Opinion
No. COA10-656
Filed 5 April 2011 This case not for publication
Appeal by Defendant from judgment entered 18 November 2009 by Judge Benjamin G. Alford in Superior Court, Craven County. Heard in the Court of Appeals 15 November 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Edwin W. Welch, for the State. Marilyn G. Ozer for Defendant-Appellant.
Craven County No. 08 CRS 1520.
Gary Lamont Hayes, II (Defendant) was convicted of first-degree murder by a jury on 18 November 2009. The trial court sentenced Defendant to life imprisonment without parole. Defendant appeals.
I.
The evidence at trial tended to show that Defendant and Odell Foster, Jr. (Mr. Foster) had a history of conflict, including two fistfights at nearby dance clubs in September and November 2007. During the evening of 25 April 2008, Defendant and Mr. Foster had engaged in hostile conversation at one of the dance clubs. Mr. Foster left the dance club and drove to the nearby Bayside Restaurant ("Bayside"). In the early morning hours of 26 April 2008, Defendant followed Mr. Foster to Bayside in a vehicle driven by Moises Rodriguez (Mr. Rodriguez). Defendant and Mr. Rodriguez arrived at Bayside. Mr. Rodriguez stopped the vehicle in the parking lot approximately ten feet from where Mr. Foster was standing by the entrance to Bayside. Defendant testified that, when the vehicle stopped in front of Mr. Foster, he saw Mr. Foster pull up his shirt and reach for a gun in his waistband. Defendant was seated in the front passenger seat of the vehicle. He picked up a shotgun that was leaning against the vehicle console, leaned over Mr. Rodriguez, and fired three shots through Mr. Rodriguez's side window, directly at Mr. Foster. Defendant claimed he had reason to believe his life was in danger, and asserted a claim of self-defense.
A grand jury indicted Defendant for first-degree murder on 23 June 2008. Defendant filed written notice on 3 August 2009 of the following potential defenses to first-degree murder: (1) voluntary intoxication with respect to diminished capacity and (2) self-defense. The State filed a motion in limine on 21 August 2009 seeking to prevent Defendant from making references to Mr. Foster's character without a prior ruling from the trial court. In support of his claim of self-defense, Defendant filed a notice of intent to offer evidence of Mr. Foster's prior conviction of voluntary manslaughter on 9 November 2009. The State objected and the trial court held a hearing. The trial court ruled that evidence of Mr. Foster's prior conviction for voluntary manslaughter would be excluded.
The trial court held a jury charge conference to review the proposed jury instructions on 12 November 2009. The proposed instructions permitted the jury to find Defendant: (a) guilty of first-degree murder, (b) guilty of second-degree murder, or (c) not guilty. Defendant requested an additional instruction on voluntary manslaughter, and the trial court heard lengthy arguments by Defendant about the proposed jury instructions and Defendant's request to include voluntary manslaughter. The trial court denied Defendant's motion for an instruction on voluntary manslaughter on 12 November 2009.
The verdict form was submitted to the jury on the afternoon of 12 November 2009. The jury deliberated throughout that afternoon and all of the following day, 13 November 2009. The trial court then recessed to allow one juror to attend an out-of-town funeral. The jury resumed deliberations on 18 November 2009, at which time Defendant renewed his objection to the jury instructions and filed a second motion for additional jury instructions. Defendant requested that the original verdict sheet be withdrawn and that the trial court, after instructing the jury on imperfect self-defense, "submit to [the] jury the issue of voluntary manslaughter[.]" The trial court denied Defendant's motion. The jury found Defendant guilty of first-degree murder on 18 November 2009.
II.
Defendant first argues that the trial court erred in denying his motion to introduce evidence of Mr. Foster's prior conviction of voluntary manslaughter. We disagree. Defendant argues that he should have been allowed to introduce evidence that Mr. Foster had been convicted of voluntary manslaughter because that fact was essential to both Defendant's claim of self-defense and his contention that he feared for his life at the hands of Mr. Foster. Our Supreme Court has held that, "when self defense is raised as a defense, the defendant may produce evidence of the victim's character tending to show, `(1) that the victim was the aggressor or (2) that defendant had a reasonable apprehension of death or bodily harm[.]'" State v. Corn, 307 N.C. 79, 85, 296 S.E.2d 261, 266 (1982) (citation omitted). The Court held that, for the purposes of showing that the victim was the aggressor, the defendant could introduce evidence concerning the violent reputation of the victim. Id. However, the Court also held that the rule did not "`render admissible evidence of specific acts of violence which have no connection with the homicide.'" Id. (citation omitted).
