An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                                NO. COA14-49
                       NORTH CAROLINA COURT OF APPEALS

                                Filed: 1 July 2014


STATE OF NORTH CAROLINA,
     Plaintiff,

      v.                                      Wake County
                                              No. 11 CRS 211595
WILLIAM DAMIEON EDWARDS,
     Defendant.


      Appeal by William Damieon Edwards from judgment entered 21

May   2013    by   Judge   Michael     J.   O’Foghludgha      in    Wake   County

Superior Court.      Heard in the Court of Appeals 6 May 2014.


      Attorney General Roy Cooper, by Assistant Solicitor General
      Gary R. Govert, for the State.

      PARISH & COOKE, by James R. Parish, for defendant.


      ELMORE, Judge.

      This case arises out of the shooting death of Jay Waheed

Ammeri (Mr. Ammeri) on 19 May 2011 at the New York Style Pizza

restaurant in Raleigh.         William Damieon Edwards (defendant) was

charged with first degree murder and possession of a firearm by

a felon in connection with this shooting death and was tried

before a jury.      The jury found defendant guilty of first degree

murder.      Defendant pled guilty to the firearm offense, and the
                                   -2-
trial   court   sentenced   defendant    to   life   imprisonment    without

parole plus 14-17 months on the firearms charge, to be served at

the expiration of the life sentence.          After thorough review, we

find that defendant received a fair trial, free from error.

                                 I. Background

    The facts of this case are largely undisputed.             Evidence at

trial tended to show, in relevant part, that at approximately

8:03 p.m. on 19 May 2011 defendant shot and killed Mr. Ammeri.

Defendant’s wife, Teresa Edwards (Mrs. Edwards), testified to

having had a year-long extramarital affair with Mr. Ammeri, who

was also married.     In the summer of 2010, defendant learned of

his wife’s affair.     Waheeda Ammeri (Mrs. Ammeri), Mr. Ammeri’s

wife,   testified   that    sometime   between   July   and   September   of

2010, defendant and his friend, William Nelson (Mr. Nelson),

confronted her at the Ammeri residence.              Defendant asked Mrs.

Ammeri, “[d]o you know if your husband is cheating on you?”               Mr.

Nelson testified that defendant “proce[ed] to tell [Mrs. Ammeri]

that his wife and her husband was having an affair.”                The then

seven-months pregnant Mrs. Ammeri responded that Mr. Ammeri was

“absolutely not” having an affair because “[h]e’s not that type

of person.”     That same afternoon, Mr. Nelson drove defendant to

Mr. Ammeri’s    car lot     because defendant wanted Mr. Nelson to
                                          -3-
“beat [Mr. Ammeri’s] tail.” Mr. Nelson testified that he did not

physically assault Mr. Ammeri at that time, but he told Mr.

Ammeri      to    “leave    [Mrs.    Edwards]    alone,     to   go    on    about   his

business, she [is]n’t worth it, you know, to just let her go.”

       Mrs. Edwards testified that she ended the affair with Mr.

Ammeri after she learned defendant confronted Mrs. Ammeri at the

Ammeri residence.              Prior to that incident, Mrs. Edwards alleged

that she was unaware that Mr. Ammeri was married.                              Although

defendant learned of his wife’s affair in the summer of 2010, it

was not until January 2011 that Mrs. Edwards herself admitted to

defendant that she had had sex with Mr. Ammeri.                          In response,

defendant,        who    was    intoxicated,    choked     his   wife,      pushed   her

down, and broke the humerus bone in her arm.                       Mrs. Edwards was

prescribed hydrocodone pills for pain associated with the broken

arm.     Mrs. Edwards forgave defendant and testified that their

marriage was “great” in the following months.

       On    19    May     2011,    defendant    took    two     of   Mrs.     Edward’s

hydrocodone pills before going to the VA hospital for a follow-

up doctor’s appointment.              During his appointment, defendant was

diagnosed        with    sarcoidosis,    a     condition    that      causes    chronic

inflammation of certain organs.                 Mr. Nelson testified that he

spoke with defendant at 5:10 p.m. that afternoon and defendant
                                             -4-
was not intoxicated.             Defendant’s bank records indicate that at

5:14   p.m.    he    purchased        Colt    45    beer,    an    alcoholic   beverage

containing twelve percent alcohol.                       At 7:32 p.m., Mr. Nelson

testified that he received a second call from defendant, who now

sounded    highly     intoxicated        and       was   “babbling.”        During    that

call, defendant told Mr. Nelson that he was “going to go in

there and take care of it.”                  At 7:53 p.m., the men spoke again

for nine minutes.            Defendant then entered the back door of the

pizza shop with a pistol in hand and, after conversing briefly

with Mr. Ammeri, shot him in the heart.                     At 8:06 p.m., defendant

called Mr. Nelson, said “it’s done,” and hung up.

