Copyright 1998 - N.C. Administrative Office of the Courts


No. COA97-59

(Filed 6 October 1998)

1. Criminal Law--felony murder--self defense--evidence insufficient

The trial court did not err in a prosecution for felony murder by denying defendant's request for an instruction on self-defense as to the underlying felonies, assault and discharging a firearm into occupied property. In felony murder cases, self-defense is available only to the extent that perfect self-defense applies to the relevant underlying felonies and the evidence here failed to support several elements of perfect self-defense.

2. Firearms and Other Weapons--discharging a firearm into occupied property-- automobile--occupancy

The trial court did not err in a felony murder prosecution by denying defendant's motion to dismiss the underlying felony of discharging a firearm into occupied property where, viewing the evidence in the light most favorable to the State, there was substantial evidence to satisfy the element of occupancy. One victim testified that he heard gunshots when he was about halfway out of the car and that he was struck while his foot was still in the car, and other witnesses testified that the other victim remained in the vehicle after the shooting, viewed bullet holes in the automobile, and related that the second victim fell out of the car when the passenger door was opened.

    Appeal by defendant from judgment entered 7 February 1996 by Judge Dexter Brooks in Cumberland County Superior Court. Heard in the Court of Appeals 22 October 1997.

    Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas F. Moffitt, for the State.

    Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Benjamin Sendor, for defendant-appellant.

    JOHN, Judge.

    Defendant appeals convictions of first-degree murder under the felony murder rule and assault with a deadly weapon with intent to kill inflicting serious injury. On appeal, defendant contends the trial court erred by denying his request to instruct the jury on self-defense and by denying his motion to dismiss. We conclude the trial court did not err.

    The State's evidence at trial tended to show the following: On the morning of 22 June 1993, defendant and Sean Burney (Burney) argued on the telephone regarding Burney's demand for payment of $150.00 to $200.00, representing estimated damage to Burney's truck several years earlier when he and defendant were throwing rocks at a passing train. A rock thrown by defendant had ricocheted off the train and dented the door of Burney's truck. Claiming the damage was accidental, defendant refused to pay. The 22 June 1993 conversation concluded with an agreement to meet "at the park in Eaglewood" to settle the dispute by fighting. Burney testified defendant said, "[y]ou better bring all your damn boys."

    After the conversation with defendant, Burney and Brian Bell (Bell) left to pick up Randy Dalton (Dalton). Burney, Bell and Dalton drove to the home of Billy Strickland (Strickland), where they met Strickland, Pat O'Quinn (O'Quinn), and another friend. Strickland testified the group planned to go swimming and had no intentions of fighting defendant that day.

    O'Quinn related that Burney and Dalton left Strickland's residence to go to the store between 11:30 a.m. and 12:00 p.m., and that they were gone approximately ten to fifteen minutes. In the meantime, two vehicles pulled onto the shoulder of the road in front of Strickland's house. One was a pickup truck driven by Sean Terry (Terry), with defendant and Tony Lugo (Lugo) as passengers in the truck bed. The other was an automobile operated by Jim Johnson (Johnson).

    Johnson and Terry parked their vehicles at the road and approached O'Quinn and Bell who were standing on the porch of Strickland's home. Terry inquired about the problems between Burney and defendant, and O'Quinn warned that defendant should leave before Burney returned. About that time, Burney and Dalton returned, and Burney drove his vehicle into the driveway. Neither Burney nor Dalton was armed.

    As Burney described it, he was stepping out of the automobile when he noticed it start to roll backward. Burney placed his right foot on the brake and reached back inside the vehicle so as to set the emergency brake. When he was "about halfway out of the car," he heard gunshots. While his "right foot was still in the car," he felt the impact of a bullet fired by defendant which knocked him to the ground. Burney was struck in the left side of his neck and the bullet exited his back below the shoulder blade. The automobile began to roll over Burney's feet, but he avoided it and ran into the house. As he fled, Burney observed defendant walking around with a rifle in his hand saying repeatedly, "What's up now?" Burney testified these constituted "fighting words."

    Bell and O'Quinn both testified they observed defendant standing in the bed of the pickup truck shooting a .22 caliber rifle at Burney and Dalton. O'Quinn stated he saw Dalton "slouch down into the V of the [open passenger side] door" and Burney "fall flat down on the concrete." O'Quinn testified that he heard several more shots, saw the windows on Burney's vehicle shatter, and then entered the house to place a 911 emergency call.

    Terry, Johnson and Lugo attempted to assist Dalton after the shooting stopped. Dalton was sitting in the front passenger's seat of Burney's vehicle, his legs inside and his head resting on dashboard. Dalton had been shot in the upper left abdomen, and later died as the result of blood loss from a severed mesenteric artery. Burney recovered from his neck wound after hospitalization.

    Law enforcement officers later located six spent shell casings outside the truck Terry had driven to Strickland's residence, and an additional casing in the truck bed. No firearms were discovered in or near Burney's automobile.

    Hope Mills Police Chief John Hodges (Chief Hodges) was on duty the afternoon of the shooting. After hearing a radio alert, he stopped and questioned defendant near the crime scene. After defendant gave Chief Hodges a false name, Johnson identified defendant, and defendant was then transported to the police station. While there, defendant told Captain Tonzie K. Collins (Collins) the murder weapon was hidden behind a shed near the crime scene. Defendant led Chief Hodges and Collins to the site and a .22 caliber rifle was recovered. State Bureau of Investigation ballistics expert A.L. Langley testified all seven spent shell casings found at the scene of the shooting were fired from the retrieved rifle. Upon being returned to the station, defendant was left alone to prepare a written statement and he escaped. He was recaptured later that night with two friends approximately one mile from the South Carolina border.

