Initially, we note defendant's brief contains arguments
supporting only four of the original eleven assignments of error.
Pursuant to N.C.R. App. P. 28(b)(6) (2005), the omitted assignments
are deemed abandoned. Our review is limited to those assignments
of error properly preserved by defendant for appeal. The issues on appeal are whether the trial court erred by:
(I) failing to instruct the jury on the offense of voluntary
manslaughter, (II) joining for trial the charges of first degree
murder and possession of a firearm by felon, (III) making certain
statements in the presence of the jury, and (IV) failing to grant
defendant's motion to dismiss.
We first consider defendant's assignment of error challenging
the trial court's jury instructions. Specifically, defendant
contends the trial court erred by failing to submit the lesser
included offense of voluntary manslaughter to the jury. We hold to
[A] defendant is entitled to have a lesser-included offense
submitted to the jury only when there is evidence to support it.
State v. Johnson
, 317 N.C. 193, 205, 344 S.E.2d 775, 782 (1986).
Where the State's evidence is positive as to each element of the
offense charged and there is no contradictory evidence relating to
any element, no instruction on a lesser included offense is
required. State v. Millsaps
, 356 N.C. 556, 562, 572 S.E.2d 767,
772 (2002) (quotation and citation omitted).
Voluntary manslaughter is the killing of another human being
without malice and without premeditation and deliberation under the
influence of some passion or heat of blood produced by adequate
provocation. State v. Watson
, 338 N.C. 168, 176, 449 S.E.2d 694,
699 (1994), cert. denied
, 514 U.S. 1071, 131 L. Ed. 2d 569,
overruled on other grounds, State v. Richardson
, 341 N.C. 585, 461
S.E.2d 724 (1995). A person who kills another is guilty ofmanslaughter and not murder if the killing was committed under the
influence of passion or in a state of heated blood brought on by
adequate provocation. State v. McConnaughey
, 66 N.C. App. 92, 95,
311 S.E.2d 26, 29 (1984). If there is any evidence of heat of
passion or sudden provocation by the victim, the trial court must
submit the possible verdict of voluntary manslaughter. State v.
, 323 N.C. 668, 673, 374 S.E.2d 577, 580 (1989). A victim's
words and gestures alone, where no assault is made or threatened,
regardless of how insulting or inflammatory those words or gestures
may be, do not constitute adequate provocation for the taking of
human life. State v. Watson
, 287 N.C. 147, 153, 214 S.E.2d 85, 89
Defendant asserts the presence herein of evidence of an
assault or threatened assault and maintains such evidence
constitutes sufficient legal provocation to reduce murder to
voluntary manslaughter. Applying the principles noted above, we
conclude defendant's argument misses the mark.
Defendant relies exclusively upon the actions of Hines in
support of his first argument. However, in all the authorities
cited by defendant and in the cases noted above, the alleged
provocation, assault or threat came from the homicide victim, not
from another person. In the case sub judice
, nothing in the record
indicates defendant was present or able to hear Hines state, I'll
shoot him. Further, the firing of a single shot into the air by
Hines appeared to have had no effect upon defendant and his
associates because they did not leave as Hines intended. Finally,defendant took no action until Hines and Samuels turned and ran
away for a distance of approximately sixty yards, according to
Hines, whereupon defendant began firing his pistol.
, there is simply no evidence herein
was in any way assaulted, provoked or otherwise threatened by
Samuels, the victim of the homicide. Further, no evidence was
presented that defendant acted in the heat of passion or that he
feared for his safety. To the contrary, all the evidence,
defendant having offered none, was to the effect that he shot the
unarmed Samuels through the back of his head while Samuels was
fleeing the scene.
Under the evidence adduced at trial, defendant was not
entitled to have the lesser included offense of voluntary
manslaughter submitted to the jury and the trial court did not err
by denying defendant's request for such an instruction. We
therefore reject defendant's first argument.
Defendant next claims the trial court erred by joining for
trial the charges of murder and possession of a firearm by felon.
Two or more offenses may be joined in one
pleading or for trial when the offenses,
whether felonies or misdemeanors or both, are
based on the same act or transaction or on a
series of acts or transactions connected
together or constituting parts of a single
scheme or plan.
N.C. Gen. Stat. § 15A-926(a) (2003).
