STATE OF NORTH CAROLINA
v
.
Sampson County
No. 02 CRS 50002
KEVIN RONALD PETERSON,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
David J. Adinolfi, II, for the State.
Miles & Montgomery, by Lisa Miles, for the defendant-
appellant.
WYNN, Judge.
Following his conviction on the charge of first-degree murder,
Defendant Kevin Peterson appeals to this Court. He contends the
trial court committed plain error in failing to instruct the jury
on the (I) distinction between provocation sufficient to negate
malice and provocation sufficient to negate premeditation and
deliberation and (II) absence of motive. As our Supreme Court
addressed, unfavorably to Defendant, the first issue in State v.
Handy, 331 N.C. 515, 525-27, 419 S.E.2d 545, 550-51 (1992) and the
second issue in State v. Elliott, 344 N.C. 242, 273, 475 S.E.2d
202, 215-16 (1996), we uphold the trial court's instructions.
The incidents giving rise to Defendant's first-degree murderconviction occurred in December 2001 when he shot and killed his
roommate and business partner, Glenn Williams. After an evening of
cavorting with Glenn, Robin Robinson, Homer Woods and Glenn's
brother Gary, the group drove to a cabin to pick up two jars of
grain alcohol. On the way to the cabin, Defendant argued with
Gary, placed a gun to Gary's temple, removed the gun from Gary's
temple, and placed it in his waistband.
When the group later returned to Defendant's home, Defendant
tried to unlock his door, dropped one of the jars of grain alcohol
in his hand, and kicked in his front door. Inside the house,
Defendant sat down and tapped his fingers on the two guns in the
waistband of his pants. When Defendant refused Homer's request to
“put the guns up or he would leave,” Homer left and began walking
down the street. Shortly thereafter, Homer heard a gunshot.
According to Gary, after Homer left, Defendant and Glenn
argued about money owed to Glenn from their business. During this
argument, Defendant moved closer to Gary, and Glenn placed himself
between the two men. Glenn told Defendant not to shoot his
brother. Glenn then said he was leaving and snatched open the
refrigerator door to get beer; thereafter, Defendant shot Glenn.
Defendant testified that the altercation in the car did not
occur and neither had he argued with Glenn about money. He stated
that Glenn was shot during a struggle with him over the gun.
Immediately after the shooting, he and Robin administered CPR to
Glenn and called for assistance.
Other witnesses testified about the conflict between Defendantand Glenn regarding money. One witness had observed Defendant and
Glenn argue earlier that day over money and testified Defendant
pointed a gun at Glenn. Another witness testified Defendant told
her he would shoot Glenn instead of fighting him. Following the
jury's verdict of guilty and judgment of the trial court, Defendant
appealed.
______________________________________________________
On appeal, Defendant argues the trial court rendered an
erroneous jury instruction on provocation by failing to explain the
distinction between provocation that negates deliberation in the
context of first-degree murder and provocation that negates malice
and reduces murder to voluntary manslaughter. In construing the
same pattern jury instruction in State v. Handy, 331 N.C. 515, 525-
27, 419 S.E.2d 545, 550-51 (1992), our Supreme Court rejected this
argument. In pertinent part, the opinion states:
However, defendant maintains that this
instruction, coupled with the trial court's
subsequent charge on voluntary manslaughter
and the definition of “legal” or “adequate”
provocation, which is sufficient to reduce
murder to manslaughter, may have misled the
jurors to believe that a killing committed
without “legal” or “adequate” provocation
constitutes first-degree murder committed with
premeditation and deliberation. We disagree.
. . . .
The mere fact that the jury was instructed
concerning voluntary manslaughter and “legal”
provocation does not change the outcome of
this case. With regard to first-degree
murder, the jury was repeatedly instructed
that it could find defendant guilty only if
the State had proven beyond a reasonable doubt
that defendant acted with premeditation and
deliberation in the killing. In accord withthe North Carolina Pattern Jury Instructions
and extensive North Carolina case law, the
trial court defined premeditation as an
“intent to kill the victim, [formed] over some
period of time, however short, before” the
killing. The trial court further instructed
that “deliberation . . . means that
[defendant] acted while he was in a cool state
of mind” and that the “intent to kill was
formed for a fixed purpose, not under the
influence of some suddenly aroused violent
passion.” Significantly, the jury was
correctly charged that defendant would not be
guilty of first-degree murder if he formed the
intent to kill [the victim] under the
influence of some suddenly aroused violent
passion . . . The instructions given by the
trial court may not have been a model of
clarity insofar as they did not define for the
jury what type of provocation the proof of
which will prevent the jury from inferring
premeditation and deliberation. However, we
do not agree with defendant that these
instructions may have caused the jurors to
conclude that defendant acted with
premeditation or deliberation merely because
the evidence showed that defendant did not act
in a heat of passion following adequate
provocation the proof of which reduces the
degree of homicide to voluntary manslaughter.
We therefore overrule this assignment of
error.
In light of our Supreme Court's holding in Handy, we reject this
assignment of error.
Defendant also contends the jury could have construed the
trial court's instruction to mean there was no provocation in this
case. Specifically, Defendant challenges this instruction:
Neither premeditation nor deliberation are
usually susceptible of direct proof. They may
be proved, by circumstances from which they
may be inferred such as the lack of
provocation by the victim; conduct of the
defendant before, during and after the
killing; threats and declarations of the
defendant; the brutal or vicious the [sic]
circumstances of the killing and the manner inwhich or means by which the killing was done.
In Handy, our Supreme Court also rejected a similar argument:
“At no point during its charge to the jury did the trial court
instruct the jury that premeditation and deliberation should be
presumed. Nor did the trial judge express any opinion as to
whether the State had proven a lack of provocation by the victim.”
Id. (citing State v. Fowler, 285 N.C. 90, 96, 203 S.E.2d 803, 807
(1974) which indicates the statement that a jury may consider
'evidence of the absence of provocation' 'in determining whether
there was ... premeditation and deliberation' does not amount to
judicial 'expression of an opinion that there was no evidence of
provocation'). Accordingly, we likewise must reject Defendant's
assignment of error.
Finally, Defendant argues the trial court committed plain
error in not instructing the jury that it could consider the
absence of motive in determining Defendant's innocence or guilt.
As stated by our Supreme Court in State v. Elliott, 344 N.C. 242,
273, 475 S.E.2d 202, 215-16 (1996):
The trial court is required to instruct the
jury on all substantial features of a case.
In the absence of a special request the trial
judge is not required to instruct the jury on
subordinate features of a case. Motive is not
an element of first-degree murder, nor is its
absence a defense. The presence or absence of
motive is merely a circumstance which may be
considered in determining guilt or innocence
in a criminal case. We conclude that absence
of motive is a subordinate feature of a
first-degree murder case. Accordingly, the
trial court did not err in failing to instruct
the jury on motive in the absence of a request
from defendant.
(citations omitted). Accordingly, we must reject this assignment
of error.
No error.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
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