An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA05-41


Filed: 01 November 2005

v .                         Cleveland County
                            No. 00 CRS 8143

    Appeal by defendant from judgment entered 19 July 2002 by Judge Forrest D. Bridges in Cleveland County Superior Court. Heard in the Court of Appeals 10 October 2005.

    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.
    Chief Judge MARTIN and Judge HUNTER concur.
    Report per Rule 30(e).    

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