Appeal by defendant from judgment dated 22 April 2008 by Judge
Cy A. Grant in Northampton County Superior Court. Heard in the
Court of Appeals 25 February 2009.
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Greene & Wilson, P.A., by Thomas Reston Wilson, for defendant-
appellant.
BRYANT, Judge.
Robert Lee Vincent, Sr., (defendant) appeals from a judgment
entered upon a jury verdict finding him guilty of second-degree
murder. We find no error.
Facts
The State presented evidence tending to show the following:
On the evening of 27 July 2006, John McLaurin stopped at the Blue
Flame gas station in Gaston, North Carolina with his wife, Yvette,
and his stepson, Kenneth. As the McLaurins were leaving the gas
station, a gray truck pulled in front of their vehicle and stopped
in the middle of the entryway to the gas station. The McLaurins,
irritated by the length of time the truck blocked the driveway,
pulled up beside the truck. Mr. McLaurin who was driving, told thedriver of the truck that it was unlawful not to use a turn signal.
The truck driver, later identified as defendant, and Mr. McLaurin
exchanged unpleasantries, then Mr. McLaurin pulled onto Highway 46
in the direction of the McLaurin home.
Defendant followed the McLaurins onto Highway 46. Mr.
McLaurin's car was having trouble and stalled several times,
however, defendant remained behind the vehicle. When Mr. McLaurin
turned off Highway 46 onto Family Road, where he lived, he pulled
the vehicle to the side of the road and got out. Defendant stopped
his truck behind the McLaurin car and also got out. As the two men
began to argue, Mrs. McLaurin and Kenneth got out of the car.
While continuing to argue, defendant reached into his truck, pulled
out an object wrapped in a black cloth, and revealed a pistol. At
that point, Mr. McLaurin told his wife and stepson to return to
their car. Defendant raised the gun, pointed it towards Mr.
McLaurin, and fired a shot. The gunshot struck eleven-year-old
Kenneth in the forehead. Kenneth was transported to a hospital
where he died later that evening as a result of brain damage caused
by the gunshot wound.
Meanwhile, defendant, after firing the gun, got into his truck
and drove to a friend's home in Virginia. Several days later an
officer with the Emporia, Virginia police department saw defendant
walking down a highway in the middle of the night. When the
officer approached defendant, he ran into a nearby soybean field
and only surrendered after officers threatened to release dogs into
the field. Defendant testified at trial and stated that on 27 July 2006,
while at the Blue Flame gas station, Mr. McLaurin had cursed at him
for blocking the driveway. Defendant also testified Mr. McLaurin
got out of his car and walked to the back of defendant's truck.
Defendant thought he heard Mr. McLaurin kick or hit the truck.
Because he thought his truck may have been damaged, defendant
followed the McLaurins until they pulled over onto the side of the
road. Defendant removed his gun from his truck and held it while
telling Mr. McLaurin not to “come up on me.” When defendant was
distracted by Mrs. McLaurin, Mr. McLaurin grabbed defendant's hand
and attempted to snatch the gun from him. During the struggle, the
gun fired.
Defendant was found guilty of second-degree murder. Defendant
was sentenced to a minimum term of 220 months to a maximum term of
273 months. Defendant appeals.
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On appeal, defendant argues: (I) the trial court committed
plain error by failing to give an accident instruction; and (II)
the trial court committed plain error by failing to give a jury
instruction on manslaughter.
Standard of Review
“Plain error is error so fundamental as to amount to a
miscarriage of justice or which probably resulted in the jury
reaching a different verdict than it otherwise would have reached.”
State v. Holbrook, 137 N.C. App. 766, 767, 529 S.E.2d 510, 511
(2000) (internal quotations omitted). The plain error rule is always to be applied
cautiously and only in the exceptional case
where, after reviewing the entire record, it
can be said the claimed error is a fundamental
error, something so basic, so prejudicial, so
lacking in its elements that justice cannot
have been done, or where the error is grave
error which amounts to a denial of a
fundamental right of the accused, or the error
has resulted in a miscarriage of justice or in
the denial to appellant of a fair trial or
where the error is such as to seriously affect
the fairness, integrity or public reputation
of judicial proceedings or where it can be
fairly said the instructional mistake had a
probable impact on the jury's finding that the
defendant was guilty.
