{ "id": 2564377, "name": "STATE OF NORTH CAROLINA v. DAVID JAMES MASH", "name_abbreviation": "State v. Mash", "decision_date": "1988-10-06", "docket_number": "No. 728A86", "first_page": "339", "last_page": "350", "citations": [ { "type": "official", "cite": "323 N.C. 339" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "314 S.E. 2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "68 N.C. App. 209", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526889 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc-app/68/0209-01" ] }, { "cite": "99 S.E. 409", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1919, "opinion_index": 0 }, { "cite": "177 N.C. 599", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8655091 ], "year": 1919, "opinion_index": 0, "case_paths": [ "/nc/177/0599-01" ] }, { "cite": "196 S.E. 2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559274 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0504-01" ] }, { "cite": "257 S.E. 2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568697 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0149-01" ] }, { "cite": "259 S.E. 2d 899", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "298 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574062 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/298/0752-01" ] }, { "cite": "324 S.E. 2d 606", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "312 N.C. 519", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4753163 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/312/0519-01" ] }, { "cite": "110 Utah 113", "category": "reporters:state", "reporter": "Utah", "case_ids": [ 8868519 ], "weight": 2, "year": 1946, "pin_cites": [ { "page": "123" }, { "page": "158" } ], "opinion_index": 0, "case_paths": [ "/utah/110/0113-01" ] }, { "cite": "174 S.E. 2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "387", "parenthetical": "quoting State v. Thompson, 110 Utah 113, 123, 170 P. 2d 153, 158 (1946)" } ], "opinion_index": 0 }, { "cite": "276 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563250 ], "year": 1970, "pin_cites": [ { "page": "678", "parenthetical": "quoting State v. Thompson, 110 Utah 113, 123, 170 P. 2d 153, 158 (1946)" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0674-01" ] }, { "cite": "72 S.E. 1075", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1911, "pin_cites": [ { "page": "1077" } ], "opinion_index": 0 }, { "cite": "157 N.C. 614", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8659415 ], "year": 1911, "pin_cites": [ { "page": "619" } ], "opinion_index": 0, "case_paths": [ "/nc/157/0614-01" ] }, { "cite": "161 S.E. 2d 560", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "274 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559380 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/274/0062-01" ] }, { "cite": "220 S.E. 2d 525", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "243 S.E. 2d 374", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "377" } ], "opinion_index": 0 }, { "cite": "295 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561038 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "79" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0075-01" ] }, { "cite": "361 S.E. 2d 882", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1987, "pin_cites": [ { "page": "888", "parenthetical": "quoting State v. Medley, 295 N.C. 75, 79, 243 S.E. 2d 374, 377 (1978)" }, { "page": "888" } ], "opinion_index": 0 }, { "cite": "321 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2568550 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "41", "parenthetical": "quoting State v. Medley, 295 N.C. 75, 79, 243 S.E. 2d 374, 377 (1978)" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/nc/321/0031-01" ] }, { "cite": "213 S.E. 2d 238", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 597", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569931 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0597-01" ] }, { "cite": "79 S.E. 883", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1913, "opinion_index": 0 }, { "cite": "164 N.C. 513", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658968 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nc/164/0513-01" ] }, { "cite": "432 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178254 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0233-01" ] }, { "cite": "220 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "421 U.S. 684", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541415 ], "weight": 4, "year": 