No. COA00-604 NINE-A DISTRICTNORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Caswell)

GERALD WAYNE WARD )

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DEFENDANT-APPELLANT’S BRIEF

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INDEX

QUESTIONS PRESENTED.............................................1

STATEMENT OF THE CASE...........................................1

STATEMENT OF THE FACTS..........................................2

A. The State’s Evidence...................2

B. Defendant’s Evidence...................5

ARGUMENT........................................................5

I. THE TRIAL COURT ERRED BY FAILING TO SUBMIT THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO THE JURY..5

II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF A STATEMENT DEFENDANT MADE NINE DAYS BEFORE LUNDY WAS KILLED.5

A. Applicable Principles..................5

B. The Trial Court Violated Evidence Rules 401, 402, and 404 by Admitting the Evidence of Defendant’s Statement......5

C. The Trial Court Violated Evidence Rule 403 by Admitting the Evidence of Defendant’s Statement..................5

D. The Erroneous Admission of the Evidence Was Prejudicial........................5

III. THE TRIAL COURT ERRED BY FAILING TO FIND STATUTORY MITIGATING FACTORS 8.A. AND 15...................5

CONCLUSION......................................................5

CERTIFICATE OF FILING AND SERVICE...............................5

TABLE OF AUHORITIES

CASES

State v. Alley, 54 N.C. App. 647, 284 S.E.2d 215 (1982)..................29

State v. Barlowe, 337 N.C. 371, 446 S.E.2d 352 (1994)......................20

State v. Blalock, 77 N.C. App. 201, 334 S.E.2d 441 (1985)..................26

State v. Boczkowski, 130 N.C. App. 702, 504 S.E.2d 796 (1998).................28

State v. Brooks, 113 N.C. App. 451, 439 S.E.2d 234 (1994).................25

State v. Camacho, 337 N.C. 224., 446 S.E.2d 8 (1994).......................20

State v. Cameron, 314 N.C. 516, 335 S.E.2d 9 (1985)........................32

State v. Cardwell, 133 N.C. App. 496, 516 S.E.2d 388 (1999).................27

State v. Crisp, 126 N.C. App. 30, 483 S.E.2d 462, appeal dismissed and disc. rev. denied, 346 N.C. 284, 487 S.E.2d 559 (1997)...............................................34

State v. Daniel, 319 N.C. 308, 354 S.E.2d 216 (1987)......................33

State v. Faison, 90 N.C. App. 237, 368 S.E.2d 28 (1988)...................33

State v. Faust, 254 N.C. 101, 118 S.E.2d 769 (1961)......................26

State v. Fleming, 296 N.C. 559, 251 S.E.2d 430 (1979)......................26

State v. Groves, 324 N.C. 360, 378 S.E.2d 763 (1989)......................26

ii

State v. Highsmith, 74 N.C. App. 96, 327 S.E.2d 628, disc. rev. denied, 314 N.C. 119, 332 S.E.2d 486 (1985)..............33

State v. Jones, 229 N.C. 276, 49 S.E.2d 463 (1948).......................28

State v. Lovett, 119 N.C. App. 689, 460 S.E.2d 177 (1995).................35

State v. Lynch, 334 N.C. 402, 432 S.E.2d 349 (1993)......................28

State v. Lytton, 319 N.C. 422, 355 S.E.2d 485 (1987)......................19

State v. Maxwell, 96 N.C. App. 19, 384 S.E.2d 553 (1989), disc. rev. denied, 326 N.C. 53, 389 S.E.2d 83 (1990)................30

State v. McCray, 342 N.C. 123, 463 S.E.2d 176 (1995)......................31

State v. Mills, 83 N.C. App. 606, 351 S.E.2d 130 (1986)..................26

State v. Morgan, 315 N.C. 626, 340 S.E.2d 84 (1986).......................25

State v. Slade, 71 N.C. App. 212., 321 S.E.2d 490 (1984).................24

State v. Stager, 329 N.C. 278, 406 S.E.2d 876 (1991)......................28

State v. Tann, 57 N.C. App. 527, 291 S.E.2d 824 (1982)..................27

State v. Tidwell, 112 N.C. App. 770, 436 S.E.2d 922 (1983).................22

State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983)......................20

