STATE OF NORTH CAROLINA
v
.
MIKEL OLANDA RAINEY
Attorney General Roy Cooper, by Assistant Attorney General Amy
L. Yonowitz, for the State.
Mary March Exum, for the defendant-appellant.
WYNN, Judge.
Following his conviction on the charge of first-degree murder,
defendant Mikel Rainey argues on appeal that the trial court erred
by failing to instruct on the lesser-included offenses of (1)
assault with a deadly weapon inflicting serious injury, and (2)
attempted voluntary manslaughter. We find no error in the failure
to instruct on the offense of assault with a deadly weapon
inflicting serious injury because that offense is not a lesser-
included offense of attempted first-degree murder. Moreover,
although we hold that attempted voluntary manslaughter is (1) a
crime in North Carolina, and, (2) a lesser-included offense of
attempted first-degree murder, we hold that defendant was not
entitled to an instruction on the lesser-included offense of
attempted voluntary manslaughter. Therefore, we affirm thejudgment of the Superior Court, Halifax County.
The underlying facts of this case tend to show that on 20 July
1999, defendant shot Roy Richardson, his stepbrother, three times
with a shotgun in the buttocks, ankle, and thigh. On 21 July 1999,
defendant turned himself into the Halifax County Sheriff's
Department and made a written confession stating:
Last night my girlfriend, Stephanie
Yarborough, and I had just laid down to go to
bed at her house. . . . We were talking about
different things that had went on during the
day. I asked Stephanie what she and my
[thirteen-year-old] sister . . . were talking
about, when I saw both of them walking earlier
in the evening. [Stephanie] said [my sister]
was talking about boys she had been with
intimately lately. I asked her who they were,
and she said my half brother Roy Richardson .
. . .
I was so mad I couldn't say anything to her.
I got up and dressed and drove . . . to my
Mama's house. I walked inside and went to [my
sister] who was laying on my Mama's bed. I
asked [her], who she had been with, meaning
having sex. She just laid there and smiled at
me. I went outside and . . . [got] a
shotgun. . . .
I left my Mama's house and drove to Roy
Richardson's house on Lynch Road. I drove up
and beeped my horn when I got to the house. I
got out of the car with the shotgun to
confront Roy who was stepping off the porch.
I asked him, “Did you fuck my little sister?”
Roy said, “It's not any of your fucking
business.” I pointed the gun at Roy and shot
a couple of times. He fell to the ground when
I hit him. He got up from the ground and
turned to run away so I shot him again. I put
the shotgun in the car and drove away to
Stephanie's house.
While I was driving . . . something ran out
and I swerved to miss it flipping Stephanie's
car. It threw me out on the paved roadway.
It shook me so bad I didn't know where I was. I started walking through the woods. I stayed
in the woods until morning and then walked to
my Mama's house. . . . This is the truth of
what happened last night.
At trial, the evidence tended to conform to this confession.
Defendant admitted shooting Richardson; however, he testified that
he did not intend to kill Richardson. Rather, Defendant stated: “I
could have [killed] him if I wanted to, but like I [said], I
[wasn't] trying to kill him. I just wanted to hurt him . . . .
[F]or messing with my little sister.”
At the charge conference, defendant requested an instruction
on attempted voluntary manslaughter and assault with a deadly
weapon inflicting serious injury. The trial court denied both
motions and submitted a verdict sheet giving the jurors the option
of finding defendant guilty of attempted first-degree murder or not
guilty.
After deliberating for an hour and twenty minutes, the jurors
submitted a list of questions to the judge. Of interest, the
jurors asked the judge: “Does the State come back with another
charge if [defendant] is found not guilty?” The trial judge
informed the jury that such an inquiry “should not bear upon . . .
[the] decision in this case.”
On 19 July 2001, a unanimous jury returned a guilty verdict
against defendant for attempted first-degree murder. From that
conviction and sentence of a minimum of 269 months and a maximum of
332 months in the North Carolina Department of Corrections,
defendant appeals.
Before this Court, defendant first argues that the trial courterred by denying his request for an instruction on assault with a
deadly weapon inflicting serious injury.
(See footnote 1)
For an offense to be a
“lesser-included” offense, “all of the essential elements of the
lesser crime must also be essential elements included in the
greater crime.” State v. Westbrooks, 345 N.C. 43, 55, 478 S.E.2d
483, 490 (1996). Assault with a deadly weapon requires the State
to prove the existence of a deadly weapon; however, attempted
murder does not require a deadly weapon. Accordingly, assault with
a deadly weapon inflicting serious injury is not a lesser-included
offense of attempted first-degree murder. Cf. State v. Coble, 351
N.C. 448, 453, 527 S.E.2d 45, 49 (2000). Therefore, this
assignment of error is without merit.
