1. Homicide--second-degree murder--voluntary manslaughter--motion for nonsuit
The trial court did not err by denying defendant's motion for nonsuit as to the charges of
second-degree murder and the lesser included offense of voluntary manslaughter, because: (1) the
State produced substantial evidence that defendant intentionally struck decedent with his
automobile to satisfy the requisite element of intent in both second-degree murder and voluntary
manslaughter; and (2) decedent's actions prior to the collision, defendant's statements to police
following the collision, and the nature of the assault committed by defendant provide further
evidence that defendant intentionally struck decedent with his automobile.
2. Homicide--jury instruction--self-defense
The trial court did not err in a second-degree murder case by refusing to instruct the jury
on self-defense based on defendant's alleged fear for his own safety and the safety of his wife,
because: (1) defendant's belief was not reasonable when the actual physical confrontation
between defendant and decedent had ended, and defendant and his wife had retreated to the
safety of their car; and (2) there was no evidence decedent posed any real immediate threat to
defendant or his wife inside their vehicle when decedent made no movement toward defendant's
vehicle prior to being struck.
Attorney General Michael F. Easley, by Special Deputy Attorney
General Isaac T. Avery, III, and Assistant Attorney General
Patricia A. Duffy, for the State.
Hosford and Hosford, P.L.L.C., by Sofie W. Hosford, for
defendant appellant.
McCULLOUGH, Judge.
On 4 March 1999, a jury convicted thirty-one-year-old Darrius
Charles Anton Jackson (defendant) of voluntary manslaughter and
nonfelonious hit and run in connection with the death of
twenty-two-year-old Brian Melvin (decedent). The trial court
sentenced defendant to a term of 64-86 months in prison on thevoluntary manslaughter charge, and for an additional term of 45
days on the nonfelonious hit-and-run charge.
At trial, the State's evidence tended to show the following:
On the evening of 2 March 1999, Wilmington Police Officer Leroy
Cain responded to a reported fight on North 30th Street in the
Creekwood Housing Development (Creekwood). Officer Cain arrived
with his partner, Officer Alvin Wilson, only to find the area
"fairly quiet." As the officers prepared to leave Creekwood, they
noticed a group of about ten people "bunched up together" and
"fighting" on the corner of Clayton Place and North 30th Street.
Officers Cain and Wilson called for backup.
By the time the officers reached the crowd, it had grown to
nearly fifty people, who were "yelling and screaming back and forth
at each other." Officers managed to separate defendant, whose shirt
had been ripped off, and decedent, both of whom had their fists up
and were yelling at each other. While officers tended to the rest
of the crowd, Ahmad Carr punched defendant in the back of the head.
Officer Wilson brandished his pepper spray and ordered decedent to
leave the area. The three officers advised the disorderly crowd
that they could take out warrants if they wished and instructed
them to leave and go their separate ways.
As the crowd began to disperse, Officer Cain observed decedent
walking southbound on North 30th Street in the northbound lane of
the road about four to six feet from the curb. Defendant walked in
the opposite direction and headed northbound up North 30th Street.
According to Officer Cain, decedent was walking slowly down the
road when a red automobile struck him from behind. Officers Cain,Shea, and Wilson observed the incident. Officers Cain and Shea
estimated the vehicle was traveling between thirty and forty miles
per hour in a twenty-five-mile-per-hour zone when it struck
decedent. All three officers stated the vehicle did not swerve,
did not brake, and did not slow down. Instead, the vehicle
continued southbound on North 30th Street. Decedent was treated
for a lethal brain injury until 3 March 1999 when doctors
pronounced him brain dead. An autopsy later revealed decedent died
as a result of blunt trauma to the head that produced massive skull
fractures and bruising and swelling of the brain.
Officers Janice Bates and Amy Ward of the Wilmington Police
Department testified they observed a red automobile stopped at the
intersection of North 30th Street and Princess Place Drive. When
the officers pulled in behind the vehicle, defendant and his wife
stepped out of the car and approached the patrol car. While the
officers detained the visibly upset couple, defendant stated, "I
did it, I hit him. She had nothing to do with it."
