Appeal by defendant from judgment entered 15 August 2002 by
Judge W. Robert Bell in Mecklenburg County Superior Court. Heard
in the Court of Appeals 19 November 2003.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Elizabeth F. Parsons, for the State.
Leslie C. Rawls for defendant-appellant.
HUNTER, Judge.
George William Blackwell, Sr. (“defendant”) appeals from a
judgment dated 15 August 2002 entered consistent with jury verdicts
finding him guilty of voluntary manslaughter and possession of a
weapon of mass destruction. Defendant was sentenced to a minimum
term of imprisonment of seventy-two months with a corresponding
maximum term of ninety-six months. We conclude there was no error.
The State's evidence presented at trial beginning on 12 August
2002 tends to show the following. On 5 November 1999, David Ray
Baker (“the victim”) returned home from visiting his aunt shortly
after 11:00 p.m. The victim was still angry from an earlier
altercation with his cousin and called his father, after which he
went outside. The victim's father returned the call and thevictim's wife went outside to tell the victim. However, she did
not find him and shortly after a gunshot was heard.
Defendant lived in a rooming house next door to the victim.
Defendant's house-mate heard defendant leave the house at around
11:00 p.m. Subsequently, he heard a man next door standing outside
cursing. Approximately fifteen minutes later, defendant returned
and his house-mate heard the man next door state in an angry tone,
“can't you drive?” Defendant was heard walking back to the rooming
house, but was then engaged in a heated conversation, during which
defendant was distinctly heard to say, “back off.” Defendant's
house-mate heard a gunshot, and defendant returned to the house and
called emergency services.
Patricia Amos (“Amos”), a crime scene investigator for the
Charlotte-Mecklenburg Police Department, testified that she arrived
at the scene of the shooting at about 2:50 a.m. She observed the
body of the victim lying in his own backyard with wounds to the
left side of his neck. The victim was wearing a long sleeved
shirt, blue jeans and tennis shoes. Amos searched the victim's
clothing and found nothing. A four-foot high chain link fence
separated the victim's residence from defendant's residence. By
Amos' measurement, the waist of the victim was fourteen and a half
feet from the chain link fence. The victim was lying on his back
with his feet pointing toward the fence. Furthermore, there was a
security light located at the base of the fence that was turned on.
Amos did not find a weapon on the victim's body or anywhere in the
victim's backyard. The only thing resembling a weapon that wasfound was a dust-covered toy pistol, located in an abandoned car
thirty-feet away from the victim's body. Amos also examined
defendant's residence and defendant gave consent for a search of
his room. A 12-gauge Eastern Arms shotgun with a sawed-off barrel
was laying on the bed and a spent shotgun shell was found on the
bedside table.
Todd Nordhoff (“Nordhoff”) testified that he was a firearm and
toolmark examiner with the Charlotte-Mecklenburg crime lab.
Defendant stipulated, through counsel, that Nordhoff was an expert
in forensic firearms identification. He testified that the shotgun
recovered from defendant's room had a barrel length of fifteen and
a half inches and an overall length of twenty-four inches.
Nordhoff stated that to be legal in North Carolina a shotgun was
required to have a barrel length of eighteen inches and an overall
length of twenty-six inches. Nordhoff identified the spent shotgun
shell found in defendant's room as having been fired from the
shotgun.
On recall, Nordhoff testified that the shotgun was a center
fire weapon. On cross-examination, Nordhoff stated that the
shotgun was manufactured sometime after 1905. Nordhoff was asked
how he knew that and Nordhoff replied that he had done research on
the internet at a website called “Gable Guns, dot, com.” Although
Nordhoff did not know the background of the website's proprietor,
the website apparently specialized in pre-1898 antique firearms.
According to this website, “Eastern Arms Company” was a brand name
used by Jay Stevens Arms between the years 1910 and 1915. Anautopsy showed the victim's major wound was a shotgun wound to the
chest and neck resulting in numerous internal injuries. Eight
shotgun pellets were found in the victim's body and a ninth had
pierced the back of the victim and exited his body.
Defendant testified on his own behalf. He stated that on the
night of the shooting he left his residence to purchase cigarettes.
Upon returning, he saw the victim accosting a man in a pickup
truck. The victim then threatened defendant and began approaching
him saying, “I'll just kill you.” The victim climbed a fence back
into his own yard and began walking toward defendant's residence.
Defendant returned to his room and retrieved his shotgun, which had
a sawed-off barrel and returned to the deck of his house. As the
victim was climbing the fence into defendant's backyard, defendant
walked toward the victim and warned him to get off the fence.
Defendant did not see a weapon in the victim's hands. He then
warned the victim that he had two choices, “you can live or die.”
The victim got off the fence and began to walk away, but suddenly
turned and defendant saw the victim's hands go into his pockets as
the victim yelled, “f--- you[,] I'm gonna kill you.” Defendant
fired his shotgun killing the victim.
Defendant also presented evidence that the shotgun had
belonged to his father to whom it was given by an eighty-three
year old lady whose father had given it to her. The first time
defendant had tried to fire the gun after it was given to him, the
barrel of the shotgun “banana-peeled like a Bugs Bunny cartoon.”
