State v. Richardson, 2010 NC App. LEXIS 760 (NC Ct. App. 2010)
2010 N.C. App. LEXIS 760
STATE OF NORTH CAROLINA v. HENRY ARTEZ RICHARDSON
Attorney General Roy Cooper, by Assistant Attorney General Jane Ammons Gilchrist, for the State.
Michael J. Reece, for the defendant-appellant.
WYNN, Judge. Judges CALABRIA and STEELMAN concur.
Opinion by: WYNN
Appeal by Defendant from judgment entered 6 May 2009 by Judge Cy A. Grant in Superior Court, Halifax County. Heard in the Court of Appeals 13 April 2010.
“[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” In this case, Defendant argues that the trial court erred by refusing to issue instructions on self-defense and voluntary manslaughter. Because we find that the evidence presented did not warrant these instructions, we find no error.
On 22 May 2007, Henry Artez Richardson (“Defendant”) was standing outside of a grocery store. Donnell Pierce was playing cards on the front porch of a house across the street when he saw Defendant, approached the store while calling Defendant’s name, and engaged in a heated argument with Defendant near the front of the store.
Wanda Avent witnessed the encounter and testified that Defendant got close to Donnell Pierce and was “brushing up on him like he really wanted to . . . fight.” Defendant testified that he was in fact stepping back, but that with each step “[Donnell Pierce] would take a step forward towards me to the point where he [was] spitting in my face.” Wanda Avent testified that other than this “brushing,” there was no physical contact between the two during the argument.
Defendant testified that he saw the handle of a pistol in the waistband of Donnell Pierce’s pants; he feared for his life when Donnell Pierce said, “I’m going to do something about you;” and Donnell Pierce stated he “had to go to prison in about a month, so it didn’t matter.” Defendant stated that after the verbal confrontation, Donnell Pierce returned to the card game across the street while yelling to his wife to get his shotgun.
Defendant testified that after the argument he went to a path behind the store looking for a gun. Defendant stated that he had not placed a weapon behind the store; however, he had hoped to find a gun there because the path behind the store was a location where guns were often discarded to avoid their discovery by law enforcement. Within minutes of the verbal confrontation, Defendant found a handgun behind the store, returned to the front of the store; walked across the street toward the house where Donnell Pierce had resumed playing cards; stepped onto the porch; removed the handgun from his pocket; killed Donnell Pierce by shooting him four times in the chest; and ran away. Months later, police authorities apprehended Defendant in Delaware and returned him to North Carolina for trial.
At trial, the trial court denied Defendant’s request to instruct the jury on self-defense and voluntary manslaughter. The jury found him guilty of second-degree murder upon which he was sentenced to 189 to 236 months imprisonment. Defendant appeals, arguing that the trial court erred by failing to instruct the jury on I) self-defense and II) voluntary manslaughter.
Preliminarily, we point out that this Court reviews de novo the decision of a trial court not to issue a particular jury instruction. 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.” Cameron, 284 N.C. at 171, 200 S.E.2d at 191 (citations omitted).
Defendant first argues that he presented sufficient evidence to warrant an instruction on self-defense.
North Carolina recognizes self-defense in two forms – perfect and imperfect. As stated by our Supreme Court:
The law of perfect self-defense excuses a killing altogether if, at the time of the killing, these four elements existed:
(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and
(2) defendant’s belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and
(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and
(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.
State v. Blue, 356 N.C. 79, 88 n.1, 565 S.E.2d 133, 139 n.1 (2002).
In contrast, if the evidence establishes the first two elements but the defendant, “although without murderous intent, was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right of self-defense.” State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 573 (1981)(emphasis omitted). “Perfect self-defense excuses a killing altogether, while imperfect self-defense may reduce a charge of murder to voluntary manslaughter.” State v. Ross, 338 N.C. 280, 283, 449 S.E.2d 556, 559 (1994) (citation omitted). In any event, to establish either perfect or imperfect self-defense, “two questions must be answered in the affirmative: (1) Is there evidence that the defendant in fact formed a belief that it was necessary to kill his adversary in order to protect himself from death or great bodily harm, and (2) if so, was that belief reasonable?” State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982). “In determining whether there was any evidence of self-defense presented, the evidence must be interpreted in the light most favorable to defendant.” State v. Webster, 324 N.C. 385, 391, 378 S.E.2d 748, 752 (1989) (citing State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987)).
In this case, Defendant testified that he believed it was necessary to kill Donnell Pierce to protect himself because he thought Donnell Pierce was “about to shoot” him. To support an instruction on self-defense, Defendant’s stated belief in the imminence of a threat of death or great bodily harm must have been reasonable in the mind of a person of ordinary firmness. State v. Norman, 324 N.C. 253, 271, 378 S.E.2d 8, 19 (1989).
Defendant contends that, in light of Donnell Pierce’s threats and reputation in the community for violence, he reasonably feared for his life when Donnell Pierce called for a shotgun. To support this contention, Defendant presented numerous witnesses that testified as to past occasions when Donnell Pierce had been violent, including instances in which Donnell Pierce shot people with a shotgun. However, even assuming arguendo that Defendant reasonably believed that Donnell Pierce would eventually harm him, this alone would not entitle him to an instruction on self-defense, as a fear of death is not equivalent to a fear of imminent death.
The term “imminent,” as used to describe such perceived threats of death or great bodily harm as will justify a homicide by reason of perfect  self-defense, has been defined as “immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law.” Black’s Law Dictionary 676 (5th ed. 1979). Our cases have sometimes used the phrase “about to suffer” interchangeably with “imminent” to describe the immediacy of threat that is required to justify killing in self-defense. State v. Holland, 193 N.C. 713, 718, 138 S.E. 8, 10 (1927).
