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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA06-1026


Filed:  19 June 2007


v .                                     Rowan County
                                        No. 03CRS 53656

    Appeal by defendant from judgment entered 6 December 2005 by Judge Jerry Cash Martin in Rowan County Superior Court. Heard in the Court of Appeals 11 April 2007.

    Attorney General Roy A. Cooper, III, by Assistant Attorney General Richard J. Votta, for the State.

    Richard G. Roose for defendant-appellant.

    HUNTER, Judge.

    Billy Joe Cleveland, Sr. (“defendant”) appeals from his conviction for second degree murder on 6 December 2005. After careful review, we find no error.
    The evidence presented at trial tended to show the following: On the morning of 10 May 2003, defendant drove to the house of LaToya Cleveland (“decedent”), his wife, and shot her three times with a shotgun while she sat in the bathtub. Defendant then took his two sons from the next room and drove to his mother's house. At around noon, defendant called 911 and told a dispatcher, “[c]ome pick me up. I just killed my wife.” When the police did not arrive, defendant called again to give the dispatcher more specificdirections to his location and told the dispatcher that he had shot his wife.
    When the police arrived, defendant told them where to find his wife's body. He was then put under arrest. Defendant was convicted by a jury of second degree murder and sentenced to a term of 251 to 311 months.
    Defendant's sole argument to this Court is that the trial court erred in denying his request to submit the lesser included offense of voluntary manslaughter to the jury. This argument is without merit.
    “[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, 204, 344 S.E.2d 775, 782 (1986). The test for whether a lesser-included instruction must be given is whether there “is the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). “'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) (quoting State v. Thomas, 325 N.C. 583, 594, 386 S.E.2d 555, 561 (1989)).
    Here, therefore, we must examine the record for evidence that the jury could rationally have found defendant guilty of voluntary manslaughter and not guilty of second degree murder. See Millsaps,356 N.C. at 561, 572 S.E.2d at 771 (“[a]n instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater”).
    “Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation.” State v. Tidwell, 323 N.C. 668, 673, 374 S.E.2d 577, 580 (1989). The definition of second degree murder is identical, except it is a killing committed with malice where voluntary manslaughter is without. See State v. Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13 (1994). Thus, voluntary manslaughter's classic feature -- and what distinguishes it from second degree murder -- is its quality of being “'done in the heat of passion suddenly aroused by adequate provocation[.]'” State v. Lyons, 340 N.C. 646, 663, 459 S.E.2d 770, 779 (1995) (quoting State v. Wallace, 309 N.C. 141, 149, 305 S.E.2d 548, 553 (1983)). To qualify for an instruction on voluntary manslaughter, therefore, evidence must have been presented to put the element of malice into doubt. Such evidence does not appear to exist in this case.
    Defendant argues that two sets of facts support an instruction on voluntary manslaughter: First, that he discovered his wife having intercourse with another man the morning he shot her; and second, that decedent's conduct over the few days preceding the killing constituted ongoing provocation that should be considered adequate under the statute. These arguments are without merit.

    First, defendant claims the record contains evidence that he found decedent (his wife) having intercourse with another man shortly before the shooting. The record does not reflect such evidence.
            When one spouse kills the other in a heat of passion engendered by the discovery of the deceased and a paramour in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was “severely proximate,” and the killing follows immediately, it is manslaughter.

State v. Ward, 286 N.C. 304, 312-13, 210 S.E.2d 407, 413-14 (1974), death penalty vacated, 428 U.S. 903, 49 L. Ed. 2d 1207 (1976). The key element is the immediacy of discovery. The pair must actually be in the act or have clearly just completed the act when the aggrieved spouse finds them for the killing to qualify as voluntary manslaughter. “The law extends its indulgence to a transport of passion justly excited and to acts done before reason has time to subdue it; the law does not indulge revenge or malice, no matter how great the injury or grave the insult which first gave it origin.” Ward, 286 N.C. at 313, 210 S.E.2d at 414.
    The only evidence that defendant discovered his wife having intercourse with another man comes from the testimony of one of the psychiatric experts who testified at trial. Dr. Karla Debeck (“Dr. Debeck”), an expert in forensic psychiatry, testified as to information obtained from her interviews with defendant:
        [H]e reported to me with regards to the alleged incident that he had been at his mother's house, he went to get some money, and that something had made him go back to his wife's house. He said that he wanted to checkon his wife and children. He said that he smoked a joint and that it was sometime after 10:00 a.m. He indicated that he parked his car on the side of the driveway to see what she was doing. He said it wasn't where he would normally park. He said he did this so that he could see whether someone was there.

            He said when he was walking through the woods, he heard what he described [as] moaning like sex. He said when he heard the moaning, he walked up to the bedroom window and he saw his wife having sex with another man. He said that this man was dark skinned and tall.