State v. Whitaker, 316 N.C. 515, 342 S.E.2d 514 (1986)......................20

State v. Wilson, 108 N.C. App. 117., 423 S.E.2d 473 (1992)................24

iii

State v. Woodard, 102 N.C. App. 687, 404 S.E.2d 6, appeal dismissed and disc. rev. denied, 329 N.C. 504, 407 S.E.2d 550 (1991)...............................................25

State v. Wrenn, 279 N.C. 676, 185 S.E.2d 129 (1971)......................20

STATUTES

N.C. Gen. Stat. § 15A-1340.16.................................33

N.C. Gen. Stat. § 15A-1443....................................31

N.C. Gen. Stat. § 8C-1, Rule 401..............................23

N.C. Gen. Stat. § 8C-1, Rule 402..............................23

N.C. Gen. Stat. § 8C-1, Rule 403..............................23

N.C. Gen. Stat. § 8C-1, Rule 404..............................23

OTHER AUTHORITI ES

Charles E. Torcia, Wharton’s Criminal Evidence (14th ed. 1985)................................................26

CONSTITUTIONAL PROVISIONS

N.C. Const. art. I, § 19......................................19

N.C. Const. art. I, § 23......................................19

U.S. Const. amend. XIV........................................19

iv

No. COA00-604 NINE-A DISTRICTNORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA ))

v. ) From Caswell)

GERALD WAYNE WARD )

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DEFENDANT-APPELLANT’S BRIEF

****************************************************

QUESTIONS PRESENTED

I. WHETHER THE TRIAL COURT ERRED BY FAILING TO SUBMIT THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO THE JURY?

II. WHETHER THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF A STATEMENT DEFENDANT MADE NINE DAYS BEFORE LUNDY WAS KILLED?

III. WHETHER THE TRIAL COURT ERRED BY FAILING TO FIND STATUTORY MITIGATING FACTORS 8.A. AND 15?

STATEMENT OF THE CASE

On February 23, 1998, the Caswell County Grand Jury indicted

defendant-appellant Gerald Ward for first degree murder. (Rp. 4)

This case came to be tried on defendant’s not guilty plea at the

November 30, 1998 Criminal Session of Caswell County Superior

Court before Superior Court Judge Robert H. Hobgood. (Rp. 1) On

December 9, 1998, the jury found defendant guilty of voluntary

manslaughter. (Rp. 42) On December 12, 1998, Judge Hobgood

entered Judgment and Commitment, and sentenced defendant to a

minimum of 90 months imprisonment. (Rpp. 45-46) Defendant

appealed. (Rpp. 49-52)

STATEMENT OF THE FACTS

It is undisputed that the Wagon Wheel bar in Caswell County

was owned and operated by defendant during February 1998, at which

time defendant was forty-seven years old. (Tpp. 375, 377, 469;

Rp. 2) Defendant’s girlfriend, Anne Hemric, worked as a bartender

there. (Tpp. 472, 763) Defendant also worked for fourteen years

as a car mechanic, and from the time he acquired the bar in

January 1997, he worked as a mechanic during the day and at the

bar at night. (Tpp. 794-95, 867-70)

Defendant was tried for the first degree murder of Larry

Lundy, who was killed by a gunshot wound at the bar in the early

morning of February 15, 1998. (Tpp. 604-05; Rp. 4)

A. The State’s Evidence.

Kelly Anne Chandler testified that had known Larry Lundy for

several years and considered him to be a friend. (Tpp. 470-71,

473) Chandler’s mother and Lundy had grown up together and were

also friends. (Tp. 506) Chandler also testified she drove to the

Wagon Wheel on the night of February 14, 1998 and arrived at about

11:15 p.m. Several people were there, including defendant, Lundy,

and Hemric, who was tending bar. (Tpp. 467, 474) Chandler played

pool with Lundy, and defendant played pool at a different pool

table. (Tp. 475) Chandler testified that Lundy was “laid back, .

. . real nice and respectful;” that there were no problems between

Lundy and defendant; and that she could tell Lundy had consumed a

lot of alcohol by the way he smelled, walked, and talked. She

2

testified Lundy patted her on the back at one point, but did not

touch her inappropriately; and that she did not say or do anything

that would lead someone to believe Lundy was bothering her. (Tpp.

