STATE OF NORTH CAROLINA
v
.
Halifax County
No. 00 CRS 2809
JESSE TYANN BRACEY
Attorney General Roy Cooper, by Assistant Attorney General H.
Dean Bowman, for the State.
McCotter, McAfee & Ashton, PLLC, by Rudolph A. Ashton, III and
Robert J. McAfee, for defendant-appellant.
WALKER, Judge.
On 2 March 2001, defendant was convicted of first-degree
murder under the theory of premeditation and deliberation and was
sentenced to life imprisonment without parole. The State's
evidence tended to show the following: During the early morning
hours of 19 March 2000, Antonio Gunter (the deceased), Lamont
Hannon (Mr. Hannon), and defendant attended a party at the
residence of Vera Hannon, Mr. Hannon's mother, in Scotland Neck.
Mr. Hannon testified that while they were inside the house, there
was no trouble between defendant and him. However, Mr. Hannon
witnessed the defendant and Steve Harris arguing in the yard. When
Mr. Hannon told both men to take their arguing across the street,
defendant put his finger in Mr. Hannon's face and swore at him. Mr. Hannon then struck defendant once in the face with his fist.
Mr. Hannon testified that he followed the defendant across the
street and asked him if he wanted to fight, to which defendant
responded, “Naw, I'm through with it.” Mr. Hannon then turned and
walked away. While he was walking away, the deceased approached
Mr. Hannon and told him to “leave it alone.” Immediately
thereafter, Mr. Hannon testified he heard a pop and “Antonio fell
into me and we both hit the ground.” The bullet struck the
deceased in the back of the head killing him.
Andre Shields testified that, as the deceased and Mr. Hannon
were walking away from defendant, he heard a gunshot and spotted
the defendant with “one foot in and one out” of the driver's side
door. Mr. Shields further testified that, after defendant fired
his pistol, the defendant “just got in his car and left.”
Detective Ralph Macon of the Halifax County Sheriff's
Department testified that he and Detective Stanfield interviewed
defendant on 19 March 2000 after defendant had been arrested.
Defendant waived his Miranda rights and gave a statement. He told
Detective Macon that, after he was struck by Mr. Hannon, he
“walked” back to his car and “reached into my coat pocket and
pulled the pistol out.” Defendant stated that he held the pistol
at an angle and fired one shot into the crowd. Defendant further
stated that it had been “a minute or two” between the time he was
struck in the face and the time he fired his pistol. Defendant
told Detective Macon that he saw someone fall to the ground, and he
“got into [his] car and drove away.” Defendant did not make anystatements to the detective as to whether he was intoxicated at the
time of the shooting.
Gerard Fenner testified that defendant came to his house
during the early morning hours of 19 March 2000. Defendant gave
him a pistol and told Mr. Fenner that he thought he had just shot
someone. Mr. Fenner and Dwayne Battle hid the pistol under a house
on 12th Street. Mr. Battle subsequently sold the pistol to Tony
Baker, who turned the pistol over to the Scotland Neck Police
Department.
Further, Chief Doug Pilgreen of the Scotland Neck Police
Department testified that later that day he observed defendant's
vehicle parked in the yard behind a mobile home where it was
difficult to be seen from the street. Chief Pilgreen stated that
he knew defendant stayed in the mobile home quite frequently;
however, he had never seen defendant's vehicle parked behind the
mobile home prior to this occasion.
Defendant did not testify but he called Latisha Bellamy who
testified that she witnessed the confrontation between the
defendant and Mr. Hannon. She testified that Mr. Hannon and Dameon
Arrington chased defendant to his vehicle and they “beat him till
he got all the way to his car like he was a punching bag.” Darrell
Lassiter testified that he and defendant consumed beer at a
friend's house, Clark's Café, and Vera Hannon's house and became
“drunk” on the night in question.
On appeal, defendant first contends the trial court erred in
denying his motion to dismiss the charge of first-degree murder forinsufficient evidence of premeditation and deliberation. To
survive a motion to dismiss, the State must present substantial
evidence to support a finding of each essential element of the
offense charged and that the defendant committed the crime. State
v. Roseman, 279 N.C. 573, 580, 184 S.E.2d 289, 294 (1971).
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” State v.
Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). When
considering a motion to dismiss, the court must examine the
evidence in the light most favorable to the State, giving the State
the benefit of every reasonable inference to be drawn from the
evidence. State v. Benson, 331 N.C. 537, 544, 417 S.E.2d 745, 761
(1992).
First-degree murder is the unlawful killing of another human
being with malice, premeditation, and deliberation. State v.
Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991). Malice may be
presumed when a deadly weapon is used to commit an unlawful
killing. State v. Porter, 326 N.C. 489, 505, 391 S.E.2d 144, 155
(1990). “Premeditation means that the act was thought out
beforehand for some length of time, however short, but no
particular amount of time is necessary for the mental process of
premeditation.” State v. Conner, 335 N.C. 618, 635, 440 S.E.2d
826, 835-36 (1994), cert. denied, 522 U.S. 876, 1189 S.Ct. 196, 139
L. Ed. 2d 134 (1997). “Deliberation means an intent to kill,
carried out in a cool state of blood, in furtherance of a fixed
design for revenge or to accomplish an unlawful purpose and notunder the influence of a violent passion, suddenly aroused by
lawful or just cause or legal provocation.” Id. at 635, 440 S.E.2d
at 836. Both premeditation and deliberation may be proved by
circumstantial evidence. State v. Bruton, 344 N.C. 381, 388, 474
S.E.2d 336, 341 (1996). Further, premeditation and deliberation
can be inferred from statements and conduct of the defendant before
and after the killing. State v. Olson, 330 N.C. 557, 565, 411
S.E.2d 592, 596 (1992).
Here, the evidence viewed in the light most favorable to the
State shows that after defendant was struck by Mr. Hannon's fist
and was asked if he wanted to fight, defendant stated he was
“through with it” and walked away. He “walked” back to his vehicle
and after “a minute or two” opened the door and placed one foot
inside and turned and fired his pistol in the direction of the
deceased. He then quickly got into his vehicle and left.
Defendant disposed of the pistol by leaving it with Mr. Fenner.
Further, defendant parked his vehicle behind a mobile home where it
was not visible from the street. Thus, we find there was
sufficient evidence to submit first-degree murder based on the
theory of premeditation and deliberation to the jury. The trial
court did not err in denying defendant's motion to dismiss.
Defendant next argues that the trial court erred in denying
his request for instruction on the defense of accident. A
defendant is entitled to instructions to the jury regarding any
defenses which arise upon the evidence. State v. Melton, 187 N.C.
480, 481, 122 S.E. 17, 18 (1924). A homicide will be excused as a result of an accident where it
appears that a killing was unintentional, that the perpetrator
acted with no wrongful purpose in doing the homicidal act, and that
it was not the result of negligence. State v. Turner, 330 N.C.
249, 262, 410 S.E.2d 847, 854 (1991); State v. Faust, 254 N.C. 101,
112, 118 S.E.2d 769, 776 (1961). Evidence does not raise the
defense of accident where the defendant was not engaged in lawful
conduct when the killing occurred. Faust, 254 N.C. at 113, 118
S.E.2d at 776.
Here, defendant contends that because he did not intend to
shoot the deceased but that he was “about to go and just shot,” he
is entitled to an instruction on accident. Defendant does not
claim that his action was unintentional or that his pistol
accidentally discharged. Instead, defendant admits pulling the
pistol from inside his coat pocket and then he “turned around
towards the crowd” and “fired one shot off.” Accordingly, the
trial court properly denied defendant's request for an instruction
on the defense of accident.
Defendant further contends the trial court erred in refusing
to give his requested instruction on transferred intent. A trial
court must give an instruction that is a correct statement of the
law and is supported by evidence. State v. Moore, 335 N.C. 567,
606, 440 S.E.2d 797, 819 (1994). However, the trial court need not
give the requested instruction verbatim. State v. Green, 336 N.C.
142, 174, 443 S.E.2d 14, 33-34 (1994). An instruction that givesthe substance of the requested instruction and is a correct
statement of the law is sufficient. Id.
The defendant argues that his requested instruction would "set
in the jury's mind not only the proper legal standard to apply to
the facts found by the jury, but also to provide a more logical
explanation to the jury of the defense theories of accident,
intoxication or self-defense." Further, defendant argues that the
instruction on transferred intent given by the trial court
“bypasses consideration of second-degree murder in this instance by
substituting blanket general intent to all of the people in the
vicinity of Lamont Hannon” on this occasion.
Here, the trial court gave the following instruction on
transferred intent: “If the defendant intended to harm one person
but actually harmed a different person, the legal effect would be
the same as if he had harmed the intended victim.” The trial
court's instruction is an accurate statement of the doctrine of
transferred intent which was drawn from N.C.P.I.--Crim. 104.13
(2001). Further, defendant fails to point to any prejudice as to
the instruction on voluntary intoxication and he did not request an
instruction on self-defense. Therefore, the trial court did not
err in refusing to give the defendant's requested instruction on
transferred intent.
Defendant finally contends the trial court erred by denying
his request for an instruction on voluntary manslaughter. Our
Supreme Court has held that when a jury is properly instructed on
first-degree murder and second-degree murder and returns a verdictof guilty of first-degree murder on the theory of premeditation and
deliberation, the failure to instruct on voluntary manslaughter is
harmless error. State v. Holt, 342 N.C. 395, 398, 464 S.E.2d 672,
674 (1995); State v. Bunnell, 340 N.C. 74, 82, 455 S.E.2d 426, 430
(1995); State v. Shoemaker, 334 N.C. 252, 271, 432 S.E.2d 314, 324
(1993).
In the instant case, the jury was properly instructed on
first-degree murder and second-degree murder. The jury returned a
verdict of guilty of first-degree murder under the theory of
premeditation and deliberation. Thus, assuming arguendo the trial
court erred in failing to give an instruction on voluntary
manslaughter, any error was harmless.
In conclusion, we find there was no error in the trial and
conviction of defendant for first-degree murder.
No error.
Chief Judge EAGLES and Judge BIGGS concur.
Report per Rule 30(e).
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