INDEX [] Bank/Briefs/Ward, Gerald.doc · Web viewMorgan, 315 N.C. 626, 638, 340 S.E.2d 84, 92...
Transcript of INDEX [] Bank/Briefs/Ward, Gerald.doc · Web viewMorgan, 315 N.C. 626, 638, 340 S.E.2d 84, 92...
No. COA00-604 NINE-A DISTRICTNORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA ))
v. ) From Caswell)
GERALD WAYNE WARD )
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DEFENDANT-APPELLANT’S BRIEF
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INDEX
QUESTIONS PRESENTED.............................................1
STATEMENT OF THE CASE...........................................1
STATEMENT OF THE FACTS..........................................2
A. The State’s Evidence...................2
B. Defendant’s Evidence...................5
ARGUMENT........................................................5
I. THE TRIAL COURT ERRED BY FAILING TO SUBMIT THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO THE JURY..5
II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF A STATEMENT DEFENDANT MADE NINE DAYS BEFORE LUNDY WAS KILLED.5
A. Applicable Principles..................5
B. The Trial Court Violated Evidence Rules 401, 402, and 404 by Admitting the Evidence of Defendant’s Statement......5
C. The Trial Court Violated Evidence Rule 403 by Admitting the Evidence of Defendant’s Statement..................5
D. The Erroneous Admission of the Evidence Was Prejudicial........................5
III. THE TRIAL COURT ERRED BY FAILING TO FIND STATUTORY MITIGATING FACTORS 8.A. AND 15...................5
CONCLUSION......................................................5
CERTIFICATE OF FILING AND SERVICE...............................5
TABLE OF AUHORITIES
CASES
State v. Alley, 54 N.C. App. 647, 284 S.E.2d 215 (1982)..................29
State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994)......................20
State v. Blalock, 77 N.C. App. 201, 334 S.E.2d 441 (1985)..................26
State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796 (1998).................28
State v. Brooks, 113 N.C. App. 451, 439 S.E.2d 234 (1994).................25
State v. Camacho, 337 N.C. 224., 446 S.E.2d 8 (1994).......................20
State v. Cameron, 314 N.C. 516, 335 S.E.2d 9 (1985)........................32
State v. Cardwell, 133 N.C. App. 496, 516 S.E.2d 388 (1999).................27
State v. Crisp, 126 N.C. App. 30, 483 S.E.2d 462, appeal dismissed and disc. rev. denied, 346 N.C. 284, 487 S.E.2d 559 (1997)...............................................34
State v. Daniel, 319 N.C. 308, 354 S.E.2d 216 (1987)......................33
State v. Faison, 90 N.C. App. 237, 368 S.E.2d 28 (1988)...................33
State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961)......................26
State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979)......................26
State v. Groves, 324 N.C. 360, 378 S.E.2d 763 (1989)......................26
ii
State v. Highsmith, 74 N.C. App. 96, 327 S.E.2d 628, disc. rev. denied, 314 N.C. 119, 332 S.E.2d 486 (1985)..............33
State v. Jones, 229 N.C. 276, 49 S.E.2d 463 (1948).......................28
State v. Lovett, 119 N.C. App. 689, 460 S.E.2d 177 (1995).................35
State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993)......................28
State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987)......................19
State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), disc. rev. denied, 326 N.C. 53, 389 S.E.2d 83 (1990)................30
State v. McCray, 342 N.C. 123, 463 S.E.2d 176 (1995)......................31
State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986)..................26
State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).......................25
State v. Slade, 71 N.C. App. 212., 321 S.E.2d 490 (1984).................24
State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991)......................28
State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824 (1982)..................27
State v. Tidwell, 112 N.C. App. 770, 436 S.E.2d 922 (1983).................22
State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983)......................20
State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986)......................20
State v. Wilson, 108 N.C. App. 117., 423 S.E.2d 473 (1992)................24
iii
State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6, appeal dismissed and disc. rev. denied, 329 N.C. 504, 407 S.E.2d 550 (1991)...............................................25
State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971)......................20
STATUTES
N.C. Gen. Stat. § 15A-1340.16.................................33
N.C. Gen. Stat. § 15A-1443....................................31
N.C. Gen. Stat. § 8C-1, Rule 401..............................23
N.C. Gen. Stat. § 8C-1, Rule 402..............................23
N.C. Gen. Stat. § 8C-1, Rule 403..............................23
N.C. Gen. Stat. § 8C-1, Rule 404..............................23
OTHER AUTHORITI ES
Charles E. Torcia, Wharton’s Criminal Evidence (14th ed. 1985)................................................26
CONSTITUTIONAL PROVISIONS
N.C. Const. art. I, § 19......................................19
N.C. Const. art. I, § 23......................................19
U.S. Const. amend. XIV........................................19
iv
No. COA00-604 NINE-A DISTRICTNORTH CAROLINA COURT OF APPEALS
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STATE OF NORTH CAROLINA ))
v. ) From Caswell)
GERALD WAYNE WARD )
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DEFENDANT-APPELLANT’S BRIEF
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QUESTIONS PRESENTED
I. WHETHER THE TRIAL COURT ERRED BY FAILING TO SUBMIT THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO THE JURY?
II. WHETHER THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF A STATEMENT DEFENDANT MADE NINE DAYS BEFORE LUNDY WAS KILLED?
III. WHETHER THE TRIAL COURT ERRED BY FAILING TO FIND STATUTORY MITIGATING FACTORS 8.A. AND 15?
STATEMENT OF THE CASE
On February 23, 1998, the Caswell County Grand Jury indicted
defendant-appellant Gerald Ward for first degree murder. (Rp. 4)
This case came to be tried on defendant’s not guilty plea at the
November 30, 1998 Criminal Session of Caswell County Superior
Court before Superior Court Judge Robert H. Hobgood. (Rp. 1) On
December 9, 1998, the jury found defendant guilty of voluntary
manslaughter. (Rp. 42) On December 12, 1998, Judge Hobgood
entered Judgment and Commitment, and sentenced defendant to a
minimum of 90 months imprisonment. (Rpp. 45-46) Defendant
appealed. (Rpp. 49-52)
STATEMENT OF THE FACTS
It is undisputed that the Wagon Wheel bar in Caswell County
was owned and operated by defendant during February 1998, at which
time defendant was forty-seven years old. (Tpp. 375, 377, 469;
Rp. 2) Defendant’s girlfriend, Anne Hemric, worked as a bartender
there. (Tpp. 472, 763) Defendant also worked for fourteen years
as a car mechanic, and from the time he acquired the bar in
January 1997, he worked as a mechanic during the day and at the
bar at night. (Tpp. 794-95, 867-70)
Defendant was tried for the first degree murder of Larry
Lundy, who was killed by a gunshot wound at the bar in the early
morning of February 15, 1998. (Tpp. 604-05; Rp. 4)
A. The State’s Evidence.
Kelly Anne Chandler testified that had known Larry Lundy for
several years and considered him to be a friend. (Tpp. 470-71,
473) Chandler’s mother and Lundy had grown up together and were
also friends. (Tp. 506) Chandler also testified she drove to the
Wagon Wheel on the night of February 14, 1998 and arrived at about
11:15 p.m. Several people were there, including defendant, Lundy,
and Hemric, who was tending bar. (Tpp. 467, 474) Chandler played
pool with Lundy, and defendant played pool at a different pool
table. (Tp. 475) Chandler testified that Lundy was “laid back, .
