{ "id": 12168663, "name": "STATE OF NORTH CAROLINA v. ALBERT GREY GURKIN, SR.", "name_abbreviation": "State v. Gurkin", "decision_date": "2014-06-03", "docket_number": "No. COA13-1220", "first_page": "207", "last_page": "217", "citations": [ { "type": "official", "cite": "234 N.C. App. 207" } ], "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": "636 S.E.2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12636953 ], "year": 2006, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/636/0192-01" ] }, { "cite": "630 S.E.2d 234", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12635856 ], "weight": 3, "year": 2006, "pin_cites": [ { "page": "240", "parenthetical": "internal quotation marks omitted" }, { "page": "241", "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/630/0234-01" ] }, { "cite": "432 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "pin_cites": [ { "page": "889" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 649", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523369 ], "year": 1993, "pin_cites": [ { "page": "654" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0649-01" ] }, { "cite": "297 S.E.2d 563", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1982, "pin_cites": [ { "page": "568" }, { "page": "568" }, { "page": "569" } ], "opinion_index": 0 }, { "cite": "307 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561161 ], "year": 1982, "pin_cites": [ { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/nc/307/0152-01" ] }, { "cite": "691 S.E.2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2010, "pin_cites": [ { "page": "50" } ], "opinion_index": 0 }, { "cite": "203 N.C. App. 230", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4176535 ], "year": 2010, "pin_cites": [ { "page": "235" } ], "opinion_index": 0, "case_paths": [ "/nc-app/203/0230-01" ] }, { "cite": "591 S.E.2d 519", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "358 N.C. 132", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987846 ], "year": 2004, "opinion_index": 0, "case_paths": [ "/nc/358/0132-01" ] }, { "cite": "579 S.E.2d 467", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 2003, "pin_cites": [ { "page": "469" }, { "page": "470" }, { "page": "570", "parenthetical": "internal quotation marks and citation omitted" }, { "page": "471", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 408", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9187032 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "412" }, { "page": "412" }, { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0408-01" ] }, { "cite": "481 U.S. 648", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219897 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/us/481/0648-01" ] }, { "cite": "723 S.E.2d 333", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "161 L. Ed. 2d 122", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 2005, "opinion_index": 0 }, { "cite": "543 U.S. 1156", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5954496, 3438538, 5882348, 5904846, 3432719, 5947982, 5866896, 5941907, 5884692, 5964821, 5953528, 3439161, 5932858, 5911709 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/us/543/1156-09", "/us/543/1156-11", "/us/543/1156-01", "/us/543/1156-14", "/us/543/1156-03", "/us/543/1156-13", "/us/543/1156-08", "/us/543/1156-02", "/us/543/1156-10", "/us/543/1156-04", "/us/543/1156-06", "/us/543/1156-07", "/us/543/1156-05", "/us/543/1156-12" ] }, { "cite": "597 S.E.2d 724", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2004, "pin_cites": [ { "page": "742-43" }, { "page": "743" } ], "opinion_index": 0 }, { "cite": "358 N.C. 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986879 ], "year": 2004, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0382-01" ] }, { "cite": "723 S.E.2d 326", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2012, "pin_cites": [ { "page": "334", "parenthetical": "citations and internal quotation marks omitted" }, { "parenthetical": "quotation marks and citations omitted" } ], "opinion_index": 0 }, { "cite": "365 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4154240 ], "weight": 3, "year": 2012, "pin_cites": [ { "page": "518", "parenthetical": "citations and internal quotation marks omitted" }, { "page": "516" }, { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/nc/365/0506-01" ] }, { "cite": "557 S.E.2d 544", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "553" } ], "opinion_index": 0 }, { "cite": "147 N.C. App. 549", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9380605 ], "year": 2001, "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/nc-app/147/0549-01" ] }, { "cite": "360 