STATE OF NORTH CAROLINA
v
.
Vance County
No. 02 CRS 5974
HENRY PETTAWAY,
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Buren R. Shields, III, for the State.
Stubbs, Cole, Breedlove, Prentis & Biggs, P.L.L.C., by C.
Scott Holmes, for defendant.
HUDSON, Judge.
At the 8 December 2003 Criminal Session in the Superior Court
in Vance County, the jury found defendant Henry Pettaway guilty of
voluntary manslaughter. The court sentenced defendant in the
presumptive range, to 103 to 130 months imprisonment, and set
restitution in the amount of $6,800. Defendant appeals. As
discussed below, we find no error.
The evidence tended to show that on 7 November 2001,
defendant, age twenty-two, drank a large amount of liquor at a
friend's birthday party, and then left for home in a car with three
friends. On the way, defendant saw the victim, Donald Dickerson,
walking along the road and he stopped and got out to talk with him. As a fight ensued between defendant and Dickerson, one of
defendant's friends, Michael Bullock, joined the fight. Bullock
testified that he grabbed the victim and pulled him into a ditch,
after which defendant and one of the other men in the car jumped on
the forty-year-old Dickerson and kicked him.
After the fight, Dickerson went to his uncle's house where he
complained of shortness of breath. Although Dickerson was bleeding
from his nose and mouth, he stated he did not want medical
treatment. Dickerson next went to the home of his sister who
called for medical assistance after four hours. Later, at the
hospital, Dickerson complained of abdominal pain and an
interviewing officer noted abrasions. Dickerson, who also suffered
from advanced cirrhosis of the liver, died eleven days later.
Defendant first argues that the court erred in refusing
defendant's requests for the production of potentially exculpatory
material. We disagree.
Defendant contends that it was error to deny his request for
the identity of a confidential informant. “[T]he suppression by
the prosecution of evidence favorable to an accused upon request
violates due process where the evidence is material either to guilt
or to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d
215, 218, 83 S. Ct. 1194 (1963). “Favorable evidence is material
if there is a 'reasonable probability' that its disclosure to the
defense would result in a different outcome in the jury'sdeliberation.” State v. Canady, 355 N.C. 242, 252, 559 S.E.2d 762,
767 (2002) (internal citations and quotation marks omitted).
“[T]he state is privileged to withhold from a defendant the
identity of a confidential informant, with certain exceptions. One
such exception arises . . . where the disclosure of an informer's
identity, or of the contents of his communication, is relevant and
helpful to the defense of an accused, or is essential to a fair
determination of a cause.” State v. Gaither, 148 N.C. App. 534,
540, 559 S.E.2d 212, 216 (2002) (internal citations and quotation
marks omitted). Only after the defendant makes a plausible showing
as to the materiality of the informant's testimony, will the trial
court “balance the public's interest against the defendant's right
to present his case, taking into consideration the crime charged,
the possible defenses, the possible significance of the informer's
testimony, and other relevant factors.” Id. (internal quotation
marks omitted). “[T]he privilege of nondisclosure . . . ordinarily
applies where the informant is neither a participant in the
offense, nor helps arrange its commission, but is a mere tipster
who only supplies a lead to law enforcement officers.” Id. at 541,
559 S.E.2d at 216-17 (internal quotation marks omitted). Factors
arguing against disclosure include “whether the defendant admits
culpability, offers no defense on the merits, or the evidence
independent of the informer's testimony establishes the accused's
guilt.” State v. Newkirk, 73 N.C. App. 83, 86, 325 S.E.2d 518,
520-21, disc. review denied, 313 N.C. 608, 332 S.E.2d 81 (1985). Here, defendant failed to offer evidence at the suppression
hearing that the informant's identity was sufficiently necessary to
his defense. Defendant did not present evidence that the informant
participated in or witnessed the assault; rather, the police report
indicated that the informant was merely a tipster supplying a
possible lead. Since defendant failed to make the required
threshold showing, the court was not required to engage in the
balancing process discussed in Gaither and Newkirk.
Defendant also assigns error to the court's denial of his
request for information about witnesses' juvenile records, but
because he has not addressed this issue in his brief, we deem it
abandoned. N.C. R. App. P. 10.
Defendant next argues that the court erred by denying his
request for a jury instruction on involuntary manslaughter. He
contends that the involuntary manslaughter instruction was required
because the victim's death was unintentional and without malice.
However, intent to kill is not an element of voluntary
manslaughter. State v. Ray, 299 N.C. 151, 158, 261 S.E.2d 789, 794
(1980). All the State must prove is that the act which resulted in
the victim's death was intentionally committed and was an assault
which in itself amounts to a felony or is likely to cause death or
serious bodily injury. Id.
Assault with a deadly weapon inflicting serious injury is a
Class E felony. N.C. Gen. Stat. § 14-32(b) (2003). In State v.
Shubert, this Court held that fists and feet could be deadly
weapons in some situations. 102 N.C. App. 419, 424, 402 S.E.2d642, 645 (1991). “The deadly character of the weapon depends
sometimes more upon the manner of its use, and the condition of the
person assaulted, than upon the intrinsic character of the weapon
itself.” Id. In Shubert, the evidence showed that “defendant
repeatedly used his fists and feet to cause the serious injuries to
the defenseless 81-year-old female victim in a manner likely to
produce death or great bodily harm. These injuries required
extensive hospitalization and apparently caused permanent brain
damage.” Id.