By his second assignment of error, defendant contends the
trial court erred in denying his request for an instruction on
attempted voluntary manslaughter. He contends that attempted
voluntary manslaughter is a lesser-included offense of attempted
first-degree murder. See generally, State v. Lea, 126 N.C. App.
440, 485 S.E.2d 874 (1997); State v. Chamberlain, 307 N.C. 130,
151, 297 S.E.2d 540, 552-53 (1982).
However, the State argues that this Court should not reach thequestion of whether defendant was entitled to the lesser-included
offense instruction because attempted voluntary manslaughter is not
recognized as an offense under North Carolina law. In support of
this proposition, the State cites State v. Coble, 351 N.C. 448, 527
S.E.2d 45 (2000) in which our Supreme Court held that attempted
second-degree murder is not an offense and does not exist under
North Carolina law:
'In connection with [second-degree murder and
voluntary manslaughter], the phrase
'intentional killing' refers not to the
presence of a specific intent to kill, but
rather to the fact that the act which resulted
in death is intentionally committed. . . .'
Moreover, we have explained that specific
intent to kill is 'a necessary constituent of
the elements of premeditation and deliberation
in first degree murder [ ][and] is not an
element of second degree murder or
manslaughter. . . .' Therefore, it logically
follows that the crime of attempted murder, as
recognized in this state, can be committed
only when a person acts with the specific
intent to commit first-degree murder.
Coble, 351 N.C. at 450, 527 S.E.2d at 47 (citations omitted).
Thus, the State argues that under Coble, our Supreme Court in
holding that attempted second-degree murder is not a crime in North
Carolina likewise signaled that attempted voluntary manslaughter is
not an offense under North Carolina law. Nonetheless, in Coble,
the issue decided by our Supreme Court was whether attempted
second-degree murder exists as a crime under North Carolina law.
Indeed, while the Court commented on both voluntary manslaughter
and second-degree murder, the Court did not in fact consider the
issue of whether attempted voluntary manslaughter exists as a crime
in North Carolina. See Trustees of Rowan Tech. College v. HammondAssocs., 313 N.C. 230, 242, 328 S.E.2d 274, 281 (1985) (“Language
in an opinion not necessary to the decision is obiter dictum and
later decisions are not bound thereby.”). Accordingly, we will
consider this issue for the first time.
Other states are split on whether attempted voluntary
manslaughter is a cognizable offense. Generally, states requiring
“intent” as an essential element of voluntary manslaughter have
recognized the offense of attempted voluntary manslaughter. See
e.g., State v. Robinson, 643 A.2d 591, 596 (N.J. 1994) (“[A]
finding of guilt of . . . manslaughter does not suggest that a
defendant did not intend to kill . . . [but] indicates that the
defendant, while acting with the intent to kill, did not act with
the level of culpability necessary for a murder conviction . . .”);
Cox v. State, 534 A.2d 1333, 1337 (Md. 1987) (A defendant who
“suddenly attempts to perpetrate a homicide caused by heat of
passion in response to legally adequate provocation” is subject to
an “attempted voluntary manslaughter” conviction); People v.
Tucciarone, 137 Cal. App. 3d 701 (1982) (“Voluntary manslaughter
requires a showing of intent to kill but not malice
aforethought.”); Ex parte Buggs, 644 S.W.2d 748, 750 (Tex. Crim.
App. 1983) (“The intent to commit the substantive offense of murder
remains an element of attempted voluntary manslaughter, but the
attempt to cause death is generated by immediate influence of
sudden passion caused by provocation from the intended victim.”).
On the other hand, states not requiring intent as an essential
element of voluntary manslaughter have generally not recognized theoffense of attempted voluntary manslaughter. See e.g., Curry v.
State, 792 P.2d 396, 397 (Nev. 1990) (holding that general intent
crimes, like voluntary manslaughter, are inconsistent with the
specific intent required for a criminal attempt).
In North Carolina, intent is an essential element of voluntary
manslaughter. See e.g., State v. Wallace, 309 N.C. 141, 149, 305
S.E.2d 548, 553 (1983) (holding that “voluntary manslaughter is an
intentional killing without premeditation, deliberation or malice
but done in the heat of passion suddenly aroused by adequate
provocation”). Nevertheless, the State, relying on Coble, argues
that voluntary manslaughter only requires a general intent, rather
than the specific intent necessary for a criminal attempt.
Accordingly, the State contends voluntary manslaughter does not
have as an essential element the intention to kill and is,
therefore, a general intent crime.
To illustrate the State's argument, the “elements of the crime
of 'attempt' consist of the following: (1) an intent by an
individual to commit a crime; (2) an overt act committed by the
individual calculated to bring about the crime; and (3) which falls
short of the completed offense.” State v. Gunnings, 122 N.C. App.