1975, "opinion_index": 0, "case_paths": [ "/us/421/0684-01" ] }, { "cite": "187 S.E. 2d 22", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "26" } ], "opinion_index": 0 }, { "cite": "280 N.C. 674", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573282 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0674-01" ] } ], "analysis": { "cardinality": 1022, "char_count": 25860, "ocr_confidence": 0.803, "pagerank": { "raw": 5.692003478321238e-07, "percentile": 0.949504198893449 }, "sha256": "ce202febb238b174440885dc97562fb4618c9aba657d6a51d814753b8e773b9e", "simhash": "1:442426bb337a0ed2", "word_count": 4267 }, "last_updated": "2023-07-14T15:25:25.148086+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. DAVID JAMES MASH" ], "opinions": [ { "text": "EXUM, Chief Justice.\nThe sole issue dispositive of this appeal is whether the trial court erroneously instructed the jury on the issue of defendant\u2019s voluntary intoxication to defendant\u2019s prejudice. We conclude it did and order a new trial.\nI.\nThe defendant and the state agree that in a period of minutes around 11 p.m. on 5 June 1986, the defendant beat Randall Cupp to death with a car jack. State\u2019s evidence in the guilt phase of the trial tended to show the following:\nDefendant\u2019s friends first saw him drinking beer in the driveway of his mother\u2019s house around 4 p.m. on 5 June. They saw him shortly thereafter at the home of a neighbor, Betty Melton, where he was also drinking beer. Sometime after this, defendant was seen in the parking lot of Royal\u2019s Package Store, again drinking beer. From there, defendant drove to a neighborhood gathering place, \u201cThe Forks,\u201d where he stayed about fifteen minutes. Defendant then drove to the home of Danny Schneider, where around 8 p.m., he and others were drinking an alcoholic beverage consisting of a mixture of grain alcohol and fruit punch. Around 9:30 p.m., defendant decided to make a \u201cbeer run.\u201d Driving his own car and taking some of his friends with him, he left Danny Schneider\u2019s house. He stopped for the second time that evening in the parking lot of Royal\u2019s Package Store, where a crowd of people had gathered. The store had closed for the evening, but the events leading to the murder of Randall Cupp took place in the store parking lot.\nNone of the witnesses testified as to how much alcohol the defendant consumed on 5 June, but several described how he acted and appeared during the evening. In the opinion of one witness, defendant was quiet and polite when sober but became profane, loud, boisterous and crazy when drunk. Witness Dean Long, a friend of the defendant, said that on 5 June, defendant was already \u201chigh\u201d around 4 p.m. before drinking beer at his mother\u2019s house. Long testified defendant was definitely drunk at Danny Schneider\u2019s house and continued to drink on the \u201cbeer run.\u201d Another of defendant\u2019s friends testified that defendant swerved as he drove and was \u201cpretty high.\u201d Another witness recalled that defendant drove slowly but swerved.\nShortly after arriving at Royal\u2019s Package Store for the second time, defendant drove away alone in a friend\u2019s car and was gone about 30 minutes. His friends testified that upon returning, he drove the car up and down the road in front of the store, \u201cspinning doughnuts.\u201d One of his friends testified that after defendant got out of the car, his eyes were red and he was staggering. Another friend testified that defendant\u2019s appearance and behavior were changed in that he was \u201cdrunker, wilder and out of control.\u201d His eyes were dilated, his face was red and he was sweating. His tongue was so tight he could hardly talk. He staggered and seemed dazed. Another witness described the defendant at this time as, \u201cpretty darn [sic] drunk.\u201d Defendant continued to drink beer in the parking lot.\nAt this point, some other young men drove up in a car. Defendant threw a beer bottle against a wall. When one of his friends criticized this act, he responded by hitting her once in the mouth, drawing blood. Defendant then asked the newly arrived men what they were looking at. The testimony of the witnesses varied as to what happened next, but defendant engaged in fights with either one or two of the men. One witness said defendant fought with a man in the car, trying to pull him out of the vehicle. Another witness said defendant chased and caught one of the men and was on the ground on top of the man, beating him. Another friend testified defendant had to be pulled off because he was too rough on the victim. According to uncontradicted testimony, as defendant\u2019s friends pulled defendant away, he tried to shake them off and struck one of them four times in the back. The friend did not respond or retaliate because he thought this would make defendant even more angry.