. . real nice and respectful;” that there were no problems between
Lundy and defendant; and that she could tell Lundy had consumed a
lot of alcohol by the way he smelled, walked, and talked. She
2
testified Lundy patted her on the back at one point, but did not
touch her inappropriately; and that she did not say or do anything
that would lead someone to believe Lundy was bothering her. (Tpp.
478-80) However, she also testified that she might have told a
law enforcement officer later that night that Lundy “grabbed [her]
on the butt.” (Tp. 494) She then testified she could not
remember if Lundy was “touching [her] in a way that [she] asked
him to stop.” (Tp. 515) She also testified she could not recall
telling a defense investigator that Lundy “backed by [her] a
couple of times . . . and he would just like touch [her] or
something and [she] would tell him Larry don’t do that,” but that
it was possible she said it. (Tp. 516)
At 2:00 a.m., the bar’s closing time, Hemric announced she
was going to stop serving alcohol. (Tpp. 479, 511) Soon
thereafter, everyone left the bar except for defendant, Hemric,
Chandler, and Lundy. Lundy went outside to start his truck.
(Tpp. 477, 479-80) Hemric was behind the bar counter counting the
money, Chandler was sitting at the bar counter, and defendant was
in the public area of the bar. Chandler asked defendant and
Hemric if she could wait in the bar for her cousin, who was going
to pick her up. (Tpp. 482-83)
Chandler testified that Lundy came inside two minutes later
and asked Hemric if he could have a pickled egg; that Hemric said
yes and asked if he had the correct change; and that Lundy said
yes and laid five dimes on the counter. Hemric gave Lundy the egg
3
but he did not eat it. At that point, defendant was near the
entrance leading behind the bar counter. (Tpp. 484, 513, 535,
537) Chandler testified she heard a loud noise come from Lundy’s
truck outside the bar; and that defendant walked over to the door
of the bar and said, “What’s that noise? It sounds like shit,”
and turned to Lundy and said, “Is that your piece of shit out
there making all that racket?” (Tp. 485) She later testified
that defendant might have said, “What is that racket out there?”
(Tp. 522) Lundy then said, “Yes, that’s my piece of shit and that
piece of shit can drag your piece of shit truck across the parking
lot.” Chandler testified that defendant and Lundy then “went back
and forth . . . [about] basically whose truck was best” and “made
a bet about whose truck could do what.” Defendant went back
behind the bar counter during the exchange. (Tpp. 485-86) The
two were not arguing at that point. (Tp. 525)
Lundy stated that he had $500 in his pocket that he would bet
that his truck could drag defendant’s truck across the parking
lot, and defendant replied: “Well, since you have so much damn
money, why don’t you pay your bar tab.” Lundy said that he did
pay his bar tab and that he came in every night and spent $40 in
the bar. Defendant replied that this was a lie “and they went
back and forth from there.” (Tp. 486) Chandler testified that
the argument became heated when Lundy and defendant had started
talking about the bar tab. (Tpp. 526-27)
4
Lundy said: “I tell you what. You come outside . . . [a]nd
I will drag you across the parking lot.” (Tp. 486) Defendant
replied: “No, the hell you won’t.” Chandler’s back was turned to
them because she was watching for her cousin outside. (Tp. 487)
She testified that she then turned around because defendant and
Lundy sounded angry; that defendant was pointing a gun at Lundy’s
face; that Lundy was within arm’s reach of the gun; that Lundy
asked defendant if he was going to shoot him and said it was a
coward’s way out because he was unarmed; that defendant said:
“All I got to do is pull the damn trigger;” that Lundy started
forcefully slamming his hands on the counter, leaning forward, and
saying, “Shoot me then. Shoot me then;” and that defendant shot
Lundy and Lundy fell to the floor. (Tpp. 487-91, 496, 529, 533,
541)
At some point during the argument between defendant and
Lundy, Chandler told Lundy that he should go home. Chandler also
testified that defendant also asked Lundy to leave several times
and Hemric asked Lundy to leave once; that the first time he was
asked to leave, Lundy replied: “I ain’t going anywhere until I
eat my damn egg;” and that Lundy ignored other requests for him to
leave. (Tpp. 521, 535-37, 545)
Later that night, Chandler gave a statement to Deputy Dallas
Stephens. (Tp. 519) She testified the statement did not state
that defendant had gone to the door and commented on the sound of
Lundy’s car or that defendant and Lundy had argued about the bar
5
tab. (Tpp. 519-20, 527) Chandler also confirmed that she told a
defense investigator a month and a half after the shooting that
she would have considered Lundy’s pounding on the bar counter to
be “violent,” that Lundy had “lunged towards the gun,” and that
Lundy may have hit the gun when he lunged toward defendant.
Chandler testified that her memory of the details of what occurred
that night would have been better a month and a half after the
incident than ten months later at trial. (Tpp. 531-34, 539)
Finally, Chandler testified that she knew Lundy to be a gentle,
peaceful person, but was not aware that he had been convicted of
assault on a female, trespassing in a woman’s trailer, and
resisting an officer, or that Lundy had hit his wife. (Tpp. 517-
18)
Caswell County Sheriff’s Department Dispatcher Jean Hodges
testified she received four 911 calls from the Wagon Wheel between
2:24 and 2:26 a.m. on February 15, 1998. The first three calls
were hang-ups, but she spoke to defendant during the fourth call.
(Tpp. 350-53, 356, 365-67; State’s Exhibit 2)
Caswell County Sheriff’s Department Investigator Dallas
Stephens testified that he was a deputy on February 15, 1998, and
that he was dispatched to the Wagon Wheel and arrived at 2:30 a.m.
