Appeal by defendant from judgment entered 4 January 2005 by
Judge Frank R. Brown in Edgecombe County Superior Court. Heard in
the Court of Appeals 10 May 2006.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General John P. Scherer II, for the State.
D. Tucker Charns for defendant-appellant.
HUNTER, Judge.
Terry Lee Thorne (“defendant”) appeals from judgment entered
4 January 2005 consistent with a jury verdict finding him guilty of
voluntary manslaughter. For the reasons stated herein, we find no
error.
The State's evidence tended to show that in the early morning
hours of 3 November 2003, Willie Mae Battle (“Battle”), a cashier
working at EP Mart #2 (“EP Mart”), observed a man, later identified
as defendant, and another man, later identified as the victim,
Dennis Lloyd (“Lloyd”), cross Raleigh Street from the Eckerd's
drugstore and enter the EP Mart parking lot. Battle testified that
it appeared defendant was being followed by Lloyd, and defendant
bent over as if to catch his breath after reaching the pumpsoutside the EP Mart. Lloyd caught up to defendant and the two had
a conversation which Battle could not hear. They then moved in
front of the store window and Battle observed Lloyd swing a piece
of wire at defendant, who ducked and avoided the wire. Defendant
then ran across the street to the Hardee's parking lot with Lloyd
in pursuit. From approximately seventy feet away, Battle observed
defendant stop beneath a parking lot light and pick up what Battle
believed to be a piece of metal from nearby bushes, which defendant
then threw at Lloyd, who stood approximately ten to fifteen steps
away from defendant. Defendant then crossed the street again and
headed towards Eckerd's. Lloyd followed defendant. Battle did not
see defendant again.
Battle testified that shortly thereafter, Lloyd entered the EP
Mart and fell against the cashier's cage glass, saying “help me,
help me.” Battle called 911 and observed that Lloyd had a spot on
his chest and did not appear to have a weapon. The investigating
officers discovered a broken hard plastic sign stained with blood
in the Hardee's parking lot and an old coat hanger in the Eckerd's
parking lot. Defendant's fingerprints matched those on the broken
sign found in the Hardee's parking lot.
Defendant waived his Miranda rights and agreed to answer
questions about the incident. Defendant initially told the
investigating officer that he was walking home from a girl's house
when an unknown man asked him for change. Defendant stated that
Lloyd snatched $10.00 from him when defendant pulled out his money,
but when defendant started to “jump” Lloyd, Lloyd acted as thoughhe was going to pull a gun and defendant fled. Defendant told
officers that as he ran towards the EP Mart, Lloyd hit him with a
pole. Defendant stated that he gestured to the woman in the store
to call for help, then crossed the street again with Lloyd still
chasing him. Defendant told officers he picked up a piece of metal
from the bushes and hit Lloyd, who dropped a putty knife, which
defendant picked up and used to stab Lloyd. Defendant stated that
Lloyd continued to pursue him, and he finally escaped by jumping a
fence. The investigating officers' search of the area did not
reveal a pole, gun, or putty knife.
In a subsequent interview, when questioned as to why Lloyd
chased him, defendant told the investigating officer that he had
sold Lloyd a “blinker,” a fake piece of cocaine, for $20.00, and
Lloyd had wanted a refund. Defendant later admitted that he owned
the knife he used to stab Lloyd and had it in his back pocket at
the time of the incident. The knife was retrieved with defendant's
permission from his home.
Lloyd was taken to the emergency room of Nash General
Hospital, where he died. An autopsy revealed the cause of death as
loss of blood from a stab wound in Lloyd's left side.
Defendant testified at trial that on the night of the
incident, he was approached by a man who asked if he “ha[d]
anything.” The man then asked if he had change, and when defendant
pulled out his money to count it, Lloyd snatched it. Defendant
started towards Lloyd, but stepped back after observing Lloyd put
his hand under his shirt as though he had a gun. Defendanttestified that he then ran, pursued by Lloyd, and was afraid of
being shot. He testified that when he asked Lloyd why he was
chasing him, Lloyd responded that he planned to kill him.
Defendant testified that Lloyd chased him around a parked car
in a KFC parking lot several times. Defendant observed that Lloyd
had a bicycle seat pole in his hands, which he threw at defendant
as they neared the EP Mart. When defendant stopped to catch his
breath in the EP Mart parking lot, Lloyd swung and hit him in the
chest with the pole. Defendant again ran with Lloyd in pursuit.
Defendant testified he recalled that he had a pocket knife in
his back pocket, and pulled it out and opened it as he crossed the
street to a Hardee's restaurant, fearing for his life. He then
grabbed the sign from the bushes in the Hardee's parking lot and
slung the sign towards Lloyd. Defendant testified that Lloyd
grabbed him with his left hand and swung at him with a weapon in
his right hand twice, hitting defendant once. Defendant stated he
then swung the knife out of fear and ran. Lloyd continued to
pursue him, but tripped on a curb, allowing defendant to climb a
fence and escape.
Defendant admitted under cross-examination that he had not
mentioned in his statements to police that the man had asked for
change for $50.00, that Lloyd had reached for a gun or put his hand
under his shirt, that he ran to keep from being shot, that he ran
around a car several times, that Lloyd told him he was going to
kill him, that he had been scared or afraid, or anything about abicycle seat. Defendant also admitted that the “pipe” was the wire
hanger found in the parking lot.
Defendant was convicted of voluntary manslaughter, and was
sentenced to 103 to 133 months. Defendant appeals from his
judgment and conviction.
I.
Defendant first contends that his trial counsel's failure to
request recordation of the jury
voir dire, opening, and closing
statements constituted ineffective assistance of counsel. We
disagree.
The standard for assessing ineffective assistance of counsel,
conduct below an objective standard of reasonableness, is well
established.
