State v. Daye, 2016 NC App. LEXIS 763 (NC Ct. App. 2016)

2016 N.C. App. LEXIS 763


Court of Appeals of North Carolina

June 9, 2016, Heard in the Court of Appeals; July 19, 2016, Filed

No. COA16-74

Roy Cooper, Attorney General, by David J. Adinolfi, II, Special Deputy Attorney General, for the State.
Glenn Gerding, Appellate Defender, by Kathryn L. VandenBerg, Assistant Appellate Defender, for defendant-appellant.

ZACHARY, Judge. Judges STEPHENS and McCULLOUGH concur.

Opinion by: ZACHARY


Appeal by defendant from judgment entered 28 May 2015 by Judge Gregory R. Hayes in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 June 2016.


Where no evidence presented at trial would permit the jury to acquit defendant of first-degree murder and convict him of second-degree murder, the trial court did not err in declining to instruct the jury on second-degree murder. Where defendant testified that his weapon discharged involuntarily, the trial court did not err in declining to instruct the jury on self-defense.

I. Factual and Procedural Background

Prior to the incident at issue, Walter Gregory (Gregory) was in the Hunting Ridge neighborhood, drunk and using profanity in front of children. He was told by a resident, Cecilia Turner (Turner) who had known him for some time, to stop his behavior; in response, he threw a beer bottle, breaking the window of an SUV parked nearby. The SUV belonged to the brother of the roommate of James Daye (defendant). Defendant, his roommate, and his roommate’s brother emerged from their housing unit, learned what Gregory had done, chased Gregory down, and beat him. In the following weeks, defendant repeatedly saw Gregory in the area, usually coming from and going to Turner’s condominium. Defendant testified that this behavior made him feel threatened. Defendant’s roommates testified that Gregory threatened to kill them all.

On 5 October 2012, Gregory was sitting outside of Turner’s condominium, drinking with others. At around 5:00 p.m., the neighborhood security manager saw the gathering and called police, intending to ban Gregory and his friends from the complex. Banning them would result in trespass charges if they returned. Police arrived, and Gregory left the immediate area, but not the complex. The manager testified that Gregory was extremely aggressive.

According to defendant, defendant was in his car around dusk when Gregory approached him, threatening to kill “everybody in that apartment.” The two began fighting until they were separated, at which point defendant fled to his house. According to other witnesses, subsequent to this, Gregory could be seen passing through the area, making threats and shooting gestures with his hand. Defendant emerged from his home with a kitchen knife, attempting to scare Gregory away. When this failed, defendant returned to his home and appeared with a gun. Defendant’s friends took the gun away from defendant, and defendant got into another fistfight with Gregory.

Defendant went home and loaded his rifle. Rifle in hand, defendant emerged from his home and approached Gregory. Defendant testified that he saw Gregory reaching for something, possibly a gun. In response, defendant “jumped and . . . pulled the trigger.” According to Turner, who witnessed the incident, before defendant shot, defendant said, “Didn’t I tell you if you came back in here I was going to kill you?” Other witnesses testified similarly, and further testified that defendant had also threatened to shoot Gregory earlier in the evening.

At roughly 10:28 p.m., 911 received multiple calls about the shooting. Gregory died of a single gunshot wound through the chest. Before entering the chest, the bullet went through his hand, palm first.

On 15 October 2012, defendant was indicted for first-degree murder and possession of a firearm by a felon. At the outset of trial, defendant pleaded guilty to possession of a firearm by a felon. On 28 May 2015, the jury found defendant guilty of first-degree murder. The trial court sentenced defendant to life imprisonment without parole for the murder, with a concurrent sentence of 17-30 months’ imprisonment for firearm possession.

Defendant appeals.

II. Standard of Review

“[Arguments] challenging the trial court’s decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149 (2009). “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973). “Where jury instructions are given without supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995).

“An 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.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002).

III. Second-Degree Murder and Self-Defense

Defendant contends that he was entitled to an instruction on second-degree murder, because his testimony could have supported either malice without a cool state of mind or malice by reckless disregard for human life. He also maintains that he was entitled to an instruction on self-defense because he was in fear for his life when he shot Gregory. We disagree.