\nRandall and Faye Cupp lived across the road from Royal\u2019s Package Store. Mr. Cupp was a correctional officer at the Alexander County Prison Unit, where defendant\u2019s brother had been incarcerated. Mr. Cupp had come home from work around 10:30 that evening and he and his wife had retired for the night. Two of defendant\u2019s friends rang the Cupps\u2019 doorbell around 11 p.m., while defendant was driving up and down in front of Royal\u2019s, and asked the Cupps not to call law enforcement officers. The Cupps looked out their window and saw defendant\u2019s car, but they took no action. About ten minutes later, the doorbell rang again. This time defendant\u2019s friends asked for help. They told the Cupps how defendant had struck one of them in the mouth and how he was fighting, so Cupp decided to go over to the store.\nRandall Cupp, wearing trousers and shoes, but no shirt, went to the parking lot. One witness testified defendant did not seem to recognize Cupp, and two other witnesses heard defendant say Cupp had a gun. Defendant went to the trunk of his car and opened it. He took out a jack, left the trunk lid open, and approached Mr. Cupp, who had bent down as if to tie his shoe. Two witnesses testified defendant said, \u201cYou guarded my brother, now see if you can guard me.\u201d Three witnesses said defendant struck the first blow, hitting Mr. Cupp with the jack. Although Mr. Cupp tried to ward off the blow and to hit defendant with a karate chop on the back of the neck, he was unsuccessful. Defendant quickly struck the victim again and continued to strike him as he lay upon the ground. When one of the bystanders screamed for him to stop, he stopped, walked toward her and began to cry.\nMedical evidence indicated the six blows to the head suffered by the victim rendered him unconscious \u201cimmediately\u201d and death followed a few minutes thereafter. The victim\u2019s brain injuries included bleeding into the subdural spaces and herniation or swelling. The swelling caused cardiac and respiratory arrest; pulmonary edema followed. Defendant\u2019s friend, Dean Long, testified that he and defendant together carried the victim across the road. Mr. Long performed cardiopulmonary resuscitation techniques on the victim and asked defendant to help. When defendant said he did not know how, Mr. Long showed him what to do.\nDeputy Thomas Eller of the Wilkes County Sheriffs Department answered a call placed by Mrs. Cupp and arrived while Mr. Long and the defendant were trying to revive the victim. Detective Chris Shew of the Wilkes County Sheriffs Department arrived about 12:15 a.m. Defendant knew Detective Shew, called him by name, and conversed with him. He told Detective Shew that he had been passing by and stopped to see if he could help. He offered to let Detective Shew search his car and, in Detective Shew\u2019s opinion, walked normally and talked clearly. Shew looked in the car and saw the jack on the floor behind the driver\u2019s seat. Later Deputy Eller took the jack from the car at Shew\u2019s instruction.\nDefendant offered no evidence.\nII.\nDefendant contends the trial judge incorrectly instructed the jury concerning defendant\u2019s voluntary intoxication. We agree:\nIn State v. Wilson, 280 N.C. 674, 187 S.E. 2d 22 (1972), this Court held the following instructions properly stated the law regarding a jury\u2019s consideration of evidence pertaining to a defendant\u2019s voluntary intoxication:\nThere is evidence in this case which tends to show that the defendant was intoxicated at the time of the acts alleged in this case. Generally, voluntary intoxication is not a legal excuse for crime. However, if you find that the defendant was intoxicated, you should consider whether this condition affected his ability to formulate the specific intent which is required for conviction of first degree murder.\nIn order for you to find the defendant., guilty of first degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual, specific intent to kill formed after premeditation and deliberation.\nIf as a result of intoxication the defendant did not have the specific intent to kill the deceased . . . formed after premeditation and deliberation, he is not guilty of first degree murder.