Opinion
No. COA07-550.
Filed February 19, 2008.
Beaufort County No. 04 CRS 51520.
Appeal by defendant from judgment entered 7 December 2006 by Judge William C. Griffin, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 21 January 2008.
Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State. Terry W. Alford for defendant-appellant.
Defendant Johnny Mack McCullough appeals from his conviction of second degree murder. On appeal, defendant contends that the record contains insufficient evidence of malice to support the charge of second degree murder. Because, however, defendant used a shotgun, and it is well established that malice may be presumed from the use of a deadly weapon, we disagree and uphold defendant's conviction.
Facts
The State presented evidence tending to show the following facts. On the evening of 1 May 2004, defendant, Edward Birt, and several other people were at defendant's house. Defendant and Birt began drinking beer and gin and smoking crack cocaine. At some point, defendant placed a $20 bill on a table in his living room. When defendant noticed that the money was missing, he was told that Birt had stolen it. Defendant confronted Birt, the two men argued, and defendant ordered Birt to leave. Birt walked outside and sat on the porch.
A few minutes later, Birt re-entered the house, threatening defendant and keeping his hand hidden in his pocket. Defendant told Birt to take his hand out of his pocket and leave. When Birt refused, defendant went into the bedroom and returned with a wooden table leg. Defendant began beating Birt on his arm and concealed hand. After Birt still refused to leave, defendant attempted to intimidate Birt by striking a glass table and shattering the glass. Defendant again struck Birt with the table leg, and Birt finally left the house and walked down the street.
Defendant began cleaning up the glass from the shattered table. He was outside throwing the broken glass in the trash can when he saw Birt walking back towards his house carrying a large stick. Birt was cursing and threatening to come onto the porch and kill defendant. Defendant told Birt to leave him alone, but Birt continued to threaten defendant. Defendant went back inside his house, retrieved an old shotgun out of his bedroom closet, and loaded it with two shells. He walked onto the front porch, pointed the shotgun at Birt, and told Birt to go away.
Defendant then dropped the gun, and it fell apart. Defendant returned inside the house and re-assembled and re-loaded the shotgun. He went back onto the porch and again pointed the shotgun at Birt. Birt was swinging his stick as he approached the porch. Defendant pulled the trigger and the shot struck Birt in his jaw. Birt fell back, and the stick fell out of his hands. Defendant subsequently told police that he was not sure the gun would fire, but it did.
Defendant then placed the shotgun back in his house and started to walk to the police station to turn himself in for killing the victim. Officer William Edwin Bradbury of the Washington Police Department received a dispatch regarding a shooting. As he drove toward the location of the shooting, defendant flagged the officer down. Defendant told Officer Bradbury, "I just killed a man." Officer Bradbury handcuffed defendant and took him to the police station to detain him in a holding cell.
Trooper Ken Lee Russell of the North Carolina Highway Patrol also heard the dispatch. When he arrived at defendant's house, he found Birt lying face up in the middle of the street with two men standing nearby looking at Birt. Birt appeared to be breathing, so he called for emergency medical assistance. By the time EMS arrived, however, Birt no longer had any vital signs, and Birt was pronounced dead. Birt was lying 16 feet 4 inches from defendant's front porch.
On 16 August 2004, defendant was indicted for the murder of Birt. Two years later, on 15 August 2006, Birt's daughter, Caroline Goff, overheard defendant talking to another man in a store. Defendant explained that he had been in jail because he had killed a man. Goff testified that she heard defendant say, "I had to show him who's boss. . . . I had to take care of him." When Goff identified herself, defendant explained that he had just been released on bail and that he was sorry.
At trial, the court instructed the jury as to first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter, and self-defense. The jury found defendant guilty of second degree murder. The trial court sentenced defendant to a presumptive range sentence of 201 to 251 months imprisonment. Defendant timely appealed to this Court.
Discussion
In his sole argument on appeal, defendant contends the trial court erred by denying his motion to dismiss as to the charges of first and second degree murder and by denying his motion to set aside the verdict as against the weight of the evidence. Defendant contends that, as a matter of law, he is only guilty at most of voluntary manslaughter under the theory of imperfect self-defense.
