Opinion
No. COA08-1213.
Filed June 16, 2009.
Randolph County No. 05 CRS 006336.
Appeal by defendant from judgment entered 14 March 2008 by Judge W. David Lee in Randolph County Superior Court. Heard in the Court of Appeals 25 February 2009.
Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, for the State. Hartsell Williams, P.A., by Christy E. Wilhelm, for defendant.
Thomas Benjamin Allen (defendant) was convicted by a jury of voluntary manslaughter on 14 March 2008. He was sentenced to sixty to eighty-one months 'imprisonment, which was within the presumptive range. Defendant now appeals.
At the relevant time, defendant was romantically involved with Nicolle Bennett, who lived in the same trailer park as defendant. Bennett had a daughter with the victim, Nicky Lee Sanders. Sanders and Bennett fought over custody of their daughter, and Sanders was unhappy that defendant spent so much time with his daughter. A few days before Sanders's death, he chased defendant out of Bennett's trailer and told defendant that he would kill him. Sanders was often armed and defendant understood that Sanders had violently attacked other people, including defendant's uncle, who was hospitalized as a result, and a second man, whom Sanders allegedly ran over with a car.
On the evening of 28 May 2005, Sanders and Bennett had several heated telephone conversations and eventually Sanders told Bennett that he was driving over to her trailer. Defendant and his brother, Randy, were in Bennett's trailer at the time, and Bennett told them to leave, which they did. Defendant and his brother drove their car down to a pond in the trailer park. Defendant kept an axe handle in his car. Defendant's statement includes the following account of what transpired:
I went to the pond to listen to the radio. I had the idea that Nicky would come down there to Nicolle's but I wasn't sure. I wouldn't have hit him with the axe handle if he hadn't gotten out of his vehicle with a piece of wood and knocked out my window. Nicky never hit my brother. I knew when I parked my car by the pond if Nicky did come to Nicolle's house he would stop if he saw my car, the first car there. I was going to fight him and get it out of the way. He had told me before that he was going to catch me out and kill me. He told me on the phone that he was going to blow my head off and shit down my neck. I thought it would be best for mine and Nicolle's relationship if I went ahead and confronted him. I didn't expect him to get out with a stick. I didn't mean to kill him. I just meant to whoop his ass. I only hit Nicky twice with the axe handle. Randy never hit him with the tire tool. Neither of us hit him or kicked him after he was on the ground.
After Sanders fell to the ground, defendant called Bennett and asked her to check on Sanders because defendant had hit him. Bennett dialed 911 to report the fight, and Deputy Aaron Hicks of the Randolph County Sheriff's Department responded. While driving around the trailer park in search of the correct address, he saw a vehicle parked near the pond. The engine was still running. Deputy Hicks waited for a second deputy to arrive before approaching the car. They discovered Sanders's body lying on the ground in front of the car. He was declared dead on the scene.
Sanders suffered trauma to his face and the back of his head, which was the cause of death. His blood alcohol concentration was .17. Officers recovered defendant's axe handle, which contained chips of auto glass from Sanders's car; there were no chips of auto glass from defendant's car in the stick supposedly wielded by Sanders. An unlit cigarette was found under Sanders's leg and a lighter was found under his body. The cigarette had traces of Sanders's DNA on it. A knife was recovered from Sanders's pants pocket.
Defendant was indicted for first degree murder under the short form murder indictment, pursuant to N.C. Gen. Stat. § 15-144. The jury was instructed on possible verdicts of first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, and not guilty. The jury was also instructed on the doctrine of self-defense. The jury found defendant guilty of voluntary manslaughter.
Defendant first argues that the trial court erred by denying his motion for an order requiring the State to elect which charge was being prosecuted. By that order, defendant attempted to "requir[e] the State to elect whether the indictments . . . charge[d] the Defendant with First Degree Felony Murder or First Degree Premeditated Murder." Defendant argues that the indictment failed to allege all of the elements of his offense and thus was invalid. Because defendant was not convicted of first degree murder or even second degree murder, this argument is moot. State v. Boyd, 287 N.C. 131, 141, 214 S.E.2d 14, 20 (1975).
Defendant next argues that the trial court erred by denying his motion to dismiss because the State did not produce substantial evidence of each element of the charge of first degree murder. Again, because defendant was not convicted of first degree murder, this argument is moot.
Defendant next argues that the trial court erred by entering judgment when the evidence was insufficient to support a guilty verdict because defendant had established that he had acted in self defense. Again, we disagree. "Under the law of perfect self-defense, a defendant is altogether excused if all of the . . . four elements existed at the time of the killing." State v. Richardson, 341 N.C. 585, 588, 461 S.E.2d 724, 726 (1995) (quotations and citation omitted). As our courts have consistently held, a defendant is entitled to an instruction on perfect self-defense when evidence is presented tending to show:
(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 that 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.
Id. at 587-88, 461 S.E.2d at 726 (quotations and citations omitted). The evidence did not tend to establish those four elements. In fact, defendant's own statement negates the third element. Defendant entered into the fight willingly because he wanted to "get it out of the way" and intended to "whoop [Sanders's] ass." Accordingly, defendant was not entitled to be excused from killing Sanders and the trial court properly entered judgment consistent with the jury's verdict of voluntary manslaughter.
Finally, defendant argues that the trial court erred by not submitting mitigating and aggravating factors to the jury. He leans on N.C. Gen. Stat. § 15A-1340.16 (a) for support. This statute provides, in relevant part, that "[t]he court shall consider evidence of aggravating or mitigating factors present in the offense that make an aggravated or mitigated sentence appropriate[.]" N.C. Gen. Stat. § 15A-1340.16 (a) (2007). However, in this case, the trial court sentenced defendant within the presumptive range, which does not require the consideration of aggravating or mitigating factors. State v. Streeter, 146 N.C. App. 594, 598, 553 S.E.2d 240, 242 (2001). Defendant suggests that our holding in Streeter might have been overruled by the U.S. Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d. 403 (2004). Defendant is mistaken.
Defendant received a trial free from error.
No error.
Judges BRYANT and STEELMAN concur.
Report per Rule 30(e).