478-80) However, she also testified that she might have told a

law enforcement officer later that night that Lundy “grabbed [her]

on the butt.” (Tp. 494) She then testified she could not

remember if Lundy was “touching [her] in a way that [she] asked

him to stop.” (Tp. 515) She also testified she could not recall

telling a defense investigator that Lundy “backed by [her] a

couple of times . . . and he would just like touch [her] or

something and [she] would tell him Larry don’t do that,” but that

it was possible she said it. (Tp. 516)

At 2:00 a.m., the bar’s closing time, Hemric announced she

was going to stop serving alcohol. (Tpp. 479, 511) Soon

thereafter, everyone left the bar except for defendant, Hemric,

Chandler, and Lundy. Lundy went outside to start his truck.

(Tpp. 477, 479-80) Hemric was behind the bar counter counting the

money, Chandler was sitting at the bar counter, and defendant was

in the public area of the bar. Chandler asked defendant and

Hemric if she could wait in the bar for her cousin, who was going

to pick her up. (Tpp. 482-83)

Chandler testified that Lundy came inside two minutes later

and asked Hemric if he could have a pickled egg; that Hemric said

yes and asked if he had the correct change; and that Lundy said

yes and laid five dimes on the counter. Hemric gave Lundy the egg

3

but he did not eat it. At that point, defendant was near the

entrance leading behind the bar counter. (Tpp. 484, 513, 535,

537) Chandler testified she heard a loud noise come from Lundy’s

truck outside the bar; and that defendant walked over to the door

of the bar and said, “What’s that noise? It sounds like shit,”

and turned to Lundy and said, “Is that your piece of shit out

there making all that racket?” (Tp. 485) She later testified

that defendant might have said, “What is that racket out there?”

(Tp. 522) Lundy then said, “Yes, that’s my piece of shit and that

piece of shit can drag your piece of shit truck across the parking

lot.” Chandler testified that defendant and Lundy then “went back

and forth . . . [about] basically whose truck was best” and “made

a bet about whose truck could do what.” Defendant went back

behind the bar counter during the exchange. (Tpp. 485-86) The

two were not arguing at that point. (Tp. 525)

Lundy stated that he had $500 in his pocket that he would bet

that his truck could drag defendant’s truck across the parking

lot, and defendant replied: “Well, since you have so much damn

money, why don’t you pay your bar tab.” Lundy said that he did

pay his bar tab and that he came in every night and spent $40 in

the bar. Defendant replied that this was a lie “and they went

back and forth from there.” (Tp. 486) Chandler testified that

the argument became heated when Lundy and defendant had started

talking about the bar tab. (Tpp. 526-27)

4

Lundy said: “I tell you what. You come outside . . . [a]nd

I will drag you across the parking lot.” (Tp. 486) Defendant

replied: “No, the hell you won’t.” Chandler’s back was turned to

them because she was watching for her cousin outside. (Tp. 487)

She testified that she then turned around because defendant and

Lundy sounded angry; that defendant was pointing a gun at Lundy’s

face; that Lundy was within arm’s reach of the gun; that Lundy

asked defendant if he was going to shoot him and said it was a

coward’s way out because he was unarmed; that defendant said:

“All I got to do is pull the damn trigger;” that Lundy started

forcefully slamming his hands on the counter, leaning forward, and

saying, “Shoot me then. Shoot me then;” and that defendant shot

Lundy and Lundy fell to the floor. (Tpp. 487-91, 496, 529, 533,

541)

At some point during the argument between defendant and

Lundy, Chandler told Lundy that he should go home. Chandler also

testified that defendant also asked Lundy to leave several times

and Hemric asked Lundy to leave once; that the first time he was

asked to leave, Lundy replied: “I ain’t going anywhere until I

eat my damn egg;” and that Lundy ignored other requests for him to

leave. (Tpp. 521, 535-37, 545)

Later that night, Chandler gave a statement to Deputy Dallas

Stephens. (Tp. 519) She testified the statement did not state

that defendant had gone to the door and commented on the sound of

Lundy’s car or that defendant and Lundy had argued about the bar

5

tab. (Tpp. 519-20, 527) Chandler also confirmed that she told a

defense investigator a month and a half after the shooting that

she would have considered Lundy’s pounding on the bar counter to

be “violent,” that Lundy had “lunged towards the gun,” and that

Lundy may have hit the gun when he lunged toward defendant.