\nTherefore, I charge you that if upon considering the evidence with respect to the defendant\u2019s intoxication you have a reasonable doubt as to whether the defendant formulated the specific intent required for a conviction of first degree murder, you will not return a verdict of first degree murder. You will then consider whether or not he would be guilty of second degree murder.\nId. at 681, 187 S.E. 2d at 26. This instruction was not only held to be proper in Wilson, but it is also the language recommended to our trial judges in North Carolina\u2019s Pattern Jury Instructions for Criminal Cases. See N.C.P.I. Crim. 305.11.\nDefendant requested this instruction at trial. The district attorney requested instructions that in effect negated the specific intent element only if defendant\u2019s intoxication was\nso great that his mind and reason were so completely overthrown as to render him utterly incapable to form a deliberate and premeditated purpose to kill. Mere intoxication cannot serve as an excuse for the defendant. It must be intoxication to the extent that the defendant\u2019s mental processes were so overcome by the excessive use of liquor or other intoxicants that he temporarily, at least, lost the capacity to think and plan.\nThe trial judge relied in large part upon defendant\u2019s requested instruction; but he also inserted the district attorney\u2019s request and instructed the jury as follows:\nThe defendant contends that he should be excused because he was drunk. You may find there is evidence which tends to show that the defendant was drunk or intoxicated at the time the acts alleged in this case. Generally voluntary intoxication is not a legal excuse for crime. The law does not permit a person who commits a crime in the state of intoxication to use his own vice or weakness as a shelter against the normal legal consequences of his conduct. However, if you find that the defendant was intoxicated, you should consider whether this condition affected his ability to formulate specific intent which is required for conviction of first degree murder. In order to find the defendant guilty of first degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice and in the execution of an actual specific intent to kill formed after premediation [sic] and deliberation. If, as a result of intoxication, the defendant did not have the specific intent to kill the deceased formed after premediation [sic] and deliberation, then he would not be guilty of first degree murder. However, the intoxication must he so great that his mind and reason were so completely overthrown so as to render him utterly incapable to form a deliberate and premediated [sic] purpose to kill Mere intoxication cannot serve as an excuse for the defendant. It must be intoxication to the extent that the defendant\u2019s mental processes were so overcome by the excessive use of liquor or other intoxicants that he had temporarily, at least, lost the capacity to think and plan. The law does not require any specific intent for the defendant to be guilty of the crimes of second degree murder or voluntary manslaughter. Thus, the defendant\u2019s intoxication can have no bearing upon your determination of his guilt or innocence of these crimes or lesser included offenses of the crime of first degree murder. Therefore, upon the charge of first degree murder, I charge you that upon considering the evidence with respect to the defendant\u2019s intoxication, you have a reasonable doubt as to whether the defendant formulated this specific intent required for conviction of first degree murder you would not return a verdict of guilty of first degree murder. (Emphasis supplied.)\nWhile most of these instructions are correct, the italicized portions place a substantially heavier burden on defendant than the law requires him to bear.\nOn the element of a deliberate and premeditated specific intent to kill in a first degree murder case defendant has no burden of persuasion at all; the burden of persuasion on the existence of this element remains throughout the trial on the state. The state must persuade the jury beyond a reasonable doubt that every essential element of a homicide exists. Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508 (1975); State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev\u2019d on other grounds, 432 U.S. 233, 53 L.Ed. 2d 306 (1977).