(Tpp. 636-37) He saw Hemric at the door of the bar, defendant
leaning up against one of the pool tables, and a body lying face
down on the floor. (Tp. 639) He later noticed a broken, uneaten
pickled egg on the floor. (Tp. 658) Defendant told Stephens
6
that the gun he had used was on the bar and that the deceased was
Larry Lundy. (Tpp. 640-41) Stephens asked Hemric and defendant
to step outside. Defendant said, “The gun is still cocked” and
lifted the gun off the bar counter slightly. Stephens told him to
leave it as it was and defendant put the gun down. (Tpp. 642-43)
Stephens believed defendant was going to uncock the gun to make it
safe and did not feel that defendant was acting in a threatening
way. (Tpp. 655-56) Once outside, Stephens asked defendant what
happened. Defendant stated that Lundy had been at the bar for
most of the night, and was mad at defendant and Hemric because
they made him pour out a cup of liquor he brought to the bar; that
at closing time, Lundy became increasingly upset, mad, and hostile
when he was asked to leave several times and refused to pay fifty
cents for a pickled egg; that Lundy had asked him to come outside
and threatened to beat him up; that he pointed his pistol at Lundy
and again told him to leave; that Lundy would not leave and kept
threatening him; and that he fired the gun when Lundy lunged at
him. (Tpp. 643-44) Stephens then went to Chandler’s residence at
3:30 a.m. and took her statement. (Tp. 646) Stephens testified
that Chandler told him that “Lundy had touched her or grabbed her
on the butt” that night. (Tp. 648)
Yanceyville Chief of Police Eric Taylor testified he was a
Caswell County Sheriff’s Department Investigator on February 15,
1998 and that he was called to the Wagon Wheel and arrived at 3:00
a.m. (Tpp. 375, 436-37) Taylor found the body of Larry Lundy
laying on the floor face down. He recovered a bullet near a pool
7
table and .45 semi-automatic handgun and a casing from the bar
counter. (Tpp. 398, 403-04, 410-11) Later, at the Sheriff’s
Department, Taylor advised defendant of his Miranda rights and
defendant agreed to waive his rights. (Tpp. 438, 692-94)
Defendant gave a statement between 7:45 a.m. and 9:12 a.m. (Tp.
443) Taylor testified that defendant stated that Lundy arrived at
the Wagon Wheel at about 9:00 p.m. on February 14, 1998 with a
large cup of liquor; that Lundy gave Hemric a hard time when she
made him pour it out; that defendant and Lundy then “had words”
but Lundy “got over it,” calmed down, and shot pool; that shortly
after last call, which was at 2:00 a.m., Lundy “got mad” and
“became very abusive with his language, cursing and stuff. . . .
He wanted [defendant] to go outside and fight with him but
[defendant] told him, no;” that after several minutes of asking
Lundy to leave, during which Lundy was still trying to get
defendant to go outside and fight with him, defendant got his gun
from under the bar and put it on the counter with his hand on it;
that Lundy did not “convey th[e] threat” that he had a weapon, but
that defendant “d[i]dn’t know what he had on him;” that defendant
again told Lundy to leave and Lundy continued “arguing . . . and
cursing” and “acted as if he was going to come across the counter
at [defendant];” that Lundy “lunged forward” “from about his waist
up halfway across the counter;” that defendant cocked the gun,
pointed it at Lundy, and again told him to leave; and that Lundy
“kept coming at” defendant, then defendant shot him, laid the gun
on the counter, and called the police. (Tpp. 695-98)
8
Caswell County Sheriff’s Department Sergeant Henry Fleetwood
testified that he arrived at the scene at 2:44 a.m., he approached
defendant and asked him who shot the deceased, and defendant said,
“I did.” (Tpp. 676, 680-81) Fleetwood took a statement from
Hemric at 4:42 a.m. (Tp. 687)
State Bureau of Investigation Special Agent Eric Goodman
testified that the cartridge casing and the bullet recovered from
the scene were fired from the pistol found on the bar counter.
(Tpp. 556, 558) Goodson described the gun as a .45 auto caliber
Llama single-action semi-automatic pistol. (Tpp. 553-54, 566) A
trigger pressure of “some weight greater than 7 pounds but less
than 8 pounds” was necessary to fire the gun. This trigger
pressure is relatively common. (Tp. 572) Goodson further
testified that a single action trigger pull “is generally less
than the double-action trigger pull,” “definitely requires a less
forceful trigger,” and is therefore “more capable of going off . .
. [u]nintentionally.” (Tpp. 584-85)
Forensic Pathologist Robert L. Thompson testified that
Lundy’s body had a gunshot wound in the mid-chin area and an exit
wound in the back the neck on the right side. (Tpp. 604-05)
Thompson testified that Lundy was nine to twelve inches from the
gun when it was fired. (Tp. 613) Lundy had a blood alcohol level
of .19. (Tp. 616)
Caswell County Sheriff’s Deputy Gwynn Brandon testified that
he had gone to the Wagon Wheel on February 6, 1998 at 9:30 p.m.
9
because of “an incident in the parking lot;” that he went inside
and noticed that defendant had a .45 caliber pistol behind the
bar; that he asked defendant why he had the weapon; and that
defendant stated: “So he didn’t have to put up with any shit.”
(Tpp. 726-28) Brandon further testified that he “didn’t feel
there was a need to caution or advise [defendant] about anything
concerning that statement” because defendant “had a right to have
a gun there with him.” (Tp. 730)
B. Defendant’s Evidence.
Robert Barr testified he had been trained as an emergency
medical technician; that in the early morning hours of February
15, 1998, he went to the Wagon Wheel after hearing about the
shooting on his police scanner; and that he saw defendant, who was
“very upset, very emotional.” (Tpp. 747-50) Barr testified that
Lundy had a reputation for violence while drinking and that he
could “get out of hand.” Barr also testified that defendant had a
reputation as someone who “tried to handle things in the most
appropriate way.” (Tpp. 753-54) Barr also testified he had been
convicted in 1993 of carrying a concealed weapon. (Tp. 760)
Anne Hemric testified she met defendant in 1984; that they
had been living together since June of 1985; and that she started
working at the Wagon Wheel a year and a half before the trial.
(Tpp. 762-63, 820) She testified that when she had had to call
911 from the bar at least twice prior to February 15, 1998 and
10
that it had taken law enforcement officers about ten to thirteen
minutes to respond. (Tpp. 822-23)
Hemric also testified that she got to work at 6:00 p.m. on
the evening of February 14, 1998; that everything “ran smoothly”
until sometime between 9:00 and 10:00 p.m., when Lundy entered the
bar with a cup of liquor; that she told Lundy he could not drink
the liquor in the bar; that Lundy picked up the cup and started
drinking and was “almost laughing at” her; and that she again told
Lundy he could not drink liquor in the bar and Lundy started to
argue with her, saying that he drank liquor in the bar all the
time. Hemric testified she told him he would either have to leave
or pour the liquor out; that Lundy threw the cup in the trash and
said, “Well, if I can’t drink that, let me have a Budweiser;” and
that she gave him a Budweiser. Lundy started playing pool. (Tpp.
764-66) Hemric told defendant, who was playing pool at a
different table, about the liquor incident, and “defendant said
something to Larry about it.” Lundy came back over to Hemric and
she said, “Just drop it. Just let it go.” Hemric testified that
defendant and Lundy went back to shooting pool. (Tpp. 767-69)
Hemric served Lundy four beers that night, and he did not
appear drunk. Defendant had drank five beers throughout the
evening. (Tpp. 836-37) Hemric called last call at 2:00 a.m.
