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.
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
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
[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
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
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
, 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
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
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.
, 356 N.C. 175, 569 S.E.2d 280 (2002); State v.
, 338 N.C. 494, 498, 450 S.E.2d 479, 482 (1994); State v.
, 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.
Judges TYSON and JACKSON concur.
Report per Rule 30(e).
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