N.C. 580", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 3788640, 3789850, 3787278, 3790639, 3791831, 3791385, 3792666, 3793692, 3791071 ], "year": 2006, "pin_cites": [ { "parenthetical": "internal quotation marks omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/360/0580-07", "/nc/360/0580-04", "/nc/360/0580-02", "/nc/360/0580-03", "/nc/360/0580-08", "/nc/360/0580-01", "/nc/360/0580-06", "/nc/360/0580-09", "/nc/360/0580-05" ] }, { "cite": "177 N.C. App. 614", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8301914 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "623", "parenthetical": "internal quotation marks omitted" }, { "page": "623" } ], "opinion_index": 0, "case_paths": [ "/nc-app/177/0614-01" ] }, { "cite": "420 S.E.2d 158", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "168" } ], "opinion_index": 0 }, { "cite": "332 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2506498 ], "year": 1992, "pin_cites": [ { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0151-01" ] }, { "cite": "400 S.E.2d 398", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "401", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "328 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2539317 ], "year": 1991, "pin_cites": [ { "page": "196", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0191-01" ] }, { "cite": "560 S.E.2d 146", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "355 N.C. 218", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220201, 220105, 220173, 220087 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/nc/355/0218-02", "/nc/355/0218-01", "/nc/355/0218-04", "/nc/355/0218-03" ] }, { "cite": "551 S.E.2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 2001, "pin_cites": [ { "page": "503" }, { "page": "576-77" }, { "page": "503" }, { "page": "503" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 570", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11438974 ], "weight": 3, "year": 2001, "pin_cites": [ { "page": "576" }, { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0570-01" ] }, { "cite": "469 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "910" }, { "page": "911", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "343 N.C. 129", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798977 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "149" }, { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nc/343/0129-01" ] }, { "cite": "405 S.E.2d 145", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "152" }, { "page": "158" } ], "opinion_index": 0 }, { "cite": "329 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2556466 ], "year": 1991, "pin_cites": [ { "page": "73" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0061-01" ] } ], "analysis": { "cardinality": 999, "char_count": 24678, "ocr_confidence": 0.73, "pagerank": { "raw": 5.207966869300525e-08, "percentile": 0.3290413842660325 }, "sha256": "e2cf70bf59e85242a3bec3a0c3529ee59cf4b4712f681aaab9c1322aa7c0fc46", "simhash": "1:8f02dc6e55168d52", "word_count": 4045 }, "last_updated": "2023-07-14T22:30:06.319137+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges ELMORE and DAVIS concur." ], "parties": [ "STATE OF NORTH CAROLINA v. ALBERT GREY GURKIN, SR." ], "opinions": [ { "text": "McCullough, judge.\nDefendant appeals from judgment entered 7 February 2013 after a Martin County jury found him guilty of second-degree murder. For the following reasons, we find no prejudicial error.\nI. Background\nDefendant, Albert Grey Gurkin, Sr., was indicted for first-degree murder on 17 August 2009. Defendant was tried at the 28 January 2013 Criminal Session of Martin County Superior Court, the Honorable Wayland J. Sermons, Jr., presiding.\nPrior to the start of jury selection, the trial court inquired as to whether counsel had any objections and no objections were raised. Jury selection began with the trial court selecting six prospective jurors for voir dire. All six prospective jurors were passed to the defense. The trial court excused one venire member and the defense accepted the remaining five. The trial court then directed the clerk to call seven prospective jurors. This modified process continued without objection until a full jury was accepted.\nDuring the voir dire of prospective juror Ms. McNeil, McNeil stated she overheard some discussion in the jury room about the case. Specifically, she overheard a few prospective jurors discussing whether they knew defendant or what the case was about. During the State\u2019s voir dire questioning, the following exchange took place:\nMR. EDWARDS: Have you - since this happened, do you recall having a conversation with anyone about the case?