This is the only evidence in the record to which defendant points supporting a contention that he discovered his wife in the act of adultery, which in turn would create adequate provocation for voluntary manslaughter.
    As the court stated at the time, however, Dr. Debeck repeated this statement during her testimony solely to show on what evidence she based her opinions regarding the case. The statement was not introduced as substantive evidence. Indeed, the only substantive evidence introduced tends to show that decedent was not engaging in an affair. In his statement to the police two days after the shooting, defendant said only that he arrived at the house and had an argument with decedent, making no mention of observing his wife with anyone else, and decedent's friend Tonya Wilson testified that defendant was in fact not having an affair.
    Defendant argues that because the court did not give a limiting instruction on this evidence to the jury in its final instructions, it comes in as substantive. However, at the time the testimony was given, the court informed the jury that any tests orrecords mentioned by any of the experts were only the basis for forming his or her opinion, not actual evidence.
    Further, even if the court accepted the story as substantive evidence and defendant did discover his wife in the act, then return to shoot her, his intervening actions -- leaving decedent's house, driving to his mother's house, obtaining the keys, unlocking the shed, obtaining the gun, driving back to decedent's house, and engaging in an argument with decedent -- means his shooting her does not qualify for voluntary manslaughter, which requires discovering that “the act had just been completed, or was 'severely proximate,' and the killing follows immediately[.]” Ward, 286 N.C. at 313, 210 S.E.2d at 413-14.
    There is no substantive evidence in the record to support a contention that defendant acted with sudden passion in response to finding his wife in the act of committing adultery. This argument has no merit.

    Defendant next argues that evidence in the record shows that defendant had been provoked by decedent's behavior over the forty- eight hours prior to her death to an extent that constituted adequate provocation. This argument is without merit.
    Defendant did not testify at trial, but two statements that he made to Detective Jamie J. Beach (“Detective Beach”) on 12 May 2003 were read into evidence by Detective Beach. In those statements, defendant stated the following regarding the events in the days leading up to the murder: On 7 May, decedent shot at him and hiscars, then put her gun to his brother-in-law's head, at which point he called 911. However, decedent then swore out a warrant against defendant for assault on a female, and defendant spent the night in jail, being released on 8 May. Decedent called defendant repeatedly after he was released, telling him if he did not come back home to her, she would “mess with” another man, and would let someone else (apparently another man) stay with her in the house. On the evening of 9 May, decedent showed up at defendant's sister's house, where he was staying, and made the same demand and threats, so he called 911 again, though nothing appears to have happened as a result of that call. Decedent continued to make the demand and threats over the phone, then later in person on the evening of 9 May, when defendant was staying at his mother's house.
    Even if all this evidence is accepted as true, it does not constitute the adequate provocation required by voluntary manslaughter. As mentioned above, immediacy is a key element of this crime; the “heat of passion” is also consistently described as “sudden passion” by this Court and our Supreme Court. See, e.g., State v. Wood, 149 N.C. App. 413, 417, 561 S.E.2d 304, 307, disc. review denied, 356 N.C. 175, 569 S.E.2d 280 (2002); State v. Huggins, 338 N.C. 494, 498, 450 S.E.2d 479, 482 (1994); State v. Davis, 77 N.C. App. 68, 72, 334 S.E.2d 509, 512 (1985).
    The facts of the morning of the shooting, as evidenced by defendant's own statements, are these: On the morning of 10 May 2003, around 10:00 a.m., defendant drove to see decedent, who told him another man had stayed with her the night before. Defendantthen left, driving to his mother's house to retrieve his sawed-off shotgun, where his mother tried to stop him from leaving. Defendant returned to decedent's house, parked in the driveway, and entered to find her in the bathtub. Decedent began to tell him about the man who had stayed with her the night before, “'talking and playing [defendant] like a fool'” even as he brandished the shotgun. He shot her in the chest, then twice more, “'quickly.'”
    Neither defendant's own statement nor any other evidence produced at trial suggests any provocation the morning of the murder besides decedent's taunts that she had been with another man. “'Mere words, however abusive or insulting are not sufficient provocation to negate malice and reduce the homicide to manslaughter. Rather, this level of provocation must ordinarily amount to an assault or threatened assault by the victim against the perpetrator.'” State v. Burr, 341 N.C. 263, 300, 461 S.E.2d 602, 622 (1995) (quoting State v. Watson, 338 N.C. 168, 176-77, 449 S.E.2d 694, 699-700 (1994), cert. denied, 514 U.S. 1071, 131 L. Ed. 2d 569 (1995)). Thus, there is no evidence in the record that decedent's actions leading up to the shooting constituted adequate provocation sufficient to support submitting voluntary manslaughter as a lesser-included offense.
    Because the record does not reflect evidence that would have supported a charge to the jury of voluntary manslaughter, the Court finds no error.
    No error.
    Judges TYSON and JACKSON concur.
    Report per Rule 30(e).

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