Opinion
No. COA10-1261
Filed 4 October 2011 This case not for publication
Appeal by defendant from judgment entered 5 May 2010 by Judge Carl R. Fox in Wake County Superior Court. Heard in the Court of Appeals 23 March 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Diane A. Reeves, for the State. Brock, Payne Meece, P.A., by C. Scott Holmes, for defendant-appellant.
Wake County Nos. 09 CRS 12368 10 CRS 2921.
Defendant Jason Randall Sledge appeals from his convictions of first degree murder and possession of a firearm by a felon. On appeal, defendant primarily argues that the trial court erred in failing to instruct the jury on self-defense. We hold that the trial court properly refused to give a self-defense instruction because the evidence, even when viewed in the light most favorable to defendant, failed to show the existence of the first two elements for self-defense: (1) that defendant actually believed it was necessary to kill the victim in order to avoid death or grave bodily harm and (2) that his belief was reasonable.
Facts
The State's evidence tended to show the following facts. On 8 February 2009, at approximately 6:30 p.m., Jamie Strazisar went to the Shell gas station near Massey Farm Road to buy beer. Shortly afterward, defendant's wife, Melissa Sledge, also entered the Shell station. Ms. Sledge knew Mr. Strazisar because he lived at the home of her mother, Sylvia Warren, although Ms. Warren was in the process of evicting Mr. Strazisar. While Ms. Sledge was waiting in line, Mr. Strazisar engaged in a heated argument with her.
When Ms. Sledge arrived home, she told defendant about Mr. Strazisar confronting her at the Shell station. Defendant told her he was going to buy some cigarettes and left. Sometime later that evening, defendant went to Ms. Warren's house. Charles Cameron ("Cam") Wheless, who had started staying at the Warren residence about a week before, and his brother Greg Wheless were outside drinking beer. Cam Wheless asked if he could ride with defendant to the store. Defendant agreed.
On the way to the store, they stopped at an old bus that Cam Wheless had been staying in before he moved into Ms. Warren's residence. Next, they stopped by a shack in the woods where Mr. Strazisar was going to be moving. Mr. Wheless asked defendant why he was looking for Mr. Strazisar, but defendant gave no explanation other than to say he wanted to talk to him. Mr. Strazisar was not in the shack, so the two men drove toward the store.
As they drove down Massey Farm Road, they saw Mr. Strazisar walking along the side of the road. Defendant stopped the truck in the middle of the road, about 30 feet away from Mr. Strazisar. Mr. Wheless hopped out of the truck and began talking to Mr. Strazisar about work. They had been talking for a minute or two, when Mr. Wheless, who was still next to the truck, heard what sounded like a gun being loaded. He walked around to the driver's side of the truck and saw defendant standing there with a shotgun. According to Mr. Wheless, defendant "kind of swung the barrel at [him] motioning [him to] get the hell out of the way, this don't concern you." Mr. Wheless moved toward the side of the truck to get out of the way.
At this point, Mr. Strazisar was still standing about 30 feet away. Defendant walked about 10 feet closer to Mr. Strazisar and cocked a shell into the chamber of the gun. Mr. Wheless looked back at Mr. Strazisar and just shrugged his shoulders, and Mr. Strazisar did the same. According to Mr. Wheless, "[t]hat's when the light switch got flipped on with" defendant, and he "went ballistic." Holding the gun at his own midsection and pointing it toward Mr. Strazisar's midsection, defendant looked at Mr. Strazisar and said, "[Y]ou got a problem with my old lady hollering and cussing at her?" Defendant yelled for 10 to 15 seconds and then moved the gun to his left and fired a shot.
When the shot fired, Mr. Strazisar set down the plastic bag of beer he had been holding and put his hands up in the air. He began begging for his life, saying, "[P]lease don't shoot me. I will do anything. I will apologize to her. . . . I will tell her I am sorry. . . ." Defendant said, "I am going to teach you, SOB. . . . I am going to teach you you are not going the [sic] cuss at my old lady anymore." Then, less than a minute after he had fired the first shot, defendant fired a second shot. This shot hit Mr. Strazisar, who fell flat on his back.
Defendant and Mr. Wheless both ran toward Mr. Strazisar. Defendant reached him first and kicked the left side of Mr. Strazisar's head as hard as he could. Mr. Wheless stopped in his tracks and yelled, "[N]o, you killed him. You killed him." Defendant did not say anything. He walked around and kicked the other side of Mr. Strazisar's head as hard as he could and said, "[Y]ou won't never do that to my wife again." Mr. Wheless again told defendant he had killed Mr. Strazisar, but defendant responded, "[N]o, I have only shot him with birdshot. He is all right."
Mr. Wheless began to fear for his own life and started backing toward the truck. Defendant pointed the gun at him and told him to help move Mr. Strazisar out of the road. They each grabbed a leg and pulled him off the side of the road into the woods. Defendant then motioned with the gun for Mr. Wheless to get back in the truck. Either defendant or Mr. Wheless put Mr. Strazisar's bag of beer in the truck.
Defendant told Mr. Wheless not to say anything to anyone, and he dropped him off at Ms. Warren's home. Greg Wheless came out of the house, and Cam Wheless told him what had happened. Cam Wheless did not know if Mr. Strazisar was alive or dead. Greg Wheless told his brother that he and Ms. Warren were going to the Shell station and that he would check on Mr. Strazisar.
As they drove down Massey Farm Road, Greg Wheless did not see Mr. Strazisar. After he bought some cigarettes for Ms. Warren, Ms. Warren drove home, while Greg Wheless went to look for Mr. Strazisar on foot. He had walked about 100 yards when he saw Mr. Strazisar's hands sticking out in the road. He slapped Mr. Strazisar and did CPR, but did not get a response, so he ran to a nearby hotel seeking help. He then ran back to Mr. Strazisar and continued CPR until paramedics arrived a few minutes later. The paramedics determined that Mr. Strazisar had injuries inconsistent with life and ceased rescue efforts. An autopsy identified Mr. Strazisar's cause of death as massive bleeding due to the gunshot wound.
By the next day, 9 February 2009, the police had identified defendant as a suspect. That evening, Detective Robert Campen interviewed defendant at the Raleigh Police Department. Defendant admitted shooting Mr. Strazisar. He told Detective Campen that his wife's confrontation with Mr. Strazisar had upset him, and he put his shotgun and brass knuckles in his truck and went to look for Mr. Strazisar.
Defendant further told Detective Campen that when he saw Mr. Strazisar walking along Massey Farm Road, he stopped the truck, got out, and asked him "what the hell he was doing talking trash to [his] old lady." Mr. Strazisar mumbled something and started toward defendant. Defendant told him to stop, but he kept coming and was cursing under his breath. Defendant reached in the truck, grabbed the shotgun, and loaded it with two rounds of birdshot. Defendant hoped to scare Mr. Strazisar by firing one round and saying, "I am not fucking playing with you." Mr. Strazisar, however, kept coming and responded, "I am not fucking playing with you either." Defendant knew Mr. Strazisar carried a knife and saw Mr. Strazisar reach with his left hand toward his back pocket. Defendant did not see a knife, but he was scared and fired at Mr. Strazisar. Defendant did not think birdshot would hurt Mr. Strazisar.
On 7 April 2009, defendant was indicted for first degree murder of Mr. Strazisar. Subsequently, on 23 March 2010, he was indicted for possession of a firearm by a felon and robbery with a dangerous weapon.
At trial, defendant called a witness who testified about the argument between Mr. Strazisar and Ms. Sledge at the Shell station. Defendant also called Robert Morgan, who worked at the Shell station. Mr. Morgan testified about an incident in January or February 2009 when Greg Wheless came into the store upset about Mr. Strazisar's having pulled a knife on him during an argument.
Defendant also testified in his own defense. According to defendant, on 8 February 2009, he was mad about Mr. Strazisar's confronting his wife, so he grabbed a shotgun, three shells, and a jean jacket that had a pair of brass knuckles in the pocket. When asked why he grabbed those items, he testified, "I was going to look for [Mr. Strazisar]. I wanted him to leave my wife alone." He took the shotgun because he knew Mr. Strazisar was "dangerous." He also had a pocketknife with him.
Defendant first went to the Shell station to look for Mr. Strazisar, then to Ms. Warren's home, the bus, and the shack in the woods. After that, he began driving back to the Shell station, but before he got there, he saw Mr. Strazisar walking along Massey Farm Road. Defendant stopped the truck, got out, and said, "[H]ey, man, what the hell you doing talking trash to my old lady?" Defendant testified that Mr. Strazisar, who was approximately 30 to 40 feet away, began to walk toward him. Mr. Strazisar said something back that defendant could not understand, but he "could tell by the tone that it wasn't — he wasn't having a pleasant conversation." Mr. Strazisar had a bag in his hand, and defendant did not know what was in it.
According to defendant, he told Mr. Strazisar to "stop right there," but Mr. Strazisar kept walking toward him. Defendant said that he then pulled out his shotgun and told Mr. Strazisar a second time to "stop right there." Defendant fired a shot into the air when Mr. Strazisar was about 20 feet away. Defendant testified that despite the shot, Mr. Strazisar never slowed down and kept walking toward defendant as if he "was just standing there with nothing in [his] hand." Mr. Strazisar was within about 10 feet of defendant when defendant said, "[S]top where you are at. I am not fucking playing." Mr. Strazisar said, "[W]ell, I am not fucking playing either." Defendant claimed that when Mr. Strazisar was about three steps from defendant, defendant turned the gun toward Mr. Strazisar and fired.
Defendant testified that when he shot Mr. Strazisar, he was "getting scared because he kept coming toward [him]." When asked what he was afraid of, he said:
That — most people, if they got a gun in their hand, somebody tells them to stop, first thing they are going to do is okay, no problem.
It's like I didn't say anything to him. He just kept coming. I don't know what he was thinking.
Defendant further explained that he "knew if [Mr. Strazisar] could have got to [him] and put his hands on [him] he was going to hurt [him]." Defendant knew Mr. Strazisar was known to carry a knife. He did not see a knife, but he saw Mr. Strazisar reach one hand toward his back pocket.
Defendant admitted that after Mr. Strazisar fell to the ground, defendant kicked him in the head and said, "[D]on't you ever talk trash to my wife again." Defendant claimed that when he went to put the gun in the truck, Mr. Strazisar seemed about to say something, but Cam Wheless told Mr. Strazisar to shut up and kicked him in the head, too. After that, defendant thought Mr. Strazisar had been knocked unconscious. Defendant did not notice any wounds on Mr. Strazisar, but he was not looking for any because he did not expect to do any damage with the birdshot; he just expected it to sting. He had Cam Wheless help drag Mr. Strazisar off the road because he was worried he would be run over by a drunk driver. Cam Wheless picked up the beer. Defendant did not call the police because he was not worried about Mr. Strazisar's being hurt.
The jury found defendant guilty of first degree murder, guilty of possession of a firearm by a felon, and not guilty of robbery with a dangerous weapon. The trial court sentenced defendant to life imprisonment without parole. Defendant timely appealed to this Court.
I
Defendant argues that the trial court erred in excluding various pieces of evidence showing violent behavior by Mr. Strazisar. Defendant first points to testimony by Jennifer Eaton, who worked at the Shell station, regarding Ms. Warren's explanation for why she was evicting Mr. Strazisar:
[Defense counsel]. Would you tell the jury what Miss Warren told you about why she was having [Mr. Strazisar] evicted?
[Ms. Eaton]. His drinking. Sometimes he would be very vulgar to her and would threaten her and she just couldn't take the drinking and — and him being drunk and he would get violent, I guess. But not —
[Prosecutor]: Objection.
THE COURT: Well, sustained as to something she doesn't know. All right. That's sustained as to he would get violent, I guess.
Defendant provides no argument why the excluded testimony was admissible despite the witness' express acknowledgement — by saying "I guess" — that she was speculating about Mr. Strazisar's "get[ting] violent." Because the testimony indicated that Ms. Eaton lacked personal knowledge on that issue, the trial court did not err in excluding that particular testimony. See State v. Elkins, ___ N.C. App. ___, ___, 707 S.E.2d 744, 750 (2011) (explaining that witness is limited to testifying based on personal knowledge and, accordingly, testimony that is mere speculation is inadmissible).
Next, defendant claims the trial court erred in excluding testimony by Ms. Warren about threats Mr. Strazisar made to others; testimony by Mr. Morgan that he heard Mr. Strazisar call Ms. Warren "[a]n old bitch" and that Mr. Strazisar became "visibly upset" when told he was out of line; and testimony by Mr. Morgan regarding an argument between Cam Wheless and Mr. Strazisar. The trial court excluded this testimony because defendant did not know about these incidents.
On appeal, defendant argues that even though he was unaware of the incidents, the testimony was nonetheless relevant, given defendant's theory of self-defense, as showing that Mr. Strazisar — and not defendant — was the aggressor. As our Supreme Court has held, however, "where, as in this case, the State's and the defendant's own evidence clearly indicates that the defendant was the aggressor and initiated the fatal assault, no issue of self-defense arises and the trial judge may properly exclude evidence of the decedent's character and reputation as a violent and dangerous person because it is not relevant to the issues presented." State v. McCray, 312 N.C. 519, 533, 324 S.E.2d 606, 616 (1985).
Here, defendant's own evidence established that he was the aggressor: defendant armed himself with a shotgun, brass knuckles, and a pocketknife; tracked down Mr. Strazisar; confronted him; and made no attempt to leave prior to shooting Mr. Strazisar. See State v. Martin, 131 N.C. App. 38, 45, 506 S.E.2d 260, 265 (1998) (evidence showed defendant was aggressor where he drove to park in search of acquaintance, sought out confrontation, was prepared to fight and in possession of rifle, and never attempted to leave). Defendant cites no authority which suggests that, assuming the truth of defendant's evidence, Mr. Strazisar was the aggressor. The trial court, therefore, did not err in excluding evidence regarding incidents of which defendant had no knowledge.
Defendant also points to testimony elicited from Ms. Warren on voir dire regarding a phone call Ms. Warren's mother made to her when Mr. Strazisar pulled a knife on Greg Wheless. Although the trial court indicated that it would exclude this testimony as hearsay, the evidence had actually already been admitted without objection from the State. Specifically, the jury heard the following testimony:
[Defense Counsel]. All right. And did you hear about an incident where [Mr. Strazisar] actually pulled a knife on Greg Wheless?
[Ms. Warren]. I heard about it. I didn't witness it. I was not home. I was at work. My mother called me. She was scared to death and she wanted me to come home and I couldn't.
(Emphasis added.) It was only afterward, when Ms. Warren had begun to answer a question about the timing of the call from her mother, that the State objected and the jury was excused. The Court did not subsequently strike this testimony or tell the jury to disregard it. Since the evidence was actually admitted, defendant's argument regarding its exclusion is moot.
In addition, defendant points to Mr. Morgan's testimony on voir dire regarding Greg Wheless' account of Mr. Strazisar's having pulled a knife on him. Mr. Morgan testified that he was working at the store when Greg Wheless came in "really upset and angry and said that [Mr. Strazisar] had just pulled a knife on him when he was trying to cook dinner." Defendant incorrectly asserts that the trial court sustained the State's objection to the admission of this testimony. In fact, the trial court stated that it would "allow [Mr. Morgan] to testify as to that," and Mr. Morgan did in fact describe the incident for the jury.
In sum, we hold that the trial court either did not err in excluding the evidence at issue on appeal or the evidence was in fact admitted and before the jury. In any event, we note that the trial court admitted substantial other evidence regarding Mr. Strazisar's reputation for violence.
II
Defendant next contends that the trial court erred in admitting testimony by Mr. Strazisar's brother, Richard Strazisar, during the State's rebuttal case. Defendant argues that the brother's testimony constituted victim impact evidence that was irrelevant during the guilt-innocence phase of the trial. Victim impact evidence includes evidence of the effect of a crime on the victim's family, including the psychological effect. State v. Graham, 186 N.C. App. 182, 190, 650 S.E.2d 639, 645 (2007). Such evidence "often has no tendency to prove whether a particular defendant committed a particular criminal act against a particular victim; therefore victim impact evidence is usually irrelevant during the guilt-innocence phase of a trial and must be excluded." Id.
However, victim impact evidence that tends to show the context or circumstances of the crime itself, even if it also shows the effect of the crime on the victim's family, is an exception to the general rule — such evidence may still be relevant at the guilt-innocence phase. Id. at 191, 650 S.E.2d at 646. See, e.g., State v. Barden, 356 N.C. 316, 349-50, 572 S.E.2d 108, 130-31 (2002) (holding that although evidence that murder victim sent money to his wife and child was victim impact evidence, it also tended to show how victim handled his money, and was, therefore, relevant to guilt or innocence because it helped explain circumstances of crime).
In this case, the challenged testimony relates to Richard Strazisar's description of his relationship with his brother. Richard Strazisar testified that he had a close relationship with his brother since they were young boys. This relationship continued into their adulthood until about a year and a half before Mr. Strazisar's death. According to the brother, they "did a lot of things together," including fishing and NASCAR.
Defendant does not dispute, and defense counsel acknowledged at trial, that the State was permitted to offer evidence of the victim's peaceful character to rebut defendant's evidence of his violent character. Defense counsel did not challenge other testimony by Richard Strazisar that he did not see his brother as violent, that his brother had a knack for getting along with people, and that people liked his brother.
The challenged testimony showed the basis for Richard Strazisar's knowledge of his brother's character by describing how much time Richard Strazisar had spent with his brother and the nature of their contact. It was, therefore, admissible to lay the foundation for his testimony that his brother was not violent, which the State was using to rebut defendant's claim of self-defense. See State v. Johnston, 344 N.C. 596, 605, 476 S.E.2d 289, 294 (1996) ("Evidence that a victim was peaceful . . . is relevant to prove that the victim did not provoke the defendant and that the murder was committed with premeditation and deliberation.").
III
Defendant next contends that the trial court erred in denying his request for instructions on perfect and imperfect self-defense. When there is evidence that a defendant acted in self-defense, the trial court must submit the issue to the jury even though the State presented contrary evidence or there were discrepancies in the defendant's evidence. State v. Dooley, 285 N.C. 158, 163, 203 S.E.2d 815, 819 (1974). In deciding whether to instruct on self-defense, the trial court must consider the evidence in the light most favorable to the defendant. State v. Watkins, 283 N.C. 504, 509, 196 S.E.2d 750, 754 (1973).
Our Supreme Court has explained that "[p]erfect self-defense excuses a killing altogether, while imperfect self-defense may reduce a charge of murder to voluntary manslaughter." State v. Ross, 338 N.C. 280, 283, 449 S.E.2d 556, 559 (1994). Perfect self-defense is established when the following four elements exist at the time of the death:
"(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."
State v. Lyons, 340 N.C. 646, 661, 459 S.E.2d 770, 778 (1995) (quoting State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992)). Imperfect self-defense is established if the first two elements existed at the time of the death, "but the defendant, without murderous intent, either was the aggressor in bringing on the affray or used excessive force." Id.
"Thus, for a defendant to be entitled to any instruction on self-defense, 'two questions must be answered in the affirmative: (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?'" State v. Revels, 195 N.C. App. 546, 551, 673 S.E.2d 677, 681 (quoting State v. Bush, 307 N.C. 152, 160, 297 S.E.2d 563, 569 (1982)), disc. review denied, 363 N.C. 379, 680 S.E.2d 204 (2009). "If the evidence requires a negative answer to either question, a self-defense instruction should not be given." Id.
Here, the record contains no evidence that defendant actually believed that it was necessary to kill Mr. Strazisar in order to protect himself from death or great bodily harm. He did not suggest in either his statement to Detective Campen or in his own testimony that he believed he needed to kill Mr. Strazisar. While defendant indicated that he was scared Mr. Strazisar would hurt him, he also consistently maintained that after Mr. Strazisar ignored his verbal warnings and his warning shot, defendant fired his second shot at Mr. Strazisar only to give him a "sting." He testified that he did not believe shooting Mr. Strazisar would actually cause any damage to him because he was only using birdshot.
In sum, defendant's testimony established that he did not believe he needed to kill Mr. Strazisar, but rather was, at most, trying to scare Mr. Strazisar and make him retreat. This evidence is not sufficient to meet the first element of self-defense. See State v. Blankenship, 320 N.C. 152, 154-55, 357 S.E.2d 357, 358-59 (1987) (holding self-defense instruction was not warranted when defendant hit victim on head with gun and gun went off, but evidence tended to show only that defendant intended to repel victim with non-deadly force); Bush, 307 N.C. at 156, 159, 297 S.E.2d at 566, 568 (when defendant testified he was afraid for his safety when victim started pushing him and defendant stabbed victim to "'get him off of'" defendant, holding that record was "void of any evidence tending to show that the defendant in fact believed it necessary to kill the deceased in order to save himself from death or great bodily harm").
While the evidence would support a finding that defendant feared being assaulted, that fear standing alone is not enough to warrant a self-defense instruction in a homicide case. Such evidence is not sufficient to prove that defendant believed he needed to kill Mr. Strazisar or risk death or grave bodily harm.
Furthermore, as to the second element of self-defense, we note that there was no evidence that any belief that it was necessary to kill Mr. Strazisar would have been reasonable. Defendant's own evidence showed that he got his shotgun, brass knuckles, and pocketknife and went looking for Mr. Strazisar to confront him about his behavior toward his wife. Defendant got out of the truck and asked Mr. Strazisar if he had a problem with his wife. According to defendant, Mr. Strazisar kept walking toward defendant, even after defendant told him to stop, and Mr. Strazisar reached a hand towards his back pocket. Defendant, however, never saw a knife, and Mr. Strazisar did not in fact have any weapons.
The facts of this case are substantially similar to those of Watkins, 283 N.C. at 509-10, 196 S.E.2d at 754:
In essence, defendant testified that he went after the shotgun so he could discuss the apparent enmity of deceased toward him on an equal basis and without fearing for his own safety. "I figured if I had a gun, I would have a better chance to talk with him and tell him to leave me alone, than without it." He alighted from the truck with gun in hand and crossed the street to the sidewalk on the other side with the gun pointed toward the ground. He saw deceased, walked toward him, stopped five or six feet from him, and called his name. Deceased turned and faced defendant. Defendant said, "Mule, why do you and Herman want to fight me, man?" Deceased then started walking toward defendant with his hands in his back pockets. He threw up his arms and said, "Man I don't mean no harm — we don't mean no harm." Immediately after making that statement he lunged at defendant with arms outstretched. At that moment the shotgun was still pointed toward the ground, but after the lunge, "I throwed the gun up . . . and it shot. I don't know for sure if I pulled the trigger, I didn't mean to pull the trigger, I meant to scare him to keep him back off of me." Defendant saw no weapon in possession of the deceased and none was found upon his body.
The Supreme Court in Watkins held that the evidence presented circumstances under which no reasonable man would have felt any apprehension of great bodily harm. Id. at 510, 196 S.E.2d at 754. See also State v. Wolfe, 157 N.C. App. 22, 34-35, 577 S.E.2d 655, 664 (2003) (where evidence showed victim owned guns and was known by defendant to own guns, but evidence also showed victim was not carrying gun and defendant never claimed that he saw victim with gun, holding evidence was insufficient to raise issue of reasonableness of belief).
Consequently, we hold that even when the evidence is viewed in the light most favorable to defendant, defendant failed to present evidence of the first two self-defense elements. The trial court, therefore, did not err by failing to instruct on self-defense.
IV
Lastly, defendant contends that the trial court abused its discretion in failing to answer a jury question about the meaning of "intent." During deliberation, the jury sent the following questions to the trial court:
Can we have a clarification of the difference, in those things which must be proven for 1st degree, between the "First" item and the "Third" item? We would like clarification on what is meant by "Intent". . . .
Is there a difference in the terms "Murder" and "Kill"?
The "'First' item" referenced by the jury corresponded to the following instruction given by the trial court:
For you to find the defendant guilty of first degree murder, the State must prove five things beyond a reasonable doubt:
First, that the defendant intentionally and with malice killed the victim with a deadly weapon.
Malice means not only hatred, ill will or spite, as it is ordinarily understood — to be sure, that is malice — but 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 another's death without just cause, excuse or justification.
If the State proves beyond a reasonable doubt that the defendant intentionally killed the victim with a deadly weapon, or intentionally inflicted a wound upon the victim with a deadly weapon that proximately caused the victim's death, you may infer first, that the killing was unlawful, and second, that it was done with malice, but you are not compelled to do so. You may consider this along with all other facts and circumstances in determining whether the killing was unlawful or whether it was done with malice.
(Emphasis added.)
The "'Third' item" referenced by the jury corresponded to the following instruction given by the trial court:
Third, that the defendant intended to kill the victim. Intent is a mental attitude seldom provable by direct evidence. It must ordinarily be proved by circumstances from which it may be inferred. An attempt to kill may be inferred from the nature of the assault, the manner in which it was made, the conduct of the parties and other relevant circumstances.
(Emphasis added.)
The trial court spoke to counsel about how it should respond to the questions. Defense counsel told the court that he would "just ask that the Court either reread the instruction that they already have and have been given or just — just instruct them to rely on the instructions previously given."
When the jury returned to the courtroom, the foreperson indicated that one juror had a question regarding the difference in the meaning of "intent" as used in the first and third parts of the first degree murder instruction. The trial court first told the jury that, with respect to the third part — regarding intent to kill the victim — the court could enlighten the jury no further than to point it back to the copy of the instructions which the jury had been given.
The trial court also explained, as to the difference between "murder" and "kill," that
[m]urder is a crime. That's the crime. It's the — the law defines it and in the State of North Carolina there is two types [sic] of murder, first degree and second degree, although murder is sometimes used as a verb to describe killing of a human being.
Kill his — is the taking of the life of another human being by an act which proximately results in their death. So all of these offenses require that someone be killed, but only two of these offenses are murder[.]
When the foreperson then followed up by asking whether the terms "murder" and "kill" were interchangeable in the first and second degree murder instructions, the court informed the jury that, rather than mere terminology, "[w]hat separates first and second degree murder is that first degree murder requires premeditation, deliberation and the specific intent to kill, whereas second degree murder does not. It requires simply a killing with malice. . . ."
The foreperson next asked whether if the jury could "determine malice," it would also be "determining intent." The trial court answered, "No. If you are determining malice you are determining malice. . . . Those are two separate things you have to find. One does not necessarily mean you find the other." The foreperson said, "Okay. All right[,]" and then asked the other jurors, "Does that clarify it for everyone?" After this question, the foreperson told the court, "I think that's good." The jury then retired to continue deliberating.
Defendant argues that these instructions constituted error because the court failed to answer the jury's question about the difference between intent and malice. "It is the duty of the trial judge to 'declare and explain the law arising on the evidence relating to each substantial feature of the case.'" State v. Hockett, 309 N.C. 794, 800, 309 S.E.2d 249, 252 (1983) (quoting State v. Everette, 284 N.C. 81, 87, 199 S.E.2d 462, 467 (1973)). Needless repetition is, however, undesirable, and the judge is not required to repeat instructions which have been previously given to the jury in the absence of some error in the charge. Id.
Defendant argues that under Hockett, he is entitled to a new trial as a result of the trial court's failure to further explain the difference between intent and malice. In Hockett, the jury inquired about the difference between the elements of first degree and second degree sexual offense and of robbery with a dangerous weapon and common law robbery. Id. at 800-01, 309 S.E.2d at 252-53. The trial court had initially given "appropriate and correct" instructions, but, after receiving the jury's question, refused to review the elements and advised the jury that it should continue with its deliberations, if possible, and try to recall the charge which had been given. Id. at 801-02, 309 S.E.2d at 253.
The Supreme Court first noted that it appeared that the trial court told the jury that it could not answer the question because it erroneously believed that the question involved an issue of fact to be decided by the jury when the question actually sought clarification of a point of law. Id. at 800, 309 S.E.2d at 252. The Supreme Court concluded that the refusal to answer the question was prejudicial error: "We feel that the
trial court should have at least reviewed the elements of the offenses if it was not going to directly answer the question as defense counsel had requested. It is clear that the jury did not understand the differences in the degrees of the offenses and did not understand how the presence or absence of a gun would affect the degree of guilt as to both offenses." Id. at 802, 309 S.E.2d at 253.
In this case, in contrast to Hockett, the trial court did not completely refuse to answer the jury's question. Instead, on the issue of intent, the trial court referred the jury to the written copy of its instructions. Defendant has not challenged the correctness of the original instructions. Since the jury had a copy of the instructions, that referral was synonymous with the trial court's reviewing again the elements of the offenses — precisely as recommended by the Hockett Court. See also State v. Weddington, 329 N.C. 202, 210, 404 S.E.2d 671, 677 (1991) (holding that trial court "is not required to frame its instructions with any greater particularity than is necessary to enable the jury to understand and apply the law to the evidence bearing upon the elements of the crime charged" and that trial court did not err in answering the question by simply repeating the instructions in order to avoid giving undue prominence to any part of instructions).
In addition, the trial court proceeded in its supplemental instructions to review the pertinent elements of first and second degree murder and to highlight how those offenses were distinguishable by their elements. Defendant has not raised any issue with the accuracy of the supplemental instructions.
Since (1) defendant has not objected to the substance of the initial instructions and has not argued that those initial instructions failed to adequately distinguish between intent and malice, (2) defendant has not suggested that any part of the supplemental instructions, which distinguished between the types of murder, misstated the law, and (3) the jury had written copies of the instructions, we hold that the trial court did not err in responding to the jury's questions. See State v. Lewis, 346 N.C. 141, 146, 484 S.E.2d 379, 382 (1997) (finding no error in responding to jury question when trial court had correctly instructed jury initially, trial court had given jury written copy of instructions, trial court explicitly qualified response to question by saying that its answer was in addition to initial instructions, and additional instructions did not misstate law); State v. Moore, 339 N.C. 456, 465, 451 S.E.2d 232, 236 (1994) (assuming arguendo that trial court erred in refusing to further clarify temporal relationship between killing and underlying felony, concluding, based on Hockett and Weddington, that error was harmless since court twice offered to reinstruct jury on law pertaining to felony murder).
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).