Opinion
No. COA12–657.
2013-02-5
STATE of North Carolina v. Barney Adrian DUNLAP.
Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State. Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.
Appeal by defendant from judgments entered 2 September 2011 by Judge W. Robert Bell in Caldwell County Superior Court. Heard in the Court of Appeals 14 November 2012. Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State. Glover & Petersen, P.A., by James R. Glover, for defendant-appellant.
HUNTER, ROBERT C., Judge.
Barney Adrian Dunlap (“defendant”) appeals from judgments entered after a jury found him guilty of two counts of first degree murder. On appeal, defendant argues that the trial court erred in denying defendant's request for a jury instruction on voluntary manslaughter, thereby violating his due process rights. After careful review, we find no prejudicial error.
Background
The State's evidence tended to establish the following. In the early morning hours of 8 May 2008, Officer Gary Dishman (“Officer Dishman”) of the Lenoir Police Department pulled his patrol car into a parking lot. While Officer Dishman was in his vehicle, a white van parked beside him. Defendant exited the van and walked around to the front of Officer Dishman's patrol car. Officer Dishman exited his vehicle, and defendant told him, “Officer, I just killed my wife and my wife's boyfriend.” Officer Dishman placed defendant in handcuffs, found two shotgun shells in defendant's pocket and secured defendant in the back of his patrol car. Defendant told Officer Dishman that there was shotgun in his van, and he asked the officer to send an ambulance to his wife's house in Lenoir, North Carolina.
When Corporal James Moore (“Corporal Moore”) of the Lenoir Police Department arrived at the residence, he found Roslyn Fox Dunlap (“Roslyn”) lying naked on the living room floor with a wound to her abdomen. She told Corporal Moore, “Help me please. My husband just shot me and killed my boyfriend.” Corporal Moore found Gerald Lakey (“Lakey”) in the back bedroom, naked, and partially lying on a mattress. Lakey was dead when medical personnel arrived. Roslyn was transported to the hospital, but she died on 10 May 2008. Dr. Donald Jason performed an autopsy on Roslyn and testified that her cause of death was a single shotgun wound to the upper abdomen. Dr. Ellen Riemer performed an autopsy on Lakey and testified that he died from a single shotgun wound of the chest and abdomen.
Special Agent Charlie Morris (“Agent Morris”) of the State Bureau of Investigation testified regarding the collection and documentation of evidence from the scene. Investigators collected a bra and Lakey's blue jeans and underwear from the living room floor as well as a pair of blue jeans and panties turned inside out in the hallway. Agent Morris testified that he found a “battery powered device that had four vibrating cartridges” in the “on” position on the bedroom floor that he believed was “some type of sexual device,” and that there were gunshot holes in the bed comforter.
Defendant and Roslyn first married in 1992, divorced sometime in the mid–1990s, and then remarried in 1998. Roslyn's daughter, Sierra Fox (“Sierra”), testified that during defendant and Roslyn's first marriage, the family resided in Roslyn's house in Lenoir. After they remarried, defendant, Roslyn, and Sierra moved to defendant's house in Hickory, North Carolina. Pursuant to the separation agreement signed by defendant and Roslyn in 2005, defendant transferred any and all interest he had in the Lenoir property to Roslyn. Approximately a week before the shooting, Roslyn moved out of the Hickory residence and moved back into her Lenoir residence, where the shooting occurred.
Sierra testified that for the past several years, defendant and her mother were sleeping in different bedrooms in the Hickory residence. Defendant told Sierra that her mother “wanted a divorce and that she was planning on leaving him.” Sierra testified that on 8 May 2008, defendant arrived at his house and asked whether Roslyn was there. Defendant told Sierra that Roslyn said she was bringing a friend named Joe by the house to pick up some items. Sierra also testified that defendant said, “ ‘If she thinks she can bring another man in my house, then I've got something for her.’ “ When Sierra asked what he meant, defendant replied, “ ‘Nothing, never mind. I don't care what she does.’ “ Sierra thought defendant was angry throughout this exchange.
Defendant was charged with the two counts of murder under N.C. Gen.Stat. § 14–17. The charges came on for trial during the 29 August 2011 Criminal Session of the Caldwell County Superior Court. The trial court instructed the jury on first and second degree murder but denied defendant's request for a jury instruction on voluntary manslaughter. The jury found defendant guilty on both counts of first degree murder. The trial court sentenced defendant to two terms of life imprisonment without parole. Defendant appeals.
Discussion
Defendant argues on appeal that the trial court erred in refusing defendant's request for a jury instruction on voluntary manslaughter, thereby violating defendant's due process rights.
