STATE OF NORTH CAROLINA
v. Johnston County
No. 96 CRS 12315
TEDDY DANIEL HARMON,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Jonathan P. Babb, for the State.
Russell J. Hollers, III, for defendant-appellant.
GEER, Judge.
Defendant Teddy Daniel Harmon, who was convicted of second
degree murder, contends that the trial court erred in denying his
request for a voluntary manslaughter instruction. Because the
record does not contain evidence from which a jury could conclude
that defendant acted with adequate provocation, the trial court
properly refused to instruct the jury as to voluntary manslaughter.
In the early morning on 17 August 1996, defendant and his
friends Steve Gustafson and William Pope were at the Coastal gas
station in Benson, North Carolina. James Dormio was standing near
his car at the gas pumps. After seeing Dormio, Pope stated to
defendant and Gustafson that "he was going to kick [his] a--."
Pope was angry with Dormio because he had heard that Dormio washarassing a former girlfriend of Gustafson.
Eyewitnesses testified that Pope, Gustafson, and defendant
approached Dormio at his car. Pope pushed Dormio, asking him if he
had a problem. While the four men were arguing and shoving,
Douglas Johnson came up from "out of nowhere." He said "Don't f--k
with my friends," and hit Dormio in the face with his fist.
Dormio, who was wearing a cast on his leg, stumbled and fell
face first to the pavement. The eyewitnesses testified that while
Dormio was lying on the ground, Johnson and defendant kicked Dormio
repeatedly in Dormio's ribs, back, neck, and head. No one had seen
Dormio with a weapon and no one testified that Dormio struck
anyone.
Officer Ashley McLamb arrived at the gas station in response
to a call that a fight was in progress. Officer McLamb found
Dormio's unconscious body near the gas pumps, with bruises on his
face and blood coming from his mouth and nose. A rescue squad
transported Dormio to a hospital where he was pronounced dead on
arrival.
The Chief Medical Examiner for North Carolina concluded that
Dormio died from bleeding around the base of his brain that was the
result of blunt force trauma tearing a major artery to the brain.
The Medical Examiner testified that one or more violent blows,
including a kick, causing a wrenching of the neck or twisting of
the head could have led to the tearing.
On 23 September 1996, defendant was indicted for murder
pursuant to a short-form indictment. Defendant was ultimatelyconvicted of second degree murder and sentenced to a term of 157 to
198 months imprisonment. Defendant failed to perfect his appeal in
a timely manner, but this Court granted defendant's petition for
writ of certiorari on 10 April 2002.
Defendant first argues that the trial court erred by not
instructing the jury on the lesser included offense of voluntary
manslaughter. Defendant contends that there was a conflict in the
evidence regarding provocation, and thus he was entitled to have
the jury consider voluntary manslaughter as a possible verdict. We
find no error.
"[A] defendant is entitled to have a lesser-included offense
submitted to the jury only when there is evidence to support it."
State v. Johnson, 317 N.C. 193, 205, 344 S.E.2d 775, 782 (1986).
A trial court need not instruct on a lesser included offense when
the "State's evidence is positive as to each element of the offense
charged and there is no contradictory evidence relating to any
element . . . ." State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d
767, 772 (2002).
Voluntary manslaughter is "the killing of another human being
without malice and without premeditation and deliberation under the
influence of some passion or heat of blood produced by adequate
provocation." State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694,
699 (1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569,
overruled on other grounds, State v. Richardson, 341 N.C. 585, 461
S.E.2d 724 (1995). Defendant was entitled to an instruction on
voluntary manslaughter only if there was evidence tending to show(1) defendant assaulted Dormio in the heat of passion; (2)
defendant's passion was provoked by acts of the victim which the
law regards as adequate provocation; and (3) the assault took place
immediately after the provocation. State v. Tidwell, 323 N.C. 668,
673, 374 S.E.2d 577, 580 (1989). In order to constitute "adequate
provocation," the victim's conduct ordinarily must have been either
an actual physical assault or a threatened assault on the
defendant. State v. Rogers, 323 N.C. 658, 667, 374 S.E.2d 852, 858
(1989). See also Watson, 338 N.C. at 176, 449 S.E.2d at 700 ("Mere
words, however abusive or insulting are not sufficient provocation
to negate malice and reduce the homicide to manslaughter.").
The evidence in this case is not sufficient to permit a jury
to find that the victim Dormio assaulted or threatened to assault
defendant. Defendant points to testimony that Dormio took a step
towards Gustafson, that Pope pushed Dormio into Harmon, and that
Dormio "clenched his fist and puffed up" at Pope. Although
defendant contends that Dormio "appeared threatening," the
undisputed evidence indicates that any possible "threat" was
directed towards Pope and Gustafson and not defendant. The
evidence is also undisputed that Pope, Gustafson, and defendant
initiated the confrontation; that Pope made the first physical
contact by shoving Dormio; that the three men shoved Dormio; and
that the blows that likely killed Dormio occurred when he was lying
on the ground. These circumstances do not present the level of
provocation that would "render the mind incapable of cool
reflection" and, therefore, did not warrant the submission of aninstruction on involuntary manslaughter. State v. Huggins, 338
N.C. 494, 499, 450 S.E.2d 479, 482 (1994). This assignment of
error is overruled.
Defendant next argues that the trial court erred by denying
his motion to dismiss based on the State's use of the short-form
murder indictment. This argument was recently rejected by our
Supreme Court in State v. Hunt, 357 N.C. 257, 582 S.E.2d 593
(2003). Accordingly, the assignment of error is overruled.
No error.
Judges McGEE and HUDSON concur.
Report per Rule 30(e).
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