See State v. Braswell, 312 N.C. 553, 561-62, 324
S.E.2d 241, 247-48 (1985) (citing
Strickland v. Washington, 466
U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).
N.C. Gen. Stat. § 15A-1241(a) (2005) governs recording of
criminal proceedings in superior court. The statute requires
recordation of all proceedings except jury selection in non-capital
cases, opening and closing statements, and arguments of counsel on
questions of law.
Id. In
State v. Hardison, 326 N.C. 646, 392
S.E.2d 364 (1990), our Supreme Court found that the defendant
failed to establish ineffective assistance for failure to request
recordation of the jury selection and bench conferences when no
specific allegations of error were made and no attempts were made
to reconstruct the transcript.
Id. at 661-62, 392 S.E.2d at 373. Here, as in
Hardison, defendant argues only that the failure
to request recordation of the jury selection and opening and
closing arguments “prevented appellate counsel from fully defending
this appeal.” Defendant assigns no error to the jury selection
process and has made no attempt to reconstruct the record as to the
opening and closing arguments. Defendant also makes no specific
allegations as to errors in the opening and closing arguments. As
in
Hardison, we conclude that these arguments “fall far short of
satisfying the burden set forth in
Strickland[.]”
Id. at 662, 392
S.E.2d at 373. Defendant's assignment of error is overruled.
II.
Defendant next contends in a related assignment of error that
the trial court's failure to
sua sponte order recordation of the
jury
voir dire, opening, and closing statements deprived defendant
of meaningful appellate review and effective assistance of
appellate counsel. We disagree.
In
State v. Price, 170 N.C. App. 57, 67, 611 S.E.2d 891, 898
(2005), this Court recently held that our case law does not support
the argument that the trial court must ensure recordation of those
items specifically exempted by statute from the record, and the
defendant cannot show prejudice from the failure to do so.
Here, defendant makes no specific allegations that there were
errors in the jury selection or opening and closing statements. As
defendant cannot show prejudice from the trial court's failure to
sua sponte require recordation of the jury selection or opening and
closing statements, this assignment of error is overruled.
III.
Defendant next contends that the trial court erred in denying
defendant's motion to dismiss the charge of voluntary manslaughter.
We disagree.
The standard of review for a motion to dismiss for
insufficient evidence is well established.
See State v. Jackson,
145 N.C. App. 86, 89, 550 S.E.2d 225, 229 (2001) (holding that the
trial court is required to interpret the evidence in the light most
favorable to the State in determining the sufficiency of the
evidence).
Defendant contends that the State failed to show that
defendant did not act in perfect self-defense, specifically that
defendant had a reasonable belief in the necessity to kill Lloyd,
that he was not the aggressor, and that he did not use excessive
force. A killing is excused, if done in perfect self-defense,
which consists of the following four elements:
“'(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 was
necessary or reasonably appeared to him to benecessary under the circumstances to protect
himself from death or great bodily harm.'”
State v. Blackwell, 163 N.C. App. 12, 17, 592 S.E.2d 701, 705
(citations omitted),
cert. denied, 358 N.C. 378, 597 S.E.2d 768
(2004). “Voluntary manslaughter occurs when one kills
intentionally, but does so in the heat of passion aroused by
adequate provocation or in the exercise of self-defense where
excessive force is used or defendant is the aggressor.”
State v.
Lassiter, 160 N.C. App. 443, 454, 586 S.E.2d 488, 497,
disc. review
denied, 357 N.C. 660, 590 S.E.2d 853 (2003).
Here, the State presented evidence that defendant did not have
a reasonable belief in the need to kill Lloyd. The State presented
evidence that defendant passed several businesses from which he
could have sought help while fleeing from Lloyd. Further, there
was no evidence that Lloyd was armed with anything other than a
coat hanger. Lloyd's pursuit of defendant in a public area with
nothing more than a coat hanger establishes a reasonable inference
under the circumstances that defendant lacked a reasonable belief
in the need to kill Lloyd. Further, although defendant's use of a
sign to halt Lloyd's pursuit may have been proportionate under the
circumstances, the State's evidence that defendant stabbed Lloyd in
the chest with a knife provides a reasonable inference that
defendant used more force than was reasonably necessary to defend
himself against a man armed with a coat hanger. As the State
presented sufficient evidence of the elements of manslaughter toreach the jury, the trial court did not err in denying defendant's
motion. This assignment of error is overruled.
IV.
Defendant finally contends the trial court erred in
determining defendant's sentence without a proper stipulation by
defendant. We disagree.
N.C. Gen. Stat. § 15A-1340.14(f) (2005) sets out acceptable
methods of proof of prior convictions.
(f) Proof of Prior Convictions. -- A
prior conviction shall be proved by any of the
following methods:
(1) Stipulation of the parties.
(2) An original or copy of the court
record of the prior conviction.
(3) A copy of records maintained by the
Division of Criminal Information,
the Division of Motor Vehicles, or
of the Administrative Office of the
Courts.
(4) Any other method found by the court
to be reliable.
Id. Here, the State presented evidence in the form of a
stipulation by the parties. The record specifically shows that
defendant's attorney stated he had reviewed the sentencing
worksheet and gone through the prior record information, and
stipulated that defendant had a prior record level of three.
Defendant incorrectly contends that the statute requires a showing
that “defendant understood what it meant to stipulate to that
conviction.” Accordingly, this assignment of error is without
merit. Defendant fails to show that non-recordation of the jury
selection, opening, and closing statements was ineffective
assistance of counsel or error on the part of the trial court. The
trial court further did not err in denying defendant's motion to
dismiss for insufficient evidence, or in determining defendant's
prior record level based on stipulation by defendant's counsel. We
find no error in defendant's trial.
No error.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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