Similarly, the evidence here shows that three men assaulted
Dickerson, punching, kicking, and jumping on him, including jumping
down on him from the top of an embankment. The older victim
suffered from blood loss, contusions of the face, and a torn spleen
which required surgery and eventually led to his death.
In contrast, our courts have defined involuntary manslaughter
as “the unintentional killing of a human being without malice
proximately caused by (1) an unlawful act [neither] amounting to a
felony nor naturally dangerous to human life, or (2) a culpably
negligent act or omission.” State v. Powell, 336 N.C. 762, 767,
446 S.E.2d 26, 29 (1994). Defendant cites State v. Drew as
affirming a conviction for involuntary manslaughter where the
defendant stabbed the victim without intent to kill. 162 N.C. App.
682, 686, 592 S.E.2d 27, 30, appeal dismissed and disc. review
denied, 358 N.C. 735, 601 S.E.2d 867 (2004). However, in Drew, the
evidence showed that “defendant, who had been told that no one was
in the house, was surprised in the bathroom by a man whom he didnot immediately recognize; that the intruder lunged or swung at
him; that he immediately swung back holding the knife; and that he
ran away out of fear.” Id. The defendant in Drew did not even
realize he had stabbed the intruder. Id. These facts are unlike
the facts here, so Drew does not apply. We overrule this
assignment of error.
Defendant also argues that during his closing argument, the
prosecutor improperly commented on defendant's failure to testify.
We disagree.
During his closing argument, the following exchange occurred:
Prosecutor: Mr. Bullock was telling you truth
then, the first time he was under oath in this
matter. The first time he put his hand on the
Bible and went before anybody to tell exactly
what happened. he was the only person of
those four that you heard from. Now the
Defendant has a right not to testify; however,
the Defendant also if he chooses can put on
witnesses without giving up his right not to
testify. And in choosing not to put on any
witnesses--
Trial Counsel: Objection, Your Honor.
The Court: Sustained.
Trial Counsel: The Defendant put on no alibi
witnesses.
Trial Counsel: Objection, Your Honor.
The Court: Sustained.
Trial Counsel: Your Honor, I would ask that
the jury be instructed that that entire line
of argument is absolutely--
The Court: Ladies and gentleman of the jury
you'll disregard the comments that were just
made to you. Go [sic] Ahead.
Prosecutor: The Defendant called no witness.
Trial Counsel: Objection, Your Honor.
The Court: Sustained.
Prosecutor: The Defendant has not
contradicted, refuted or denied anything - any
evidence that the State has produced.
Trial Counsel: Objection, Your Honor.
The Court: Sustained.
Defendant contends that these comments by the prosecutor were
improper references to defendant's failure to testify, and that the
court failed to give a proper curative instruction.
“While a prosecutor may not comment on the failure of the
accused to testify, he may comment on a defendant's failure to
produce witnesses or exculpatory evidence to contradict or refute
evidence presented by the State.” State v. Skeels, 346 N.C. 147,
153, 484 S.E.2d 390, 393 (1997) (internal quotation marks omitted).
Given that the prosecutor here began his remarks with a reminder
and an acknowledgment of defendant's right not to testify, we hold
“that none of the language used was intended to be or was of such
character that the jury would naturally and necessarily take it to
be a comment on the failure of the accused to testify.” Id.
Rather, we believe the comments were a permissible reference to
defendant's failure to produce witnesses or exculpatory evidence to
contradict or refute the State's evidence. Because the
prosecutor's comments were not improper, no curative instruction
was required.
Defendant finally argues that the court erred in ordering him
to pay restitution, first contending that the court signed therestitution order after the entry of judgment against defendant,
without giving him notice or opportunity to be heard. However,
during sentencing, the prosecution announced it was submitting a
restitution worksheet. The court asked defendant if he wished to
present any evidence regarding sentencing, and he did present a
witness to testify about a possible mitigating factor. Defendant
did not present any evidence regarding restitution matters and did
not object to the requirement that he make restitution or to any
data on the restitution worksheet.
Defendant also argues that the order for restitution is void
because he had already received an active prison sentence. The
case cited by defendant, State v. Hughes, has been overruled by
statute. 136 N.C. App. 92, 524 S.E.2d 63 (1999), disc. review
denied, 351 N.C. 644, 543 S.E.2d 878 (2000). The following statute
section applies to crimes committed after 1 December 1998:
b) If the defendant is being sentenced for an
offense for which the victim is entitled to
restitution under Article 46 of this Chapter,
the court shall, in addition to any penalty
authorized by law, require that the defendant
make restitution to the victim or the victim's
estate for any injuries or damages arising
directly and proximately out of the offense
committed by the defendant.
N.C. Gen. Stat. § 15A-1340.34 (1998). Because the imposition of
restitution in addition to an active sentence was proper here, we
find no error.
No error.
Judges TIMMONS-GOODSON and STEELMAN concur.
Report per Rule 30(e).
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