Under the statute, a two-step analysis is required to
determine whether joinder is proper. State v. Montford
, 137 N.C.App. 495, 498, 529 S.E.2d 247, 250, cert. denied
, 353 N.C. 275, 546
S.E.2d 386 (2000). First, the trial court must examine whether the
offenses have a transactional connection, and its conclusion as to
[w]hether such a connection exists is a question of law, fully
reviewable on appeal. Id.
Reversible error occurs only where
the charges are so separate in time and place and so distinct in
circumstances as to render the consolidation unjust and prejudicial
to defendant. State v. Beckham
, 145 N.C. App. 119, 126, 550
S.E.2d 231, 237 (2001) (quotation and citation omitted).
Upon determining the presence of a transactional connection,
the court must consider whether joinder hinders or deprives the
accused of his ability to present his defense. State v. Silva
304 N.C. 122, 126, 282 S.E.2d 449, 452 (1981). This second part
is addressed to the sound discretion of the trial judge and is not
reviewable on appeal absent a manifest abuse of that discretion.
137 N.C. App.
at 498, 529 S.E.2d at 250.
A trial court
may be reversed for an abuse of discretion only upon a showing that
its ruling was so arbitrary that it could not have been the result
of a reasoned decision. State v. Hayes
, 314 N.C. 460, 471, 334
S.E.2d 741, 747 (1985), rev'd on other grounds
323 N.C. 306, 372
S.E.2d 704 (1988).
In the instant case, the same firearm was at issue with
regards to both the murder and the possession of a firearm by
felon charges. The State did not seek to prove any other instances
of possession of a firearm by defendant. Without doubt, thecharges arose from the same transaction and we so hold as a matter
of law. See Montford
, 137 N.C. App. at 495, 529 S.E.2d at 250.
Nonetheless, defendant argues consolidation of the charges
constituted an abuse of discretion by the trial court by
undermining defendant's right not to testify at trial, unduly
prejudicing the defendant in the eyes of the jury. However,
defendant freely entered into the stipulation that he had a prior
felony conviction and reiterated the stipulation upon questioning
by the trial court. Under the facts of this case, the
transactional connection aspect of the statutory test having been
satisfied, we perceive no undue prejudice to defendant in joinder
of the charges of murder and possession of a firearm by a convicted
felon for trial. Accordingly, the trial court did not abuse its
discretion in this regard. See id
Defendant next argues the trial court erred by threatening to
excuse a witness prior to cross examination. Officer M.S. York
(Officer York) of the Winston-Salem Police Department testified
at trial concerning his observations when he arrived at the crime
scene at approximately 3:30 a.m. on 7 September 2003. Officer York
brought his written police report with him to the witness stand.
Following direct examination, defense counsel was granted
permission to retrieve the report from the witness.
In his appellate brief, defendant asserts the trial court
thereupon refused to allow defense counsel time to review the
report, threatening to excuse the witness if counsel did not begin
asking him questions immediately. Defendant maintains [t]hejudge's threats to excuse the witness and reprimands of defense
counsel tainted the atmosphere of the trial to the detriment of
defendant. We conclude the trial court committed no prejudicial
The judge's duty of impartiality extends to defense counsel.
He should refrain from remarks which tend to belittle or humiliate
counsel since a jury hearing such remarks may tend to disbelieve
evidence adduced in defendant's behalf. State v. Coleman
, 65 N.C.
App. 23, 29, 308 S.E.2d 742, 746 (1983), cert. denied
, 311 N.C.
404, 319 S.E.2d 275 (1984). Whether the accused was deprived of
a fair trial by the challenged remarks [of the court] must be
determined by what was said and its probable effect upon the jury
in light of all attendant circumstances, the burden of showing
prejudice being upon the appellant. State v. Faircloth
, 297 N.C.
388, 392, 255 S.E.2d 366, 369 (1979). Moreover, this Court has
recognized that 'not every improper remark made by the trial judge
requires a new trial. When considering an improper remark in light
of the circumstances under which it was made, the underlying result
may manifest mere harmless error.' Brinkley
, 159 N.C. App. at
447-48, 583 S.E.2d at 337 (quoting State v. Summerlin
, 98 N.C. App.
167, 174, 390 S.E.2d 358, 361 (1990)).
In the instant case, the following colloquy occurred:
MR. BYRD [defense counsel]: Your Honor, may I
review his report?
THE COURT: You may.
MR. BYRD: May I approach?
THE COURT: You may.
MR. SAUNDERS [Assistant District Attorney]:
You have seen it before, haven't you, Mr.
