State v. Deans

WELLS, Judge. Defendant’s single assignment of error is that the trial court erred in denying his motion to dismiss the charge of second degree murder at the close of all evidence. He argues that the evidence established, as a matter of law, perfect self-defense. We disagree and find no error. The standards of appellate review for a denial of a motion to dismiss are well established. They are: [W]hether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense. If substantial evidence of both of the above has been presented at trial, the motion is properly denied. . . . [T]he evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable in-tendment and every reasonable inference to be drawn therefrom. . . . Contradictions and discrepancies in the evidence are strictly for the jury to decide. . . . State v. Lowery, 309 N.C. 763, 309 S.E. 2d 232 (1983) (citations omitted). Our supreme court has consistently held that “the court must consider the defendant’s evidence which explains or clarifies that offered by the State. . . . The court must also consider the defendant’s evidence which rebuts the inference of guilt when it is not inconsistent with the State’s evidence. .' . .” State v. Bates, 309 N.C. 528, 308 S.E. 2d 258 (1983) (citations omitted). Applying these principles to this case, we find substantial evidence of each essential element of second degree murder. Murder in the second degree is defined as “the unlawful killing of a human being with malice but without premeditation and deliberation.” State v. Wilkerson, 295 N.C. 559, 247 S.E. 2d 905 (1978) [232] (quoting State v. Wrenn, 279 N.C. 676, 185 S.E. 2d 129 (1971) (citations omitted)). While defendant has raised the issue of perfect self-defense only, we have carefully considered the closer question of whether or not the trial court should have instructed the jury only on voluntary manslaughter based on imperfect self-defense. Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Wilkerson, supra. When an individual intentionally takes the life of another with a deadly weapon, two presumptions arise: (1) unlawfulness and (2) malice. State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, 459 U.S. 1056 (1982). See State v. Kirkley, 308 N.C. 196, 302 S.E. 2d 144 (1983). If, as in this case, “there is evidence ... of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence.” State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev’d on other grounds, 432 U.S. 233 (1977). In sum, the State maintained the burden of producing evidence that defendant killed Hales under circumstances not amounting to perfect or imperfect self-defense. In the light most favorable to the State, evidence was produced that after Hales threw a coffeepot into defendant’s windshield defendant assaulted Hales with a gun. Lonnie Sloan’s testimony, albeit contradictory to that of defendant and especially that of Franklin, permits the finding that Hales was unarmed and the inference that defendant forced Hales into the trailer office at gunpoint. Uncontradicted testimony established that inside the trailer, Hales was using the telephone while defendant watched, and the inference that he was calling the Garner Police Department as demanded by defendant. Circumstantial physical evidence established that Hales, at some point, obtained a gun. Defendant’s testimony that Hales had a gun in his left hand while using the telephone explains its presence and must be considered. Franklin’s testimony that Hales picked up a hammer when she came to the door and started to come from behind the counter, confirmed by the physical evidence, must also be considered. Defendant’s version of the altercation is that Hales attacked him with the hammer, defendant attempted to flee, and defendant was forced to shoot Hales from inside the trailer to defend him [233] self. Physical evidence found at the scene clearly contradicts defendant’s version of the shooting. The shell casing from defendant’s gun was found outside the trailer. Isley’s expert opinion was that the fatal shot came from outside the trailer door. Hales’ vest had no powder burns on it. Scientific testing of defendant’s gun permits the inference that the gun’s muzzle was five feet or more from Hales’ body when the fatal shot was fired. This inference contradicts defendant’s testimony that he shot Hales while the latter was beating him with the hammer to “get [Hales] off of me. I was on my hands and knees and trying to get off the floor, and he was trying to beat me back onto the floor again. That is when I pulled the trigger.” Furthermore, Hales’ physical condition indicates that defendant had struck him prior to the fatal shot. The record before us is devoid of any testimony by defendant of a fight between the two men. Yet, Dr. Scarboro found scratches on the deceased’s left ear; contusion, scratches, and a cut on the lip; two apparent bruises on the forehead; and abasions over the knuckles of the right hand. The fourth finding is consistent with defendant’s testimony, but the first three findings are inconsistent with defendant’s testimony and permit the logical inference that prior to the shooting defendant struck Hales. Considered in the light most favorable to the State and after considering defendant’s evidence consistent with that of the State, we hold that there was evidence leading to a reasonable conclusion that defendant held Hales at gunpoint outside the trailer, forced the victim into the trailer at gunpoint, and that Hales was shot while defending himself from an attack by defendant. These facts establish substantial evidence of every element of second degree murder. Accepting defendant’s version that Hales initiated the circumstances leading to his death when he deliberately threw a coffeepot into defendant’s windshield, and recognizing that the law in this state permits one to defend his property with reasonable force, nevertheless, absent use of felonious force by the aggressor, an individual may not endanger life or inflict serious bodily harm. State v. McCombs, 297 N.C. 151, 253 S.E. 2d 906 (1979). Defendant argues that the evidence, as a matter of law, constituted perfect self-defense. Perfect self-defense requires that: [234] (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 (2) defendant’s 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 (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 (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. . . . State v. Norris, 303 N.C. 526, 279 S.E. 2d 570 (1981). Taking defendant’s version of the incidents as true, he was not entitled to claim this absolute defense. He testified that Hales, after demanding that defendant leave the premises, returned to the office. Defendant intentionally followed Hales into the trailer with a gun knowing the volatile circumstances. Under these facts defendant “aggressively and willingly entered into the fight.” Id. Defendant was entitled to, and the trial court instructed the jury on, imperfect self-defense which reduces criminal responsibility to voluntary manslaughter. Imperfect self-defense arises where the first two elements of perfect-defense have been met, but either three or four has not been met. State v. Norris, supra. We considered, and the most salient question, was whether the trial court erred in not granting defendant’s motion to dismiss the second degree murder charge and instruct only on involuntary manslaughter. The trial court did not so err because, as discussed above, the State presented substantial evidence of second degree murder even though the defendant introduced ample evidence from which the jury may have convicted on the lesser charge. We hold that the State having proffered sufficient evidence of second degree murder, it was for the jury to resolve the contradictions and discrepancies. State v. Lowery, supra. [235] No error. Judges Arnold and Hill concur.