\nA defendant who wishes to raise an issue for the jury as to whether he was so intoxicated by the voluntary consumption of alcohol that he did not form a deliberate and premeditated intent to kill has the burden of producing evidence, or relying on evidence produced by the state, of his intoxication. Evidence of mere intoxication, however, is not enough to meet defendant\u2019s burden of production. He must produce substantial evidence which would support a conclusion by the judge that he was so intoxicated that he could not form a deliberate and premeditated intent to kill.\nThe evidence must show that at the time of the killing the defendant\u2019s mind and reason were so completely intoxicated and overthrown as to render him utterly incapable of forming a deliberate and premeditated purpose to kill. State v. Shelton, 164 N.C. 513, 79 S.E. 883 (1913). In absence of some evidence of intoxication to such degree, the court is not required to charge the jury thereon. State v. McLaughlin, 286 N.C. 597, 213 S.E. 2d 238 (1975).\nState v. Strickland, 321 N.C. 31, 41, 361 S.E. 2d 882, 888 (1987) (quoting State v. Medley, 295 N.C. 75, 79, 243 S.E. 2d 374, 377 (1978)).\nOnce evidence of this quality has been produced in the trial, the jury must be instructed on the issue of defendant\u2019s deliberate and premeditated intent in light of this evidence. The burden of persuading the jury on this issue resting always with the state, the state must satisfy the jury beyond a reasonable doubt that, despite evidence of defendant\u2019s intoxication, defendant did form a deliberate and premeditated intent to kill. For the jury, evidence of defendant\u2019s intoxication need only raise a reason\u00e1ble doubt as to whether defendant formed the requisite intent to kill required for conviction of first degree murder in order for defendant to prevail on this issue. State v. Wilson, 280 N.C. 674, 187 S.E. 2d 22; N.C.P.I. Crim. 305.11.\nThe vice in the instructions complained of is twofold: First, the instructions impose on the jury the standard applicable to defendant\u2019s burden of production at trial, a burden defendant must meet before being entitled to voluntary intoxication instructions at all. While meeting such a standard is a prerequisite to defendant\u2019s entitlement to voluntary intoxication instructions, the standard is inapplicable to the jury\u2019s consideration of the intoxication evidence. The jury must decide, in light of the intoxication evidence as well as other evidence in the case, whether there is a reasonable doubt that defendant formed a deliberate and premeditated intent to kill, not whether his intoxication was \u201cso great ... as to render him utterly incapable\u201d of forming such an intent. In other words, to find for defendant on the intoxication issue, the jury does not have to conclude that his intoxication rendered defendant \u201cutterly incapable\u201d of forming the necessary intent; it need only conclude that because of his intoxication either defendant did not form the requisite intent or there is at least a reasonable doubt about it.\nSecond, the manner in which this complained of language was inserted into the instructions could have led a rational jury to believe that defendant bore the burden of persuading the jury that he was so intoxicated as to be unable to form a deliberate and premeditated intent to kill. So understood, the instructions would impermissibly and unconstitutionally shift the burden of persuasion on essential elements of the crime of first degree murder from the state to the defendant. Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed. 2d 508; State v. Hankerson, 228 N.C. 632, 220 S.E. 2d 525.\nIII.\nThe state argues that any error in the instruction on voluntary intoxication was harmless because the evidence is insufficient to require such an instruction. The trial court, the state says, erred in favor of defendant in giving such an instruction at all.\nIn certain instances voluntary drunkenness, while not an excuse for a criminal act, may be sufficient to negate the requisite intent element. State v. Propst, 274 N.C. 62, 161 S.E. 2d 560 (1968). However, \u201c[n]o inference of the absence of deliberation and premeditation arises from intoxication, as a matter of law.\u201d State v. Murphy, 157 N.C. 614, 619, 72 S.E. 1075, 1077 (1911). \u201c[A] person may be excited, intoxicated and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention to commit murder in the first degree.