Officer Thomas Witowski testified defendant appeared "upset"
and "angry" when he first arrived at the Wilmington Police
Department on the night of 2 March 1999. Officers Witkowski and
Gronau advised defendant of his rights, and he agreed to answer any
questions, giving both an oral and a written statement. In his
written statement, defendant admitted that
I then get in my car with my wife and
leave the scene. [Decedent] gets in the middle
of the street in front of my car. The police
already have done nothing; and [decedent]
already made a threat in front of them, and
walks away, so I hit him and keep going. I
wasn't going to stop to get jumped or get my
car messed up. I then stopped at the lightfor the police.
At trial defendant testified on his own behalf. Defendant
stated that on the evening of 2 March 1999, he, his wife,
stepmother, and stepdaughters drove to Creekwood after receiving
phone calls from his sister, Benee Cotton. Defendant's sister told
defendant that someone assaulted two of his sisters, Pauline and
Janese, and broke the car windows out of his sister Kathy's car.
Defendant testified that, when he reached the area, he located
Pauline among a crowd of people standing in the street. When
defendant approached his sister, decedent emerged from behind the
crowd and told defendant, "I'm the one who hit your sister." He
then stated that if anybody wanted to do anything, "[t]hey've got
to deal with me." Defendant recalled handing his eyeglasses to
Pauline before at least ten people, including decedent, attacked
him physically, ripped his shirt off, and dragged him across the
street. Defendant stated that, when officers arrived, decedent and
the others ended their physical assault, but that decedent
continued to intimidate and threaten him with words and gestures.
Defendant felt the situation was getting out of control when
he and his wife finally left. Defendant was "upset" and "angry"
while driving away from the crowded area. Defendant stated that he
could not avoid striking decedent when he jumped into the path of
defendant's automobile. Defendant said that, although he was not
speeding, he did not have enough time to stop or swerve to avoid
decedent. Defendant testified he did not know if decedent had a
weapon, but thought decedent was trying to prevent him from
leaving. Defendant stated he did not stop because "it was ahostile situation from beginning to end," and he thought if he
stopped, his life or his wife's life could be threatened. Defendant
eventually stopped at the intersection of North 30th Street and
Princess Place Drive where he was apprehended by Officers Ward and
Bates.
Defendant assigns as error the trial court's denial of his
motion for nonsuit and the trial court's refusal to instruct the
jury on self-defense. For the reasons set forth herein, we affirm
the judgment of the trial court.
[1]Defendant's first assignment of error challenges the trial
court's denial of his motion for nonsuit as to the charges of
second-degree murder and the lesser included offense of voluntary
manslaughter. "A motion to dismiss and a motion for nonsuit are
equivalent." State v. Lindsay, 45 N.C. App. 514, 515, 263 S.E.2d
364, 365 (1980). In ruling upon defendant's motion to dismiss on
the grounds of insufficient evidence, the trial court is required
to interpret the evidence in the light most favorable to the State,
drawing all reasonable inferences in the State's favor. State v.
Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 860 (1981). "'The
question for the court is whether substantial evidence--direct,
circumstantial, or both--supports each element of the offense
charged and defendant's perpetration of that offense.'" State v.
McCullers, 341 N.C. 19, 29, 460 S.E.2d 163, 168 (1995) (quoting
State v. Abraham, 338 N.C. 315, 328, 451 S.E.2d 131, 137 (1994)
(quoting State v. Rannels, 333 N.C. 644, 659, 430 S.E.2d 254, 262
(1993))). The term "substantial evidence" simply means that theevidence must be existing and real, not just seeming or imaginary,
and adequate to support a conclusion. State v. McAvoy, 331 N.C.
583, 589, 417 S.E.2d 489, 493 (1992). "Whether evidence presented
constitutes substantial evidence is a question of law for the
court." State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61
(1991).