       Defense witness, forensic psychiatrist Dr. George Patrick

Corvin,    testified        that   defendant’s           cognitive    functioning     and

impulse    control        were   greatly      impaired      when     he   committed   the

murder     due       to     defendant’s        consumption          of    alcohol     and

hydrocodone, the problems in his marriage, and the stress over

his recent diagnosis.

Dr. Corvin opined that defendant was operating in a state of

alcoholic “blackout” when he shot Mr. Ammeri.                         A “blackout” can

occur when one’s blood alcohol level rises fast enough that the

temporal      lobe        circuitry     becomes          dysfunctional.        Forensic

psychiatrist Dr. Mark Hazelrigg interviewed defendant after the
                                          -5-
shooting      and    testified    for    the     State.      In    Dr.       Hazelrigg’s

opinion, defendant had the cognitive capacity to form a specific

intent     to   kill     Mr.    Ammeri    because        defendant      1)    willingly

purchased and consumed Colt 45, 2) drove to Mr. Ammeri’s place

of business, 3) called Mr. Nelson and stated that he’s “going to

take   care     of   it,”   and   4)     informed      Mr.   Nelson      “it’s    done.”

During closing arguments, defense counsel argued that defendant

committed an “impulsive killing” and therefore requested that

the    jury     find    defendant       guilty    of      second    degree       murder.

However, the jury returned a guilty verdict for first degree

murder, which defendant now appeals.

                                        II. Analysis

       Defendant       argues   the    trial     court    erred    by    denying     his

request to give his proposed jury instructions on first degree

murder.    We disagree.

       Defendant preserved this argument for appellate review when

he objected to the trial court’s decision to deny his request

for the supplemental instructions and instead used the pattern

jury instructions.          See N.C.P.I.—Crim. 206.13.             On appeal of the

trial court’s refusal to use proposed jury instructions,

              [t]he party asserting error bears the burden
              of showing that the jury was misled or that
              the   verdict   was    affected   by   [the]
              instruction . . . . [I]t is not enough for
                                       -6-
             the appealing party to show that error
             occurred in the jury instructions; rather,
             it must be demonstrated that such error was
             likely, in light of the entire charge, to
             mislead the jury.


State v. Blizzard, 169 N.C. App. 285, 297, 610 S.E.2d 245, 253

(2005)   (citation        and   quotation    omitted).      If     a   defendant

requests instructions that are “correct in law and supported by

the evidence, the court must give the instruction in substance,”

not   verbatim.      State v. Ball, 324 N.C. 233, 238, 377 S.E.2d 70,

73 (1989). “‘[W]hether the trial court instructs using the exact

language requested by counsel is a matter within its discretion

and   will   not     be   overturned   absent      a   showing   of    abuse   of

discretion.’”        State v. Lewis, 346 N.C. 141, 145, 484 S.E.2d

379, 381 (1997) (quoting State v. Herring, 322 N.C. 733, 742,

370 S.E.2d 363, 369 (1988)).

      Defendant      requested     that      the   trial   court       supplement

portions of the pattern jury instructions to instruct the jury

on factors that could show a lack of intent, premeditation, and

deliberation, including the mental condition of the defendant,

as follows:

             Premeditation involves the idea of prior
             consideration.  State v. Exum, 138 N.C. 599
             (1905).

             . . .
                      -7-


[D]efendant acted with deliberation, which
means that he weighed the consequences of
his actions and acted while in a cool state
of mind or with a fixed purpose, and not as
a result of a sudden impulse without the
exercise of reasoning powers.       See State v.
Hunt,     330     N.C.    425,     429    (1991).
Deliberation      indicates     reflection,     a
weighing of consequences of the act in more
or less calmness.      State v. Exum, 138 N.C.
599    (1905).    Deliberation    refers   to   a
steadfast resolve and deep-rooted purpose,
or    a    design    formed    after    carefully
considering the consequences.          State v.
Thomas, 118 N.C. 1113 (1896).

. . .

Likewise,     the    absence     of   either
premeditation    or   deliberation  may   be
inferred from circumstances, such as the
mental   or   emotional   condition of   the
defendant at the time of the killing.    The
true test is not the duration of time as
much as it is the extent of the reflection.
State v. Buchanan, 287 N.C. 408,215 S.E.2d
80 (1975)). [sic]

. . .

