An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-948


Filed: 1 June 2004


v .                         Sampson County
                            No. 02 CRS 50002

    Appeal by defendant from judgment entered 20 February 2003 by Judge W. Allen Cobb, Jr. in Superior Court, Sampson County. Heard in the Court of Appeals 27 April 2004.

    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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