State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)
(internal quotations omitted) (emphasis omitted). “[D]efendant is
entitled to a new trial only if the error was so fundamental that,
absent the error, the jury probably would have reached a different
result.”
State v. Jones, 355 N.C. 117, 125, 558 S.E.2d 97, 103
(2002).
I
Defendant argues the trial court committed plain error by
failing to give an instruction on the defense of accident. We
disagree.
Defendant failed to request the instruction at trial and
concedes that plain error is the proper standard of review. When
a request is made for an instruction which is legally correct and
supported by evidence, the court must give the instruction at least
in substance.
State v. Hooker, 243 N.C. 429, 431, 90 S.E.2d 690,
691 (1956). “The defense of accident is triggered in factual
situations where a defendant, without premeditation, intent, orculpable negligence, commits acts which bring about the death of
another.”
State v. Lytton, 319 N.C. 422, 425, 355 S.E.2d 485, 487
(1987). “A killing will be excused as an accident when it is
unintentional and when the perpetrator, in doing the homicidal act,
did so without wrongful purpose or criminal negligence while
engaged in a lawful enterprise.”
State v. Riddick, 340 N.C. 338,
342, 457 S.E.2d 728, 732 (1995). However, where the defendant was
engaged in unlawful conduct when the killing occurred, the defense
of accident is not raised.
Id.
In the present case we can not say defendant was engaged in
lawful conduct. After the initial altercation, defendant followed
the McLaurins in his truck until they pulled over onto the side of
the road. Defendant then got out of his truck and began to argue
with Mr. McLaurin. Defendant then reached into his truck and
removed his gun. Like the defendant in
Riddick, defendant in the
present case was engaged in intentional conduct when the killing
occurred. Defendant created the volatile situation by following
the McLaurins, getting out of his truck, and continuing the
altercation that began at the Blue Flame gas station. The
encounter escalated to the point of deadly violence when defendant
introduced the gun into the altercation which resulted in the death
of the McLaurins' son. We hold the trial court did not commit
plain error by refusing to give an instruction on the defense of
accident. Defendant's assignment of error is overruled.
II
Defendant argues the trial court committed plain error by
failing to give an instruction on voluntary manslaughter. We
disagree.
Defendant failed to object to the instruction at trial and
concedes that plain error is the proper standard of review. In
order to receive an instruction on voluntary manslaughter, there
must be evidence tending to show “[a] killing [was] committed in
the heat of passion suddenly aroused by adequate provocation, or in
the imperfect exercise of the right of self-defense[.]”
State v.
Huggins, 338 N.C. 494, 497, 450 S.E.2d 479, 481 (1994) (internal
quotations omitted).
In
State v. Blake, 317 N.C. 632, 346 S.E.2d 399 (1986), the
State's evidence tended to show the defendant arrived at the
victim's auto repair shop agitated, called the victim to his truck,
and shot the unarmed victim.
Id. at 634, 346 S.E.2d at 400. The
defendant's evidence tended to show that the victim approached the
defendant in a threatening manner, began to choke the defendant,
and was accidentally shot when the two men struggled for control of
the defendant's gun.
Id. at 636, 346 S.E.2d at 402. Our Supreme
Court, relying on
State v. Wallace, 309 N.C. 141, 305 S.E.2d 548
(1983), held the defendant was not entitled to an instruction on
voluntary manslaughter because neither the State's evidence nor the
defendant's evidence supported an instruction on voluntary
manslaughter.
Here, as in
Blake, neither the State's evidence nor
defendant's evidence support an instruction on voluntarymanslaughter. Defendant's evidence tended to show that the gun
fired when defendant and Mr. McLaurin struggled for control of the
gun and the shooting was accidental. The State's evidence tended
to show that defendant fired the gun while he was arguing with Mr.
McLaurin. Neither the State's evidence nor the defendant's
evidence tended to show that defendant acted in the heat of passion
or in the imperfect exercise of self-defense. We hold the trial
court did not commit plain error by failing to give an instruction
on voluntary manslaughter. This assignment of error is overruled.
NO ERROR.
Judges ELMORE and STEELMAN concur.
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