Norman, 324 N.C. at 261, 378 S.E.2d at 13. In Norman, the evidence indicated that the defendant’s husband, who was abusive and had threatened to kill her, was asleep when the defendant walked to her mother’s house, picked up a gun, returned to where her husband slept, and shot him. In holding that the imminence requirement had not been satisfied, our Supreme Court stated, “[t]he defendant was not faced with an instantaneous choice between killing her husband or being killed or seriously injured.” Id. The facts in the matter before us reflect a similar absence of imminent danger.
Indeed, the evidence tends to show that Defendant was not under any immediate threat of death or bodily harm when he shot Donnell Pierce. Before the shooting, the verbal confrontation between the two concluded and the men walked away from each other. Donnell Pierce returned to the house across the street and resumed playing cards. There is no indication that Donnell Pierce was in pursuit of Defendant or continued to issue threats while Defendant went to the path behind the store and searched for a gun. Instead, the evidence indicates that Donnell Pierce was on the porch across the street laughing and joking with his back to Defendant when Defendant approached the scene with a firearm. Because the evidence, when viewed in the light most favorable to Defendant, does not indicate that Defendant had a reasonable fear of imminent death or bodily harm, we hold that Defendant was not entitled to an instruction on self-defense.
Defendant also argues that the trial court erred by failing to instruct the jury on voluntary manslaughter.
When a trial court issues jury instructions, it is the duty of the judge to “declare and explain the law arising on all of the evidence,” and as such an instruction on a lesser offense should be given “whenever there is some evidence to support it.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981)(citation omitted). “The sole factor determining the judge’s obligation to give such an instruction 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.” Id.
“Voluntary manslaughter is defined as the unlawful killing of a human being without malice, either express or implied, and is a lesser included offense of first-degree murder.” State v. Barden, 356 N.C. 316, 360, 572 S.E.2d 108, 136 (2002)(citations omitted). A presumption of malice arises when the perpetrator uses a deadly weapon to commit the murder. State v. Reynolds, 307 N.C. 184, 190, 297 S.E.2d 532, 535-36 (1982). “The effect of the presumption is to impose upon the defendant the burden of going forward with or producing some evidence of a lawful reason for the killing or an absence of malice; i.e., that the killing was done in self-defense or in the heat of passion upon sudden provocation.”Id. at 190, 297 S.E.2d at 536 (quoting State v. Simpson, 303 N.C. 439, 451, 279 S.E.2d 542, 550 (1981)). Thus, “[i]n 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. Vincent, 195 N.C. App. 761, 765, 673 S.E.2d 874, 876 (2009) (quoting State v. Huggins, 338 N.C. 494, 497, 450 S.E.2d 479, 481 (1994)). As explained above, Defendant presented insufficient evidence to show that he acted in self-defense. Therefore, our inquiry is limited to whether there is evidence tending to show that Defendant killed Donnell Pierce while overcome by adequately provoked passion.
Our Supreme Court has established that “words and gestures alone, where no assault is made or threatened, regardless of how insulting or inflammatory those words or gestures may be, do not constitute adequate provocation for the taking of human life.” State v. Watson, 287 N.C. 147, 153, 214 S.E.2d 85, 89 (1975). However, it is also well-settled that legal provocation exists in “circumstances amounting to an assault or threatened assault.” State v. Montague, 298 N.C. 752, 757, 259 S.E.2d 899, 903 (1979).
When viewed in the light most favorable to Defendant, the evidence in this case showed that Donnell Pierce ran across the street to confront Defendant, engaged in a heated argument with Defendant, and said that he was “going to do something about [Defendant].” There was also evidence that Donnell Pierce proclaimed his willingness to cause Defendant harm without fear of the consequences because of pending charges he believed likely to result in prison time. Defendant testified that after these statements were made, Donnell Pierce began walking across the street and called for a shotgun.
Notwithstanding his verbal statements, the record is devoid of any evidence of assaultive conduct by Donnell Pierce on the day in question. As such, we decline to find that his statements constituted a “threatened assault” sufficient to negate malice. When considering whether adequate provocation exists, this Court examines the record for evidence of actions which “would naturally and reasonably arouse the passions of an ordinary man beyond his power of control.” State v. McLawhorn, 270 N.C. 622, 628, 155 S.E.2d 198, 203 (1967) (quoting 26 Am. Jur. Homicide§ 22 (1940)). We recognize that a verbal threat of violence combined with a physical manifestation of the intent to immediately carry out the threat may constitute adequate provocation. See State v. Haight, 66 N.C. App. 104, 108, 310 S.E.2d 795, 797 (1984)(finding adequate provocation where decedent issued verbal threats then walked toward defendant and appeared to reach for a gun). However, in this case, after making the statements in question, Donnell Pierce turned away, walked across the street, and stood with his back to Defendant. When viewed in the context of his nonthreatening physical conduct, Donnell Pierce’s words, even if threatening in nature, were insufficient to “naturally and reasonably arouse the passions of an ordinary man beyond his power and control.” McLawhorn, 270 N.C. at 628, 155 S.E.2d at 203.
In sum, we hold that the trial court did not err in refusing to instruct the jury on self-defense and voluntary manslaughter.
Judges CALABRIA and STEELMAN concur.
Report per Rule 30(e).
1. State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973)(citations omitted).