testified that, after her mother left the house, her mother \u201cscreamed, \u2018No!\u2019 \u201d That was the last time Amber heard her mother speak. Amber further testified that Ms. Williams and Defendant did not argue outside the house for a long period of time. Amber saw Defendant shoot Ms. Williams twice, the second shot occurring while Ms. Williams was on the ground.\nA neighbor testified that he drove past Ms. Williams\u2019 house on the morning of the offense. At approximately 7:45 or 7:50 a.m., he drove past the house, turned around at a dead-end, and drove past the house again. He noticed an unfamiliar truck parked behind the bam and decided to check on the residents. As he approached the house, he saw Ms. Williams lying on the ground by the bam.\nDefendant told the neighbor: \u201cGo away; go away. Leave; leave.\u201d When Defendant said the second \u201cleave,\u201d he shot Ms. Williams while she was lying on the ground. The neighbor saw Ms. Williams\u2019 body \u201cbounce[] up off the ground[.]\u201d The neighbor drove back to the road and called 911. A deputy sheriff responded to the 911 dispatch and arrived at the scene of the offense at approximately 8:05 or 8:10 a.m. The deputy sheriff testified that \u201c[f]our and a-half or five minutes\u201d passed \u201cfrom the time of dispatch to arrival[.]\u201d\nDefendant relies on State v. Lynch, 327 N.C. 210, 393 S.E.2d 811 (1990), in arguing that the trial court erred in instructing the jury on the theory of lying in wait. In Lynch, our Supreme Court noted that Allison established \u201cthat a lying in wait killing requires some sort of ambush and surprise of the victim.\u201d Id. at 217, 393 S.E.2d at 815. In Lynch, there was \u201cno evidence that [the] defendant ambushed or surprised [the victim] when he fatally stabbed her.\u201d Id. at 218, 393 S.E.2d at 816.\nThe evidence shows without contradiction that before the fatal stabbing [the] defendant walked with his arm around the victim through the parking lot. Later [the] defendant was observed chasing the victim across the lot, catching her and forcing her back to a car in the lot. The victim was heard to say, \u201cNo, please, don\u2019t do that,\u201d after which she was observed coming from between some cars, bleeding and calling for help. [The defendant was observed running across the parking lot.\nId. at 218-19, 393 S.E.2d at 816. Our Supreme Court concluded that there was \u201csimply no evidence that [the] defendant lay in wait by ambushing or suiprising his victim immediately before he inflicted the fatal stab wounds.\u201d Id. at 218-19, 393 S.E.2d at 816.\nIn the present case, Defendant contends only that there was no ambush or surprise \u201cimmediately before the shooting\u201d because Defendant and Ms. Williams \u201cinteracted outside\u201d for approximately ten to thirteen minutes. The evidence, however, does not support this conclusion. Defendant parked on the opposite side of the bam from the house and waited for Ms. Williams. Ms. Williams left the house shortly after 7:48 a.m. By 8:05 or 8:10 a.m., all the following events had transpired: (1) Defendant confronted Ms. Williams, and a short argument ensued; (2) Defendant shot Ms. Williams; (3) a neighbor arrived to check on the residents; (4) he saw Ms. Williams lying on the ground, and Defendant told the neighbor to leave; (5) Defendant shot Ms. Williams a second time while she was lying on the ground; (6) the neighbor drove back to the road and called 911; (7) the 911 call was dispatched to a deputy sheriffs radio; and (8) the deputy sheriff arrived on the scene. The deputy arrived approximately four and a half or five minutes after receiving the dispatch.\nThe evidence suggests that the shooting immediately, or almost immediately, followed Defendant\u2019s ambush of Ms. Williams outside the house. As stated above, our Supreme Court has held that \u201ca lying in wait killing requires some sort of ambush and surprise of the victim.\u201d Lynch, 327 N.C. at 217, 393 S.E.2d at 815. The evidence does not show that Ms. Williams was aware of Defendant\u2019s presence outside the house or Defendant\u2019s purpose to kill her. Under Allison and Lynch, the evidence in this case supports an instruction on lying in wait. The trial court did not err in giving the instruction.\nEven assuming Defendant can show error on this basis, Defendant cannot show prejudice resulting from the error because there is no possibility that, had the error in question not been committed, a different result would have been reached at trial. N.C. Gen. Stat. \u00a7 15A-1443(a) (2011). The jury returned guilty verdicts on (1) lying in wait and (2) premeditation and deliberation. Defendant has not shown that prejudicial error occurred in this case.\nNo error.\nJudges BRYANT and STROUD concur.\n. The versions of McHone available online through Westlaw and LexisNexis contain the full sentence quoted above. The South Eastern Reporter, 2d Series also contains this full sentence. The slip opinion available online also contains this full sentence. State v. McHone, COA04-1605, slip op. at 13. However, the subject of the sentence is missing from the hard copy of the N.C. Court of Appeals Reports. The N.C. Court of Appeals Reports has only the following incomplete sentence: \u201cRather than help correct the failure to provide a similar not guilty mandate with respect to the taking offenses likely reinforced the suggestion that the jury should return a verdict of first degree murder based upon premeditation and deliberation and/or felony murder.\u201d McHone, 174 N.C. App. at 298.", "type": "majority", "author": "McGEE, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State.", "Appellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for Defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DANNY DALE GOSNELL\nNo. COA13-614\nFiled 3 December 2013\n1. Homicide \u2014 first-degree murder \u2014 not guilty verdict \u2014 jury instructions\nThe trial court did not commit plain error in a first-degree murder case by failing to instruct the jury of its duty to return a not guilty verdict for first-degree murder based on the theory of premeditation and deliberation if the State failed to establish any essential element beyond a reasonable doubt. The verdict sheet provided a space for a \u201cnot guilty\u201d verdict, and the trial court\u2019s instructions on second-degree murder and the theory of lying in wait comported with the requirement in State v. McHone, 174 N.C. App. 289.\n2. Homicide \u2014 first-degree murder \u2014 lying in wait \u2014 jury instructions \u2014 sufficient evidence\nThe trial court did not err in a first-degree murder case by instructing the jury that it could convict defendant of first-degree murder based on the theory of lying in wait where there was sufficient evidence to support the instruction. Furthermore, any error was not prejudicial.\nAppeal by Defendant from judgment entered 3 October 2012 by Judge Marvin P. Pope in Superior Court, Buncombe County. Heard in the Court of Appeals 5 November 2013.\nAttorney General Roy Cooper, by Special Deputy Attorney General Marc Bernstein, for the State.\nAppellate Defender Staples Hughes, by Assistant Appellate Defender Emily H. Davis, for Defendant." }, "file_name": "0106-01", "first_page_order": 116, "last_page_order": 123 }