Soon after, defendant announced: “The bar is closing. Everybody
is going home.” Everyone left except for defendant, Hemric,
Chandler, and Lundy. Hemric and defendant turned most of the
11
lights off, Hemric started counting the money from the cash
register, defendant told Lundy it was time to go, and Lundy left
the bar. Hemric did not ask Chandler to leave because she thought
Chandler was afraid of Lundy and wanted to stay in the bar for
protection. (Tpp. 773, 776-77) Chandler had told Hemric earlier
in the evening that Lundy had been touching her all over and
rubbing her buttocks, and that she was upset and wanted to scratch
his eyes out. (Tp. 784)
Hemric heard Lundy “crank up” his truck. Hemric was standing
in front of the cash register and defendant was standing at the
end of the bar. (Tp. 785) Lundy came back in and Hemric told him
she could not sell him any beer because it was after 2:00. Hemric
testified that Lundy said that he wanted an egg; that she got him
an egg and told him it cost fifty cents; that Lundy did not pay
her and Hemric repeated that the egg cost fifty cents; that Lundy
said: “I can’t believe you’re worried about fifty cents” and then
said, “I got more money than all three of you combined. I got
$1,100 in my pocket;” that she said that Lundy should pay some of
the money that he owed them; and that Lundy did not reply. (Tp.
786) Lundy then directed his attention toward defendant, who had
moved closer to Hemric and was standing behind the bar. (Tpp.
787, 788) Lundy told defendant he was “going to tear [defendant’s
and Hemric’s] vehicles up,” run over the vehicles, and drag them
out of the parking lot. Hemric told Lundy not to mess up her car
and reminded him that he still owed her for the egg. Lundy slid
six dimes across the counter, and Hemric slid one back to him.
12
Hemric told Lundy to leave “a couple of times.” Lundy “started in
with [defendant] about fighting with [defendant]. That . . .
[defendant] was going to have to go outside and fight with him,”
and told defendant that “he was going to beat him up,” that “there
wasn’t no man around that he couldn’t beat up,” and that he
“didn’t spend five years in prison for nothing.” Defendant “told
[Lundy] that there wasn’t going to be no fighting and he wasn’t
going outside” and told Lundy to leave. Lundy did not do so.
(Tpp. 787, 790) Hemric again told Lundy to leave, but Lundy did
not leave and continued to “go[ ] on about the fighting.”
Defendant came around behind Hemric, went to the cash register,
pulled out a gun, put it on top of the cash register, and said,
“Larry, I’m telling you to leave.” Hemric grabbed a stick from
the behind the bar because she was afraid of Lundy because he was
“[a]ggressive [and] [t]hreatening” and had told Hemric shortly
before the argument that “he was never going back to jail and he
said it in a menacing way. He would do anything.” (Tpp. 791-93)
Hemric was afraid to call the police because she “didn’t know what
[Lundy] was going to do.” (Tp. 798) Hemric was also afraid of
Lundy because in October of 1996, he had entered the bar in the
morning when it was closed and she there was alone cleaning.
Hemric had told defendant about this incident. (Tp. 793-94, 796)
After defendant placed the gun on the cash register and told
Lundy to leave, Lundy said: “I’m not leaving” and said that he
and defendant “would have to go outside and fight.” Defendant and
Lundy were facing each other across the cash register. (Tpp. 808-
13
09) At some point, defendant pointed the gun at Lundy; and Lundy
said, “What are you going to do? Shoot me?,” and started slamming
his hands on the bar and saying “Shoot me then.” (Tpp. 834, 841,
845) Defendant again told Lundy to leave and Lundy “reached out
toward [defendant]” and was either reaching for defendant or the
gun. (Tpp. 809, 844) She did not know whether Lundy actually
touched defendant or the gun. (Tp. 848) The gun went off. (Tp.
809) Hemric estimated that the gun as eight to twelve inches away
from Lundy’s head when it fired. (Tp. 845)
Hemric tried to call the sheriff but she was so nervous she
could not dial the numbers correctly, so defendant took the phone
and made the call. (Tp. 810) Later that night, Hemric gave a
statement to police that essentially recounted these events.
(Tpp. 812-16) Hemric also gave a similar statement to a private
investigator a few weeks later. (Tpp. 858-62)
Defendant testified that he opened the Wagon Wheel at about
3:00 p.m. on the afternoon of February 14, 1998, and tended bar
until Hemric came in at 6:00 p.m. Hemric said that she would tend
bar by herself because there were not a lot of customers, so
defendant shot pool, had a few beers, and socialized with the
customers. (Tp. 874) Defendant testified that Larry Lundy was an
occasional customer at the bar and that he had a reputation as
someone “who would start a fight and would get into a fight quite
easily.” (Tp. 880) Lundy had also told defendant that he had
been in prison. (Tp. 881)
14
At some point before 9:30 p.m., Hemric told defendant that
Lundy had come in the bar and brought in a large cup of liquor;
that she had told Lundy that he could not bring the liquor in and
that he would have to either leave or pour it out; and that Lundy
had given her a hard time, but had eventually thrown out the
liquor. At 9:30, defendant approached Lundy and told him it was
against the law for him to bring liquor into the bar; that he did
not appreciate Lundy giving Hemric a hard time; and that Lundy
should “just cool it and everything would be alright.” Both
defendant and Lundy went back to shooting pool and defendant felt
that “the whole thing was forgotten and . . . everything was
fine.” (Tpp. 875-76)
At about 2:00 a.m., Hemric and defendant announced that it
was closing time. All of the customers left except for Chandler
and Lundy. Defendant started to shut out the lights and Hemric
started to empty the register. Hemric told defendant that she
thought that Chandler wanted either Hemric or defendant to take
her home or follow her home if her cousin did not come back by the
time she was ready to leave. (Tpp. 876-78) Hemric told defendant
that Chandler had said she was afraid Lundy might try to follow
her home because he had been making sexual advances toward her
earlier in the evening. (Tp. 880)
Lundy went outside to start up his truck. Defendant went
behind the bar with Hemric, Lundy came back inside and walked
straight to the bar, and Hemric told Lundy she could not sell him
15
any more beer. Lundy said that “he didn’t want a damn beer. He
wanted a pickled egg” and Hemric put an egg on the bar counter.
Defendant reminded him that the egg cost fifty cents and he had
not paid yet. Lundy said something about “worrying about fifty
cents for the egg and . . . that he had more money than everybody
in the place.” Hemric said that “she didn’t care how much money
he had he owed 50 cents for the egg and that’s all she was
concerned about.” (Tpp. 884-87) Lundy then “got agitated and got
quickly aggressive” and “his aggression seemed to grow more as the
conversation went along.” Lundy slammed some change on the
counter, slid six dimes across the bar, and said, “There’s your
fifty cents;” and defendant slid one dime back to him. Lundy did
not eat the egg. Defendant testified that at that point he was
concerned about Lundy’s motives in reentering the bar after it was
closed. Defendant and Hemric each asked Lundy to leave, and Lundy
did not leave. Defendant repeatedly asked Lundy to leave during
the ensuing exchange. (Tpp. 887-91)
Lundy challenged defendant to go outside and fight, and
defendant refused. Lundy then “progressively continued to tell
[defendant] he was going to take [him] outside and beat [him up]
and [they] were going to fight. And the more this come about the
more [defendant] told him that he just needed to leave.”