Chandler testified that her memory of the details of what occurred

that night would have been better a month and a half after the

incident than ten months later at trial. (Tpp. 531-34, 539)

Finally, Chandler testified that she knew Lundy to be a gentle,

peaceful person, but was not aware that he had been convicted of

assault on a female, trespassing in a woman’s trailer, and

resisting an officer, or that Lundy had hit his wife. (Tpp. 517-

18)

Caswell County Sheriff’s Department Dispatcher Jean Hodges

testified she received four 911 calls from the Wagon Wheel between

2:24 and 2:26 a.m. on February 15, 1998. The first three calls

were hang-ups, but she spoke to defendant during the fourth call.

(Tpp. 350-53, 356, 365-67; State’s Exhibit 2)

Caswell County Sheriff’s Department Investigator Dallas

Stephens testified that he was a deputy on February 15, 1998, and

that he was dispatched to the Wagon Wheel and arrived at 2:30 a.m.

(Tpp. 636-37) He saw Hemric at the door of the bar, defendant

leaning up against one of the pool tables, and a body lying face

down on the floor. (Tp. 639) He later noticed a broken, uneaten

pickled egg on the floor. (Tp. 658) Defendant told Stephens

6

that the gun he had used was on the bar and that the deceased was

Larry Lundy. (Tpp. 640-41) Stephens asked Hemric and defendant

to step outside. Defendant said, “The gun is still cocked” and

lifted the gun off the bar counter slightly. Stephens told him to

leave it as it was and defendant put the gun down. (Tpp. 642-43)

Stephens believed defendant was going to uncock the gun to make it

safe and did not feel that defendant was acting in a threatening

way. (Tpp. 655-56) Once outside, Stephens asked defendant what

happened. Defendant stated that Lundy had been at the bar for

most of the night, and was mad at defendant and Hemric because

they made him pour out a cup of liquor he brought to the bar; that

at closing time, Lundy became increasingly upset, mad, and hostile

when he was asked to leave several times and refused to pay fifty

cents for a pickled egg; that Lundy had asked him to come outside

and threatened to beat him up; that he pointed his pistol at Lundy

and again told him to leave; that Lundy would not leave and kept

threatening him; and that he fired the gun when Lundy lunged at

him. (Tpp. 643-44) Stephens then went to Chandler’s residence at

3:30 a.m. and took her statement. (Tp. 646) Stephens testified

that Chandler told him that “Lundy had touched her or grabbed her

on the butt” that night. (Tp. 648)

Yanceyville Chief of Police Eric Taylor testified he was a

Caswell County Sheriff’s Department Investigator on February 15,

1998 and that he was called to the Wagon Wheel and arrived at 3:00

a.m. (Tpp. 375, 436-37) Taylor found the body of Larry Lundy

laying on the floor face down. He recovered a bullet near a pool

7

table and .45 semi-automatic handgun and a casing from the bar

counter. (Tpp. 398, 403-04, 410-11) Later, at the Sheriff’s

Department, Taylor advised defendant of his Miranda rights and

defendant agreed to waive his rights. (Tpp. 438, 692-94)

Defendant gave a statement between 7:45 a.m. and 9:12 a.m. (Tp.

443) Taylor testified that defendant stated that Lundy arrived at

the Wagon Wheel at about 9:00 p.m. on February 14, 1998 with a

large cup of liquor; that Lundy gave Hemric a hard time when she

made him pour it out; that defendant and Lundy then “had words”

but Lundy “got over it,” calmed down, and shot pool; that shortly

after last call, which was at 2:00 a.m., Lundy “got mad” and

“became very abusive with his language, cursing and stuff. . . .