\u201d State v. Hamby, 276 N.C. 674, 678, 174 S.E. 2d 385, 387 (1970) (quoting State v. Thompson, 110 Utah 113, 123, 170 P. 2d 153, 158 (1946)). Even though a person\u2019s blood alcohol content is such that driving would violate the motor vehicle laws, this alone does not entitle the person to an instruction on voluntary intoxication. State v. Medley, 295 N.C. 75, 243 S.E. 2d 374 (1978). As we have already noted, in order for an instruction on voluntary intoxication to be required the evidence must be that defendant\u2019s intoxication rendered him \u201cutterly incapable\u201d of forming a deliberate and premeditated intent to kill. State v. Strickland, 321 N.C. at 41, 361 S.E. 2d at 888.\nWhen determining whether the evidence is sufficient to entitle a defendant to jury instructions on a defense or mitigating factor, courts must consider the evidence in the light most favorable to defendant. State v. McCray, 312 N.C. 519, 324 S.E. 2d 606 (1985); State v. Montague, 298 N.C. 752, 259 S.E. 2d 899 (1979); State v. Spaulding, 298 N.C. 149, 257 S.E. 2d 391 (1979); State v. Watkins, 283 N.C. 504, 196 S.E. 2d 750 (1973); State v. Finch, 177 N.C. 599, 99 S.E. 409 (1919); State v. Ataei-Kachuei, 68 N.C. App. 209, 314 S.E. 2d 751 (1984).\nWhile there is some evidence to the contrary, when viewed in the light most favorable to defendant, the evidence of defendant\u2019s state of intoxication is enough to require the voluntary intoxication instruction. Defendant had been seen drinking periodically from around 4 p.m. until 11 p.m. on the day of the murder. During that afternoon defendant appeared \u201chigh\u201d while drinking more beer with another friend, and by early evening he was drinking a mixture of 190 proof grain alcohol and punch. Witnesses described defendant as \u201cdefinitely drunk\u201d and \u201cpretty high\u201d by 9:30 p.m. He swerved while driving his automobile to obtain more beer. After stopping at a package store parking lot to meet some friends, defendant left by himself for thirty or forty minutes. Upon returning, he appeared \u201cchanged all the way around\u201d and \u201cdrunker, wilder and out of control.\u201d Defendant\u2019s eyes were dilated, his complexion had changed, he was sweating and had difficulty speaking or walking. Unprovoked, he inexplicably and viciously assaulted a girlfriend and several strangers. The fatal assault on Cupp was likewise unprovoked and, except for defendant\u2019s reference to Cupp\u2019s having guarded defendant\u2019s brother, inexplicable. The manner of the assault on Cupp and defendant\u2019s actions immediately before and after it were, themselves, equivocal on the question of whether defendant actually deliberated and premeditated his intent to kill Cupp. Certainly a jury could have found that he did. A jury could also have concluded, under proper instructions, that defendant was so impaired by alcohol that he formed no such intent but was simply thrashing wildly at anyone he perceived as a threat.\nWe note the district attorney, counsel for defendant, and the trial judge, who heard the evidence, all seemed to view it as sufficient to require the voluntary intoxication instruction. We agree with their assessment.\nIV.\nThe remaining question is whether the error in the instruction requires a new trial. The standards are found at N.C.G.S. \u00a7 15A-1443:\n(a) A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.\n(b) A violation of the defendant\u2019s rights under the Constitution of the United States is prejudicial unless the appellate court finds that it was harmless beyond a reasonable doubt. The burden is upon the State to demonstrate, beyond a reasonable doubt, that the error was harmless.\nAlthough there is little question that defendant committed a homicide, the case is relatively close on the degree of his culpability. The closeness is due to both the substantial evidence of defendant\u2019s intoxication at the time he committed the crime and, as we have noted, the manner of the fatal assault and defendant\u2019s actions immediately before and after it. The central issue for the jury in light of the evidence adduced was whether defendant should be found guilty of first or second degree murder; and this issue hinged largely on how the jury would consider the evidence of defendant\u2019s intoxication. For these reasons, insofar as the error committed is not one of constitutional dimension, defendant has met his burden of satisfying us that had the error in the instructions on intoxication not been made, there is a reasonable possibility that a different result would have obtained at trial. Insofar as the error is one of constitutional dimension, the state has not satisfied us beyond a reasonable doubt that the error was harmless.