Defendant was afraid of what Lundy would do and did not want to
turn his back on him to call 911. At that point “it was obvious
that [Lundy] was not going to leave . . . until [he and defendant]
fought.” Defendant took out his gun, laid it on top of the bar,
16
and held onto it. The gun was not cocked. (Tpp. 892-95)
Defendant put the gun on the bar to show Lundy that if he came
across the bar at defendant or produced a weapon, defendant was
prepared to defend himself. Defendant told Lundy to leave and
Lundy did not do so. Defendant testified that Lundy then “really
became more aggressive[,] . . . slamming his hand on the bar and
leaning towards me and coming at me and cursing me and telling me
that he was going to beat me up and he hadn’t been in prison for
five years and not learned how to be a man.” Defendant testified
he was scared defendant was going to seriously hurt him or Hemric.
(Tp. 896-98) There was only one way he and Hemric could get out –
through a small area at the end of the bar; and they would have to
go past Lundy to get to the front door. Defendant testified that
he “continued to tell [Lundy] to leave and . . . the fighting
thing kept coming up . . . and I continued to tell him we weren’t
going to fight. He kept banging his hands on the table and
leaning toward me.” Defendant testified that he cocked the hammer
when he heard someone say “he’s got a gun;” that Lundy lunged at
him; and that the gun went off. Defendant testified he was scared
for his safety because he believed Lundy was attacking him. (Tpp.
894, 899-902) He also testified that he did not know whether the
shooting was an accident or self-defense because he did not know
what caused the gun to discharge, and that Lundy may have bumped
him or he may have fired as a “reflex from being attacked.” (Tpp.
913-14) Defendant further testified that only three to four
17
minutes passed between the time Lundy first said he wanted to
fight with defendant and when the gun went off. (Tp. 900)
As soon as he fired, defendant “knew that a tragic thing had
happened[,] . . . laid the . . . gun down on the bar,” and told
Hemric to call the police. Hemric fumbled with the phone and kept
saying “it’s not going through.” Defendant took the phone, tried
to calm her down, and called 911. The dispatcher asked what Lundy
was doing before defendant shot him, and defendant replied, “He’s
been rowdy in the bar all night giving me a hard time.” Defendant
testified he did not give a lengthy description of what occurred
because he only wanted to alert the authorities that he had shot
Lundy. (Tpp. 903-06) When the police arrived, they asked
defendant to wait outside. He saw the cocked gun laying on the
bar and reached over to uncock it because it was dangerous. An
officer told him to leave it alone so he did. He waited at a
picnic table outside the bar. Defendant testified he felt
terrible about what had happened and that he had not been in any
fights since high school. (Tpp. 907-08)
Other relevant facts will be discussed below.
ARGUMENT
I. THE TRIAL COURT ERRED BY FAILING TO SUBMIT THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO THE JURY.
Assignment of Error No. 19, Rp. 65The Trial Court erred by failing to submit the verdict of
involuntary manslaughter to the jury, violating defendant’s rights
18
under the Fourteenth Amendment to the U.S. Constitution, Article
I, §§ 19 and 23 of the North Carolina Constitution, and North
Carolina common law. During the charge conference, the Trial
Court stated it would submit to the jury verdicts of first degree
murder, second degree murder, voluntary manslaughter, and not
guilty. Defendant requested an involuntary manslaughter verdict.
(Tp. 919) The Trial Court ruled that it would not submit that
verdict. Defendant objected and the Trial Court overruled the
objection. (Tp. 921) The Trial Court thereafter instructed the
jury on and submitted the verdicts of first degree murder (under
the theory of premeditation and deliberation), second degree
murder, voluntary manslaughter (under theories of heat of passion
and imperfect self-defense), and not guilty. (Tpp. 106-77) The
Trial Court also gave a self-defense instruction. (Tpp. 1069-70)
The jury found defendant guilty of voluntary manslaughter. (Rp.
42)
It is reversible error for a trial court to fail to submit
lesser included offenses to the crime charged that are supported
by the evidence. State v. Lytton, 319 N.C. 422, 426-27, 355
S.E.2d 485, 487 (1987). See State v. Camacho, 337 N.C. 224, 234,
446 S.E.2d 8, 13 (1994). When determining if the evidence is
sufficient for submission of a lesser included offense, the
evidence must be viewed in the light most favorable to the
defendant. State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352,
357 (1994). See State v. Whitaker, 316 N.C. 515, 522, 342 S.E.2d
514, 519 (1986) (trial court must submit lesser included offense
19
unless evidence “point[s] inexorably and unerringly” to greater
offense). Involuntary manslaughter is “the unlawful and
unintentional killing of another human being, without malice,
which proximately results from an unlawful act not amounting to a
felony . . . or from an act or omission constituting culpable
negligence.” State v. Wallace, 309 N.C. 141, 145, 305 S.E.2d 548,
551 (1983). “[E]very unintentional killing of a human being
proximately caused by a wanton or reckless use of firearms, in the
absence of intent to discharge the weapon, . . . and under
circumstances not evidencing a heart devoid of a sense of social
duty, is involuntary manslaughter.” State v. Wrenn, 279 N.C. 676,
683, 185 S.E.2d 129, 133 (1971).
In the instant case, there was substantial evidence that
defendant did not intentionally shoot Lundy, and that Lundy’s
death resulted from defendant’s “wanton or reckless use” of a
firearm. Defendant testified:
As [Lundy] became more aggressive and kept throwing himself at me, I continued to tell him to leave and hoping – the fighting thing kept coming up and all of this and I continued to tell him we weren’t going to fight. He kept banging his hands on the table and leaning toward me like this. And I heard someone say ‘he’s got a gun.’ At that point I cocked the hammer. He made maybe one more motion and then came at me and the gun went off. And I guess I shot him.
(Tp. 899) Defendant later testified: “I recall that he lunged at
me and that the gun went off.” (Tp. 901) When the prosecutor
asked defendant on cross-examination, “Was it accident or was it
20
self-defense?” defendant answered, “I cannot honestly answer that
question.” (Tp. 913) When the prosecutor asked him to explain,
defendant stated: “At the extreme moment that the gun went off, I
cannot honestly answer that question. Up until that point I was
prepared to defend myself and my actions being defensive and I was
scared to death and I felt I had to defend myself.” (Tp. 914)
When the prosecutor asked defendant if he knew what caused the gun
to discharge, defendant answered: “No, sir, I do not know
precisely what caused the gun to discharge whether I pulled the
trigger whether I was bumped or reflex from being attacked.”