\nJUROR NO. 7/MS. MCNEILL: Not really. Just, you know wondering what it was about when I was sitting in the jury room.\nDuring defense counsel\u2019s voir dire questioning, the following exchange took place:\nMR. DUPREE: You mentioned something that I\u2019m going to ask you a couple of questions about. You said in the jury room where you\u2019ve all got so much free time over the last few days there was some discussion about what was going on or what the case was about?\nJUROR NO. 7/MS. MCNEILL: Yes, a little bit.\nMR. DUPREE: What kind of discussion did you hear?\nJUROR NO. 7/MS. MCNEILL: Did we \u2014 did anybody know him, you know, Grey, know him personally and what happened, that sort of thing. I know you said not to do that, but they did.\nTHE COURT: I sure did.\nMR. DUPREE: Would you say that was quite a few people asking each other about \u2014\nJUROR NO. 7/MS. MCNEILL: No, not a lot. Just a few.\nMR. DUPREE: Just people in your circle?\nJUROR NO. 7/MS. MCNEILL: Just a little bit around me.\nMR. DUPREE: Well, obviously, you knew, and you\u2019re an accomplished person who has had a long career, what the Judge\u2019s specific instructions were. Do you feel like that that disobeyance, that discussion, had any impact on you?\nJUROR NO. 7/MS. MCNEILL: No, because nobody knew much about it.\nMR. DUPREE: ... In its entire capacity, do you think any of those discussions would have caused any impact on the ability to sit on this jury?\nJUROR NO. 7/MS. MCNEILL: No.\nMR. DUPREE: Now, other than asking about what was \u2014 if anybody knew him or knew them or whatever, what else was discussed that you heard?\nJUROR NO. 7/MS. MCNEILL: That\u2019s about it. It was the same thing. It was what I read in the paper or on the news.\nMR. DUPREE: They talked about that, the coverage that had been applied to the media?\nJUROR NO. 7/MS. MCNEILL: A little bit. But \u2014 (shaking her head back and forth.)\nBased on these exchanges, defense counsel made a motion for mistrial. After the court asked defense counsel whether he intended to offer any evidence in support of his motion, he requested to examine the 57 remaining members of the jury pool that may have been in the room at the time of the alleged improper discussion. That request, along with the motion for mistrial, was denied. The trial court declined to excuse Ms. McNeill for cause and the defense used one of its peremptory challenges to excuse her.\nThe evidence at trial tended to show the following: defendant and Jewel Gurkin, the victim, had a contentious marriage. They would often go days without speaking to one another. A main point of contention was the contents of defendant\u2019s will. Defendant wanted to leave all of his money to Jewel and all of his land to his son, Grey Gurkin, Jr. Jewel was unhappy about defendant leaving the land to his son. Jewel told others about her troubles with defendant and that she feared \u201csomething was going to happen.\u201d\nThe night before Jewel\u2019s death, she and defendant engaged in a heated argument about defendant\u2019s will. The next morning, defendant went into the bathroom to shave and brush his teeth. While defendant was washing his eyes with a hot washcloth, Jewel touched defendant in his lower back with a stun gun. Defendant turned around and pushed Jewel up against the cabinets in an attempt to keep her from using the stun gun again. Defendant was able to use his left hand to push the stun gun into Jewel\u2019s side. Defendant had no memory of what he did with his right hand. Jewel \u201csnatched back\u201d and the stun gun burned defendant\u2019s fingers. According to defendant, the next thing he knew, they were on the floor.\nDefendant noticed blood in the comer of Jewel\u2019s mouth and discovered she was not breathing. When defendant realized Jewel was dead, he wrapped her in a blanket, tied her hands and feet together, and carried her down to a pond on his property. He moved some sticks and limbs around and laid her on the ground. Police were alerted when Jewel failed to show up for work. They were unable to find her. That night, defendant stayed with his son and told him what he had done. Sometime between midnight and 5:00 a.m., defendant moved and unwrapped the body so it could be found. After moving the body, defendant was immediately apprehended by the police, who had been searching for the body all day.\nAn autopsy revealed the cause of death to be strangulation. The state\u2019s expert testified that it can take approximately ten seconds of compression on the neck for a person to lose consciousness and approximately five minutes to cause death.