An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-450


Filed: 21 January 2003


         v.                        Gaston County
                                No. 98 CRS 18589

    Upon Writ of Certiorari review of judgment entered 29 July 1999 by Judge F. Donald Bridges in Gaston County Superior Court. Heard in the Court of Appeals 23 December 2002.

    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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