(Tpp. 914-15) Anne Hemric testified that defendant shot Lundy
immediately after Lundy “reached out . . . towards” defendant.
(Tp. 844) Chandler testified that a month and a half after the
incident, she told an investigator that Lundy “lunged toward the
gun” and that Lundy may have hit the gun when he did so. (Tpp.
531-32) Special Agent Goodman’s testimony that a single action
trigger pull weapon is “more capable [than a double-action trigger
pull weapon] of going off . . . [u]nintentionally,” (Tpp. 584-85),
also supported the submission of an involuntary manslaughter
verdict.
The jury could find from this evidence that defendant did not
intentionally pull the trigger and that the gun went off because
he was bumped or as a reflex action. The jury could also find
from this evidence that defendant’s conduct in this case –
pointing and cocking a loaded pistol at Lundy – constituted
“wanton or reckless use of a firearm.” In such a situation, our
21
appellate court’s cases are clear that the trial must submit an
involuntary manslaughter verdict. State v. Lytton, supra; State
v. Wrenn, supra; State v. Tidwell, 112 N.C. App. 770, 776, 436
S.E.2d 922, 927 (1983). Thus, the evidence does not “point
inexorably and unerringly” to the conclusion that defendant shot
the gun intentionally. Therefore, the Trial Court erred by
failing to submit an involuntary manslaughter verdict to the jury.
The Trial Court’s error was prejudicial. As shown above, a
reasonable juror could have found that defendant shot the gun
unintentionally. In such a case, “[t]he credibility of the
evidence and whether in fact defendant did or did not possess the
requisite intent is for the jury to decide.” Barlowe, 337 N.C. at
378, 446 S.E.2d at 357. Further, the Trial Court’s error “is not
cured by the guilty verdict of [voluntary manslaughter] since it
cannot be known whether the jury would have convicted defendant of
[involuntary manslaughter] had it been properly instructed.” Id.
Accordingly, defendant is entitled to a new trial.
II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF A STATEMENT DEFENDANT MADE NINE DAYS BEFORE LUNDY WAS KILLED.
Assignment of Error No. 11, Rp. 63The Trial Court violated Evidence Rules 401, 402, 403, and
404 by allowing State’s witness Brandon to testify that nine days
before Lundy was killed, defendant stated that he kept a gun in
the bar “[s]o he didn’t have to put up with any shit.” (Tp. 728)
22
Out of the presence of the jury, the State presented the
testimony of Caswell County Sheriff’s Deputy Gwynn Brandon.
Brandon testified on voir dire that on February 6, 1998, he
entered the Wagon Wheel and told defendant a person in the parking
lot was being charged with possession of marijuana. Brandon
noticed a .45 caliber pistol behind the bar and he asked defendant
what the pistol was for. Defendant said “so he didn’t have to
‘put up with any shit.’” (Tpp. 712-13) Defendant objected to the
Brandon’s testimony concerning defendant’s statement. (Tp. 713)
The Trial Court overruled defendant’s objection, and found that
the evidence was admissible to show absence of accident or mistake
and that the probative value of the evidence was not substantially
outweighed by the danger of unfair prejudice. (Tpp. 724-25)
Brandon testified before the jury that he entered the Wagon
Wheel on February 6, 1998 at 9:30 p.m.; that he noticed a .45
caliber pistol behind the bar; that he asked defendant why he had
the weapon; and that defendant stated: “So he didn’t have to put
up with any shit.” Defendant objected, and the Trial Court
overruled the objection and instructed the jury that “this
evidence is being received for the limited purpose of showing
absence of mistake and absence of accident, if you so find. It’s
not being admitted into evidence for any other purpose and you may
not consider it for any other purpose.” (Tpp. 726-28)
23
A. Applicable Principles.
“Relevant evidence” is “evidence having any tendency to make
the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it
would be without the evidence.” Rule 401; see Rule 402. “[T]o
qualify as ‘relevant’ the evidence must reasonably tend to prove a
material fact in issue other than the character of the accused.”
State v. Wilson, 108 N.C. App. 117, 122, 423 S.E.2d 473, 476
(1992). “When a criminal defendant offers testimony concerning
his good character, the State is free to offer evidence of his bad
character in rebuttal. However, until such evidence is offered,
the State may not offer evidence of defendant’s bad character.”
State v. Slade, 71 N.C. App. 212, 214, 321 S.E.2d 490, 491 (1984);
accord Rule 404(a). Finally, under Rule 403, relevant “evidence
may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice, confusion of the issues, or
misleading the jury.”
B. The Trial Court Violated Evidence Rules 401, 402, and 404 by Admitting the Evidence of Defendant’s Statement.
In the instant case, Brandon’s evidence of defendant’s
statement was inadmissible character evidence and was not
admissible for any proper purpose. First, Deputy Brandon’s
testimony concerning defendant’s statement was not admissible
because it only tended to show defendant’s bad character as a
person who is eager to shoot people. Evidence of a defendant’s
bad character is not admissible to show that he acted in
24
conformity with that character on a particular occasion. Rule
404(a); State v. Woodard, 102 N.C. App. 687, 692, 404 S.E.2d 6, 9,
appeal dismissed and disc. rev. denied, 329 N.C. 504, 407 S.E.2d
550 (1991). Thus, using defendant’s prior actions to show his
propensity for violence is clearly prohibited by our Rules of
Evidence. See State v. Morgan, 315 N.C. 626, 638, 340 S.E.2d 84,
92 (1986) (using bad act evidence to show defendant has a
propensity for violence “is precisely what is prohibited by Rule
404(b)”); State v. Brooks, 113 N.C. App. 451, 458, 439 S.E.2d 234,
238 (1994) (evidence of defendant’s abuse of wife inadmissible
because only purpose was to show defendant’s violent disposition).
Second, the evidence was not admissible for any proper
purpose. Thus, the evidence was not relevant to show
premeditation and deliberation or malice, or to rebut defendant’s
claim of self-defense. Defendant’s general statement nine days
before the shooting had no tendency to show his intent with
respect to Larry Lundy -- defendant’s statement in no way shows
that he had any plans to kill Lundy or that he even had any ill
feelings toward Lundy. See State v. Fleming, 296 N.C. 559, 563,
251 S.E.2d 430, 432 (1979) (“[c]ircumstances immediately connected
with the killing” can be submitted as evidence of malice)
(emphasis added); State v. Faust, 254 N.C. 101, 107, 118 S.E.2d
769, 772 (1961) (defendant’s general threats not connected with
deceased not admissible to show malice); see also State v. Groves,
324 N.C. 360, 370, 378 S.E.2d 763, 770 (1989) (defendant’s threats
“to kill the decedent, or to kill a group of which he was a
25
member” probative of premeditation and deliberation) (emphasis
added); State v. Blalock, 77 N.C. App. 201, 204, 334 S.E.2d 441,
443 (1985) (evidence of defendant’s prior assault on victim and
members of victim’s family relevant to rebut self-defense claim).