[T]he intent to kill must arise from a fixed
determination   previously    formed   after
weighing the matter.   (State v. Myers, 309
N.C. 78, 305 S.E.2d 506, 509 (1983)).    The
true test of deliberation, is the extent of
the reflection upon the matter as opposed to
the duration of the time of the reflection.
State v. Buchanan, 287 N.C. 408, 418, 215
S.E.2d 80 (1975)). [sic]    In common terms,
to premeditate a killing the killer must ask
himself, “Shall I kill him?”. [sic]      The
intent to kill aspect is found if the killer
answers, “Yes, I shall.”    The deliberation
                                          -8-
            part of the crime requires a thought like,
            “Wait, what about the consequences?[] Well,
            I’ll do it anyway.”


      The   trial     court        declined     to   give        defendant’s     jury

instructions and instead instructed the jury utilizing the North

Carolina    pattern   jury    instructions.          As     to    the   element    of

intent, the trial court instructed the jury as follows:


            Third, that the defendant intended to kill
            the victim.    Intent is a mental attitude
            seldom provable by direct evidence. It must
            ordinarily be proved by circumstances from
            which it may be inferred.    Intent to kill
            may be inferred from the nature of the
            assault, the manner in which it was made,
            the conduct of the parties, and other
            relevant circumstances.

Defendant proposed adding:            “Likewise, the absence of intent to

kill may also be inferred from relevant circumstances, such as

the   mental   condition      of    the    defendant   at    the     time   of    the

assault.”

      As to the elements of premeditation and deliberation, the

trial court instructed:

            Fourth,   that  the  defendant acted  with
            premeditation, that is, that the defendant
            formed the intent to kill the victim over
            some period of time, however short, before
            the defendant acted.

            And fifth, that the defendant acted with
            deliberation, which means that the defendant
                                          -9-
               acted while the defendant was in a cool
               state of mind.     This does not mean that
               there had to be a total absence of passion
               or emotion.     If the intent to kill was
               formed with a fixed purpose, not under the
               influence of some suddenly aroused, violent
               passion, it is immaterial that the defendant
               was in a state of passion or excited when
               the intent was carried into effect.



       Initially, we note that defendant does not contend that the

instructions        provided      by   the      trial        court     were    incorrect.

Instead,       he    suggests      that     the     pattern          instructions      were

inadequate because they failed to communicate that “defendant’s

abilities      to    specifically      intend       to       kill,    premeditate,      and

deliberate      were     significantly       impaired.”              Also,    defendant’s

brief    fails      to   cite    any   case     demonstrating          that    the    trial

court’s instructions, without defendant’s requested additions,

were in error.           Further, defendant does not allege in his brief

that any error by the trial court misled the jury.                                 Blizzard,

supra.

       After    reviewing       defendant’s       instructions,         it    is    evident

that     he    sought     to    emphasize     that       the      absence     of    intent,

premeditation        and       deliberation       may        be   inferred     from     the

circumstances, likely to advance the theory that he was guilty

of   only     second     degree    murder     due       to    his    mental    state    and
                                       -10-
intoxication.         Our    Courts   have       held    that    the   portions      of

defendant’s requested instructions constituted restatements of

the same directives as included in the pattern instructions and

are therefore unnecessary.            See, e.g., State v. Wallace, 351

N.C. 481, 525, 528 S.E.2d 326, 353, cert. denied, 531 U.S. 1018,

121 S. Ct. 581, 148 L. Ed. 2d 498 (2000) (finding no error in

the   trial      court’s     rejection      of    very    similar      instructions

proposed by the defendant because the “[d]efendant’s proposed

instructions        merely      articulate[d]            variations          on     the

definition.”)       A review of the pattern instructions shows they

provide    an    accurate    definition     of    intent,       premeditation,       and

deliberation.          “Defendant’s         proposed          instructions        merely

articulate variations on [these] definition[s].”                   Id.

      In addition, defendant failed to recognize that the trial

court also instructed the jury on diminished mental capacity,

stating: “if you find that the defendant was intoxicated or was

drugged or lacked mental capacity, you should consider whether

this condition affected the defendant’s ability to formulate the

specific intent which is required for conviction of first-degree

murder.”        Accordingly, the jury was adequately instructed that

defendant’s       mental     state    and     level      of     intoxication        were

relevant.       We find no merit in defendant’s argument that it was
                                  -11-
error for the trial court to instruct using the pattern jury

instructions    because   the   instructions   “did   not   address   the

defense evidence” that “defendant’s abilities to specifically

intend to kill, premeditate, and deliberate were significantly

impaired.”     Because the trial court’s instructions substantively

stated that which defendant requested, we overrule defendant’s

argument.

    No error.

    Judges McGEE and HUNTER, Robert C., concur.

    Report per Rule 30(e).