Prior to trial, defendant expressed a desire to assert an affirmative defense of self-defense. dHowever, during his own testimony, defendant repeatedly insisted that the shooting was an accident. Specifically, defendant stated on direct examination that, “I jumped, and as I jumped I pulled the trigger.”

Defendant repeated this statement on cross-examination, as follows:

Q. And it wasn’t an accident, was it?
A. Yes, it was. I didn’t mean to do it. There’s other things to ask me, but I did not mean to take that boy’s life.
Q. You shot him by mistake?
A. Mr. Sielaff, I told you, when he went to stand up I seen a flash. I didn’t know what it was and I jumped, and I pulled the trigger. I have a nerve disorder, which you can tell. I pulled the trigger, Mr. Sielaff.
Q. We’ve got fourteen people sitting over here. We’ve got your family, we’ve got Walter Gregory’s family. You’ve got His Honor. Did you mean —-
A. No, I did not mean to shoot Walter Gregory. God as my witness. I did not mean to shoot that boy. . . .
. . .
Q. Did you mean to pull the trigger?
A. No, I didn’t.
Q. It just went off in your hand?
A. No, it did not. I jumped and I pulled the trigger.
. . .
Q. Under oath, here in front of everybody, are you telling everybody it was an accident?
MS. PYE: Your Honor, may we approach?
THE COURT: Not at this point. Overruled.
A. Everybody knows that I shot Walt, Mr. Sielaff, and I didn’t mean to do it.

During the jury charge conference, defendant’s testimony was extensively discussed, as follows:

THE COURT: I’m ready. The State at the start of the trial tendered the State’s request for an instruction on the substantive charge of murder. At that point you had two requests; one was 206.10 and one was 206.13. Now you’ve added the instruction 206.13 plus 307.10, the accident.

[THE STATE]: That’s correct, Your Honor. As I indicated when I tendered that first draft, that was my anticipation based on what information we had been told at that point. And so based on that assumption it would either be self-defense or second-degree involuntary, or first-degree murder if they did not meet self-defense.

However, during the course of this trial, which I did not anticipate, the Defendant testified that he did not act intentionally, that this was an accident. So my prediction was incorrect, I believe, based on the testimony of the Defendant yesterday. The appropriate instruction is first-degree murder with the defense of accident to be instructed to the jury.

Again, the sworn testimony of the Defendant is that this was not an intentional act. If it was not an intentional act, he is not guilty, completely not guilty. However, if it was an intentional act the evidence supports first-degree murder.

Defense counsel argued that the matter “should not go to the jury on accident[,]” because “[a]ccident means that the shooting itself was unintentional, and I believe the evidence, in the light most favorable to the Defendant, is that the contact was intentional and I believe that negates the elements of accident.” To this, the State responded:

Your Honor, the Court is compelled to give the instruction that matches the evidence, not notices and not hopes and dreams of the Defendant. Self-defense requires an intentional act.

The Defendant did testify for us it was an accident, he didn’t mean to shoot, he never intended to shoot. He also testified on re-direct by Ms. Pye, “Did you mean and intend to point that rifle at Walter Gregory?” “No, ma’am. I didn’t even point that gun at him. I didn’t mean to. I never intended to shoot that man,” was his testimony, not just on cross but on re-direct with Ms. Pye.

He denies even pointing the gun at Walter Gregory intentionally. You can’t defend yourself unintentionally; it just doesn’t happen. For what it’s worth though, I don’t think it matters because again the Court is required to instruct the jury based on the facts in evidence, not on notices. The State would waive any notice that might be entailed as accident.

To which defense counsel responded:

The evidence, in the light most favorable to the Defendant, the jury is the one who ultimately will decide what the facts are in this case. And on direct examination, the light most favorable to the Defendant, Mr. Daye did testify that he pointed that gun at Walter Gregory and said, “I told you not to come here. You came back. I’m going to kill you.” He took the gun, put a bullet in it, took it out there.