Indeed, the statement is so vague as to have no probative value
whatsoever – the statement does not specify what kinds of things
defendant did not want to put up with or what he intended to do
with the gun to keep these things from happening. Thus, defendant
might have meant by his statement that he intended to show the gun
to people who were acting inappropriately in some way but not
point it or fire it at them. See 1 Charles E. Torcia, Wharton’s
Criminal Evidence (14th ed. 1985) § 94 at 347-48 (evidence
inadmissible when it is so general and vague that it does not have
any rational probative value); accord State v. Mills, 83 N.C. App.
606, 611, 351 S.E.2d 130, 133 (1986). Further, the evidence was
not admissible to rebut defendant’s claim of self-defense because
at the time Brandon testified, defendant had not presented any
evidence of self-defense; hence, the State had nothing to rebut.
See State v. Tann, 57 N.C. App. 527, 531-32, 291 S.E.2d 824, 827
(1982). Therefore, the statement was not relevant to show malice
or premeditation and deliberation, or to rebut defendant’s claim
of self-defense.
Moreover, the evidence was not admissible to show “absence of
mistake and absence of accident” as the Trial Court instructed the
jury. The State offered the evidence of defendant’s statement
during its case-in-chief. Defendant had not offered any evidence
26
of accident or mistake at that point; thus, evidence tending to
show “absence of mistake and absence of accident” was not relevant
and should not have been admitted. See State v. Cardwell, 133
N.C. App. 496, 508, 516 S.E.2d 388, 397 (1999); Tann, 57 N.C. App.
at 531-32, 291 S.E.2d at 827. Further, it was error to admit the
evidence because it did not tend to show lack of accident or
mistake -- defendant’s statement does not indicate that he had
ever intentionally shot the gun or that he even knew how to
operate the gun. Moreover, defendant’s act of making a statement
has no similarity whatsoever to the act of intentionally shooting
someone. Evidence of similar acts may be admitted to show lack of
accident or mistake because “[t]he doctrine of chances
demonstrates that the more often a defendant performs a certain
act, the less likely it is that the defendant acted innocently.”
State v. Stager, 329 N.C. 278, 305, 406 S.E.2d 876, 891 (1991).
Where, as here, the evidence sought to be admitted is not at all
similar to the act for which the defendant is on trial, the
proffered evidence lacks logical relevancy. See id.; State v.
Boczkowski, 130 N.C. App. 702, 707-08, 504 S.E.2d 796, 799-800
(1998).
Further, the bad character evidence was not admissible to
rebut defendant’s evidence of good character; nor did defendant
“open the door” to the bad character evidence. See State v.
Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993). The State
introduced the bad character evidence during its case-in-chief,
before defendant had introduced any evidence. Introduction of
27
evidence of a defendant’s bad character in this situation is
impermissible, even if the defendant later offers evidence. See
State v. Jones, 229 N.C. 276, 278, 49 S.E.2d 463, 464 (1948);
Cardwell, supra; State v. Slade, supra; State v. Tann, supra.
Third, this Court’s prior decisions show that Brandon’s
evidence was not admissible. In State v. Slade, 71 N.C. App. 212,
321 S.E.2d 490 (1984), the defendant shot and killed the victim
during the course of an argument. During its case-in-chief, the
State was allowed to produce evidence of “the general reputation
of defendant to shoot people.” Id. at 214, 321 S.E.2d at 492.
The defendant then offered evidence of self-defense. This Court
held that the State’s bad character evidence was improperly
admitted and stated that “[s]ince defendant had not testified as a
witness nor offered evidence of his good character, the State was
precluded from showing his bad character for any purpose
whatsoever.” Id. This Court also found that the error was
prejudicial and warranted a new trial: “Defendant’s theory at
trial of entitlement to use force to repel the threatened assault
by [the victim] placed the question of reasonable force before the
jury. In addition, defendant should not be placed in a situation
in which he feels compelled to testify in order to rebut the
prosecution’s premature reputation evidence.” Id.
In State v. Alley, 54 N.C. App. 647, 284 S.E.2d 215 (1982),
the defendant was charged with procuring another to burn a
building and the State cross-examined the defendant about prior,
28
unrelated, noncriminal fires. This Court noted that there was no
evidence introduced that the fires were criminal in nature and the
prior fires were too vaguely described to have any relevance
except “to create a prejudicial inference that the fires occurred
because of defendant’s unlawful conduct.” Id. at 651, 284 S.E.2d
at 217. This Court granted a new trial and stated that “[t]he
only logical relevance the excepted-to evidence had was to infer
defendant’s disposition to set fires to his property, and this is
not a permissible tendency.” Id.
Slade and Alley demonstrate that where evidence of a
defendant’s reputation or prior acts is only tangentially linked
to the facts of the case or is otherwise general or vague, and
where that evidence only tends to show defendant’s bad character,
that evidence must be excluded. In the instant case, the only
purpose of admitting evidence that defendant had a pistol “so he
wouldn’t have to put up with any shit” was to show defendant’s bad
character and propensity for violence. Thus, the evidence was
inadmissible under Rules 401, 402, and 404.
C. The Trial Court Violated Evidence Rule 403 by Admitting the Evidence of Defendant’s Statement.
Even if this Court finds that the evidence of defendant’s
statement had some slight relevance apart from showing defendant’s
bad character, the Trial Court should have excluded it under Rule
403. Although the decision whether to exclude evidence under Rule
403 is within the trial court’s discretion, that discretion is not
29
absolute and is reviewable. E.g., State v. Maxwell, 96 N.C. App.
19, 22-25, 384 S.E.2d 553, 555-57 (1989), disc. rev. denied, 326
N.C. 53, 389 S.E.2d 83 (1990).
As shown above, because the statement was made over a week
before Lundy’s death, had absolutely nothing to do with Lundy, and
did not show that defendant knew how to shoot or operate the gun,
the probative value of the statement was negligible or
nonexistent. Moreover, the danger of unfair prejudice from the
admission of this evidence is manifest. The vague and
inflammatory wording of the statement made it very likely that the
jury would use this evidence for an improper purpose -- to show
that defendant was a person of violent character and that he must
have acted in conformity with this character when he shot Lundy.
See State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995)
(evidence that deceased involved in prior unrelated shooting
properly excluded under Rule 403 because evidence had little
probative value and suggested that victim was violent person);
Maxwell, 96 N.C. App. at 25, 384 S.E.2d at 557 (evidence of
defendant’s prior affair should have been excluded under Rule 403
where evidence did “little more than impermissibly inject
character evidence which raises the question of whether defendant
acted in conformity with these character traits at the time in
question”). Therefore, even if the evidence had some slight
relevance, the relevance was substantially outweighed by the
danger of unfair prejudice, and the Trial Court should have
excluded the evidence.
