STATE OF NORTH CAROLINA,
v
.
Cumberland County
No. 01 CRS 54561
WAYNE CHARLES JOHN FEENEY,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Robert C. Montgomery for the State.
Beaver, Holt, Sternlight, Glazier, Carlin, Britton & Courie,
P.A., by Richard B. Glazier and H. Gerald Beaver for the
defendant-appellant.
ELMORE, Judge.
Wayne Charles John Feeney (defendant) appeals from his second
degree murder conviction. Defendant and victim fought in a car
outside a Fayetteville bar. Both were shot and wounded in the
struggle. At the scene, an officer testified that defendant was in
pain and extremely intoxicated. Doctor's notes showed that the
defendant had a blood-alcohol level at the hospital of .16, and a
toxicology report the victim had a blood-alcohol level of .33 and
had ingested cocaine. Victim later died, and defendant was
convicted of second-degree murder. As an initial matter, we note that defendant only brings one
assignment of error in his brief on appeal. Thus, the remaining
seven assignments of error in the record on appeal are deemed
abandoned pursuant to our Rule of Appellate Procedure 28 (b)(5).
N.C.R. App. P. 28(b) (2004).
Defendant's remaining assignment of error on appeal is whether
“the trial court committed reversible error [by] denying
defendant's motion to dismiss the charge against him, made at the
close of the State's evidence and at the close of trial, where the
evidence was insufficient to convince a trier of fact of the
defendant's guilt of the charge [against him] beyond a reasonable
doubt in violation of the sixth and fourteenth amendments and
Article I, §§ 19, 23 and 27 of the North Carolina Constitution.”
Defendant failed to develop this argument in his brief and cited no
authority in support thereof. Defendant's subsequent argument in
his brief on appeal makes no reference to the Constitution, and
does not cite to the Constitution. The brief contains a sole
argument that the defendant offered evidence of perfect
self-defense and cites some authority in support. However,
defendant has not made a corresponding assignment of error. This
is inappropriate under the Rules of Appellate Procedure. N.C.R.
App. P. 28(a), (b)(6) (2004). However, we will suspend the
Appellate Rules pursuant to Rule 2 in order to prevent manifest
injustice. N.C.R. App. P. 2 (2004). We will consider defendant's
argument that the trial court erred in denying his motion todismiss citing evidence of self-defense, without regard to the
constitutional issues not addressed.
Our Supreme Court has held:
In determining the sufficiency of the evidence
to withstand a motion to dismiss and to be
submitted to the jury, the trial court must
determine “whether there is substantial
evidence (1) of each essential element of the
offense charged, or of a lesser offense
included therein, and (2) of defendant's being
the perpetrator of such offense.” Substantial
evidence is such relevant evidence as is
necessary to persuade a rational juror to
accept a conclusion. The trial court must
review the evidence in the light most
favorable to the State, giving the State the
benefit of every reasonable inference to be
drawn therefrom.
State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003),
cert. denied, ___ U.S. ___, ___ L. Ed. 2d ___ (2004) (citations
omitted).
Murder in the second degree is the unlawful killing of a human
being with malice but without premeditation and deliberation.
State v. Gainey, 355 N.C. 73, 91, 558 S.E.2d 463, 475-76, cert.
denied, 537 U.S. 896, 154 L. Ed. 2d 165 (2002).
We hold that the State brought sufficient evidence that the
defendant intentionally assaulted the victim with a pistol, that
the victim received four gunshot wounds, and that he died as a
result. The jury was also allowed to hear any evidence brought by
the defendant of a struggle over the gun, and any evidence tending
to suggest self-defense. The trial court charged the jury
concerning the definitions of first-degree murder, second-degree
murder, voluntary manslaughter, and self-defense. The trial courtalso instructed the jury that “the defendant would not be guilty of
any murder or manslaughter if he acted in self-defense, as I have
just defined it to be, and if he is not the aggressor in bringing
on the fight and did not use excessive force under the
circumstances.” The jury was therefore able to consider the
evidence and the law regarding self-defense, and found that the
defendant committed second-degree murder. Viewing the evidence in
a light most favorable to the State, there is substantial evidence
to support every essential element of the charge of second degree
murder.
