869 S.E.2d 339
N.C. Ct. App.2022Background
- Defendant Mark Brichikov and victim Nadia Brichikov met at a motel after recent drug use; victim had a recent overdose and underlying heart disease and fentanyl in her system.
- Police found the victim dead from blunt‑force facial trauma; motel video showed Defendant exiting while the victim was on the floor and moving.
- Medical examiners agreed the death was a homicide with contributing causes: the assault, coronary artery disease, and fentanyl; experts disputed whether the assault alone caused death.
- Defendant (outside the jury) admitted assaulting the victim; defense counsel nonetheless requested jury instructions for voluntary and involuntary manslaughter (including a culpable‑omission theory). The trial court refused the manslaughter instructions and instructed on first‑ and second‑degree murder.
- A jury convicted Defendant of second‑degree murder; on appeal the Court of Appeals held that, viewing the evidence in the light most favorable to Defendant, the trial court erred by refusing the pattern involuntary manslaughter instruction and that the error was prejudicial, requiring a new trial.
Issues
| Issue | State's Argument | Brichikov's Argument | Held |
|---|---|---|---|
| Whether Defendant preserved his request/objection to the involuntary manslaughter instruction | Defendant’s culpable‑omission theory was a special instruction not submitted in writing and thus not preserved | Defendant orally requested the pattern involuntary manslaughter instruction and properly objected at charge conference and after charge | Preserved as to the pattern involuntary manslaughter instruction; the written‑special‑instruction requirement rendered the separate culpable‑omission submission unpreserved |
| Whether the evidence, viewed in Defendant’s favor, entitled him to an involuntary manslaughter instruction (i.e., whether malice was conclusively shown) | Use of hands in assault permits a permissive inference of malice; State argues malice established and no lesser instruction warranted | Evidence of overdose, heart disease, fentanyl, expert testimony, and other facts could negate malice and support criminal negligence | Viewing the evidence in the light most favorable to Defendant, the evidence did not positively establish malice and supported an involuntary manslaughter instruction for culpable negligence |
| Whether failure to instruct was prejudicial | Jury convicted of second‑degree murder and found aggravating facts; verdict shows malice and no reasonable possibility of different result | There was a reasonable possibility the jury would have convicted of involuntary manslaughter if instructed | Error was prejudicial: reasonable possibility of a different result; new trial ordered |
| Whether Defendant’s culpable‑omission theory independently required an instruction | State: unpreserved and not argued in detail | Defendant: omission to render aid while aware of overdose supports involuntary manslaughter | Court deemed omission theory moot after finding pattern involuntary manslaughter instruction required; did not decide the unpreserved omission theory on the merits |
Key Cases Cited
- State v. Debiase, 211 N.C. App. 497 (2011) (holding a defendant may be entitled to an involuntary manslaughter instruction where evidence viewed for the defendant permits finding of reckless use of a deadly weapon without malice)
- State v. McNeill, 346 N.C. 233 (1997) (special jury instructions that deviate from pattern must be submitted in writing to preserve error)
- State v. Holder, 331 N.C. 462 (1992) (permissive inference of malice from intentional use of a deadly weapon is not an irrebuttable presumption)
- State v. Smith, 351 N.C. 251 (2000) (malice may be implied for certain inherently dangerous means such as poison; distinguished here)
- State v. Wilkerson, 295 N.C. 559 (1978) (involuntary manslaughter requires some intentional act in the chain of causation though killing is unintentional)
- State v. Powell, 336 N.C. 762 (1994) (involuntary manslaughter may be caused by a culpably negligent act or omission)
- State v. Reynolds, 160 N.C. App. 579 (2003) (failure to give a requested correct instruction supported by the evidence is reversible error)