\nAt the close of the evidence, the trial court instructed the jury on first-degree murder, second-degree murder, voluntary manslaughter, and acquittal. Defense counsel requested instructions on self-defense and imperfect self-defense, which the trial court denied. The jury returned a verdict finding defendant guilty of second-degree murder and the trial court entered a judgment sentencing defendant to a term of 189 to 236 months in prison. Defendant gave notice of appeal in open court.\nII. Discussion\nDefendant raises the following issues on appeal: (1) whether the trial court abused its discretion by declining to inquire into alleged improper discussions by prospective jurors; (2) whether the trial court plainly erred in deviating from the statutory procedure for passing jurors to defendant during jury selection; (3) whether the trial court plainly erred in omitting an instruction on involuntary manslaughter; and (4) whether the trial court properly denied defendant\u2019s requested instructions on self-defense and imperfect self-defense.\nA. Jury Misconduct\nDefendant first asserts that the trial court abused its discretion by declining to make an inquiry into alleged improper discussions by prospective jurors. Specifically, defendant argues that when such jury misconduct is alleged, the trial court must conduct an investigation into the alleged misconduct and does not have the discretion to decline to do so.\nIn reviewing a trial court\u2019s decision to grant or deny a motion for mistrial on the basis of juror misconduct, we review for abuse of discretion. State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991). The trial court\u2019s decision should only be overturned where the error is so serious that it substantially and irreparably prejudiced the defendant, making a fair and impartial verdict impossible. Id.\n\u201cThe determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal.\u201d Id. at 83, 405 S.E.2d at 158. When jury misconduct is alleged, the trial court is vested with the \u201cdiscretion to determine the procedure and scope of the inquiry.\u201d State v. Burke, 343 N.C. 129, 149, 469 S.E.2d 901, 910 (1996).\nDefendant relies on State v. Harris, 145 N.C. App. 570, 551 S.E.2d 499 (2001), disc. review denied, 355 N.C. 218, 560 S.E.2d 146 (2002), for the contention that an absolute duty to investigate juror misconduct is imposed upon the trial court when such misconduct is alleged. Specifically, defendant cites to the folio-wing sentence: \u201cWhere juror misconduct is alleged . . . the trial court must investigate the matter and make appropriate inquiry.\u201d Harris, 145 N.C. App. at 576, 551 S.E.2d at 503. Defendant\u2019s reliance on this quote ignores the immediately following sentence from Harris: \u201cHowever, there is no absolute rule that a court must hold a hearing to investigate juror misconduct upon an allegation.\u201d Id. at 576-77, 551 S.E.2d at 503. Indeed, this Court has held that only \u201c[w]hen there is substantial reason to fear that the jury has become aware of improper and prejudicial matters, the trial court must question the jury as to whether such exposure has occurred and, if so, whether the exposure was prejudicial.\u201d State v. Black, 328 N.C. 191, 196, 400 S.E.2d 398, 401 (1991) (emphasis added). Further, \u201c[a]n examination of the juror involved in alleged misconduct is not always required, especially where the allegation is nebulous.\u201d Harris, 145 N.C. App. at 577, 551 S.E.2d at 503.\nOur Supreme Court has held that \u201c \u2018[i]n the event of some contact with a juror it is the duty of the trial judge to determine whether such contact resulted in substantial and irreparable prejudice to the defendant. It is within the discretion of the trial judge as to what inquiry to make.\u2019 \u201d Burke, 343 N.C. at 149, 469 S.E.2d at 911 (emphasis added) (quoting State v Willis, 332 N.C. 151, 173, 420 S.E.2d 158, 168 (1992)).\nThe trial court acted within its discretion in declining to conduct any further inquiry into the alleged improper discussions of prospective jurors and limiting the scope of its inquiry to the lines of questioning quoted above. When asked by the court, defense counsel could not say how defendant was prejudiced. Ms. McNeill stated that from what she overheard, no prospective juror indicated that he or she either knew defendant or anything about the case. Based upon Ms. McNeill\u2019s responses and the trial court\u2019s observations, the trial court was satisfied that the alleged statements of prospective jurors did not give rise to a substantial reason to fear that the jury was prejudiced. It was well within the trial court\u2019s discretion when it limited its inquiry to a consideration of Ms. McNeill\u2019s voir dire and determined that there was no prejudice to defendant. Accordingly, we hold that the trial court did not err in refusing to conduct any further inquiry.