An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-1260

NORTH CAROLINA COURT OF APPEALS

Filed: 17 August 2004

STATE OF NORTH CAROLINA

v .                         Robeson County
                            No. 99 CRS 01799
HARBERT LOCKLEAR

    Appeal by defendant from judgment entered 10 March 2003 by Judge Anthony M. Brannon in Robeson County Superior Court. Heard in the Court of Appeals 8 June 2004.

    Attorney General Roy Cooper, by Special Deputy Attorney General John H. Watters, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate Defender Janet Moore, for the defendant.

    LEVINSON, Judge.

    Defendant (Harbert Locklear) appeals from conviction and judgment for voluntary manslaughter. For the reasons that follow, we conclude that defendant received a fair trial, free from prejudicial error.
    Defendant was indicted for the second degree murder of David Keith Goins. A trial on this charge was held during the 25 June 2001 session of Robeson County Superior Court; the jury deadlocked, and the trial court declared a mistrial. Another trial was held during the 3 March 2003 session of Robeson County Superior Court.
    The evidence presented at defendant's second trial tended to show the following: In April 1999, defendant's nineteen-year-old son Dean Locklear (Dean) was operating an unlicensed gamingestablishment (hereinafter “poker house” or “pool hall”) in Robeson County. On the night of 9 April 1999, Dean had intervened in a fight between David Keith Goins and another man. On the night of 10 April 1999, Enoch Jacobs, a friend of Goins', was at Dean's gaming establishment and became angry over a poker game. After several people tried to calm Jacobs down, he left.
    Sometime after midnight, Jacobs returned to the poker house with Tony Kerns and David Keith Goins. Accompanying them were Tasha Strickland and BilliJo Locklear, who remained outside in Strickland's car, smoking marijuana. According to one witness, Goins was “cussing and rampaging around” and asked Dean, “who's been f---ing with [Enoch Jacobs]?” Lori Locklear, defendant's first cousin, attempted to calm Goins down. Goins offered to shake Dean Locklear's hand, but Dean refused. Goins then stated to Dean, “You're my enemy.” Lori Locklear testified that Goins said to Dean, “[Y]ou're a dead man.”
    Meanwhile the defendant, Harbert Locklear, was sleeping in his son's truck outside the poker house, after having consumed twelve to sixteen beers between the hours of 2 p.m. and midnight. Dean went to ask his father to help him “get these boys out of here.” When defendant was awakened by his son, he was still feeling the effects of the alcohol. Defendant testified that, when he entered the poker house, Goins was still there and said to defendant, “You're a dead s. o. b.” Defendant's son testified Goins' words to defendant were, “you're a dead black s. o. b.” Lori Lockleartestified that by the time defendant entered the poker house, Goins, Jacobs, and Kerns had already gone.
    Lori Locklear testified that, shortly after defendant entered the poker house, gunshots were heard outside. Other witnesses who were inside the poker house testified that they heard gunshots and became frightened. Dean retrieved two shotguns from the closet and handed one to defendant. Defendant testified that Dean told him, “Daddy, they're going to kill us.”
    Conflicting testimony was offered as to the shooting of Goins. According to defendant's testimony, Dean walked out of the building first and he followed. He stated that he saw Goins firing at him from twelve to fifteen feet away, and defendant returned fire. He knew that he had hit Goins, and he saw Goins fall to the ground. He then heard his son say, “Daddy, I've been hit.” Defendant did not notice until later that he, too, had been shot (in the ear).
    Tasha Strickland, Goins' cousin, testified that, after Goins exited the pool hall, defendant came out of the building with a big gun in his hands and demanded to know where Goins was. She further testified that, when Goins turned and said “Here I am,” defendant shot Goins twice. According to Strickland, it was not until after the second shot that “bullets went shooting everywhere”. Goins died from a single close range shotgun wound to the right chin and neck.
    A Rossi .38 caliber revolver, registered to Goins, was found at the scene, concealed under some debris. It had been fired twice. Two cartridge cases recovered from the scene had been firedfrom the Rossi. Two fired projectiles were found on the ground in front of the poker house. Testing revealed gunshot residue on Goins' hands, but the State's trace evidence identification expert could not render a definite opinion on whether Goins had fired a weapon or not. No projectiles were found inside the poker house or in the walls of the building, nor were any holes located in the building's walls or windows.
    The jury convicted defendant of voluntary manslaughter, and the trial court sentenced defendant to sixty-nine to ninety-two months' imprisonment. From this conviction and judgment defendant appeals, contending, inter alia: (1) his conviction is the result of an unsupported compromise verdict; (2) the trial court erroneously instructed the jury; and (3) the trial court erred in not declaring a mistrial after the jury twice reported that it was deadlocked.