Defendant argues there was insufficient evidence to show that
he intentionally struck decedent with his automobile to satisfy the
requisite element of intent in both second-degree murder and
voluntary manslaughter. As a result, defendant contends he is
entitled to a new trial in which the jury should consider only the
offense of involuntary manslaughter. We disagree. "Murder in the
second degree is the unlawful killing of a human being with malice,
but without premeditation and deliberation." State v. Foust, 258
N.C. 453, 458, 128 S.E.2d 889, 892 (1963). Manslaughter is a
lesser included offense of second-degree murder. State v. Holcomb,
295 N.C. 608, 613, 247 S.E.2d 888, 891 (1978). "Voluntary
manslaughter is defined as 'the unlawful killing of a human being
without malice, express or implied, and without premeditation and
deliberation.'" State v. McNeil, 350 N.C. 657, 690, 518 S.E.2d
486, 506 (1999), cert. denied, 529 U.S. 1024, 146 L. Ed. 2d 321
(2000) (quoting State v. Rinck, 303 N.C. 551, 565, 280 S.E.2d 912,
923 (1981)). Generally, voluntary manslaughter occurs when one
kills intentionally but does so in the heat of passion suddenly
aroused by adequate provocation or in the exercise of self-defense
where excessive force is used or defendant is the aggressor. Statev. Barts, 316 N.C. 666, 692, 343 S.E.2d 828, 845 (1986).
"Neither second degree murder nor voluntary manslaughter has
as an essential element an intent to kill." State v. Ray, 299 N.C.
151, 158, 261 S.E.2d 789, 794 (1980). "'[T]he expression,
intentional killing, is not used in the sense that a specific
intent to kill must be admitted or established.'" State v.
Phillips, 264 N.C. 508, 515, 142 S.E.2d 337, 342 (1965) (emphasis
in original) (quoting State v. Gordon, 241 N.C. 356, 359, 85 S.E.2d
322, 323 (1954)). Intentional killing refers to the fact that the
act which resulted in death is intentionally committed and is an
assault which in itself amounts to a felony or is likely to cause
death or serious bodily injury. Ray, 299 N.C. at 158, 261 S.E.2d
at 794.
Intent is a mental attitude which can rarely be proven by
direct evidence, and must ordinarily be proven by circumstances
from which it can be inferred. State v. Hugenberg, 34 N.C. App. 91,
95, 237 S.E.2d 327, 331, disc. review denied, 293 N.C. 591, 238
S.E.2d 151 (1977). In the instant case, the State produced
substantial evidence that defendant intentionally struck decedent
with his automobile to satisfy the requisite element of intent in
both second-degree murder and voluntary manslaughter. Officers
Cain, Shea, and Wilson each testified that defendant was operating
his vehicle at an excessive rate of speed on North 30th Street
prior to striking decedent. Officers Cain and Shea testified that
defendant made no attempt to swerve into the other lane to avoidhitting decedent. All three officers testified that defendant's
vehicle did not brake or slow down either before it struck decedent
or after the collision occurred. All three officers testified
defendant's vehicle continued on North 30th Street after striking
decedent until it was stopped at the intersection of North 30th
Street and Princess Place Drive by another officer.
Decedent's actions prior to the collision, defendant's
statements to police following the collision, and the nature of the
assault committed by defendant provide further evidence that
defendant intentionally struck decedent with his automobile.
Officers Cain and Wilson testified that decedent was walking
southbound on North 30th Street in the northbound lane several feet
from the curb before he was struck from behind by defendant's
vehicle. Both officers testified that decedent made no sudden
movements toward the car prior to being struck. Following the
collision, when defendant was apprehended at the intersection of
North 30th Street and Princess Place Drive, defendant proclaimed to
Officer Bates, "I did it, I hit him." In his written statement to
police, defendant stated, "I hit him and [kept] going" because "I
wasn't going to stop to get jumped or get my car messed up."
Clearly, defendant used his vehicle as a deadly weapon and directly
caused decedent's death by striking decedent from behind. The very
nature of defendant's actions gives rise to the presumption that
defendant intentionally struck decedent with his vehicle. Such an
act can never be involuntary manslaughter because involuntary
manslaughter involves commission of an act, whether intentional or
not, which is not a felony nor likely to result in death or greatbodily harm. Ray, 299 N.C. at 158, 261 S.E.2d at 794.
We conclude that the witnesses' testimony, defendant's written
statement made to police following the collision, and the nature of
the assault itself, when considered in the light most favorable to
the State, constitutes sufficient evidence to adequately support
the conclusion that defendant intentionally struck decedent with
his vehicle. Defendant's first assignment of error is overruled.
