Attorney General Roy A. Cooper, III, by Assistant Attorney
General William B. Crumpler, for the State.
Joseph E. Zeszotarski, Jr., for the defendant-appellant.
JACKSON, Judge.
On 7 October 2002, James Robert Kozoman (“defendant”) was
indicted and charged with first degree murder in the death of John
Edward McGhee (“McGhee”). Defendant pled not guilty and was tried
before a jury on 8 December 2003. Defendant was convicted of
second degree murder and sentenced to between 219 and 272 months in
prison. Defendant gave notice of appeal in open court.
At trial the State's evidence tended to show that on 22
September 2002, defendant shot and killed his neighbor McGhee. Earlier that day defendant and McGhee, who had known each other for
several years and were friends, had been working on a truck
together and drinking beer and wine. Defendant and an elderly
friend of McGhee's, Robert Gregory (“Gregory”), who was with both
of them, stated they were joking and getting along with each other.
After several hours, McGhee went into his house and emerged
with a shotgun, appearing very angry. McGhee pointed the shotgun
at defendant and began yelling at defendant that he would kill him,
his mother, his girlfriend, and his children. Defendant stated he
did not know what caused McGhee to act that way and was scared.
Gregory got between the two men and tried to calm McGhee down.
Defendant backed away and proceeded across the road to the house
where he lived with his mother and girlfriend.
Defendant had been in an altercation with his girlfriend
earlier on the day of the incident and was not supposed to return
home that night. Defendant beat on the front door to try to get
someone to let him in the house. When his girlfriend refused to
open the door, defendant went around to the unlocked back door and
entered. Defendant tried to call the police, but his girlfriend
would not let him because she was afraid their children would be
taken away. The commotion awakened defendant's mother and he
instructed her to call the police - which she did. Defendant then
left his mother's house with his rifle. Defendant stated he went back towards McGhee's residence
because he was afraid McGhee would try to sneak up to his mother's
house to carry out his threats and he wanted to make sure McGhee
remained at his residence. Defendant remained in the bushes and
shadows watching McGhee and Gregory. McGhee appeared angry and
said something to the effect of “I'm was going to get my shit and
do this.” Defendant stated that he believed that McGhee was
referring to carrying out his earlier threats. McGhee then went
inside his residence and returned with the shotgun again.
Defendant testified McGhee took two or three steps out the door,
pointed the shotgun in his direction and fired. McGhee then turned
to the side and opened the shotgun as if he were going to reload.
Defendant then fired two shots at McGhee, who collapsed after the
second shot.
Defendant fled the scene and attempted to drive to his
brother's residence, but was stopped and arrested for driving under
the influence and speeding en route. Upon his arrest, the officer
took the .22 caliber rifle that was used in the shooting from
defendant's vehicle for safe-keeping, unaware of defendant's
involvement in the previous altercation with McGhee.
After being remanded to the county jail following a
magistrate's hearing, defendant said to the arresting officer “I
think I killed my neighbor tonight with that rifle.” Defendant wasread his Miranda rights and made a brief statement, but was not
questioned immediately regarding the shooting due to his
intoxicated state. The next day defendant was interviewed and he
stated he shot McGhee in defense of himself and his family.
Defendant also drew a map depicting his recollection of the
positioning of McGhee and himself at the time of the shooting.
Defendant moved to dismiss the charge of first degree murder
and the lesser included offense of second degree murder for
insufficient evidence at the close of the State's evidence and
again at the close of all evidence. Both motions were denied. The
first degree murder charge subsequently was submitted to the jury
with an instruction from the trial court on the lesser included
offenses of second degree murder and voluntary manslaughter, with
an instruction regarding self-defense and defense of family.
Defendant was found guilty of second degree murder. Defendant
timely appealed the verdict.
Defendant first argues that the trial court erred in denying
his motions to dismiss the charge of first degree murder and the
lesser included offense of second degree murder for insufficient
evidence. The standard of review for denial of a criminal
defendant's motion to dismiss for insufficient evidence is whether
the State has offered substantial evidence to show the defendant
committed each element required to be convicted of the crimecharged. State v. Williams, 154 N.C. App. 176, 178, 571 S.E.2d
619, 620 (2002). Substantial evidence is relevant evidence
sufficient to persuade a rational juror to accept a conclusion.
State v. Frogge, 351 N.C. 576, 584, 528 S.E.2d 893, 899, cert.
denied, 531 U.S. 994, 148 L. Ed. 2d 459, 121 S. Ct. 487 (2000).
