An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-700

NORTH CAROLINA COURT OF APPEALS

Filed: 15 March 2005

STATE OF NORTH CAROLINA

v .                         Vance County
                            No. 02 CRS 5974
HENRY PETTAWAY,
        Defendant.

    Appeal by defendant from judgment entered 12 December 2003 by Judge Kenneth C. Titus in the Superior Court in Vance County. Heard in the Court of Appeals 26 January 2005.

    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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