STATE OF NORTH CAROLINA
v
.
Guilford County
Nos. 00 CRS 23384, 23597
KARL PATRICK HOUT
Attorney General Roy Cooper, by Assistant Attorney General
Dennis P. Myers, for the State.
Clifford, Clendenin, O'Hale & Jones, LLP, by Walter L. Jones,
for the defendant-appellant.
WYNN, Judge.
Defendant appeals from his convictions for voluntary
manslaughter (00 CRS 23384) and discharging a firearm into occupied
property (00 CRS 23597). We find no error.
The evidence at trial tended to show that on the night of 7
February 2000, Anthony Greeson and his brother, Robert Greeson,
were smoking crack cocaine and robbing various businesses. Shortly
after midnight, Anthony Greeson entered a convenience store where
defendant worked as a clerk and demanded money; his brother awaited
in a minivan behind the store. Defendant complied with the demand
and gave Anthony Greeson money from the store's cash register.
When Anthony Greeson turned to leave the store, defendant picked up
a handgun and fired at him. As Anthony Greeson ran outside andaround the store, defendant chased after him with his handgun,
firing more shots. Anthony Greeson climbed into his brother's
minivan, and as the van sped away defendant fired several more
shots at it. Anthony Greeson drove the minivan out of the parking
lot and away from the convenience store. He soon collapsed,
crashed the minivan into some trees and died from a gunshot wound.
Defendant was indicted on charges of second-degree murder
under N.C. Gen. Stat. § 14-17 (1999) and firing into an occupied
vehicle under N.C. Gen. Stat. § 14-34.1 (1999). Contrary to his
pleas of not guilty, a jury convicted him of voluntary manslaughter
under N.C. Gen. Stat. § 14-18 (1999) and firing into an occupied
vehicle. The trial court, per Judge William Z. Wood, Jr.,
consolidated the convictions for judgment and sentenced defendant
to a term of 77 to 102 months' imprisonment. Defendant appeals.
Defendant first argues that the trial court erred in excluding
evidence that the Greeson brothers had committed similar robberies
before their robbery of the convenience store. At trial, he
attempted to introduce testimony by two witnesses indicating that
Anthony Greeson had robbed them in a manner strikingly similar to
the convenience store robbery. Billie Mounce and Tameka Coleman
worked at a clothing store in Greensboro, which was robbed only a
few hours before the convenience store robbery. The trial court
heard voir dire testimony from both proposed witnesses and excluded
their testimony under N.C. Gen. Stat. § 8C-1, Rules 401, 402 and
403 (1999), finding that it was not relevant, and even if it was
relevant it would be confusing, cumulative and a waste of time. Defendant contends that the proffered testimony was relevant and
admissible to indicate that Anthony Greeson was armed at the time
of the convenience store robbery, or that defendant was reasonable
in his belief that he was armed. We disagree.
N.C. Gen. Stat. § 8C-1, Rule 401 defines relevant evidence as
“evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.”
N.C. Gen. Stat. § 8C-1, Rule 402 provides that “[e]vidence which is
not relevant is not admissible.” Even where evidence is relevant,
N.C. Gen. Stat. § 8C-1, Rule 403 provides for its exclusion “if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.”
Mounce and Coleman testified on voir dire that a man entered
the clothing store on the evening of 7 February 2000. The man
approached the cash register where Mounce and Coleman stood and
demanded money. They saw the man's hand in his pocket, believed
the man had a gun, and gave him the money out of fear.
In his brief, defendant argues that the proffered evidence was
relevant to his claim of self-defense, and his state of mind in
fearing and believing that Anthony Greeson possessed a gun at the
time of the convenience store robbery. In that regard, the trial
court instructed the jury on the elements of second-degree murder
and voluntary manslaughter; the trial court also instructed thejury on self-defense. Defendant did not object to those
instructions.
Second-degree murder consists of an unlawful killing with
malice, but without premeditation or deliberation. See State v.
Williams, 288 N.C. 680, 220 S.E.2d 558 (1975); see also State v.
Geddie, 345 N.C. 73, 478 S.E.2d 146 (1996), cert. denied, 522 U.S.
825, 139 L. Ed. 2d 43 (1997). Voluntary manslaughter consists of
an unlawful killing without malice, premeditation or deliberation.
See State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983). As to
both offenses of killing, a defendant may be totally exonerated if
he demonstrates perfect self-defense, which consists of four
elements showing that:
(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
fitness; 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)
(citations omitted).
Where the first two elements are present, but the defendanteither was the aggressor, thereby negating the third element; or
used excessive force, thereby negating the fourth element; the
“defendant will not be totally exonerated of the killing, but is
guilty of voluntary manslaughter.” State v. Perez, 135 N.C. App.