When deciding a motion to dismiss for insufficient evidence, the
evidence must be considered in the light most favorable to the
State. State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587
(1984).
If a criminal defendant's motion to dismiss for insufficient
evidence at the close of the State's evidence is denied and the
defendant then presents evidence in his defense, the motion to
dismiss is waived and the denial of the motion cannot be a basis
for appeal. N.C. Gen. Stat. § 15-173 (2004); State v. Harris, 323
N.C. 112, 371 S.E.2d 689 (1988). At the close of the State's
evidence, defendant did, in fact, present evidence in his defense.
Consequently, we only consider defendant's argument regarding the
denial of his motion to dismiss at the close of all evidence.
First degree murder is the intentional and unlawful killing of
a human being with malice, premeditation and deliberation. State v.
Coplen, 138 N.C. App. 48, 59, 530 S.E.2d 313, 321, cert. denied,
352 N.C. 677, 545 S.E.2d 438 (2000). To convict a defendant of
second degree murder, the State must prove that defendant committedan unlawful killing of a human being with malice, but, proof of
premeditation or deliberation need not be shown as it must with
first degree murder. State v. Brewer, 328 N.C. 515, 522, 402
S.E.2d 380, 385 (1991).
Defendant argues here that substantial evidence of malice was
not shown by the State. However, “'[t]he intentional use of a
deadly weapon gives rise to a presumption that the killing was
unlawful and that it was done with malice.'” State v. Taylor, 155
N.C. App. 251, 266, 574 S.E.2d 58, 68 (2002)(quoting State v.
Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)); see also
State v. Hodges, 296 N.C. 66, 72, 249 S.E.2d 371, 374 (1978)
(evidence showing defendant intentionally inflicted a wound with a
deadly weapon which caused death “raises inferences of an unlawful
killing with malice which are sufficient [to support a charge of]
murder in the second degree”); State v. McNeill, 346 N.C. 233, 238,
485 S.E.2d 284, 287 (1997)(“malice is presumed where the defendant
intentionally assaults another with a deadly weapon, thereby
causing the other's death”). Such a presumption is sufficient to
withstand a motion to dismiss for insufficient evidence and the
question of whether the evidence is sufficient to rebut the
presumption is a question for the jury. State v. Barrett, 20 N.C.
App. 419, 422-23, 201 S.E.2d 553, 555 (1974). In the case sub judice defendant, by his own admission
intentionally shot McGhee with a rifle. This intentional assault
with a deadly weapon that resulted in McGhee's death is sufficient
to support the presumption that the act was unlawful and committed
with malice. See Taylor, supra. Further, this presumption is
sufficient to overcome defendant's motion to dismiss for
insufficient evidence absent evidence that unequivocally rebuts
that presumption. See Barrett, supra.
Defendant also argues that his statements to police after his
arrest, presented into evidence by the prosecution, that he acted
in defense of his family in shooting McGhee were sufficient to
overcome the presumption of malice. Defendant relies primarily on
the case of State v. Carter in support of his position. 254 N.C.
475, 119 S.E.2d 461 (1961). In Carter, the defendant's father was
beating her mother with a wine bottle when the defendant struck him
several times about the head with a tire iron, killing him. Id.
At trial, defendant's motion to dismiss was denied and she was
convicted of manslaughter. Id. On appeal, our Supreme Court found
that the defendant's statements following the incident showed that
she was acting in defense of her mother and that, in the absence of
any evidence to the contrary, the killing was justified and the
conviction was reversed. Id. The facts of this case clearly are distinguishable from those
presented in Carter. Here there is evidence that defendant
actually may have been the aggressor: defendant having left the
scene of the argument, removed himself from harm's way, obtained a
rifle, and then returned to McGhee's property. There also is no
evidence to support defendant's contention that his family was in
imminent danger. Additionally, the evidence was conflicting as to
whether defendant himself was in imminent danger after returning to
McGhee's property. This conflicting evidence fails to establish
conclusively that defendant was acting in self-defense or defense
of his family. The question of whether the evidence presented was
sufficient to overcome the presumption of malice implied by
defendant's assault on McGhee with a deadly weapon properly was for
the jury to decide. Barrett, 20 N.C. App. at 422, 201 S.E.2d at
555. Accordingly,this assignment of error is overruled.
Defendant next argues that the trial court improperly excluded
opinion evidence regarding McGhee's reputation for violence. When
a defendant argues that he acted under self-defense, the victim's
character may be admissible to show defendant's fear or
apprehension was reasonable or to show the victim was the
aggressor. State v. Winfrey, 298 N.C. 260, 258 S.E.2d 346 (1979).