_______________________________
    We first address defendant's argument that his conviction is the result of an unsupported compromise verdict. The gravamen of this argument is that there was insufficient evidence for the jury to convict defendant of voluntary manslaughter. We are unpersuaded by this contention.
    Evidence is sufficient to support a conviction where “there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense.” State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996) (citation omitted). “Evidence is substantial if it is relevant andadequate to convince a reasonable mind to accept a conclusion.” State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002) (citation omitted). “In considering a motion to dismiss, the trial court must analyze the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from the evidence.” Id. (citation omitted). “The trial court must also resolve any contradictions in the evidence in the State's favor.” Id. (citation omitted). “The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.” Id. (citation omitted). “[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both.” State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981) (citation omitted).
    “Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation.” State v. Robbins, 309 N.C. 771, 777, 309 S.E.2d 188, 191 (1983). “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 under the circumstances is employed or where the defendant is the aggressor bringing on the affray.” State v. Wilkerson, 295 N.C. 559, 579, 247 S.E.2d 905, 916 (1978).    A killing is committed in perfect self-defense if, at the time of the killing, the following four elements exist:
        (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) (citations omitted). “The existence of these four elements gives the defendant a perfect right of self-defense and requires a verdict of not guilty, not only as to the charge of murder in the first degree but as to all lesser included offenses as well.” Id. (citations omitted).
        On the other hand, if defendant believed it was necessary to kill the deceased in order to save herself from death or great bodily harm, and if defendant's belief was reasonable in that the circumstances as they appeared to her at the time were sufficient to create such a belief in the mind of a person of ordinary firmness, but defendant, although without murderous intent, was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right ofself-defense, having lost the benefit of perfect self-defense, and is guilty at least of voluntary manslaughter.

Id. Thus, with respect to the four elements of perfect self- defense listed above, if the first two elements are met but either the third or fourth elements are not satisfied, then the act of self-defense is imperfect, and the defendant may be convicted of manslaughter. Id.
    In the instant case, the State charged defendant with second degree murder. Defendant asserted that he committed a killing in perfect self-defense. The jury convicted defendant of voluntary manslaughter in that the killing was committed in imperfect self- defense. To arrive at this verdict, the jury necessarily had to believe some, but not all, of the testimony offered by the State's witnesses, and some, but not all, of the evidence offered by defendant. Defendant's primary argument on appeal is that where, as here, the State and the defendant offer completely opposite accounts of an alleged criminal transaction, a jury may not find portions of the testimony offered by witnesses for the State and the defense to be credible and other portions of those witnesses' testimony to be incredible. We disagree. It is a well established rule in this State that a jury is the sole judge of a witness' credibility, and it may believe some, all, or none of what a witness says. State v. Foster, 293 N.C. 674, 681-82, 239 S.E.2d 449, 455 (1977); see also State v. Nelson, 341 N.C. 695, 698, 462 S.E.2d 225, 226 (1995).    Taking the evidence in the instant case in the light most favorable to the State, the jury could believe that the gunfight which ensued did not erupt until after the defendant came out of the pool hall with a gun and acted as an aggressor. The jury could also believe, based on defendant's account and the bullet wound to his ear, that defendant fired because he was fired upon after he went outside. Under these circumstances, the jury could reasonably infer that defendant killed Goins in an act of imperfect self- defense. As such, the defendant could properly be convicted of voluntary manslaughter. This assignment of error is overruled.
____________________________
    We next address defendant's argument that the trial court erroneously instructed the jury. Defendant specifically contends that the trial court committed two reversible errors in instructing the jury.
    First, defendant asserts that the trial court erred when it instructed the jury as follows:
    You, the jury, should weigh all of the evidence in the case. After weighing all of the evidence, if you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty. On the other side of the coin, if you are convinced of the guilt of the defendant beyond a reasonable doubt, you would then find him guilty.