294, 296, 468 S.E.2d 613, 614 (1996). The State contends that the
element of “intentional killing” in voluntary manslaughter
represents a general intent to commit the underlying act rather
than a specific intent to commit the substantive offense. In
voluntary manslaughter, specifically, the State argues, heat of
passion negates the ability of the assailant to form a specificintent. See Coble, 351 N.C. at 451, 527 S.E.2d at 48 (“It is
logically impossible, therefore, for a person to specifically
intend to commit a form of murder which does not have, as an
element, specific intent to kill.”)
However, an examination of the typical voluntary manslaughter
situation reveals that heat of passion does not prevent the
formation of a specific intent to kill per se; rather, such
specific intent is either excused, justified, or negated by heat of
passion arising under sudden and adequate provocation. Our Supreme
Court has consistently held that a homicide committed in the
moments after discovering a spouse in the act of infidelity merits
a voluntary manslaughter instruction. See e.g., State v. Ward, 286
N.C. 304, 312-313, 210 S.E.2d 407, 413-414 (1974).
For instance, in the classic case, a wife comes home from work
to find her husband in an adulterous relationship with another
woman. The wife grabs a gun, and shoots in the direction of the
marital bed killing her husband. The State would contend, as they
did at oral argument, that the wife only “intended” to commit the
underlying act of firing the gun; and thus, the wife did not
specifically intend to kill her husband. We find this logic
unpersuasive and inconsistent with North Carolina's definition of
voluntary manslaughter. Indeed, the wife did “specifically intend”
to kill, but that “specific intent” is legally negated by the heat
of passion arising from sudden and adequate provocation. See e.g.,
State v. Smith, 26 N.C. App. 283, 285, 215 S.E. 2d 830, 832 (1975)
(“When one spouse kills the other in a heat of passion engenderedby the discovery of the deceased and a paramour in the very act of
intercourse . . . the killing . . . is manslaughter.”).
We further note this interpretation comports with the
“reasoning” behind why our statutory and case laws recognize a
devolution from murder to manslaughter under certain circumstances.
“The common law of passionate manslaughter originated in England,
where the impassioned killer was treated more leniently than the
calm killer because of the harshness of the then-mandatory death
penalty for all cases of homicide.” State v. Robinson, 643 A.2d
591, 594 (N.J. 1994) (citations omitted). The reduction of murder
to manslaughter was a recognition that one who kills in the “heat
of passion” arising from reasonable provocation is less culpable
than one who kills with the cold blood of premeditation and
deliberation. As one court has noted, “a finding of guilt of
passion/provocation manslaughter does not suggest that a defendant
did not intend to kill. Rather, [it] indicates that the defendant,
while acting with an intent to kill, did not act with the level of
culpability necessary for a murder conviction, due to circumstances
present at the time of the killing.” Id. at 596.
In accord, our Supreme Court has held that: “The doctrine of
heat of passion is 'meant to reduce murder to manslaughter when
defendant kills without premeditation and without malice, but
rather under the influence of the heat of passion suddenly aroused
which renders the mind temporarily incapable of cool reflection.'”
State v. Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13 (1994)
(quoting State v. Forrest, 321 N.C. 186, 193, 362 S.E.2d 252, 256(1987) (citing State v. Jones, 299 N.C. 103, 261 S.E.2d 1 (1980)).
Thus, our case law reveals that murder is reduced to manslaughter
upon a showing that heat of passion, arising from sudden
provocation, negated the element of malice and made the mind
incapable of “cool” premeditation and deliberation. State v.
Forrest, 321 N.C. 186, 192, 362 S.E.2d 252, 256 (1987) ( “Our
Court has held on numerous occasions” that a defendant who kills
“in the 'heat of passion,' produced by adequate provocation
sufficient to negate malice, is guilty of manslaughter rather than
murder.” Moreover, “killing in the 'heat of passion'” with
“adequate provocation means a killing without premeditation
[because passion] renders the mind incapable of cool reflection.'”)
(citations omitted); State v. Robbins, 309 N.C. 771, 777, 309
S.E.2d 188, 191 (1983) (“One who kills a human being under the
influence of sudden passion, produced by adequate provocation,
sufficient to negate malice, is guilty of manslaughter.”). By
definition, the negation of an element requires (1) the existence
of that element, and (2) evidence to negate that element.
Consequently, the elements of malice and premeditation play a vital
role in any heat of passion manslaughter prosecution; however, the
role is limited to negation rather than affirmation.
Accordingly, in North Carolina, heat of passion voluntary
manslaughter is essentially a first-degree murder, where the
defendant's reason is temporarily suspended by legally adequate
provocation. The specific intent to kill does exist in the mind of
such a defendant; however, the defendant is only legally culpablefor the general intent because the “specific intent” is not based
on “cool reflection.” The specific intent is based on an “adequate
provocation” that would cause an individual with an ordinary
firmness of mind to become provoked, and which did, in fact,
provoke the defendant to commit an act spawned by provocation
rather than malice.