He wanted [defendant] to go outside and fight with him but

[defendant] told him, no;” that after several minutes of asking

Lundy to leave, during which Lundy was still trying to get

defendant to go outside and fight with him, defendant got his gun

from under the bar and put it on the counter with his hand on it;

that Lundy did not “convey th[e] threat” that he had a weapon, but

that defendant “d[i]dn’t know what he had on him;” that defendant

again told Lundy to leave and Lundy continued “arguing . . . and

cursing” and “acted as if he was going to come across the counter

at [defendant];” that Lundy “lunged forward” “from about his waist

up halfway across the counter;” that defendant cocked the gun,

pointed it at Lundy, and again told him to leave; and that Lundy

“kept coming at” defendant, then defendant shot him, laid the gun

on the counter, and called the police. (Tpp. 695-98)

8

Caswell County Sheriff’s Department Sergeant Henry Fleetwood

testified that he arrived at the scene at 2:44 a.m., he approached

defendant and asked him who shot the deceased, and defendant said,

“I did.” (Tpp. 676, 680-81) Fleetwood took a statement from

Hemric at 4:42 a.m. (Tp. 687)

State Bureau of Investigation Special Agent Eric Goodman

testified that the cartridge casing and the bullet recovered from

the scene were fired from the pistol found on the bar counter.

(Tpp. 556, 558) Goodson described the gun as a .45 auto caliber

Llama single-action semi-automatic pistol. (Tpp. 553-54, 566) A

trigger pressure of “some weight greater than 7 pounds but less

than 8 pounds” was necessary to fire the gun. This trigger

pressure is relatively common. (Tp. 572) Goodson further

testified that a single action trigger pull “is generally less

than the double-action trigger pull,” “definitely requires a less

forceful trigger,” and is therefore “more capable of going off . .

. [u]nintentionally.” (Tpp. 584-85)

Forensic Pathologist Robert L. Thompson testified that

Lundy’s body had a gunshot wound in the mid-chin area and an exit

wound in the back the neck on the right side. (Tpp. 604-05)

Thompson testified that Lundy was nine to twelve inches from the

gun when it was fired. (Tp. 613) Lundy had a blood alcohol level

of .19. (Tp. 616)

Caswell County Sheriff’s Deputy Gwynn Brandon testified that

he had gone to the Wagon Wheel on February 6, 1998 at 9:30 p.m.

9

because of “an incident in the parking lot;” that he went inside

and noticed that defendant had a .45 caliber pistol behind the

bar; that he asked defendant why he had the weapon; and that

defendant stated: “So he didn’t have to put up with any shit.”

(Tpp. 726-28) Brandon further testified that he “didn’t feel

there was a need to caution or advise [defendant] about anything

concerning that statement” because defendant “had a right to have

a gun there with him.” (Tp. 730)

B. Defendant’s Evidence.

Robert Barr testified he had been trained as an emergency

medical technician; that in the early morning hours of February

15, 1998, he went to the Wagon Wheel after hearing about the

shooting on his police scanner; and that he saw defendant, who was

“very upset, very emotional.” (Tpp. 747-50) Barr testified that

Lundy had a reputation for violence while drinking and that he

could “get out of hand.” Barr also testified that defendant had a

reputation as someone who “tried to handle things in the most

appropriate way.” (Tpp. 753-54) Barr also testified he had been

convicted in 1993 of carrying a concealed weapon. (Tp. 760)

Anne Hemric testified she met defendant in 1984; that they

had been living together since June of 1985; and that she started

working at the Wagon Wheel a year and a half before the trial.

(Tpp. 762-63, 820) She testified that when she had had to call

911 from the bar at least twice prior to February 15, 1998 and

10

that it had taken law enforcement officers about ten to thirteen

minutes to respond. (Tpp. 822-23)

Hemric also testified that she got to work at 6:00 p.m. on

the evening of February 14, 1998; that everything “ran smoothly”

until sometime between 9:00 and 10:00 p.m., when Lundy entered the

bar with a cup of liquor; that she told Lundy he could not drink

the liquor in the bar; that Lundy picked up the cup and started

drinking and was “almost laughing at” her; and that she again told

Lundy he could not drink liquor in the bar and Lundy started to

argue with her, saying that he drank liquor in the bar all the

time. Hemric testified she told him he would either have to leave

or pour the liquor out; that Lundy threw the cup in the trash and

said, “Well, if I can’t drink that, let me have a Budweiser;” and

that she gave him a Budweiser. Lundy started playing pool. (Tpp.

764-66) Hemric told defendant, who was playing pool at a

different table, about the liquor incident, and “defendant said

something to Larry about it.” Lundy came back over to Hemric and

she said, “Just drop it. Just let it go.” Hemric testified that

defendant and Lundy went back to shooting pool. (Tpp. 767-69)

Hemric served Lundy four beers that night, and he did not

appear drunk. Defendant had drank five beers throughout the

evening. (Tpp. 836-37) Hemric called last call at 2:00 a.m.