\nB. Jury Selection Procedure\nDefendant next asserts that the trial court erred in deviating from the statutory procedure for passing jurors to defendant during jury selection. Defendant argues that deviation from the requirements of N.C. Gen. Stat. \u00a7 15A-1214 entitles him to a new trial. We disagree.\nAlthough defendant failed to object to the procedure utilized at trial; \u201cwhen a trial court acts contrary to a statutory mandate ... the right to appeal the court\u2019s action is preserved.\u201d State v. Love, 177 N.C. App. 614, 623, 630 S.E.2d 234, 240, disc. review denied, 360 N.C. 580, 636 S.E.2d 192 (2006) (internal quotation marks omitted). In reviewing atrial court\u2019s deviation from the statutory procedure for the passing of jurors to the defendant where defendant failed to object to the procedure, we review for plain error. State v. Stroud, 147 N.C. App. 549, 564, 557 S.E.2d 544, 553 (2001). Our Supreme Court recently clarified how the plain error rule is to be applied in North Carolina:\nFor error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error had a probable impact on the jury\u2019s finding that the defendant was guilty.\nState v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334, (2012) (citations and internal quotation marks omitted). Further, the plain error rule is to be applied cautiously and only in exceptional cases, and the error will often be one that \u201cseriously affect[s] the fairness, integrity or public reputation of judicial proceedingsf.]\u201d Id. (quotation marks and citations omitted).\nThe procedure for passing prospective jurors to a defendant during jury selection is governed by N.C. Gen. Stat. \u00a7 15A-1214, which provides in pertinent part:\n(d) The prosecutor must conduct his examination of the first 12 jurors seated and make his challenges for cause and exercise his peremptory challenges. If the judge allows a challenge for cause, or if a peremptory challenge is exercised, the clerk must immediately call a replacement into the box. When the prosecutor is satisfied with the 12 in the box, they must then be tendered to the defendant....\n(f) Upon the calling of replacement jurors, the prosecutor must examine the replacement jurors and indicate satisfaction with a completed panel of 12 before the replacement jurors are tendered to a defendant. . . . This procedure is repeated until all parties have accepted 12 jurors.\nN.C. Gen. Stat. \u00a7 15A-1214(d) and (f) (2013). It is undisputed that the trial court violated the statutorily mandated procedure for jury selection. Despite this violation, \u201ca new trial does not automatically follow a finding of statutory error.\u201d State v. Garcia, 358 N.C. 382, 406, 597 S.E.2d 724, 742-43 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005). Our Supreme Court has \u201cconsistently required that defendants claiming error injury selection procedures show prejudice in addition to a statutory violation before they can receive a new trial.\u201d Id. at 406, 597 S.E.2d at 743.\nThe procedure for jury selection is designed to \u201censure the empanelment of an impartial and unbiased jury.\u201d Love, 177 N.C. App. at 623, 630 S.E.2d at 241 (internal quotation marks omitted). Defendant, both in his brief and reply brief, asserts a claim of prejudice on the basis that the trial court deviated from the statutory procedure. However, defendant fails to show, nor does he argue, \u201cjury bias, the inability to question prospective jurors, inability to assert peremptory challenges, nor any other defect which had the likelihood to affect the outcome of the trial.\u201d Id.\nDefendant\u2019s basis for prejudice on appeal is that he exhausted his peremptory challenges. We are not persuaded by this argument. Defendant\u2019s bare assertion that he was prejudiced in this manner fails to meet his \u201cheavier burden of showing that the error rises to the level of plain error.\u201d Lawrence, 365 N.C. at 516, 723 S.E.2d 333.\nDefendant also contends that deviation from the statutory procedure constitutes reversible error per se. To support this contention, defendant relies on Gray v. Mississippi, 481 U.S. 648, 95 L. Ed. 2d 622 (1987). However, whatever support defendant draws from Gray is limited to capital cases. Accordingly, because defendant has failed to show prejudice, we hold that the trial court\u2019s deviation from the statutory procedure does not warrant a new trial.