Rule 405(a) of the North Carolina Rules of Evidence provides “[i]n
all cases in which evidence of character or a trait of character ofa person is admissible, proof may be made by testimony as to
reputation or by testimony in the form of an opinion.” N.C. Gen.
Stat. . 8C-405(a)(2003).
Here, the trial court allowed defendant's mother, to testify
regarding McGhee's reputation immediately prior to sustaining the
State's objection to the question from the defense whether the
witness had an opinion of whether McGhee was a violent or peaceful
person. The trial court sustained the objection as repetitive, not
on the basis that it was inadmissible. A “defendant is not
entitled to a new trial based on trial errors unless such errors
were material and prejudicial.” State v. Alston, 307 N.C. 321, 339,
298 S.E.2d 631, 644 (1983). Defendant bears the burden of showing
that he was prejudiced by an error by showing that there was a
reasonable possibility a different result would have occurred if
not for the error. N.C. Gen. Stat. . 15A-1443(a)(2003); State v.
Wingard, 317 N.C. 590, 599-600, 346 S.E.2d 638, 645 (1986).
The erroneous exclusion of evidence is not prejudicial error
when the same, or substantially similar, testimony is otherwise
admitted into evidence. State v. Hageman, 307 N.C. 1, 24, 296
S.E.2d 433, 446 (1982). As testimony regarding McGhee's violent
temperament already had been introduced in the testimony of
defendant's mother regarding McGhee's reputation and additional
testimony of his temperament was presented subsequently when shetestified that she was scared of McGhee, even if excluding the
witness' testimony was error, it would constitute harmless error.
Therefore this assignment of error is overruled.
Defendant failed to properly preserve his final two
assignments of error for appeal and defendant therefore argues
plain error as the grounds for appeal of these two assignments of
error as permitted by North Carolina Rules of Appellate Procedure
Rule 10(c)(4). Our Supreme Court explained the application of the
plain error rule in State v. Odom:
[T]he plain error rule . . . is always to be
applied cautiously and only in the exceptional
case where, after reviewing the entire record,
it can be said the claimed error is a
“fundamental error, something so basic, so
prejudicial, so lacking in its elements that
justice cannot have been done,” or “where [the
error] is grave error which amounts to a
denial of a fundamental right of the accused,”
or the error has “'resulted in a miscarriage
of justice or in the denial to appellant of a
fair trial'” or where the error is such as to
“seriously affect the fairness, integrity or
public reputation of judicial proceedings.”
307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quoting United
States v. McCaskill, 676 F.2d 995, 1002 (4th Cir. 1982)). Under
the plain error standard of review, defendant has the burden of
showing: “(i) that a different result probably would have been
reached but for the error or (ii) that the error was so fundamental
as to result in a miscarriage of justice or denial of a fairtrial.” State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779
(1997).
Defendant argues that on cross-examination of his mother, the
State elicited improper testimony regarding his altercation with
his girlfriend on the day of the shooting. Defendant contends that
his mother's testimony that he slapped his girlfriend constituted
improper character evidence. Defendant further argues that the
State asked an improper question during the cross-examination of
his mother regarding a statement she allegedly made to police that
defendant probably was taking the gun to trade for drugs. However,
defendant fails to show how a different result would have been
reached but for the introduction of this evidence.
Defendant's failure to carry this burden is particularly
evident in light of the fact that the impact of this questioning is
mitigated by the responses given. In response to the line of
questioning regarding defendant's altercation with his girlfriend,
defendant's mother testified that the girlfriend struck the
defendant first, a fact which mitigates the effect of the testimony
as tending to show a violent tendency of defendant. In response to
the State's questioning as to whether she told the police that
defendant probably had taken the gun to trade for drugs, his mother
responded that she did not recall making such a statement. Defendant makes no showing that a different result would have been
reached by the jury if these questions had not been asked.
Taken in the context of the entire record, the questioning and
testimony referred to by defendant in these assignments of error do
not support the conclusion that a different result would have been
reached were it not for the alleged errors; nor that they resulted
in a miscarriage of justice; nor denied defendant a fair trial.
Consequently, we hold that there was no plain error.
No error.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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