In North Carolina, the trial court must give the jury an instruction on a lesser-included offense “only when there is evidence to support that lesser included offense.” State v. Smith, 351 N.C. 251, 267, 524 S.E.2d 28, 40 (2000). “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). If such evidence exists, “due process requires that the lesser included offense instruction be given.” State v. Andrews, 122 N.C.App. 274, 277, 468 S.E.2d 597, 599 (1996).
Voluntary manslaughter is “the unlawful killing of a human being without malice, express or implied, and without premeditation and deliberation.” State v. Jackson, 145 N.C.App. 86, 90, 550 S.E .2d 225, 229 (2001) (citation and quotation marks omitted). “Voluntary manslaughter occurs when one kills intentionally, but does so in the heat of passion aroused by adequate provocation or in the exercise of self-defense where excessive force is used or defendant is the aggressor.” State v. Lassiter, 160 N.C.App. 443, 454, 586 S.E.2d 488, 497,disc. review denied,357 N.C. 660, 590 S.E.2d 853 (2003). Thus, for a defendant to be entitled to an instruction on voluntary manslaughter, the “defendant must produce ‘heat of passion’ or ‘provocation’ evidence negating the elements of malice, premeditation, or deliberation.” State v. Rainey, 154 N.C.App. 282, 290, 574 S.E.2d 25, 30 (2002). Our Supreme Court held in State v. Ward:
When one spouse kills the other in a heat of passion engendered by the discovery of the deceased and a paramour in the very act of intercourse, or under circumstances clearly indicating that the act had just been completed, or was “severely proximate,” and the killing follows immediately, it is manslaughter.
286 N.C. 304, 312–13, 210 S.E.2d 407, 413–14 (1974), vacated on other grounds,428 U.S. 903, 49 L.Ed.2d 1207 (1976).
Defendant argues that the evidence indicates that Roslyn and Lakey were found together, naked, and engaging in sexual activity when defendant shot each of them one time. Defendant contends that the holes in the bed comforter and the battery powered sex toy found next to the bed, still vibrating when the police arrived, suggests that Roslyn and Lakey were shot while they were in bed together. Defendant argues that these facts amount to adequate provocation for heat of passion manslaughter and that due process required the jury to be instructed on voluntary manslaughter.
In support of his argument, defendant cites Lassiter, 160 N.C.App. at 455, 586 S.E.2d at 497, as an example of evidence found sufficient to support a charge of voluntary manslaughter based on an intentional killing in the heat of passion. We concluded the evidence in Lassiter, that the victim had rebuffed the defendant's desire for an intimate relationship, was sufficient to permit the jury to conclude the defendant's passion had been provoked and led to voluntary manslaughter. Id. at 456, 586 S.E .2d at 498. Defendant argues that here, as in Lassiter, the circumstantial evidence supports a reasonable inference that the killings of Roslyn and Lakey were “the product of passion suddenly aroused.”
When determining whether the evidence is sufficient to warrant an instruction on a lesser-included offense, this Court must “view the evidence in the light most favorable to [the] defendant.” State v.. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994). The evidence at trial indicated that defendant's wife and her boyfriend were naked and engaged in sexual activity when defendant found and shot them. Viewing the evidence in the light most favorable to defendant, and giving defendant the benefit of all reasonable inferences, we find that a jury could have rationally found defendant guilty of voluntary manslaughter.
Assuming, however, the trial court's refusal to instruct the jury on voluntary manslaughter was in error, such error was not prejudicial. Our Supreme Court ruled in State v. Price, 344 N.C. 583, 590, 476 S.E.2d 317, 321 (1996), that “when the trial court submits to the jury the possible verdicts of first-degree murder based on premeditation and deliberation, second-degree murder, and not guilty, a verdict of first-degree murder based on premeditation and deliberation renders harmless the trial court's improper failure to submit voluntary or involuntary manslaughter.” We are bound by the holding of Price. See Rogerson v. Fitzpatrick, 121 N.C.App. 728, 732, 468 S.E.2d 447, 450 (1996) (“[T]his Court is bound by holdings of the Supreme Court [of North Carolina].”). Thus, because the jury was instructed that it could find defendant guilty of first or second degree murder for the deaths of Roslyn and Lakey, and the jury found defendant guilty of first degree murder on both counts, the trial court's failure to instruct on voluntary manslaughter was not prejudicial error.
Conclusion
After careful review, we find that the trial court's refusal of defendant's request for an instruction on voluntary manslaughter was not prejudicial error.
NO PREJUDICIAL ERROR. Judges CALABRIA and ROBERT N. HUNTER, JR., concur.
Report per Rule 30(e).