STATE OF NORTH CAROLINA v. DAN LEMAR BLUE, 115 N.C. App. 108

WELLS, Judge. Pursuant to one of his assignments of error, defendant contends that the trial court erred in submitting to the jury second degree murder as a possible verdict because there was no evidence to support such a charge. After the jury verdicts were returned, in the beginning stages of the charge conference, the trial judge stated that on the murder indictment, he would submit verdicts of guilty of first degree murder, or guilty of second degree murder, or not guilty. Defendant did not object then or at any time during the court’s very thorough charge conference, or at any time before the jury retired.

Rule 10(b)(2) of our Rules of Appellate Procedure provides: A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly that to which he objects and the grounds of his objection; provided, that opportunity was given to the party to make the objection out of the hearing of the jury, and, on request of any party, out of the presence of the jury. Thus, the standard of review we must employ is the “plain error” rule adopted by our Supreme Court in State v. Odom, 307 N.C. 655, 300 S.E.2d 375 (1983).

As the Court stated in Odom, the adoption of the “plain error” rule does not mean that an improper instruction will mandate reversal regardless of a defendant’s failure to object at trial, because to so hold would negate Rule 10(b)(2). Even when the “plain error” rule is applied, an improper instruction will rarely justify reversal of a criminal conviction when no objection was made in the trial court. Id. In this case, we accept for the purpose of our ruling defendant’s contention that the evidence clearly established all the elements of first degree murder: malice, premeditation, and deliberation.

Had defendant objected at trial to submitting the second degree verdict to the jury, we would be required to reverse his conviction. State v. Arnold, 329 N.C. 128, 404 S.E.2d 822 (1991). But to allow a defendant who does not so object to then use his choice at trial to gain reversal on appeal would afford a criminal defendant the right to appellate review, predicated on invited error. We refuse to recognize such a right. To do so would defy common sense and establish bad law.

Accordingly, we hold that this defendant may not assign error in this appeal to the trial court’s submitting the second degree verdict to the jury. In his second, third, and fourth assignments of error, defendant challenges the sufficiency of the evidence to support his conviction of (1) attempted armed robbery, (2) conspiracy to commit robbery with a dangerous weapon, and (3) assault with a deadly weapon with intent to kill inflicting serious injury.

Our review of the State’s evidence, giving the State the benefit of all reasonable inferences to be drawn therefrom, persuades us that the evidence was more than sufficient to submit these charges to the jury. The evidence relating to the gun used in the killing, and the telling evidence of defendant’s conduct in the pawn shop before and after the shooting deflate defendant’s arguments on these assignments, and they are overruled.

We have considered defendant’s argument that the trial court erred in instructing the jury on acting in concert, find it to be without sufficient merit to require discussion, and overrule it. For the reasons stated, we find no error in the trial. There is one other aspect of defendant’s appeal which merits our discussion. At trial, after judgments were pronounced at the jury’s verdicts, there ensued a discussion between the defendant, defendant’s trial counsel, and the trial judge as to whether defendant chose to appeal his convictions.

This discussion culminated in defendant’s informing the trial judge that he chose not to appeal. As the record reveals, the judgments were entered and signed on 26 May 1992. In his brief, defendant states that he gave notice of appeal on 4 June 1992. The record on appeal includes appellate entries dated 4 June 1992, signed by the Honorable Coy E. Brewer, Jr., but contained no written notices of appeal as required by Rule 4 of the Rules of Appellate Procedure.

Upon inquiry, we have determined that there are no written notices of appeal on file in the Office of the Clerk of Superi- or Court of Cumberland County, but only an entry in the Clerk’s minutes of the proceedings at the 4 June 1992 session that defendant gave notice of appeal. Thus, defendant did not preserve his right to appeal his convictions; therefore, his appeal is not before us as a matter of right.

Because defendant’s purported appeal of his conviction of second degree murder presented a question of importance to the criminal jurisprudence of this State, we have determined that it is not in the public interest to dismiss defendant’s appeal. See Rule 2 of the Rules of Appellate Procedure. No error. Judges JOHNSON and JOHN concur.