For the reasons explained above, we hold that the trial court
did not err. Because there was no error in denying the motion to
dismiss, we do not reach the constitutional issues.
No error.
Judge TIMMONS-GOODSON concurs.
Judge WYNN concurs by separate opinion.
Report per Rule 30(e).
STATE OF NORTH CAROLINA
v
.
Cumberland County
No. 01 CRS 54561
WAYNE CHARLES JOHN FEENEY,
Defendant.
WYNN, Judge concurring.
Defendant appeals contending the charge of second degree
murder should have been dismissed for want of sufficient evidence.
Indeed, the facts of this case support a plausible theory of self-
defense; however, the facts, viewed in the light most favorable to
the State, also tend to indicate Defendant committed second degree
murder. I write separately to highlight additional facts.
As indicated by the majority:
In determining the sufficiency of the evidence
to withstand a motion to dismiss and to be
submitted to the jury, the trial court must
determine "whether there is substantial
evidence (1) of each essential element of the
offense charged, or of a lesser offense
included therein, and (2) of defendant's being
the perpetrator of such offense." Substantial
evidence is such relevant evidence as is
necessary to persuade a rational juror to
accept a conclusion. The trial court must
review the evidence in the light most
favorable to the State, giving the State the
benefit of every reasonable inference to be
drawn therefrom.
State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003).
“Contradictions and discrepancies [in the evidence] are for thejury to resolve and do not warrant [dismissal].” State v. Pallas,
144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
“Murder in the second degree is the unlawful killing of a
human being with malice but without premeditation and
deliberation.” State v. Gainey, 355 N.C. 73, 91, 558 S.E.2d 463,
475-76 (2002). Intent to kill is not an element of second degree
murder; however, there must be an intentional act sufficient to
show malice. State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 305
(2000).
Viewing the evidence in the light most favorable to the State,
the evidence tends to indicate Defendant and the victim were both
intoxicated on the night in question. Although Defendant did not
know the victim, he agreed to take him home. After they left the
Pyrates club, the two men shortly returned to Pyrates and
eventually visited the Drifters club, located approximately two
miles from Pyrates. Employees at the two clubs visited by
Defendant and the victim testified they could sense tension between
them and indicated it seemed to be a “weird conflict.” Witnesses
testified they were calling each other names and indicated they
were calling each other “faggots.” Defendant admitted he asked the
victim to get out of his car and further testified that instead of
getting out, the victim began to attack him and a struggle began
when the victim attempted to get Defendant's gun. During the
struggle, both the victim and Defendant were shot. Defendant's
statements to police tend to indicate he was upset over the
homosexual name calling and he asked the victim to get out of hiscar. Crime scene photos indicate Defendant's gun holster was
located in between the driver's seat and the driver's side door
jamb, which was a location in which the victim would have a
difficult time getting the gun. Even though there was blood
throughout the car, no blood was found on the gun holster. Also,
notwithstanding Defendant's testimony that the victim attacked him,
no visible injuries, marks or bruises were seen on Defendant's face
and no one saw the victim with a weapon.
Defendant presented evidence from police officers indicating
the victim had a reputation for violence and from several witnesses
who observed the victim experience several severe mood swings, from
a state of rage to calm, that evening. Furthermore, the evidence
tends to corroborate several aspects of Defendant's testimony_i.e.,
the victim asked Defendant for a ride; Defendant asked the bouncer
if the victim was “okay;” Defendant attempted to “get rid” of the
victim by going to a different nightclub, hoping to leave the
victim there, after the victim began to act weird in his car; and
witness testimony was consistent with Defendant's version of how
the victim left the second nightclub with him. However, no one
witnessed the events that took place in Defendant's car.
At best, the evidence supports the theories presented by the
prosecution and the defense. “If there is substantial evidence,
either direct or circumstantial, that the defendant committed the
offense charged, then a motion to dismiss is properly denied.”
Gainey, 355 N.C. at 89, 558 S.E.2d at 474. Furthermore, as
indicated, “contradictions and discrepancies [in the evidence] arefor the jury to resolve and do not warrant [dismissal].” Pallas,
144 N.C. App. at 286, 548 S.E.2d at 780. Accordingly, I agree with
the majority's conclusion that “there is substantial evidence to
support every essential element of the charge of second degree
murder.”
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