543, 551, 522 S.E.2d 102, 108 (1999), appeal dismissed and disc.
review denied, 351 N.C. 366, 543 S.E.2d 140 (2000). “The fourth
element of self-defense addresses the reasonableness of the
defendant's choice of force used to protect himself from death or
great bodily harm.” State v. Richardson, 341 N.C. 585, 592-93, 461
S.E.2d 724, 729 (1995). Moreover, and quite pertinent to our
decision in this appeal, where a defendant seeks to use “evidence
of a prior . . . act by the victim to prove the defendant's state
of mind at the time he killed the victim, the defendant must show
that he was aware of the prior act and that his awareness somehow
was related to the killing.” State v. Strickland, 346 N.C. 443,
456, 488 S.E.2d 194, 201 (1997), cert. denied, 522 U.S. 1078, 139
L. Ed. 2d 757 (1998); see N.C. Gen. Stat. § 8C-1, Rule 404(b)
(1999); see also State v. Smith, 337 N.C. 658, 447 S.E.2d 376
(1994).
In the instant case, defendant does not contest the fact that
he was unaware of the Greesons' alleged prior robbery of the
clothing store. Furthermore, we find no abuse of discretion in the
trial court's determination that the proffered testimony by Mounce
and Coleman, even if relevant, was excludable under Rule 403 as its
probativity was substantially outweighed by the danger of confusion
of the issues and considerations of wasting time or needlesslypresenting cumulative evidence. See N.C. Gen. Stat. § 8C-1, Rule
403; see also State v. Anderson, 350 N.C. 152, 175, 513 S.E.2d 296,
310 (holding that a decision whether to admit or exclude evidence
under Rule 403 is a matter left to the sound discretion of the
trial court, and will be reversed only upon a showing that the
ruling was manifestly unsupported by reason and could not have been
the result of a reasoned decision) (citations omitted), cert.
denied, 528 U.S. 973, 145 L. Ed. 2d 326 (1999).
Additionally, we note that the jury found defendant guilty of
voluntary manslaughter rather than second-degree murder, meaning
the jury determined that it appeared to defendant, and defendant
believed it, to be necessary to kill Anthony Greeson to save
himself from death or great bodily harm; and that this belief was
reasonable in that the circumstances as they appeared to defendant
at the time of the robbery were sufficient to create such a belief
in the mind of a person of ordinary fitness. See Norris, 303 N.C.
at 530, 279 S.E.2d at 572-73. However, the jury must also have
found that, despite this belief, defendant either was the aggressor
in the confrontation or used excessive force. See Perez. In
finding that it appeared to defendant (and defendant believed it)
necessary to kill Greeson to save himself from death or great
bodily harm, the jury must have accepted defendant's theory that
Anthony Greeson was armed (or reasonably appeared so to defendant),
even without the testimony of Mounce and Coleman.
Defendant also argues that the trial court erred by allowing
the State to offer evidence that defendant violated the policies ofthe convenience store by resisting the robbery. We disagree.
At trial, the State sought to prove the malice element of
second-degree murder by introducing an exhibit bearing defendant's
signature acknowledging his awareness of the convenience store's
policies, one of which stated that, “In the event of an armed
robbery, no resistance is to be exercised.” The policies form also
provided that “[p]ossession of guns or firearms on any company
property” would result in dismissal of the offending employee.
Timothy Huffstetler, the convenience store's Human Resources
Manager, testified for the State, indicating that the policies form
is reviewed with all employees prior to their employment, and they
are asked to sign the form indicating they have carefully read and
fully understand the policies. Defendant objected at trial to the
introduction of the exhibit and to Huffstetler's testimony.
Defendant states in his brief that “the trial court succumbed
to the [S]tate's argument that the exhibit went to the issue of
malice,” and permitted the State “to proceed and contend that
[defendant], by violating the store's policies against the use of
self-defense, in fact acted with malice and committed second-degree
murder.” Defendant, however, was convicted of voluntary
manslaughter (consisting of an unlawful killing without malice,
premeditation or deliberation, see Robbins) rather than second-
degree murder; thus, any alleged error by the trial court in
admitting this evidence was harmless as the jury found no malice.
Finally, defendant argues that the trial court erred in
declining to give his requested jury instruction on the detentionof offenders by private persons. We disagree.
N.C. Gen. Stat. § 15A-404 (1999) provides:
(b) When Detention Permitted. -- A private
person may detain another person when he has
probable cause to believe that the person
detained has committed in his presence:
(1) A felony,
. . .
(4) A crime involving theft or
destruction of property.
(c) Manner of Detention. -- The detention must
be in a reasonable manner considering the
offense involved and the circumstances of the
detention.
In the instant case, defendant requested the pattern jury
instruction for detention of an offender by a private person in
connection with defendant's firing at the Greesons' van. In his
brief, defendant argues that “the instruction should have been
given both for the charge dealing with the occupied vehicle and the
charge of [second-degree] murder.” We do not consider defendant's
argument that the requested instruction should have been given in
connection with the charge of second-degree murder, as no such
request was made before the trial court, and further, defendant was
not convicted of that offense. See N.C.R. App. P. 10(b)(2) (2002)
(a party may not assign error to an omission from the jury charge
unless he objects thereto prior to the jury retiring for
deliberations, “stating distinctly that to which he objects and the
grounds of his objection”) (emphasis added); see also Burchette v.