Therefore, because intent is an essential element of heat of
passion voluntary manslaughter, there is no reasonable basis to
conclude that the offense of attempted voluntary manslaughter does
not exist under North Carolina law. This conclusion is in
accordance with the position of many other states. More
importantly, this position is in accordance with the equitable
principles inherent in having degrees of murder, and recognizes
that a defendant's culpability for attempted murder, like a
defendant's culpability for murder, is relative to the
circumstances surrounding the crime.
(See footnote 2)
Having concluded that North Carolina recognizes the crime of
attempted voluntary manslaughter, we now examine the facts of this
case to determine if the trial court erred by failing to instruct
on that offense. As previously noted, in North Carolina, a
“defendant is entitled to have a lesser included offense submitted
to the jury only when there is evidence to support that lesser
included offense.” State v. Smith, 351 N.C. 251, 267, 524 S.E.2d
28, 40 (2000). “The doctrine of heat of passion is 'meant to
reduce murder to manslaughter when defendant kills without
premeditation and without malice, but rather under the influence of
the heat of passion suddenly aroused which renders the mind
temporarily incapable of cool reflection.'” State v. Camacho, 337
N.C. 224, 233, 446 S.E.2d 8, 13 (1994). Therefore, to support an
instruction on attempted voluntary manslaughter, a defendant must
produce “heat of passion” or “provocation” evidence negating the
elements of malice, premeditation, or deliberation.
Our Supreme Court has developed a significant jurisprudence
pertaining to sudden provocation and the discovery of illicit
sexual relationships. This jurisprudence makes it eminently clear
that the law will recognize factors of mitigation when a spouse
discovers an adulterous relationship and proceeds to “slay the
wrongdoer in the very act . . . . [However,] redress for past
offences must be sought through the process of the Courts.” Statev. Harman, 78 N.C. 515 (1878). In State v. Ward, our Supreme Court
expounded on this jurisprudence by explaining that when one spouse
kills the other in a heat of passion upon discovering the deceased
in an adulterous act of intercourse, it is manslaughter.
However, . . . knowledge of past adultery
between the two will not change the character
of the homicide from murder to manslaughter.
The law extends its indulgence to a transport
of passion justly excited and to acts done
before reason has time to subdue it; the law
does not indulge revenge or malice, no matter
how great the injury or grave the insult which
first gave it origin.
State v. Ward, 286 N.C. 304, 312-313, 210 S.E.2d 407,413-414 (1974)
(citing State v. John, 30 N.C. 330 (1848); State v. Samuel, 48 N.C.
74 (1855); State v. Avery, 64 N.C. 608 (1870); State v. Harman, 78
N.C. 515 (1878)).
In the case sub judice, the evidence did not support an
instruction on the lesser-included offense of attempted voluntary
manslaughter. The evidence, conforming substantially to
defendant's confession, shows that defendant was lying in bed one
night when told his step-brother, Roy Richardson, had been sleeping
with his thirteen-year-old sister. Defendant got out of bed,
dressed, and drove to his mother's house. Defendant entered the
bedroom of his little sister and asked with whom she was intimate.
Defendant's sister smiled, and did not answer the question.
Thereafter, defendant retrieved a shotgun from his mother's
property and drove to Richardson's house. Defendant arrived at
Richardson's house, honked his horn repeatedly, and, while
Richardson was standing on the porch, asked, “Did you f--k mylittle sister?” Richardson responded, “It's not any of your
f--king business.” Defendant then pointed the shotgun at
Richardson and shot him in the buttocks. As Richardson attempted
to pull himself up, defendant shot him a second time in the ankle.
Richardson fell to the ground, and, when he got up and began to run
away, defendant shot him a third time in the left thigh.
This evidence shows that defendant sought out Richardson. If
defendant had discovered his thirteen-year-old sister and
Richardson in an illicit act, then defendant might indeed be
entitled to an attempted voluntary manslaughter instruction. Here,
however, defendant learned of the alleged relationship through a
conversation, left his house, confronted his sister, retrieved a
shotgun, drove to his step-brother's house, confronted him, and
then shot him three separate times. In essence, defendant did not
act immediately under a heat of passion, but rather under an
indulgence of revenge or malice. As stated in Ward, the law does
not allow him to do so, “no matter how great the injury or grave
the insult which first gave it origin”. Under the facts of this
case, defendant was not entitled to the benefit of an instruction
on attempted voluntary manslaughter; accordingly, this assignment
of error is without merit.
In sum, although we hold that the crime of attempted voluntary
manslaughter does exist in North Carolina, we hold that defendant
was not entitled to the instruction. Accordingly, we affirm the
judgment of the Superior Court, Halifax County.
No Error. Judges TIMMONS-GOODSON and THOMAS concur.
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