STATE OF NORTH CAROLINA
v
.
Cleveland County
No. 00 CRS 8143
JAMES LEWIS SANFORD
Attorney General Roy Cooper, by Special Deputy Attorney
General Judith Robb Bullock, for the State.
Eric A. Bach for defendant-appellant.
STEELMAN, Judge.
Defendant, James Lewis Sanford, appeals his conviction for
voluntary manslaughter. For the reasons discussed herein, we find
no error.
The State's evidence at trial tended to show that on the
evening of 25 November 2000 several individuals gathered at Erica
Jones' house for a party, at which alcohol was being consumed. The
following individuals were present at the party: Sherrod Chatman,
his girlfriend Kashonna Jones, who was also Erica's cousin; Keith
Ervin and his brother, Demetrius McCluney; Natasha Williams and her
cousin, Neter. At approximately 2:00 a.m. on 26 November 2000,
Natasha Williams was leaving the party when she saw a burgundy
Maxima approaching Erica's house. She stopped and rolled down herwindow. She saw defendant and at least one other person in the
car. She told defendant that Erica was asleep so that he would not
go to the house and wake her. After Ms. Williams left, defendant
pulled up in front of the house and blew the horn several times.
He then got out of the Maxima and knocked repeatedly on the front
door. Defendant brought a shotgun to the house with him. Kashonna
opened the door and defendant was standing on the other side of the
screen door. Defendant asked what they were doing, to which
Kashonna replied they were about to go to bed. McCluney walked up
behind Kashonna. He was carrying a pistol. McCluney pointed the
pistol at defendant, but then lowered the weapon without firing.
After McCluney lowered his pistol, defendant fired the shotgun
through the screen door, shooting McCluney in the chest. As
Kashonna ran from the doorway, she heard additional gunfire. Upon
hearing the shotgun blast, Sherrod Chatman ran towards the front
door and fired three or four shots from his 9 mm handgun.
Defendant turned, ran to the Maxima, and drove away. Keith Ervin
went to check on McCluney and called 911. The police arrived
shortly thereafter to find McCluney dead. Defendant did not
testify at trial.
A warrant was issued for defendant's arrest on 26 November
2000. Defendant subsequently turned himself in to the authorities.
He waived his Miranda rights and gave a statement to the police.
Defendant was indicted for the first-degree murder of McCluney.
The court presented the jury with the following possible verdict
choices: guilty of first degree murder, guilty of second degreemurder, guilty of voluntary manslaughter, or not guilty. The jury
found defendant guilty of voluntary manslaughter. The trial court
sentenced him to an active sentence from the presumptive range of
sixty-four to eighty-six months. This court granted defendant's
petition for writ of certiori to review his conviction on 3 October
2003.
In defendant's first argument, he contends the trial court
committed reversible error in failing to instruct the jury on
perfect self-defense. Defendant contends his post-arrest statement
failed to demonstrate he was an aggressor and his version of the
shooting supported an instruction on perfect self-defense. We
disagree.
This state recognizes both “perfect” and “imperfect” self-
defense. State v. Maynor, 331 N.C. 695, 699, 417 S.E.2d 453, 455-
56 (1992). Perfect self-defense excuses a killing completely. Id.
at 699, 417 S.E.2d at 455. In order to be entitled to this
defense, the defendant must show that at the time of the killing:
(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 wasnecessary or reasonably appeared to him to be
necessary under the circumstances to protect
himself from death or great bodily harm.
Id. (citations omitted). Imperfect self-defense arises when the
first two elements in the preceding quotation are present, but the
third or fourth elements are not. Id. at 699, 417 S.E.2d at 456.
Defendant does not contend that the trial court erred in
instructing the jury regarding imperfect self-defense. Rather,
defendant concedes that the only issue is whether he was the
aggressor. Thus, we address only this issue. An aggressor is one
who “aggressively and willingly enters into a fight without legal
excuse or provocation.” State v. Potter, 295 N.C. 126, 144, 244
S.E.2d 397, 409 (1978). “An accused who, though otherwise acting
in self-defense, is the aggressor in bringing on the affray is
guilty at least of voluntary manslaughter.” Id. Under such
circumstances, the defendant loses the benefit of perfect self-
defense. Id.
In his brief, defendant contends he did not act as an
aggressor because he did not point the shotgun at McCluney until
McCluney attempted to fire his own weapon at him. There is no
evidence in the record to support this assertion, including
defendant's own written statement. In defendant's signed statement
he wrote:
I went back to the car and got my 12 gauge
from the back seat. I walked up to the door.
I knocked on the door the girl [Kashonna] came
to the door she was shaking her head no. Then
[McCluney] came to the door. He had a gun in
his hand. It was a big gun. I don't know if
it was a revolver or a 9mm. He pointed thegun at me. Then when he dropped the gun I
pulled up the shotgun and shot [McCluney].
The following written questions and answers followed defendant's
written narrative statement and were part of his post-arrest
statement. They provided in pertinent part:
[Q]: When did you pull the trigger on your
shotgun?
[Defendant]: Right after [McCluney] had put
the gun down.
[Q]: Who fired the first shots on 11-26-00 at
Erica Jones?
[Defendant]: I did.
Even considering the evidence in the light most favorable to
defendant, he was the aggressor. This is so regardless of whether
McCluney first pointed a gun at him. Defendant came to the Jones
house late at night, with a loaded shotgun, beat on the door until
someone answered, and then by his own admission, only fired at
McCluney after McCluney had put his weapon down. Therefore, the
trial court did not err in refusing to instruct the jury on perfect
self-defense since defendant was the aggressor. This argument is
without merit.
In defendant's second argument, he contends the trial court
committed plain error when it gave a flight instruction to the jury
as he asserts that the evidence showed he fled from the Jones
residence as a result of gunfire and promptly turned himself in to
the authorities.
Defendant failed to object to the flight instruction during
the trial.
Since defendant failed to object at trial court, ourreview is limited to plain error. State v. Odom, 307 N.C. 655,
661, 300 S.E.2d 375, 378-79 (1983). The plain error rule only
applies in truly exceptional cases. Id. at 661, 300 S.E.2d 379.
“
'It is the rare case in which an improper instruction will justify
reversal of a criminal conviction when no objection has been made
in the trial court.'” Id.
(citations omitted).
To constitute plain
error the appellate court must be convinced that absent the error,
the jury probably would have reached a different verdict. Id.
Even assuming arguendo that the trial court erred in
instructing the jury on flight, such error would not rise to the
level constituting plain error. The evidence against defendant was
overwhelming, including his own statement. We are not convinced
that absent the error the jury would have reached a different
verdict. This argument is without merit.
NO ERROR.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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