As a result, defendant had sawed off part of the barrel. Defendant was indicted for manslaughter and felonious
possession of a weapon of mass destruction, “to wit: a Stevens 12
gauge single-shot shotgun that was modified so that it had a barrel
length of less than eighteen (18) inches in length and a total
length of less than twenty-six (26) inches.” Defendant's motions
to dismiss were denied both at the close of the State's evidence
and at the close of all the evidence. As part of its jury
instruction on the defense of self-defense the trial court stated:
And, second, the circumstances as they
appeared to the defendant at the time were
sufficient to create such a belief in the mind
of a person of ordinary firmness.
It is for you, the jury, to determine the
reasonableness of the defendant's belief from
the circumstances as they appeared to him at
the time. In making this determination you
should consider the circumstances as you find
them to have existed from the evidence,
including the size, age and strength of the
defendant as compared to the victim, the
fierceness of the assault, if any, upon the
defendant, whether or not the victim had a
weapon in his possession, and whether or not
the victim had a weapon in his possession.
The jury convicted defendant on both charges.
The issues are whether: (I) there was sufficient evidence
that defendant did not shoot the victim in self-defense to reach a
jury; (II) admission of Nordhoff's testimony regarding the
information he found on the website was plain error; (III) there
was a fatal variance between the pleading and the proof on the
charge of felonious possession of a weapon of mass destruction; and
(IV) the trial court's instruction on self-defense constituted
plain error.
I.
Defendant first argues there was insufficient evidence upon
which to convict him of voluntary manslaughter because the State
failed to present sufficient evidence that the shooting was not
committed in self-defense.
“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) (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. Jackson, 145 N.C. App. 86,
90, 550 S.E.2d 225, 229 (2001). In this case, defendant contends
he did not commit voluntary manslaughter because he was acting in
self-defense.
Pursuant to the law of perfect self-defense, a killing is
excused altogether if, at the time of the killing, four elements
existed:
“(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
firmness; 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)
(citation omitted). When the evidence in a homicide prosecution
raises the issue of self-defense, the State bears the burden of
proving the defendant did not act in self-defense.
State v.
Gilreath, 118 N.C. App. 200, 208, 454 S.E.2d 871, 876 (1995). The
test on a motion to dismiss is therefore whether the State has
presented substantial evidence which, when taken in the light most
favorable to the State, would be sufficient to convince a
reasonable juror that the defendant did not act in self-defense.
Id.
In this case, the State presented evidence that the victim was
unarmed and his body was found in his own backyard fourteen and a
half feet from the fence separating his property from defendant's
residence. Other evidence revealed defendant left the initial
confrontation with the victim in order to retrieve his shotgun.
See State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (2000)
(on a motion to dismiss, defendant's evidence should be ignored
unless it is favorable to the State or does not conflict with the
State's evidence). He then returned with his shotgun, ultimately
using it to kill the victim. This is evidence that defendant was
not threatened with death or great bodily harm and that defendantexerted excessive force against the victim. Furthermore, as
defendant left the scene and returned with a shotgun this is
evidence that he entered into the confrontation willingly. This is
sufficient evidence to support a voluntary manslaughter conviction.
Defendant's evidence to the contrary does not negate the State's
evidence, but is instead evidence to be considered by the jury in
reaching its verdict.
See In re Wilson, 153 N.C. App. 196, 198,
568 S.E.2d 862, 863 (2002).
II.
Defendant next contends it was plain error to admit testimony
from Nordhoff that, based on information from the website, the
shotgun used by defendant was manufactured by Jay Stevens Arms
sometime after 1905. Defendant contends this was inadmissible
hearsay. This testimony was, however, elicited by defendant's
cross-examination of Nordhoff and defendant did not object or move
to strike this testimony. It is apparent that defendant invited
this testimony in an attempt to discredit Nordhoff's expert opinion
by undermining his credibility through a showing that the only
source he relied on as the basis of his opinion was an unverifiable
website.
Even if this testimony was admitted as inadmissible hearsay
evidence, and not as evidence impeaching the credibility of the
witness, it would have to rise to the level of plain error to
warrant a reversal, and thus the burden is on defendant to
establish that without the error a different result probably would
have been reached.
See State v. Bellamy, ___ N.C. App. ___, ___,582 S.E.2d 663, 667 (2003),
cert denied, ___ N.C. ___, ___ S.E.2d
___ (No. 452P03 filed 6 November 2003). Defendant contends this
testimony rises to the level of plain error because it is the only
evidence that the shotgun was not an antique and thereby exempted
from the possession of a weapon of mass destruction statute.
N.C. Gen. Stat. § 14-288.8 defines a weapon of mass
destruction as including, “any shotgun with a barrel . . . less
than 18 inches in length or an overall length of less than 26
inches.” N.C. Gen. Stat. § 14-288.8(c)(3) (2003). The statute
exempts, however, any device which is defined by the United States
Secretary of the Treasury as an “antique.” N.C. Gen. Stat. § 14-
288.8(c). Federal law defines an antique firearm as one that was
manufactured in or before 1898. 18 U.S.C. § 921(16)(A) (2003).