MR. BYRD: Yes.
MR. SAUNDERS: Numerous times? About eight or
MR. BYRD: I didn't keep count.
MR. FREEDMAN [defense counsel]: We didn't get
a copy of that so if we can just review it.
MR. SAUNDERS: Let me ask if this will refresh
THE COURT: All right, let's calm down the
banter. Any questions?
MR. FREEDMAN: We just need to finish
reviewing it, Your Honor.
THE COURT: You've already admitted you've
seen it before.
MR. FREEDMAN: Well, Your Honor, we don't have
a copy and we need to review it before we can
properly cross examine.
THE COURT: This witness has testified and you
can ask questions or I'm going to excuse
MR. FREEDMAN: We are entitled to get copies
of a witness [report] after they testify and
if we could just have a second to do that.
THE COURT: The report is not that long.
MR. FREEDMAN: It is, Your Honor.
THE COURT: All right, the witness may be
MR. FREEDMAN: Your Honor, we would note an
exception to that to have the opportunity to
cross examine the witness.
THE COURT: All right, start asking questions,
Mr. Freedman or Mr. Byrd.
Defendant has failed to meet his burden of showing prejudice
in the foregoing. See Faircloth,
297 N.C. at 392, 255 S.E.2d at
369. No comments belittling or humiliat[ing] counsel
nor did the court's statement suggest any opinion regarding
defendant's case. Coleman
, 65 N.C. App. at 29, 308 S.E.2d at 746;
, 159 N.C. App. at 447, 583 S.E.2d at 337.
Significantly, moreover, the record contains no indication
defendant moved for a mistrial or preserved this argument for error
in some other manner. See
N.C.R. App. 10(b) ([i]n order to
preserve a question for appellate review, a party must have
presented to the trial court a timely request, objection or motion,
stating the specific grounds). Assuming arguendo
of error is properly before us, therefore, it is unpersuasive.
Lastly, defendant claims the trial court erred by failing to
grant defendant's motion to dismiss at the close of the State's
evidence. We cannot agree.
In ruling upon a motion to dismiss, the trial court must view
the evidence in the light most favorable to the State, which is
entitled to every reasonable inference to be drawn therefrom.
State v. Hyatt
, 355 N.C. 642, 666, 566 S.E.2d 61, 77 (2002), cert.
, 537 U.S. 1133, 154 L. Ed. 2d 823 (2003). If there is
"substantial evidence" of each element of the charged offense and
of defendant being the perpetrator of the offense, the motion
should be denied. State v. Bell
, 359 N.C. 1, 23, 603 S.E.2d 93,
109 (2004). Substantial evidence is that amount of evidence which
a reasonable mind might accept as adequate to support aconclusion. State v. Rich
, 87 N.C. App. 380, 382, 361 S.E.2d 321,
323 (1987) (citing State v. Cox
, 303 N.C. 75, 277 S.E.2d 376
In order to convict a defendant of second-degree murder . . .
the State must produce evidence that the defendant committed an
'unlawful killing of a human being with malice, but without
premeditation or deliberation.' State v. Qualls,
130 N.C. App. 1,
9, 502 S.E.2d 31, 37 (1998) (quoting State v. Mapp,
45 N.C. App.
574, 579, 264 S.E.2d 348, 353 (1980)). [M]alice may be inferred
from the intentional use of a deadly weapon. State v. Camacho
337 N.C. 224, 233, 446 S.E.2d 8, 12 (1994). Malice may be negated
where there is adequate provocation under the law. State v.
, 338 N.C. 494, 497, 450 S.E.2d 479, 481 (1994). Legal
provocation must be under circumstances amounting to an assault or
threatened assault. State v. Montague
, 298 N.C. 752, 757, 259
S.E.2d 899, 903 (1979).
Defendant's argument directed at this assignment of error is
nearly identical to that made in asserting that the lesser included
offense of voluntary manslaughter should have been submitted to the
jury. Defendant insists the element of malice required for second
degree murder was negated herein by legal provocation. We
reiterate our earlier observation that the record discloses no
evidence the homicide victim Samuels assaulted or threatened to
assault defendant, nor is there any indication defendant heard or
perceived any threat from Hines. Suffice it to state, without
voluminous citations to the record, that the State presentedsubstantial evidence of each essential element of the crime of
second degree murder. It was not error to deny defendant's motion
In sum, the trial court committed no prejudicial error in
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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