[2]Defendant's second assignment of error challenges the
trial court's refusal to instruct the jury on self-defense. "The
right to kill in self-defense is based on the necessity, real or
reasonably apparent, of killing an unlawful aggressor to save
oneself from imminent death or great bodily harm at his hands."
State v. Norman, 324 N.C. 253, 259, 378 S.E.2d 8, 12 (1989)
(emphasis in original).
The law of perfect self-defense excuses a
killing altogether if, at the time of the
killing, these four elements existed:
(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, 530, 279 S.E.2d 570, 572-73 (1981).
An imperfect right of self-defense is available to a defendant who
reasonably believes it necessary to kill the deceased to save
himself from death or great bodily harm even if defendant (1) might
have brought on the difficulty without murderous intent, and (2)
might have used excessive force. State v. Mize, 316 N.C. 48, 52,
340 S.E.2d 439, 441-42 (1986). "Although the culpability of a
defendant who kills in the exercise of imperfect self-defense is
reduced, such a defendant is not justified in the killing so as to
be entitled to acquittal, but is guilty at least of voluntary
manslaughter." Norman, 324 N.C. at 259-60, 378 S.E.2d at 12
(emphasis in original).
Defendant argues the jury should have received an instruction
on self-defense because defendant feared for his own safety and the
safety of his wife, and acted in self-defense when he drove through
the angry crowd at Creekwood and struck decedent with his car. We
disagree. The trial court has broad discretion in presenting
issues to the jury. State v. Flippin, 280 N.C. 682, 687, 186 S.E.2d
917, 920 (1972). If no evidence exists in the record from which
the jury could find that defendant reasonably believed it necessary
to kill to protect himself from death or great bodily harm, then
defendant is not entitled to an instruction on self-defense. Statev. Hughes, 82 N.C. App. 724, 727, 348 S.E.2d 147, 150 (1986).
In determining whether a self-defense instruction should have
been given, the facts must be interpreted in the light most
favorable to defendant. State v. Moore, 111 N.C. App. 649, 654, 432
S.E.2d 887, 889 (1993). Assuming arguendo that defendant in fact
formed the belief that it was necessary to kill decedent in order
to protect himself and his wife, no basis exists for defendant to
assert that his belief was reasonable. The actual physical
confrontation that evening between defendant and decedent had
ended, and defendant and his wife had retreated to the safety of
their car in order to leave Creekwood. The crowd was disorderly
and unruly, but defendant presented no evidence that showed the
crowd itself posed any real, immediate threat to defendant or his
wife inside their vehicle. In fact, defendant could have left
Creekwood in another direction to avoid the crowd entirely, but
instead made a U-turn on North 30th Street to drive southbound and
leave in the direction of Princess Place Drive.
Any fear held by defendant of death or great bodily harm, at
the time the killing took place, was entirely unreasonable under
the circumstances. The State's evidence tended to show defendant
struck decedent from behind as decedent was walking southbound on
North 30th Street. Defendant's own written statement to police
specifically described decedent as being "in the middle of the
street" in front of defendant's car prior to the collision. At
trial, defendant claimed decedent jumped from the crowd into the
path of his car to prevent defendant from leaving. Even ifdecedent did in fact jump in front of defendant's vehicle,
defendant testified he heard no gunshots prior to striking
decedent, and observed no weapon in decedent's hands. According to
testimony by Officers Cain and Wilson, decedent made no movement
toward defendant's vehicle prior to being struck. No evidence
presented by the State or defendant indicated that decedent posed
any real, immediate threat to defendant or his wife inside their
vehicle.
We conclude that the evidence taken in the light most
favorable to defendant fails to support a finding that defendant
formed a reasonable belief that it was necessary to kill decedent
to protect himself or his wife from death or great bodily harm.
Defendant cannot claim that at the time of the killing any real or
reasonably apparent necessity existed for defendant to protect
himself or his wife from any threat of imminent death or great
bodily harm at the hands of decedent. Defendant's second
assignment of error is overruled.
For the foregoing reasons, we reject defendant's assignments
of error and affirm the judgment of the trial court.
No error.
Judges WALKER and THOMAS concur.
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