Now, the State can argue on cross examination that he reacted, but the bottom line is that’s still reckless conduct. And what caused him to actually fire, whether the jury believes that it was intentional or reaction, is up to the jury to decide. What we have right now as to what really happened there, right now the Court’s duty is in the light most favorable to the Defendant, and his conduct was such that he, on his direct examination, light most favorable to the Defendant, it was an intentional act. And you have to agree one-hundred percent with the State; you have to have an intentional act for self-defense. That was an intentional act.

The trial court then observed, “I agree with the State that the Defendant testified quite extensively that this was not an intentional act.” The court went on to observe, “I know that that’s not the way you went into the case thinking it would be, but after his testimony yesterday I think it’s just the way the testimony presented itself.” Defense counsel offered, in response, that defendant was simply testifying as to “what he thinks is going to be of most help to him[,]” and that “if he thinks it was an accident, it’s still for the jury to decide from the facts.”

Subsequently, defense counsel requested instructions on first- and second-degree murder, “both with accident, but at least with accident on first-degree murder.” The State, instead, argued that accident did not support second-degree murder. “Either it was an accident and he’s not guilty, it was an accident and he’s not guilty, or he’s guilty of premeditation and deliberation, first-degree murder.” The trial court agreed with the State, and concluded that the evidence did not support self-defense, and that accident precluded an instruction on second-degree murder. The only choices remaining were first-degree murder or not guilty by reason of accident.

Second-degree murder is premised upon an intentional killing. “In connection with [second-degree murder and voluntary manslaughter], the phrase ‘intentional killing’ refers not to the presence of a specific intent to kill, but rather to the fact that the act which resulted in death is intentionally committed….” State v. Coble, 351 N.C. 448, 450, 527 S.E.2d 45, 47 (2000) (quotations and citations omitted). The difference between second-degree murder and first-degree murder is that, unlike first-degree murder, second-degree murder is committed without premeditation and deliberation. Id. at 449, 527 S.E.2d at 46.

In order for the trial court to charge the jury on second-degree murder, there had to be evidence of a lack of premeditation and deliberation; that is, there had to be evidence that would allow the jury to acquit defendant of first-degree murder and convict him of second-degree murder. See Millsaps, 356 N.C. at 561, 572 S.E.2d at 771. In the instant case, the evidence showed either that defendant, having earlier threatened to kill Gregory, loaded his gun and approached him with lethal intent, or that defendant’s weapon accidentally discharged when he was startled by Gregory’s movement. The only evidence that would allow the jury to acquit defendant of first-degree murder was the possibility of accident, and that evidence would not permit the jury to convict defendant of second-degree murder. As such, the trial court did not err in declining to instruct the jury on second-degree murder.

With respect to self-defense, we have previously held that accident precludes self-defense. In State v. Gaston, we agreed with the State’s contention that “the evidence here cannot support a self-defense instruction . . . because Defendant testified that the gun simply ‘went off,’ he ‘didn’t aim the gun,’ he did not know anyone had been shot, he did not pull the trigger on purpose, and he did not intend to kill the decedent.” State v. Gaston, 229 N.C. App. 407, 412, 748 S.E.2d 21, 25 (2013). In support of this position, we cited our Supreme Court, which held that:

[the] defendant [was] not entitled to an instruction on self-defense while still insisting that he did not fire the pistol at anyone, that he did not intend to shoot anyone[,] and that he did not know anyone had been shot. Clearly, a reasonable person believing that the use of deadly force was necessary to save his or her life would have pointed the pistol at the perceived threat and fired at the perceived threat. The defendant’s own testimony, therefore, disproves the first element of self-defense.

Id. (quoting State v. Williams, 342 N.C. 869, 873, 467 S.E.2d 392, 394 (1996)).

We hold, as we did in Gaston, that defendant’s own testimony that the gun discharged accidentally when he “jumped” showed a lack of intent of any kind, let alone a reasonable belief that the use of deadly force against Gregory was necessary to save defendant’s life. As such, defendant’s testimony disproves the first element of self-defense, and the trial court did not err in declining to instruct on self-defense.


Judges STEPHENS and McCULLOUGH concur.

Report per Rule 30(e).

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