Defendant asserts that as Nordhoff's testimony on recall was the
only evidence of the age of the weapon, without this evidence the
State has failed to meet its burden of proof to show the gun was
not an antique.
Although the question of which party has the burden of proof
on the issue of whether a weapon is an antique under N.C. Gen.
Stat. § 14-288.8(c) has not previously been addressed, this Court
has held that the “inoperability” of a weapon under N.C. Gen. Stat.
§ 14-288(c) is an affirmative defense with the burden on a
defendant to produce evidence of inoperability.
See State v.
Fennell, 95 N.C. App.
140, 145, 382 S.E.2d 231, 233-34 (1989). Our
Supreme Court has, however, subsequently criticized the rationale
in
Fennell and limited its holding to “mean inoperability is adefense to the extent that the defendant can prove the pieces [of
a weapon] seized were not 'designed or intended for use in
converting any device' into a weapon of mass death and
destruction.”
State v. Jackson, 353 N.C. 495, 499, 546 S.E.2d 570,
573 (2001). Thus, our Supreme Court only criticized
Fennell in its
inexact usage of the general term “inoperability,” not in our
placing the burden of proof on this issue upon a defendant.
See
id.
The case
sub judice, unlike
Fennell, does not require
interpretation of whether the antique status of a weapon exempts it
from N.C. Gen. Stat. § 14-288.8, because antique weapons, as
previously noted, are explicitly exempted. Instead, this case only
presents the question of which party holds the burden of proof on
this issue. We elect to follow the reasoning in both
Fennell and
Jackson by holding that the antique status of a sawed-off shotgun
is an affirmative defense under Section 14-288.8, and thus, the
initial burden of proof is on a defendant to present evidence of
the antique status of the shotgun.
See Fennell, 95 N.C. App. at
145
, 382 S.E.2d at 233;
see also State v. Baldwin, 34 N.C. App.
307, 309, 237 S.E.2d 881, 882 (1977) (where defendant presented no
evidence of inoperability, the State was not required to present
evidence of operability).
In this case, the only evidence presented by defendant as to
the age of the shotgun was that it had belonged to his father, who
had received it from an eighty-three year old woman whose father
had owned it. This is not evidence that the shotgun meets thetechnical definition of an antique under N.C. Gen. Stat. § 14-288.8
and 18 U.S.C. § 921(16)(A), but is rather circumstantial evidence
that the gun is merely old. We conclude that evidence a gun is
simply old, without more, is insufficient to shift the burden of
proof to the State to prove the gun is not an antique. Therefore,
since there was no evidence that the shotgun was an antique, the
jury could not have found it to be one. Consequently, even without
Nordhoff's testimony as to the date of the gun's manufacture, it is
not probable that the jury would have reached a different verdict.
Thus, even assuming admission of this testimony was error, it does
not rise to the level of plain error.
III.
Defendant next argues that there was insufficient evidence to
support the charge of felonious possession of a weapon of mass
destruction. Specifically, defendant contends the proof did not
match the indictment. Defendant was indicted for felonious
possession of a weapon of mass destruction, “to wit: a Stevens 12
gauge single-shot shotgun.” Defendant contends the only evidence
presented was that the shotgun was an “Eastern Arms” shotgun.
Defendant, however, ignores the testimony he elicited on
cross-examination that “Eastern Arms” was a brand name of Jay
Stevens Arms. This is evidence the shotgun was manufactured by Jay
Stevens Arms and would thus be a Stevens shotgun.
Moreover, even if there was no evidence that the shotgun was
a Stevens shotgun, the test for whether there is a fatal variance
in the indictment is whether “'the act or omission [alleged] isclearly set forth so that a person of common understanding may know
what is intended.'”
State v. Snyder, 343 N.C. 61, 66, 468 S.E.2d
221, 224 (1996) (quoting
State v. Coker, 312 N.C 432, 435, 323
S.E.2d 343, 346 (1984)). In this case, any person of common
understanding would have understood that he was charged with
possessing the sawed-off shotgun that he used to shoot the victim
on the night alleged.
IV.
Defendant finally assigns plain error to the trial court's
instruction on self-defense. In addressing the reasonableness of
defendant's belief that it was necessary to kill the victim in
order to save himself, the trial court stated, without objection:
“In making this determination you should consider the circumstances
as you find them to have existed from the evidence, including . . .
whether or not the victim had a weapon in his possession, and
whether or not the victim had a weapon in his possession.”
(Emphasis added.)
Defendant argues this repetition was plain error. The trial
court, however, was simply reading the pattern jury instruction,
see 1 N.C.P.I.--Crim. 206.40 (2002), and made the repetition
instead of reading “the reputation, if any, of the victim for
danger and violence.”
Id. Defendant did not object at trial to
the instruction and does not argue that the victim's reputation was
an issue the jury should have considered. As such, the trial
court's misreading of the instruction was not plain error.
No error. Judges MCGEE and GEER concur.
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