30
D. The Erroneous Admission of the Evidence Was Prejudicial.
The Trial Court’s error in admitting the evidence was highly
prejudicial and defendant must be granted a new trial. Defendant
admitted shooting Lundy, but claimed that the shooting was
accidental or in self-defense. The improperly admitted evidence
tended to portray defendant as a violent person who was willing to
shoot anyone who acted up in his bar. This evidence severely
undermined defendant’s claims of self-defense and accident, and
there is a reasonable possibility that but for the erroneous
admission of the evidence, a different result would have been
reached at trial. G.S. § 15A-1443(a). Accordingly, defendant
must be granted a new trial.
III. THE TRIAL COURT ERRED BY FAILING TO FIND STATUTORY MITIGATING FACTORS 8.A. AND 15.
Assignment of Error No. 26, Rp. 66The Trial Court erred by failing to find two statutory
mitigating factors that were supported by uncontradicted evidence.
At the sentencing hearing, defendant requested that the Trial
Court find statutory mitigating factors 6(a), 8(a), 10, 11(a), 12,
18, and 19. (Tpp. 1126-28) The Trial Court found statutory
mitigating factors 11(a), 11(b), 12, 17, 18, and 19, found one
nonstatutory aggravating factor, determined that the aggravating
factor outweighed the mitigating factors, and sentenced defendant
31
in the aggravated range to a minimum term of ninety months
imprisonment.1 (Rpp. 45-48)
It is well settled that
[a] duty is placed on upon the judge to examine the evidence to determine if it would support any of the statutory factors even absent a request by counsel. The sentencing judge is required to find a statutory factor when the evidence in support of it is uncontradicted, substantial, and manifestly credible. Failure to find a statutory factor so supported is reversible error.
State v. Cameron, 314 N.C. 516, 520, 335 S.E.2d 9, 11 (1985).
Although the decision whether to find a mitigating factor is
within the discretion of the trial court, that discretion is not
absolute and is reviewable. E.g., State v. Daniel, 319 N.C. 308,
312, 354 S.E.2d 216, 218 (1987).
In the instant case, the Trial Court erred by failing to find
two statutory mitigating factors that were supported by
uncontradicted, substantial, and manifestly credible evidence.
First, the Trial Court erred by failing to find statutory
mitigating factor 8.a., that “[t]he defendant acted under strong
provocation.” G.S. § 15A-1340.16(e)(8). It is well settled that
“strong provocation” “requires a showing of a threat or challenge
by the victim to the defendant,” State v. Faison, 90 N.C. App.
237, 239, 368 S.E.2d 28, 29 (1988), and that the defendant’s
actions must be consistent with “a state of passion without time
1 Defendant had one prior record point from a conviction for driving while impaired and he was sentenced as a Level II offender. (Rpp. 43-44)
32
to cool.” State v. Highsmith, 74 N.C. App. 96, 327 S.E.2d 628,
disc. rev. denied, 314 N.C. 119, 332 S.E.2d 486 (1985). In the
instant case, all of the evidence shows that immediately before
defendant shot Lundy, Lundy reentered the bar after it was closed,
refused to leave the closed bar when asked to do so several times,
threatened defendant with physical violence, challenged defendant
to fight in the parking lot, and “leaned” or “lunged” across the
bar counter toward defendant while forcefully banging on the
counter with his hands and saying “Shoot me then.” Further, the
evidence shows that defendant retrieved the pistol from behind the
bar and shot Lundy during the course of this heated argument.
Therefore, all of the evidence shows that Lundy’s behavior
escalated from the time he reentered the Wagon Wheel until
defendant’s pistol discharged, that Lundy threatened and
challenged defendant, and that defendant was in “a state of
passion without time to cool” at the time he shot Lundy.
Accordingly, the Trial Court erred when it failed to find
mitigating factor 8(c).
Second, the Trial Court erred by failing to find statutory
mitigating factor 15, that “[t]he defendant has accepted
responsibility for [his] criminal conduct.” G.S. § 15A-1340.16(e)
(15). In the instant case, the undisputed evidence shows that
defendant accepted responsibility for the shooting of Lundy.
First, defendant called 911 and admitted the shooting to the
dispatcher immediately after the shooting occurred. (Tpp. 360,
904; State’s Exhibit 2) Second, defendant freely admitted the
33
shooting to law enforcement personnel. Thus, defendant told
Deputy Stephens and Sergeant Fleetwood that he had shot Lundy.
(Tpp. 644, 681) Later, at the Sheriff’s Department, defendant
waived his Miranda rights told Sheriff’s Investigator Taylor that
he had shot Lundy. (Tpp. 692, 696) Third, defendant did not
attempt to suppress any of these incriminating statements. See
State v. Crisp, 126 N.C. App. 30, 41, 483 S.E.2d 462, 467, appeal
dismissed and disc. rev. denied, 346 N.C. 284, 487 S.E.2d 559
(1997). Fourth, defendant admitted during his testimony at trial
that he had shot Lundy and expressed remorse for having done so.
(Tpp. 899, 903, 908) Further, defendant again expressed remorse
for the shooting at the sentencing hearing, stating, “I would like
to express to the family that I am deeply sorry for this tragedy
and that to somehow perceive that I’m not remorseful. I am. I am
terribly sorry for this tragedy.” (Tp. 1139) See State v.
Lovett, 119 N.C. App. 689, 460 S.E.2d 177 (1995). Therefore, all
of the evidence in the instant case shows that defendant accepted
responsibility for his conduct, and that the Trial Court erred
when it failed to find mitigating factor 15.
“[W]henever there is error in a sentencing judge’s failure to
find a statutory mitigating circumstance and a sentence in excess
of the presumptive term is imposed, the matter must be remanded
for a new sentencing hearing.” Daniel, 319 N.C. at 315, 354
S.E.2d at 220. Accordingly, defendant must be granted a new
sentencing hearing in this case.
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CONCLUSION
For reasons stated in Arguments I and II, defendant
respectfully contends he is entitled to a new trial. For reasons
stated in Argument III, defendant respectfully contends he is
entitled to a new sentencing hearing.
Respectfully submitted this the 6th day of July, 2000.
______________________________Anne M. GomezAssistant Appellate Defender
Malcolm Ray Hunter, Jr.Appellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 600Durham, North Carolina 27701(919) 560-3334
ATTORNEYS FOR DEFENDANT
CERTIFICATE OF FILING AND SERVICE
I hereby certify that the original Defendant-Appellant’s Brief has been filed by mail pursuant to Rule 26 by sending it first-class mail, postage prepaid to the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina 27602, by placing it in a depository for that purpose.
I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon Barbara A. Shaw, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by first-class mail, postage prepaid.
This the 6th day of July, 2000.
____________________________
Anne M. Gomez
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Assistant Appellate Defender
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