In State v. Jacobs, 363 N.C. 815, 689 S.E.2d 859 (2010), our Supreme Court recently addressed the issue of admitting certified copies of a victim's prior convictions and found them to be admissible when the defendant offered evidence to show that the defendant knew of these "certain violent acts by the victim[.]" Id. at 822, 689 S.E.2d at 864. The defendant in Jacobs offered testimony of his prior knowledge of the violent acts of the victim, and the Court found that such convictions would be "relevant in that they are consistent with and corroborate to a degree defendant's testimony about the victim's violent past and prison time." Id. at 824, 689 S.E.2d at 865.
No such testimony was offered in the present case. It is undisputed that, at the time of the shooting, Defendant did not know of Mr. Foster's prior conviction for voluntary manslaughter. Standing alone, "conviction records are clearly not evidence of . . . what the defendant actually knew" about the victim. Corn, 307 N.C. at 85, 296 S.E.2d at 266. Without evidence that the defendant was aware of the prior conviction records, they can "be offered neither for the purpose of establishing the victim's reputation for violence nor for the purpose of showing what the defendant knew about the victim's violent behavior." Id. Because Defendant offered no such testimony, Mr. Foster's prior conviction does not serve the "separate purpose of corroborating [Defendant's] testimony" as required by Jacobs. Jacobs, 363 N.C. at 824, 689 S.E.2d at 865. Without the requisite testimony by Defendant concerning his knowledge of Mr. Foster's prior manslaughter conviction, we hold that Mr. Foster's prior conviction record was inadmissible. Id. Accordingly, the trial court did not err in excluding Mr. Foster's prior convictions.
III.
Defendant next argues that the trial court erred by denying his request for an additional jury instruction on voluntary manslaughter based on imperfect self-defense. In the present case, the trial court instructed the jury on self-defense, but did not provide the jury an instruction on voluntary manslaughter based on imperfect self-defense, as Defendant requested. Defendant argues that the jury should have been given the opportunity to consider that Defendant had reason to fear Mr. Foster would kill or inflict great bodily harm on Defendant. Defendant also states that "[t]he issue of whether a jury should be instructed on imperfect self-defense when the jury has been instructed on perfect self-defense is currently before our Supreme Court" in State v. Cruz, ___ N.C. App. ___, 691 S.E.2d 47 (2010).
We note that Cruz has since been affirmed by our Supreme Court. State v. Cruz, 364 N.C. 417, 700 S.E.2d 222 (2010). In Cruz, this Court reviewed the defendant's appeal challenging the trial court's refusal to instruct on imperfect self-defense after instructing the jury on perfect self-defense. The Court noted prior case law holding that, where "`no evidence demonstrates or indicates defendant believed it necessary to kill to protect himself from death or great bodily harm, defendant was not entitled to an instruction on either perfect or imperfect self-defense.'" Id. at ___, 691 S.E.2d at 52 (citation omitted). The majority in Cruz then stated that "there [was] no evidence that [the] [d]efendant believed it necessary to kill [the victim] in order to save himself from death or great bodily harm." Id.
After reciting further evidence suggesting that the defendant in Cruz did not actually believe that it was necessary to kill the victim to protect himself, our Court held as follows:
Further, it appears that the trial court did not think there was any evidence that Defendant believed he needed to fire his gun in order to save himself from death or great bodily harm. On the contrary, the trial court explained that it was giving the self-defense charge "out of an abundance of caution" in an effort to avoid having to retry this matter.
The question of whether the trial court erred in instructing the jury on the law of self-defense as it related to the charges of first-degree and second-degree murder is not before us and, in any event, any such error would have been to Defendant's benefit. On the issue that is before us — whether the court erred in refusing to instruct the jury on voluntary manslaughter under a theory of imperfect self-defense — we find no error.
Id. at ___, 691 S.E.2d at 53. Our Supreme Court has now confirmed the decision of this Court. Cruz, 364 N.C. 417, 700 S.E.2d 222. In the present case, as in Cruz, the question of whether the trial court erred by instructing the jury on perfect self-defense is not before us, and "any such error would have been to Defendant's benefit." Cruz, ___ N.C. App. at ___, 691 S.E.2d at 53. We, therefore, address whether the trial court erred in not instructing the jury on voluntary manslaughter under a theory of imperfect self-defense.