\nC. Instruction on Involuntary Manslaughter\nDefendant\u2019s third contention is that the trial court erred by failing to instruct the jury on the lesser-included offense of involuntary manslaughter. Defendant argues that because the evidence suggests he acted with at most culpable negligence, the trial court should have instructed the jury on involuntary manslaughter. We disagree.\nBecause defendant did not request an instruction on involuntary manslaughter and did not object to the instructions given at trial, we review for plain error. State v. McCollum, 157 N.C. App. 408, 412, 579 S.E.2d 467, 469 (2003), aff'd, 358 N.C. 132, 591 S.E.2d 519 (2004). As noted above, the plain error rule is to be applied cautiously, and only in exceptional cases where a fundamental error occurred such that the error had a probable impact on the jury\u2019s finding that the defendant was guilty. Lawrence, 365 N.C. at 518, 723 S.E.2d at 334.\nThe distinguishing difference between second-degree murder and manslaughter is the presence of malice in second-degree murder and its absence in manslaughter. McCollum, 157 N.C. App. at 412, 579 S.E.2d at 470. Defendant argues that the evidence showed he acted recklessly and with a disregard for human life and did not intend to kill Jewel. Thus, defendant argues, an instruction on involuntary manslaughter was necessary. However, malice can be implied where a defendant acted so recklessly or wantonly \u201cas to manifest depravity of mind and disregard for human life. In such a case, the homicide cannot be involuntary manslaughter, even if the assailant did not intend to kill the victim.\u201d Id. at 412-13, 579 S.E.2d at 570 (internal quotation marks and citation omitted).\nWe find McCollum to be squarely on point with our case. In that case, as here, the trial court submitted first-degree murder, second-degree murder, voluntary manslaughter, and acquittal to the jury, who returned a verdict of second-degree murder. The defendant did not request an instruction on involuntary manslaughter, nor did he object to the lack of such an instruction. This Court held that when the jury returned a verdict of second-degree murder, it necessarily negated a finding of the absence of malice:\nWhen the jury convicted defendant of second-degree murder and rejected voluntary manslaughter, it necessarily found that defendant acted with malice. A finding of malice precludes a finding of either voluntary manslaughter or involuntary manslaughter. Any asserted error in failing to instruct on involuntary manslaughter was harmless and does not rise to the level of plain error.\nMcCollum, 157 N.C. App. at 414, 579 S.E.2d at 471 (citation omitted). In finding defendant guilty of second-degree murder, the jury necessarily found beyond a reasonable doubt that defendant acted with malice, rejecting the absence of malice necessary for involuntary manslaughter. The jury had an opportunity to find an absence of malice and did not. Thus, it cannot be said that had the jury been instructed on involuntary manslaughter, the jury would have reached a different verdict. Accordingly, we hold that the trial court did not plainly err in failing to instruct the jury on involuntary manslaughter.\nD. Self-Defense and Imperfect Self-Defense Instruction\nDefendant\u2019s final argument is that the trial court erred in denying his request to instruct the jury on self-defense and imperfect self-defense. Because defendant requested jury instructions on self-defense and imperfect self-defense, we review de novo. State v. Cruz, 203 N.C. App. 230, 235, 691 S.E.2d 47, 50 (2010).\nPerfect self-defense excuses a killing completely when it is shown at the time of the killing that:\n(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and\n(2) defendant\u2019s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and\n(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and\n(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.\nState v. Bush, 307 N.C. 152, 158, 297 S.E.2d 563, 568 (1982). An instruction on imperfect self-defense arises when only the first two of the above elements are shown. Id. at 159, 297 S.E.2d at 568.\nA defendant is entitled to an instruction on self-defense only where there is \u201cany evidence in the record from which it can be determined that it was necessary or reasonably appeared to be necessary for him to kill his adversary in order to protect himself from death or great bodily harm.\u201d Id. at 160, 297 S.E.2d at 569. It is for the trial court to determine as a matter of law \u201cwhether there is any evidence that, the defendant reasonably believed it to be necessary to kill his adversary in order to protect himself from death or great bodily harm.