Defendant insists that the last sentence in the above-quoted language requires a new trial because the trial court had indicated that it would read the instructions given at defendant's first trial verbatim, and this sentence was not included in the instructions at defendant's first trial. We conclude that thiscontention is meritless. See State v. Every, 157 N.C. App. 200, 213, 578 S.E.2d 642, 652 (2003) (“For an error in the trial court's instructions to be prejudicial error, defendant must show that the jury was misled or misinformed by the charge as given, or that a different result would have been reached had the requested instruction been given.”) (citation and internal quotation marks omitted).
    Second, defendant contends that the trial court erred by instructing the jury that self-defense required acquittal if defendant was not the aggressor. Defendant insists that the trial court improperly gave an aggressor instruction in the first instance because an aggressor instruction was not supported by the evidence and that the trial court compounded this alleged error by declining to instruct the jury that a person is not an aggressor if he justifiably enters a fight to defend himself or another.
    “A trial court must give a requested instruction that is a correct statement of the law and is supported by the evidence.” State v. Conner, 345 N.C. 319, 328, 480 S.E.2d 626, 629 (1997). A trial court's instructions are not erroneous where they are supported by the evidence, State v. Morganherring, 350 N.C. 701, 736, 517 S.E.2d 622, 642 (1999), and “[w]hen [the] charge, as a whole, presents the law accurately, fairly, and clearly to the jury, reversible error does not occur.” Every, 157 N.C. App. at 214, 578 S.E.2d at 652.
    In the instant case, the trial court instructed the jury as follows:    The defendant would not be guilty of any murder or manslaughter if he acted in self defense . . . ; and if he was not the aggressor in bringing on the fight; and did not use excessive force under the circumstances.

    If the defendant voluntarily and without provocation entered the fight, he would be the aggressor. A defendant uses excessive force if he uses more force than reasonably appeared necessary to him at the time of the killing. . . .

    The defendant is not entitled to the benefit of self- defense if he was the aggressor with the intent to kill or to inflict serious bodily harm upon the deceased. Also, if the defendant killed the victim in the lawful defense of another person, his actions would be excused and he would not be guilty.

    The State has the burden of proving from the evidence beyond a reasonable doubt, that the defendant did not act in lawful defense of another person. A person may kill in defense of his family or some third person when it reasonably appears to be necessary to prevent the infliction of death or great bodily harm upon the family member or third person.

As already indicated, the evidence presented at trial warranted submission of an aggressor instruction to the jury. Moreover, the trial court's instructions, read as a whole and in context, accurately explained that defendant was not an aggressor if he justifiably entered the fight to defend himself or another. This assignment of error is overruled.
_______________________________
    We next address defendant's argument that the trial court coerced the jury into arriving at a verdict. We conclude that this contention lacks merit.
    Defendant alleges coercion based on the following facts and circumstances: The case was submitted to the jury on Friday, 7 March 2003. After approximately one hour of deliberating, the juryreported that it could not reach a unanimous verdict. The trial court released the jury for the weekend and ordered the jurors to report back on Monday. Before sending the jurors home, the trial court noted that the proceedings in the instant case would be moved to another part of the courthouse for administrative reasons and asked the bailiff to show the jurors where the proceedings would reconvene on Monday. On Monday, 10 March 2003, the trial court provided the jury with the admonitions set forth in N.C.G.S. § 15A- 1235(b) and instructed the jury to resume its deliberations. After approximately two hours, the jury again reported that it was unable to reach a unanimous verdict. Defendant moved for a mistrial, which the trial court denied. Following a morning break, the trial court again provided the jury with the instructions set forth in G.S. § 15A-1235 and again instructed the jury to resume deliberating. The jury made a request to review certain evidence, which the trial court granted. Following a lunch break and the viewing of the evidence, the jury again retired at approximately 2:25 p.m. and indicated that it had arrived at a verdict at approximately 3:15 p.m. Defendant argues that the trial court coerced the jury into arriving at a guilty verdict by declining to grant a mistrial and by providing instructions to the jury which covered the items set forth in G.S. § 15A-1235(b) in a different order than they appear in the statute.
    “In determining whether the trial court coerced a verdict by the jury, this Court must consider the totality of the circumstances.” State v. Nobles, 350 N.C. 483, 510, 515 S.E.2d885, 901-02 (1999) (citation omitted). “Some of the factors to be considered include whether the trial court conveyed the impression that it was irritated with the jury for not reaching a verdict, whether the trial court intimated that it would hold the jury until it reached a verdict, and whether the trial court told the jury that a retrial would burden the court system.” Id. Our review of the record reveals that the trial court did none of these things.
    In addition, we note that “[w]hether to grant a motion for mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” Id. at 511, 515 S.E.2d at 902. We discern no abuse of discretion by the trial court in denying the motion for a mistrial in the instant case. Moreover, we are unpersuaded that instructing the jury as to the four items listed in G.S. § 15A-1235 in a different order than they are set forth in the statute is tantamount to coercion to arrive at a verdict. This assignment of error is overruled.
______________________________
    We have carefully reviewed the remaining assignments of error which defendant has preserved in his brief and have found them to be without merit. They are, therefore, overruled.
    No error.
    Judges WYNN and CALABRIA concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***