When considering a motion to dismiss, the trial court must determine whether the State presented substantial evidence of each element of the crime and of the defendant's being the perpetrator. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255, cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404, 123 S. Ct. 488 (2002). "'Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" State v. Matias, 354 N.C. 549, 552, 556 S.E.2d 269, 270 (2001) (quoting State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984)). The evidence must be viewed "in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor." State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert denied, 515 U.S. 1135, 132 L. Ed. 2d 818, 115 S. Ct. 2565 (1995).
When ruling on a motion to set aside the verdict on the basis of insufficient evidence, the decision is within the discretion of the trial court and the denial of the motion is reviewable on appeal under an abuse of discretion standard. State v. Fleming, 350 N.C. 109, 146, 512 S.E.2d 720, 745, cert. denied, 528 U.S. 941, 145 L. Ed. 2d 274, 120 S. Ct. 351 (1999). A trial court has abused its discretion when its ruling is "'manifestly unsupported by reason' and is 'so arbitrary that it could not have been the result of a reasoned decision.'" State v. Lasiter, 361 N.C. 299, 301-02, 643 S.E.2d 909, 911 (2007) (quoting White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985)).
Second degree murder is defined as the "unlawful killing of a human being with malice and without premeditation and deliberation." State v. Brown, 300 N.C. 731, 735, 268 S.E.2d 201, 204 (1980). "While an intent to kill is not a necessary element of second degree murder, the crime does not exist in the absence of some intentional act sufficient to show malice and which proximately causes death." State v. Wilkerson, 295 N.C. 559, 580, 247 S.E.2d 905, 917 (1978).
It is, however, well established that evidence of "'[t]he intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice.'" State v. Taylor, 155 N.C. App. 251, 266, 574 S.E.2d 58, 68 (2002) (quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)), cert. denied, 357 N.C. 65, 579 S.E.2d 572 (2003). This presumption is sufficient to withstand a motion to dismiss for insufficient evidence. Id. See also State v. McNeill, 346 N.C. 233, 238, 485 S.E.2d 284, 287 (1997) ("Indeed, malice is presumed where the defendant intentionally assaults another with a deadly weapon, thereby causing the other's death."), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647, 118 S. Ct. 704 (1998).
Defendant argues there is sufficient evidence of imperfect self-defense to negate the presumption of malice raised by evidence of the use of a deadly weapon to perpetrate the killing. While the presumption that the killing was done with malice is rebuttable, State v. Barrett, 20 N.C. App. 419, 422, 201 S.E.2d 553, 555, cert. denied, 285 N.C. 86, 203 S.E.2d 58 (1974), such as when a defendant contends he acted in self-defense, "[w]hether the evidence rebuts the presumption of malice in a homicide with a deadly weapon is a jury question." Id. at 423, 201 S.E.2d at 555 (rejecting defendant's argument that evidence demanded finding as a matter of law that he acted in self-defense).
In State v. Johnson, ___ N.C. App. ___, 641 S.E.2d 364, disc. review denied, 361 N.C. 433, 649 S.E.2d 395 (2007), the defendant argued that there was insufficient evidence to support a charge of second degree murder because the State failed to prove that the defendant did not act imperfectly in the defense of others. The Court pointed out that the defendant intentionally shot the victim after the victim tackled the defendant's brother. Applying the presumption of malice, this Court concluded: "This evidence alone is sufficient to overcome the required threshold to submit the charge of second-degree murder to the jury." Id. at ___, 641 S.E.2d at 369. With respect to the evidence of imperfect self-defense, the Court held: "[A]ny evidence of imperfect self-defense goes to the jury determination of whether defendant's actions actually rose to the level of self-defense. The jury was instructed on imperfect defense of others and defendant's attorney was permitted to argue such a theory to the jury. Where there was sufficient evidence to instruct the jury on the charge of second-degree murder, we find no error in the court's submission of the charge of second-degree murder." Id. at ___, 641 S.E.2d at 369-70.
This case is materially indistinguishable from Johnson and Barrett. Accordingly, because defendant used a shotgun, there was sufficient evidence to support the trial court's submission of second degree murder to the jury. As stated in Johnson, "any evidence of imperfect self-defense" raised an issue for the jury, which was specifically instructed as to the claim of self-defense. We, therefore, hold that the trial court properly denied defendant's motion to dismiss and did not abuse its discretion by denying defendant's motion to set aside the verdict.
No error.
Judges TYSON and STEPHENS concur.
Report per Rule 30(e).