\u201d Id. In determining whether a self-defense instruction should have been given, we examine the facts in the light most favorable to the defendant. State v. Moore, 111 N.C. App. 649, 654, 432 S.E.2d 887, 889 (1993).\nAt no point during the trial did defendant testify that he thought it was necessary or reasonably necessary to kill Jewel in order to protect himself from death or great bodily harm. Defendant only testified that his wife was holding a stun gun and that he pushed her up against the bathroom cabinets to keep her from using the stun gun. Defendant was able to push the stun gun into Jewel\u2019s side and ultimately subdued her. He did not state that he feared for his life or that he feared he might suffer great bodily harm at any time during the altercation. Defendant\u2019s testimony does not suggest, neither explicitly nor implicitly, that it was necessary or reasonably necessary to kill his wife in order to avoid death or great bodily harm.\nWe find that the evidence taken in the light most favorable to defendant fails to show any circumstances that would suggest that defendant reasonably believed it was necessary or reasonably necessary for him to kill Jewel in order to avoid death or great bodily harm. Because defendant failed to satisfy the required elements for an instruction on self-defense or imperfect self-defense, we hold that the trial court did not err in refusing to submit those issues to the jury.\nIII. Conclusion\nFor the reasons stated above, we conclude that the trial court did not commit prejudicial error.\nNo prejudicial error.\nJudges ELMORE and DAVIS concur.", "type": "majority", "author": "McCullough, judge." } ], "attorneys": [ "Attorney General Roy Cooper; by Special Deputy Attorney General Richard, L. Harrison, for the State.", "Rudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ALBERT GREY GURKIN, SR.\nNo. COA13-1220\nFiled 3 June 2014\n1. Jury\u2014alleged misconduct\u2014judicial inquiry into conduct\u2014no abuse of discretion\nThe trial court did not abuse its discretion in a homicide case by declining to inquire into alleged improper discussions by prospective jurors. The trial court acted -within its discretion in declining to conduct any further inquiry into the alleged improper discussions of prospective jurors and limiting the scope of its inquiry.\n2. Jury\u2014selection procedures\u2014deviation form statutory procedure\u2014no prejudice shown\nThe trial court did not plainly err in a homicide case by deviating from the statutory procedure governed by N.C.G.S. \u00a7 15A-1214 for passing jurors to defendant during jury selection. Although it was undisputed that the trial court violated the statutorily mandated procedure, defendant failed to show prejudice such as jury bias, the inability to question prospective jurors, inability to assert peremptory challenges, nor any other defect which had the likelihood to affect the outcome of the trial. Furthermore, the deviation from the statutory procedure in this case did not constitute reversible error per se.\n3. Homicide\u2014jury instructions\u2014omission of involuntary manslaughter instruction\u2014not prejudicial\nThe trial court did not commit plain error in a murder case by omitting an instruction on involuntary manslaughter. In finding defendant guilty of second-degree murder, the jury necessarily found beyond a reasonable doubt that defendant acted with malice, rejecting the absence of malice necessary for involuntary manslaughter. Thus, it could not be said that had the jury been instructed on involuntary manslaughter, the jury would have reached a different verdict.\n4. Homicide\u2014jury instructions\u2014self-defense\u2014imperfect self-defense\u2014no evidence to support either instruction\nThe trial court properly denied defendant\u2019s requested instructions on self-defense and imperfect self-defense in a murder case. The evidence taken in the light most favorable to defendant failed to show any circumstances that would suggest that defendant reasonably believed it was necessary or reasonably necessary for him to kill his wife in order to avoid death or great bodily harm.\nAppeal by defendant from judgment entered 7 February 2013 by Judge Wayland J. Sermons, Jr., in Martin County Superior Court. Heard in the Court of Appeals 19 March 2014.\nAttorney General Roy Cooper; by Special Deputy Attorney General Richard, L. Harrison, for the State.\nRudolf Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant." }, "file_name": "0207-01", "first_page_order": 217, "last_page_order": 227 }