STATE OF NORTH CAROLINA
v. Gaston County
No. 98 CRS 18589
NORMAN PHILIP WAITES,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General David Roy Blackwell, for the State.
Rudolf, Maher, Widenhouse & Fialko, by Andrew G. Schopler, for
defendant-appellant.
HUDSON, Judge.
Defendant Norman Philip Waites (“defendant”) was charged with
the murder of Edna Parker Welch (“Welch”). The State's evidence
tended to show that Welch and defendant were co-workers and lived
together “on and off” in a home that Welch rented from her next
door neighbor, Sue Brandon (“Brandon”). In the early morning hours
of 23 June 1998, defendant telephoned Brandon and stated, “She's
dead, Edna's dead; what am I going to do?” Brandon told defendant
to hang up the phone so that she could call the police. Defendant
responded, “Yeah, that's what you got to do” and hung up. Brandon
then called the police.
Officers Don Black and H.R. Paul of the Gastonia City PoliceDepartment arrived at Welch's home in response to the call.
Defendant, who was dressed in a pair of Bermuda shorts, walked down
from the porch with his hands raised. Defendant had cuts on the
left side of his chest and the right side of his shoulder. When
Officer Black asked defendant what happened, he replied, “I just
killed my girlfriend.” Officer Black entered the house and looked
into the bedroom on the left. He found a women in her late
thirties or early forties, dressed in a nightgown, and lying face
up on the bed. Officer Black observed “a lot of blood around the
head area” but no vital signs. The officers did not observe other
persons in the home nor other disturbances anywhere in the home.
Officer Black went back outside, placed defendant in custody
and secured the crime scene. Officer Black noted that defendant
“didn't seem upset[.]” During a search of the kitchen, police
detectives Jimmy Swanger and S.E. Baker found a wristwatch in the
sink dish drainer, a bloody paper towel, a handwritten note, and
twelve empty Budweiser beer cans in the wastebasket. Detective
Baker seized a photograph showing defendant wearing the watch found
in the dish drainer.
Dr. Steven Tracy, an expert in pathology, testified that Welch
suffered several contusions on her face and upper shoulders, a
broken nose, and a fractured voice box. Welch also had bruises on
her lips, tongue, jaw, and chest. Dr. Tracy concluded that Welch's
death was caused by asphyxiation due to manual strangulation. In
explaining strangulation, Dr. Tracy stated loss of consciousness
could occur within a minute, but to ensure that a victim is dead,a person would have to continue to apply pressure until the brain
cells had died and could not recover. Dr. Tracy opined that “much
of the bruising of [the victim's] upper chest and her face was
inflicted prior to the strangulation.”
Defendant did not present any evidence. A jury found him
guilty of second-degree murder. The trial court sentenced
defendant to 189 to 236 months' imprisonment. On 23 April 2001,
this Court allowed defendant's petition for writ of certiorari for
the purpose of reviewing defendant's judgment.
In his sole argument on appeal, defendant contends that the
trial court erred by failing to submit to the jury the issue of
defendant's guilt of voluntary manslaughter. During the jury
charge conference, defendant requested an instruction on the
lesser-included offense of voluntary manslaughter. The trial court
denied defendant's request and charged the jury on first-degree
murder and second-degree murder. Defendant contends that the State
failed to present substantial evidence that he acted with malice
and not in the heat of passion. We disagree.
A trial court must give instructions on all lesser-included
offenses that are supported by the evidence, even in the absence of
a special request for such an instruction, and the failure to so
instruct constitutes reversible error that cannot be cured by a
verdict finding the defendant guilty of the greater offense. State
v. Montgomery, 341 N.C. 553, 567, 461 S.E.2d 732, 739 (1995). The
trial court may refrain from submitting the lesser offense to the
jury only where the "evidence is clear and positive as to eachelement of the offense charged, and no evidence supports a lesser-
included offense.” State v. Lawrence, 352 N.C. 1, 19, 530 S.E.2d
807, 819 (2000) (internal quotation marks and citation omitted),
cert. denied, 531 U.S. 1083, 148 L. Ed. 2d 684 (2001). If there is
any evidence that indicates the absence of an important element of
the primary offense and the existence of an element of a lesser
offense, the jury must be instructed on the lesser offense as well.
State v. Annadale, 329 N.C. 557, 406 S.E.2d 837 (1991). However,
"[a] defendant is not entitled to an instruction on a lesser
included offense merely because the jury could possibly believe
some of the State's evidence but not all of it." Annadale, 329
N.C. at 568, 406 S.E.2d at 844.
"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 the defendant is
the aggressor. State v. Barts, 316 N.C. 666, 692, 343 S.E.2d 828,
845 (1986). To reduce the crime of second-degree murder to
voluntary manslaughter, the defendant must either "rely on evidence
presented by the State or assume a burden to go forward with or
produce some evidence of all elements of heat of passion on suddenprovocation." State v. Robbins, 309 N.C. 771, 777-78, 309 S.E.2d
188, 192 (1983).
In the instant case, defendant did not testify or put on any
evidence. The State's evidence tended to show that defendant beat
the victim about the face and chest, breaking her nose and
bloodying her nightgown and the bed in which she lay. Defendant
then strangled her with his bare hands “until [her] brain cells had
died and could not recover.” Defendant specifically points to the
handwritten note found in the search of the home as support for his
argument. Neither the note nor evidence of its contents appears in
the record on appeal, and thus, we cannot agree with defendant. A
killing in the heat of passion upon sudden provocation is not shown
by the State's evidence, nor has defendant gone forward with or
produced any evidence to reduce the killing from murder to
voluntary manslaughter. We hold, therefore, that the trial court
properly declined to submit to the jury the issue of defendant's
guilt of voluntary manslaughter.
No error.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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