Lynch, 139 N.C. App. 756, 765, 535 S.E.2d 77, 83 (2000) (requiring
specific objection under Rule 10(b)(2) to preserve jury instructionissue for appeal) (citing Weil v. Herring, 207 N.C. 6, 10, 175 S.E.
836, 838 (1934) (appellant may not argue theory on appeal that was
not raised in the trial court)). Furthermore, defendant has not
asserted that the trial court's failure to give the requested
instruction in connection with the charge of second-degree murder
amounted to plain error, and he has therefore waived even plain
error review. See N.C.R. App. P. 10(c)(4) (2000); State v. Moore,
132 N.C. App. 197, 511 S.E.2d 22, appeal dismissed and disc. review
denied, 350 N.C. 103, 525 S.E.2d 469 (1999).
As to the requested instruction in connection with defendant
firing at the Greesons' van:
[D]efendant was entitled to the requested
instruction only if there was evidence that:
(1) defendant had probable cause to believe
that one or more of the crimes enumerated [in
G.S. § 15A-404] had been committed; (2)
defendant was trying to “detain” the offender
until the police arrived; and (3) the manner
of detention was reasonable under the
circumstances.
State v. Ataei-Kachuei, 68 N.C. App. 209, 213, 314 S.E.2d 751, 753
disc. review denied, 311 N.C. 763, 321 S.E.2d 146 (1984). Our
Supreme Court discussed the detention of offenders by private
persons in State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982). In
that case, the Court stated that in enacting G.S. § 15A-404, our
legislature used the word “detain” intending its ordinary meaning,
“To hold or keep in or as if in custody.” Id. at 615, 286 S.E.2d
at 72 (quoting Webster's Third New International Dictionary 616
(1976)). In Wall, our Supreme Court rejected the defendant's
contention that he was within his rights in attempting to detainthe victims by firing at their vehicle after they committed a crime
in his presence, where:
By defendant's own testimony, the victim had
left the store and was exiting the parking lot
when defendant fired the first shot. Once the
victim was beyond defendant's control,
defendant could no longer “hold or keep” him.
Id. at 616, 286 S.E.2d at 72.
In the instant case, defendant testified at trial that he
fired the first shot at Anthony Greeson after he turned to leave
the store “Out of fear. Reaction. Just scared.” Anthony Greeson
was approximately six or seven feet away when defendant first fired
at him. He then ran out of the store and defendant lost sight of
him momentarily. When defendant exited the convenience store, he
saw Anthony Greeson running away and he “fired a couple of shots at
him to keep him moving.” At the time defendant fired these shots,
Anthony Greeson's distance from him was “approximately 60 to 70
feet. Maybe farther.” Defendant then came around the corner of
the convenience store and fired more shots at the retreating van,
“more or less aiming towards the tire or at -- you know, to sort of
at least slow it down, disable it somewhat, and at the very least
mark it for the police to find.” Greensboro Police Officer R.W.
Saul testified concerning defendant's statement to police shortly
after the incident, stating that defendant shot at the van “to mark
it for the police to find.” Considering this testimony, the trial
court did not err in refusing to instruct the jury on the detention
of offenders by private persons in connection with the charge of
firing into an occupied vehicle, as Anthony Greeson was well beyonddefendant's control at the time the shots were fired, such that
defendant could no longer “detain” him. Furthermore, defendant's
own testimony indicates that he was trying to keep Anthony Greeson
moving, and fired at the van to mark it for the police.
Additionally, our Supreme Court indicated in Wall that a
private citizen should not be allowed to employ deadly force to
detain an offender in circumstances under which a law enforcement
officer could not have employed similar force to effect an arrest
under N.C. Gen. Stat. § 15A-401 (1999). 304 N.C. at 616, 286
S.E.2d at 73. G.S. § 15A-401(d) provides that a law enforcement
officer is justified in using deadly force in certain situations,
but states that “Nothing in this subdivision . . . shall . . . be
construed to excuse or justify the use of unreasonable or excessive
force.” Defendant's statement to Officer Saul indicated that “At
no time did the robber threaten me.” Furthermore, as noted above,
in finding defendant guilty of voluntary manslaughter rather than
second-degree murder on the basis of imperfect self-defense, the
jury implicitly found that defendant was either the aggressor in
the confrontation or used excessive force, rendering the manner of
detention unreasonable. See Ataei-Kachuei, 68 N.C. App. at 213,
314 S.E.2d at 753 (defendant is entitled to instruction under G.S.
§ 15A-404 only where the manner of detention was reasonable under
the circumstances).
In sum, we conclude that defendant received a fair jury trial,
free from prejudicial error.
No error.
Judges TIMMONS-GOODSON and TYSON concur.
Report per Rule 30(e).
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