    Defendant testified on his own behalf as follows: On the morning of 22 June 1993, Burney telephoned defendant regarding the repair money, threatening to "take it out of [defendant's] ass" if it was not forthcoming. Burney vowed that "if he got his hands on me, he would kill me," which defendant understood to mean either kill or seriously injure defendant. Burney cursed repeatedly and threatened violence toward defendant's family during the conversation. Burney finally told defendant to meet him to fight it out, and said, "bring all your boys and all your weapons because we'll have ours." Defendant believed Burney because Burney had a reputation for violence and for carrying weapons.

    Curtis Moody (Moody) overheard the foregoing conversation and began telephoning other friends to assist defendant in fighting Burney. Defendant's friend, Sean Marks, and Moody's friends, Terry, Lugo and Johnson arrived in response to Moody's calls and Terry brought a rifle.

    Anticipating a fight with Burney, defendant and his five companions drove to Eaglewood Park. As they neared their destination, Terry handed a rifle through the window to the truck bed where defendant and Lugo were riding. Defendant explained that he was prepared to fight because he feared Burney or his friends might have a gun. Defendant observed Lugo take the weapon and wrap a bandana around it to catch ejected spent shell casings when the rifle was fired, and as Lugo explained, "to catch the shells from -- falling around and, uh, possibly getting in trouble." However, defendant had no intention of either Lugo or himself firing the first shot.

    When the group realized Burney was not at the park, defendant directed Terry, the vehicle driver, to take him home. However, Terry decided to stop at Strickland's house, notwithstanding defendant's protestation that it was not a good idea and his reiterated request to be taken home. Terry exited the truck and approached Burney's friends to talk things through and calm the situation.

    At that point, Burney pulled into the driveway, "driving mighty fast." Dalton and Burney "jumped out of the car," Burney yelling to defendant, "[d]on't go nowhere[,] I have something for you." Burney's friends who had been standing on the porch, began approaching defendant. Lugo handed the rifle to defendant and he fired a warning shot into the air. When Burney reached back into his automobile after the car began to roll, he again turned toward defendant and said "something to the effect that, uh, 'He's armed, Randy. Get the gun.'" According to defendant, Dalton then

        turned to the passenger's side of the car, which the door was still open, kneeled down, reached under the seat of the car and came out with something in his hand. I'm not clear on what it was. He began to turn toward me, uh, with that object in his hand. At that point, I was, uh, very fearful for my life, and I started shooting in the direction of the car, never actually aiming the gun at Mr. Dalton.

    After firing a total of seven shots, defendant realized he had injured Dalton. He "then got scared, jumped out of the truck and ran," dropping the rifle behind a shed. Approximately one and one-half hours later, Chief Hodges stopped defendant, who assumed a false name because he "was scared of being charged with something as serious as what had just took place." Defendant indicated during his testimony that he would not have shot at Dalton and Burney had he not feared for his own safety, and that he never intended to kill Dalton.

    Defendant's friends, Moody and Terry, corroborated defendant's version of events. When asked about Burney's reputation for violence, Terry recounted incidents of Burney and a friend assaulting Terry, pointing guns at him and threatening to cut him. According to Terry, Burney exited his vehicle after entering Strickland's driveway, directed defendant not to go anywhere, and approached defendant looking "like he was wanting to hit [him]."

    Lindsay Cobb, Heather McBride Cashwell and Amber Smith Stout (Stout), also called as witnesses for defendant, testified Burney had a reputation for starting fights and for violence. Stout further stated, "He gets into a lot of trouble. I've heard that he carries a gun, and sometimes a knife." On rebuttal, she testified Burney was "known to shoot up a couple houses."

    Deputy Sheriff Ritchie J. Alfano of the Cumberland County Sheriff's Department testified Burney had a reputation as a troublemaker who "was known to be in quite a few fights." He described Burney as having a reputation for picking fights when his friends were around in order to impress them.

    During his testimony, Burney denied having a reputation for violence, but admitted having pleaded guilty to assault with a deadly weapon involving a knife, and to breaking or entering and larceny.

    Following the jury's guilty verdicts, defendant was sentenced to life imprisonment for first-degree murder, plus twenty years for assault with a deadly weapon with intent to kill inflicting serious injury. Defendant entered timely notice of appeal.

    [1]The essential issue on appeal is whether the trial court erred by denying defendant's request to instruct the jury on self-defense as to the felonies underlying his felony murder conviction, i.e., assault with a deadly weapon and discharging a firearm into occupied property. We hold the court's refusal to do so was not error under the circumstances sub judice.

    The trial court has broad discretion in presenting the issues to the jury, State v. Flippin, 280 N.C. 682, 687, 186 S.E.2d 917, 920 (1972). However, in determining whether to submit an instruction on self-defense, the court must consider the evidence in the light most favorable to the defendant. State v. Blackmon, 38 N.C. App. 620, 621-22, 248 S.E.2d 456, 457 (1978), disc. review denied, 296 N.C. 412, 251 S.E.2d 471 (1979).

    Our Supreme Court has set forth the law of self-defense as follows: