Opinion
No. COA12–1335.
2013-05-7
STATE of North Carolina v. Barry KAALUND.
Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant.
Appeal by Defendant from Judgment signed 28 March 2012 by Judge W. Osmond Smith in Durham County Superior Court. Heard in the Court of Appeals 11 March 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Kay Linn Miller Hobart, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant.
STEPHENS, Judge.
Procedural History and Evidence
During the 19 March 2012 criminal session of Durham County Superior Court, Barry Kaalund (“Defendant”) was tried on a charge of first-degree murder. The evidence presented at trial tended to show the following:
Ronnie Sturdivant (“Mr. Sturdivant” or “the victim”) and Diane Sturdivant (“Ms.Sturdivant”), his wife, owned an old hotel building located at 605 West Chapel Hill Street in the City of Durham. Ms. Sturdivant did not want to rent any of the space to Defendant because she did not trust him. Despite her reticence, however, the parties agreed to a six-month lease of the lobby area for $500 a month in March of 2008, and Defendant began renting that space—excluding the basement—for use as a flea market.
After the lease term began, there were disagreements over Defendant's responsibilities. Specifically, the parties disagreed on who was responsible for cutting the grass, clearing debris, removing trash, and providing security. Tony Summers (“Summers”), who worked for Defendant, testified that the parties had engaged in “heated” arguments as a result. In that context, Summers testified to Defendant's statement that he “was going to pop [Mr. Sturdivant]” if the difficulties continued. Because of those difficulties, Ms. Sturdivant wanted to terminate the lease.
Between March and August of 2008, there were several incidents involving break-ins or intruders on the hotel property. These included cases where Defendant was assailed with a wrench and an instance in which Defendant found an intruder on the property and held him at gunpoint until the police arrived.
On 30 August 2008, sometime between 2:00 and 3:00 p.m., Summers was working alone in the flea market when Mr. Sturdivant came in to make repairs. After calling Defendant to let him know that Mr. Sturdivant was on the premises, Summers and Mr. Sturdivant talked about water leaks occurring outside the building. Mr. Sturdivant showed Summers how to fix the leaks, and they chatted for a few minutes more before Summers returned to the flea market and Mr. Sturdivant headed to the basement to make his repairs. Approximately twenty-five minutes later, Defendant came inside and told Summers to “call 911 ... I think I shot somebody.”
Prior to that moment, Defendant had been working behind the store while Summers managed the flea market inside the hotel. As Defendant headed inside, he noticed that a piece of wood, which was used to secure the basement door, had been moved from its typical resting place. For that reason, Defendant retrieved his gun and entered the basement. The basement was dark and the lights were off. As Defendant proceeded down the stairs, he called out: “Who's there?” No one responded and, shortly thereafter, Defendant heard something drop. At that moment, Defendant perceived someone coming toward him with an arm raised and started shooting. He shot multiple times
and in multiple directions, aiming for movement.
Though it's not clear from the record how many times Defendant fired his weapon, it was later discovered that the victim had been shot three times.
At trial, Defendant testified that he thought two intruders might have been in the basement and fired his gun to prevent them from hurting him. When he was finished shooting, Defendant briefly attempted to turn on the light. He changed his mind, however, when he heard a “gurgle” and decided to immediately return to the hotel in order to call 911. Afterward, Defendant went back to the basement and learned that he had, in fact, shot Mr. Sturdivant, who was dead by the time officers arrived on the scene.
Defendant also sought to impeach Summers's testimony that Defendant said he was going to “pop” Mr. Sturdivant with evidence that Summers had a history of drug use and addiction. The trial court excluded that evidence under Rule 403 of the North Carolina Rules of Evidence. In addition, before the jury reached its verdict, Defendant requested—and was denied—a jury instruction on involuntary manslaughter. On 28 March 2012, the jury found Defendant guilty of second-degree murder. Defendant was sentenced to a minimum of 157 months and a maximum of 198 months in prison. Defendant appeals.
Discussion
I. Involuntary Manslaughter
On appeal, Defendant first argues that the trial court committed prejudicial error because it did not instruct the jury as to involuntary manslaughter, a lesser-included offense of murder. We disagree.
“[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “[A]n error in jury instructions is prejudicial and requires a new trial only if there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises.” State v. Castaneda, 196 N.C.App. 109, 116, 674 S.E.2d 707, 712 (2009) (citation and quotation marks omitted).
“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 the State's evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than defendant's denial that he committed the offense, defendant is not entitled to an instruction on the lesser offense.” State v. Smith, 351 N.C. 251, 267–68, 524 S.E.2d 28, 40 (2000) (citation omitted). “[I]nvoluntary manslaughter is a lesser-included offense of murder and manslaughter.” State v. Greene, 314 N.C. 649, 652, 336 S.E .2d 87, 89 (1985) (citations omitted).
“First-degree murder is the unlawful killing of a human being with malice and with a specific intent to kill, committed after premeditation and deliberation.” State v. Cozart, 131 N.C.App. 199, 202, 505 S.E.2d 906, 909 (1998). “Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation.” State v. Wilkerson, 295 N.C. 559, 577, 247 S.E.2d 905, 915 (1978) (citation omitted). “Malice means not only hatred, ill will, or spite, ... it also means that condition of mind which prompts a person to take the life of another intentionally or to intentionally inflict serious bodily harm which proximately results in his death, without just cause, excuse or justification.” State v. Bostic, 121 N.C.App. 90, 99, 465 S.E.2d 20, 25 (1995) (citation and brackets omitted). Malice can be inferred from the intentional use of a deadly weapon when death proximately results from such use. State v. Gordon, 241 N.C. 356, 358, 85 S.E.2d 322, 324 (1955); see also State v. Benson, 183 N.C. 795, 799, 111 S.E. 869, 871 (1922) (“[A] pistol or a gun is a deadly weapon.”), overruled on other grounds by State v. Phillips, 264 N.C. 508, 516, 142 S.E.2d 337, 342 (1965).
“Involuntary manslaughter is the unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence.” Wilkerson, 295 N.C. at 579, 247 S.E.2d at 916 (citations, quotation marks, and emphasis omitted); see also State v. McConnaughey, 66 N.C.App. 92, 96, 311 S.E.2d 26, 29 (1984) (“The killing of a human being proximately resulting from the wanton or reckless handling of a firearm but without the intent to discharge the firearm is involuntary manslaughter.”) (citation omitted). “Culpable negligence is defined as an act or omission evidencing a disregard for human rights and safety.” State v. James, 342 N.C. 589, 595, 466 S.E.2d 710, 714 (1996) (citation omitted). “Both [second-degree murder and involuntary manslaughter] can involve an act of ‘culpable negligence’ that proximately causes death.” Wilkerson, 295 N.C. at 582, 247 S.E .2d at 918.
Our Supreme Court has previously determined that an instruction on involuntary manslaughter is not warranted when the defendant intentionally fired a gun toward another person. James, 342 N.C. at 595, 466 S.E.2d at 714. In that case, the Court noted that the intentional firing of a gun shows malice, which is not an element of involuntary manslaughter. Id. (“[T]he evidence [that the defendant fired a weapon into a club, an area he knew was occupied, clearly shows] that defendant acted with malice and therefore could not have been found guilty of manslaughter, which requires the absence of malice.... We therefore conclude that ... there was no evidence to support an instruction for involuntary manslaughter.”); see also State v. Gerald, 304 N.C. 511, 521, 284 S.E.2d 312, 318 (1981) (holding that the trial court did not err by failing to instruct on involuntary manslaughter when the defendant made numerous statements indicating that a shooting was intentional and, thus, did not present sufficient evidence to raise an inference that the shooting was un intentional); State v. Eubanks, 151 N.C.App. 499, 503, 565 S.E.2d 738, 741 (2002) (holding that the trial court did not err when it did not instruct the jury on involuntary manslaughter because there was no evidence tending to show that the firing of the gun by the defendant was unintentional).
An instruction on involuntary manslaughter is required, however, when there is sufficient evidence that a deadly weapon was used unintentionally. See McConnaughey, 66 N.C.App. at 97, 311 S.E.2d at 30 (determining that “[t]he jury could have found [the] defendant guilty of involuntary manslaughter and should have been given appropriate instructions” when (1) the defendant and the victim were wrestling, (2) “the gun could have discharged accidentally,” and (3) the killing could have been unintentional). This is because such evidence may show an absence of malice and, therefore, could support a conclusion of involuntary manslaughter. State v. Best, 59 N.C.App. 96, 98, 295 S.E.2d 774, 776 (1982) (holding that the trial court erred when it failed to instruct on involuntary manslaughter after the defendant testified that the gun was fired by mistake, during a physical altercation, and he did not pull the trigger).
Here, Defendant argues that he did not have any ill will toward Mr. Sturdivant and did not intend to kill him. Therefore, Defendant asserts, the jury could have found an absence of malice and, thus, should have been instructed on involuntary manslaughter. This argument fails to recognize that malice exists not only when there is ill will, but also when an individual “intentionally inflict[s] serious bodily harm which proximately results in [the victim's] death, without just cause, excuse or justification.” Bostic, 121 N.C.App. at 99, 465 S.E.2d at 25 (citation and brackets omitted). The mere fact that Defendant did not intend to kill Mr. Sturdivant in particular is not sufficient to obviate a finding of malice.
Given that fact, after a thorough review of the record, we find nothing to support the argument that Defendant fired his gun unintentionally. Indeed, he appears to have admitted at trial that he intentionally fired the weapon, pointing out that he changed directions when shooting to follow the victim's movement and doing so because he incorrectly believed that his life was in danger. Further, when Defendant returned to the hotel lobby, he said: “Call 911 ... I think I shot somebody.”
Because the record shows that Defendant intentionally fired his gun at Mr. Sturdivant, there is no evidence that would permit the jury to find defendant guilty of the lesser-included offense of involuntary manslaughter. Accordingly, we hold that the trial court did not err when it failed to instruct the jury on involuntary manslaughter. See, e.g., Millsaps, 356 N.C. at 561, 572 S.E.2d at 771 (“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.”).
II. Evidence of Summers's Drug Use
Next, Defendant argues that the trial court erred when it excluded impeachment evidence of Summers's history of drug and alcohol abuse under Rule 403. Defendant contends, however, that such evidence should have been allowed under Rule 611(b) and that the trial court's failure to do so prejudiced his case by improperly allowing Summers to offer “the strongest, most damaging evidence of actual malice” without being impeached.
“We review a trial court's decision to exclude evidence under Rule 403 for abuse of discretion.” State v. Whaley, 362 N.C. 156, 160, 655 S.E.2d 388, 390 (2008). A court abuses its discretion when its “ruling is manifestly unsupported by reason or is so arbitrary that it could not have been the result of a reasoned decision. In our review, we consider not whether we might disagree with the trial court, but whether the trial court's actions are fairly supported by the record.” Id. (citation and quotation marks omitted). Further, evidentiary errors are generally considered “harmless unless a defendant proves that absent the error a different result would have been reached at trial.” State v. Ferguson, 145 N.C.App. 302, 307, 549 S.E.2d 889, 893,disc. rev. denied, 354 N.C. 223, 554 S.E.2d 650 (2001). “Our Supreme Court has held that the range of relevant cross-examination is very broad, but it is subject to the discretionary powers of the trial judge to keep it within reasonable bounds.” State v. Cook, 195 N.C.App. 230, 234, 672 S.E.2d 25, 28 (2009) (citations, quotation marks, and brackets omitted).
“A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” N.C.R. Evid. 611(b) (2011). “Questions asked on cross-examination will be considered proper unless the record shows they were asked in bad faith.” State v. Lovin, 339 N.C. 695, 713, 454 S.E.2d 229, 239 (1995) (citation omitted). This is especially true when “the witness in question is a key witness for the State.” State v. Williams, 330 N.C. 711, 723, 412 S.E.2d 359, 367 (1992). “However, such evidence may nonetheless be excluded under Rule 403 if the trial court determines its probative value is substantially outweighed by the danger of unfair prejudice[.]” Whaley, 362 N.C. at 159–60, 655 S.E.2d at 390 (citations and quotation marks omitted).
In Williams, like this case, our Supreme Court addressed a situation in which the defendant's impeachment evidence had been excluded by the trial court. Williams, 330 N.C. at 713, 412 S.E .2d at 361. There the Court reversed that exclusion and held that evidence of chronic substance abuse, suicide attempts, and psychiatric history was “proper and admissible for purposes of impeachment” under Rule 611(b), even though there was “a time gap between the problem, the events testified to, and the trial.” Id. at 719–22, 412 S.E.2d at 364–66. In so holding, the Court reasoned that evidence of drug use or mental instability is properly the subject of cross-examination because it bears upon the credibility of the witness and “cast[s] doubt upon the capacity of a witness to observe, recollect, and recount[.]” Id. at 719, 412 S.E.2d at 364 (citation and quotation marks omitted).
In this case, Defendant sought to use evidence of Summers's drug history during cross-examination of Summers. In his offer of proof, Defendant questioned Summers and elicited the following information outside the presence of the jury: Summers had (1) been incarcerated in the North Carolina Department of Correction, (2) participated in a drug treatment program while in prison, and (3) told the drug treatment personnel that he had suffered from a drug addiction. During questioning Summers also stated: “I might have had several addictions. Food addiction, you know .... [a]s many as there can be[,]” and specifically admitted to alcohol, marijuana, and cocaine addiction.
Even though Summers was allegedly sober while working for Defendant, these statements bear upon his credibility as a witness and, as our Supreme Court noted in Williams, cast doubt upon his ability to observe, recollect, and recount past events. Because Summers testified that Defendant had said he would “pop” the victim and because such testimony goes directly to the State's burden to prove the premeditation element of its charge of first-degree murder, Summers was a crucial witness. Accordingly, Defendant's impeachment evidence was admissible under Rule 611(b) to the extent that it was not unfairly prejudicial or otherwise inadmissible under Rule 403. See Whaley, 362 N.C. at 159–60, 655 S.E.2d at 390.
Rule 403 provides that, “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” N.C.R. Evid. 403. “Unfair prejudice is an undue tendency to suggest decision on an improper basis.” State v. Houseright, –––N.C.App. ––––, ––––, 725 S.E.2d 445, 448 (2012) (citations, quotation marks, and brackets omitted).
Here, the evidence Defendant sought to use to impeach Summers was excluded by the trial court under Rule 403 because the probative value of such evidence was “substantially outweighed by the danger of unfair prejudice and confusion of the issues.” We cannot conclude that the trial court's decision to exclude this evidence under Rule 403 was manifestly unsupported by reason or was arbitrary in any way. Moreover, even assuming arguendo that the trial court may have incorrectly barred this testimony, we note that “[e]videntiary errors are harmless unless a defendant proves that absent the error a different result would have been reached at trial .” Ferguson, 145 N.C.App. at 307, 549 S.E.2d at 893 (citation omitted). Therefore, because we have already found that evidence of malice sufficient for the jury to infer the necessary elements of second-degree murder was present—as demonstrated by the fact that Defendant aimed for, shot at, and killed the victim before making a statement to his employee that he “[thought he] shot somebody”—the exclusion of this impeachment evidence, at most, would be harmless error.
NO ERROR. Judges MARTIN and HUNTER, ROBERT C., concur.
Report per Rule 30(e).