\nAccordingly, defendant must be given a\nNew trial.", "type": "majority", "author": "EXUM, Chief Justice." } ], "attorneys": [ "Lacy H. Thornburg, Attorney General, by Joan H. Byers, Special Deputy Attorney General, and John H. Watters, Assistant Attorney General, for the state.", "Malcolm Ray Hunter, Jr., Appellate Defender, by Louis D. Bilionis, Assistant Appellate Defender, for defendant appellant.", "Smith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Norman B. Smith, for North Carolina Civil Liberties Union Legal Foundation, Inc., amicus curiae." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. DAVID JAMES MASH\nNo. 728A86\n(Filed 6 October 1988)\n1. Homicide \u00a7 8.1\u2014 first degree murder \u2014 defense of intoxication \u2014 erroneous instruction\nThe trial court erred in a first degree murder prosecution in its instructions on defendant\u2019s voluntary intoxication because the instructions imposed on the jury the standard applicable to defendant\u2019s burden of production at trial rather than the standard applicable to the jury\u2019s consideration of the intoxication evidence, and the manner in which the language was inserted into the instructions could have led a rational jury to believe that defendant bore the burden of persuading the jury that he was so intoxicated as to be unable to form a deliberate and premeditated intent to kill.\n2. Homicide \u00a7 8.1\u2014 first degree murder \u2014 defense of intoxication \u2014 sufficiency of evidence\nThe evidence in a first degree murder prosecution was sufficient to support an instruction on voluntary intoxication where defendant had been seen drinking periodically from around 4:00 p.m. until 11:00 p.m. on the date of the murder; during the afternoon defendant appeared \u201chigh\u201d while drinking more beer with another friend; by early evening he was drinking a mixture of .190 proof grain alcohol and punch; witnesses described defendant as \u201cdefinitely drunk\u201d and \u201cpretty high\u201d by 9:30 p.m.; defendant swerved while driving his automobile to obtain more beer; after stopping at a package store parking lot to meet some friends, defendant left by himself for thirty or forty minutes and, upon returning, he appeared \u201cchanged all the way around\u201d and \u201cdrunker, wilder and out of control\u201d; defendant\u2019s eyes were dilated, his complexion had changed, he was sweating and had difficulty speaking or walking; unprovoked, he had inexplicably and viciously assaulted a girlfriend and several strangers; the fatal assault was likewise unprovoked and, except for defendant\u2019s reference to the victim\u2019s having guarded defendant\u2019s brother, inexplicable; and the manner of the assault and defendant\u2019s actions immediately before and after were themselves equivocal on the question of whether the defendant actually deliberated and premeditated. Moreover, the district attorney, counsel for defendant and the trial judge all seemed to view the evidence as sufficient to require the voluntary intoxication instruction.\n3. Homicide \u00a7 32.1\u2014 first degree murder \u2014 defense of intoxication \u2014 erroneous instruction \u2014prejudicial\nThe trial court\u2019s error in its instruction on voluntary intoxication in a first degree murder trial was prejudicial where, although there was little question that defendant had committed a homicide, the case was relatively close on the degree of culpability and the issue of whether defendant should be found guilty of first or second degree murder hinged largely on how the jury would consider the evidence of defendant\u2019s intoxication. N.C.6.S. \u00a7 15A-1443.\nAPPEAL pursuant to N.C.G.S. \u00a7 7A-27(a) from a judgment imposing the death sentence entered at the 17 November 1986 Criminal Session of Superior Court, WILKES County, Washington, J., presiding. By order dated 19 December 1986 this Court stayed execution pending defendant\u2019s appeal. Heard in the Supreme Court on 10 May 1988.\nLacy H. Thornburg, Attorney General, by Joan H. Byers, Special Deputy Attorney General, and John H. Watters, Assistant Attorney General, for the state.\nMalcolm Ray Hunter, Jr., Appellate Defender, by Louis D. Bilionis, Assistant Appellate Defender, for defendant appellant.\nSmith, Patterson, Foll\u00edn, Curtis, James & Harkavy, by Norman B. Smith, for North Carolina Civil Liberties Union Legal Foundation, Inc., amicus curiae." }, "file_name": "0339-01", "first_page_order": 371, "last_page_order": 382 }