STATE OF NORTH CAROLINA
v. Robeson County
No. 00 CRS 007976
KENDRICK SHANTE MCLEAN
Attorney General Roy Cooper, by Assistant Attorney General
Sandra Wallace-Smith, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Katherine Jane Allen, for defendant-appellant.
McGEE, Judge.
Defendant was convicted of voluntary manslaughter. The trial
court imposed a presumptive sentence of fifty-seven to seventy-
eight months of imprisonment.
Defendant was charged with first-degree murder for the
shooting death of Richard Stubbs on Malpass Avenue in Red Springs,
North Carolina on 11 April 2000. An autopsy revealed that Stubbs
was shot once or twice in the back of his legs and once fatally in
the right side of his back. Police found eight shell casings at
the scene, all of which were fired from defendant's nine millimeter
handgun. Although defendant testified that he fired in self-
defense only after Stubbs jumped in front of his car and threatenedhim with a gun, no weapon was found on or near Stubbs' body.
The trial court denied defendant's motion to dismiss the
charge at the conclusion of the evidence. The court instructed the
jury on first degree and second degree murder, voluntary
manslaughter, perfect and imperfect self-defense, and heat of
passion.
Defendant argues that the trial court erred in denying his
motion to dismiss, absent substantial evidence that he was not
entitled to use deadly force against Stubbs in self-defense. In
order for a homicide to be justified as self-defense, the evidence
must establish the following:
(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
that 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. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992)
(quoting State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73
(1981)). Defendant argues the State's evidence failed to disprove
any of these four factors. Having reviewed the trial transcript, we find "[t]he evidence
presented does not unequivocally establish that the killing was in
self-defense." State v. Gray, 337 N.C. 772, 778, 448 S.E.2d 794,
798 (1994). The State's witnesses, Cecil Monroe and Charles
Galbreath, both testified that defendant, without provocation,
instigated the fatal encounter with Stubbs. These eyewitnesses
stated they were with Stubbs in the front yard of Galbreath's house
on the afternoon of the shooting. They saw defendant circle the
block in his car three times. When Stubbs began walking toward his
mother's house, defendant attempted to run him over with his car.
Defendant got out of his car and fired at Stubbs several times as
he attempted to flee. Although defendant challenges the motives
and reliability of the State's witnesses, such issues are not
before a court when ruling upon a motion to dismiss. Unless the
testimony of a witness is contrary to physical laws or involves
assertions of fact beyond his or her capacity to observe, the jury
is the sole and final arbiter of credibility. See State v. Sneed,
327 N.C. 266, 272-73, 393 S.E.2d 531, 534 (1990) (citing State v.
Miller, 270 N.C. 726, 154 S.E.2d 902 (1967)). In this case,
defendant neither asserts nor shows that the challenged testimony
was inherently incredible in this way. Accordingly, the question
of self-defense was properly left to the jury. State v. Turner,
305 N.C. 356, 363, 289 S.E.2d 368, 372 (1982) (quoting Miller, 270
N.C. at 732, 154 S.E.2d at 906).
No error.
Chief Judge MARTIN and Judge BRYANT concur. Report per Rule 30(e).
*** Converted from WordPerfect ***