"Our Court reviews a trial court's decisions regarding jury instructions de novo." Id. at ___, 691 S.E.2d at 50. "`A defendant is entitled to a jury instruction on self-defense when there is evidence from which the jury could infer that he acted in self-defense.'" State v. Meadows, 158 N.C. App. 390, 400-01, 581 S.E.2d 472, 478 (2003) (citation omitted). In Meadows, our Supreme Court set forth the requirement that two questions be answered affirmatively to afford a defendant an instruction on self-defense: "`"(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?"'" Id. at 401, 581 S.E.2d at 478 (citation omitted). As we stated in Cruz, "[a]n instruction on imperfect self-defense should be given where a defendant `reasonably believes it necessary to kill the deceased to save himself from death or great bodily harm even if defendant (1) might have brought on the difficulty, provided he did so without murderous intent, and (2) might have used excessive force.'" Cruz, ___ N.C. App. at ___, 291 S.E.2d at 51. In making these determinations, the evidence is to be viewed in the light most favorable to the defendant. Meadows, 158 N.C. App. at 401, 581 S.E.2d at 478.
We review the underlying facts for evidence to support the assertion that, in order to protect himself from death or great bodily harm, Defendant reasonably believed it was necessary for him to kill Mr. Foster on 26 April 2008. The conflict began at a dance club where Defendant and Mr. Foster engaged in a brief, heated conversation. Mr. Foster then left the dance club and went to Bayside. Defendant followed Mr. Foster to Bayside in a vehicle driven by Mr. Rodriguez. When Defendant and Mr. Rodriguez arrived at Bayside, Mr. Rodriguez stopped the vehicle approximately ten feet from where Mr. Foster was standing. Defendant was sitting in the passenger seat on the right side of Mr. Rodriguez. When the vehicle stopped, Defendant spoke to Mr. Foster, then leaned over Mr. Rodriguez and shot Mr. Foster three times through the window on Mr. Rodriguez's side of the vehicle. Defendant claims that, before he fired the three shots, Mr. Foster lifted his shirt and Defendant saw the butt of a weapon in Mr. Foster's waistband. Defendant contends that, at that point, he thought Mr. Foster was going to shoot him and that he was "scared for [his] life, [and] that's when [he] reacted" by firing three shots from his shotgun into Mr. Foster's body. It was on these particular facts that Defendant asserted his right to a jury instruction concerning imperfect self-defense.
Reviewing the facts in the light most favorable to Defendant, we find that the trial court properly declined to instruct the jury on imperfect self-defense because Defendant's belief was not objectively reasonable. The facts of the present case are similar to those in Meadows, 158 N.C. App. at 402, 581 S.E.2d at 479, where the defendant testified that he believed the victim had a weapon and that it was necessary to shoot the victim in order to protect himself. Id. The defendant in Meadows, as in the present case, testified that he saw the victim move as though he was reaching for a weapon from his waist area. Id. at 393, 581 S.E.2d at 474. The defendant testified that he "saw something shine[,]" causing him to believe that the victim had a gun and that he needed to shoot the victim to protect himself. Id. at 402, 581 S.E.2d at 479. Our Court found that, "despite defendant's testimony, [defendant's] belief was not objectively reasonable." Id. Citing the holding in State v. Williams, 342 N.C. 869, 467 S.E.2d 392 (1996), we held that, "where the record [is] `totally void of any evidence' supporting `defendant's self-serving claim' that he believed the other person was reaching for a weapon, the Court may hold defendant's belief was not objectively reasonable and that the trial court properly refused to instruct the jury on self-defense." Meadows, 158 N.C. App. at 402, 581 S.E.2d at 479 (citation omitted).
Similarly, we find that the facts in the present case fail to support Defendant's contention that, when he shot Mr. Foster three times, he reasonably feared for his life. Mr. Rodriguez testified that, when he and Defendant pulled up in the vehicle and stopped in front of Bayside, Mr. Foster was standing approximately ten feet from the vehicle. Mr. Rodriguez also testified that Mr. Foster did not step towards the vehicle at any point before Defendant shot him. Defendant testified that he saw Mr. Foster reach for a weapon from his waistband. However, Detective Chris Morningside of the Havelock Police Department testified that there was no evidence that Mr. Foster was armed. Defendant's claim that he was in fear for his life is the sole evidence to support his theory of self-defense. Reviewing these facts in the light most favorable to Defendant, we conclude that it was not necessary, nor did it reasonably appear to be necessary, for Defendant to kill Mr. Foster in order to protect himself from death or great bodily harm. Thus, we find Defendant's belief was not objectively reasonable and hold that the trial court did not err in denying Defendant's request to instruct the jury on imperfect self-defense. Williams, 342 N.C. at 874, 467 S.E.2d at 395; Meadows, 158 N.C. App. at 402, 581 S.E.2d at 479. Defendant's argument is without merit.
No error.
Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).