Soon after, defendant announced: “The bar is closing. Everybody

is going home.” Everyone left except for defendant, Hemric,

Chandler, and Lundy. Hemric and defendant turned most of the

11

lights off, Hemric started counting the money from the cash

register, defendant told Lundy it was time to go, and Lundy left

the bar. Hemric did not ask Chandler to leave because she thought

Chandler was afraid of Lundy and wanted to stay in the bar for

protection. (Tpp. 773, 776-77) Chandler had told Hemric earlier

in the evening that Lundy had been touching her all over and

rubbing her buttocks, and that she was upset and wanted to scratch

his eyes out. (Tp. 784)

Hemric heard Lundy “crank up” his truck. Hemric was standing

in front of the cash register and defendant was standing at the

end of the bar. (Tp. 785) Lundy came back in and Hemric told him

she could not sell him any beer because it was after 2:00. Hemric

testified that Lundy said that he wanted an egg; that she got him

an egg and told him it cost fifty cents; that Lundy did not pay

her and Hemric repeated that the egg cost fifty cents; that Lundy

said: “I can’t believe you’re worried about fifty cents” and then

said, “I got more money than all three of you combined. I got

$1,100 in my pocket;” that she said that Lundy should pay some of

the money that he owed them; and that Lundy did not reply. (Tp.

786) Lundy then directed his attention toward defendant, who had

moved closer to Hemric and was standing behind the bar. (Tpp.

787, 788) Lundy told defendant he was “going to tear [defendant’s

and Hemric’s] vehicles up,” run over the vehicles, and drag them

out of the parking lot. Hemric told Lundy not to mess up her car

and reminded him that he still owed her for the egg. Lundy slid

six dimes across the counter, and Hemric slid one back to him.

12

Hemric told Lundy to leave “a couple of times.” Lundy “started in

with [defendant] about fighting with [defendant]. That . . .

[defendant] was going to have to go outside and fight with him,”

and told defendant that “he was going to beat him up,” that “there

wasn’t no man around that he couldn’t beat up,” and that he

“didn’t spend five years in prison for nothing.” Defendant “told

[Lundy] that there wasn’t going to be no fighting and he wasn’t

going outside” and told Lundy to leave. Lundy did not do so.

(Tpp. 787, 790) Hemric again told Lundy to leave, but Lundy did

not leave and continued to “go[ ] on about the fighting.”

Defendant came around behind Hemric, went to the cash register,

pulled out a gun, put it on top of the cash register, and said,

“Larry, I’m telling you to leave.” Hemric grabbed a stick from

the behind the bar because she was afraid of Lundy because he was

“[a]ggressive [and] [t]hreatening” and had told Hemric shortly

before the argument that “he was never going back to jail and he

said it in a menacing way. He would do anything.” (Tpp. 791-93)

Hemric was afraid to call the police because she “didn’t know what

[Lundy] was going to do.” (Tp. 798) Hemric was also afraid of

Lundy because in October of 1996, he had entered the bar in the

morning when it was closed and she there was alone cleaning.

Hemric had told defendant about this incident. (Tp. 793-94, 796)

After defendant placed the gun on the cash register and told

Lundy to leave, Lundy said: “I’m not leaving” and said that he

and defendant “would have to go outside and fight.” Defendant and

Lundy were facing each other across the cash register. (Tpp. 808-

13

09) At some point, defendant pointed the gun at Lundy; and Lundy

said, “What are you going to do? Shoot me?,” and started slamming

his hands on the bar and saying “Shoot me then.” (Tpp. 834, 841,

845) Defendant again told Lundy to leave and Lundy “reached out

toward [defendant]” and was either reaching for defendant or the

gun. (Tpp. 809, 844) She did not know whether Lundy actually

touched defendant or the gun. (Tp. 848) The gun went off. (Tp.

809) Hemric estimated that the gun as eight to twelve inches away

from Lundy’s head when it fired. (Tp. 845)

Hemric tried to call the sheriff but she was so nervous she

could not dial the numbers correctly, so defendant took the phone

and made the call. (Tp. 810) Later that night, Hemric gave a

statement to police that essentially recounted these events.

(Tpp. 812-16) Hemric also gave a similar statement to a private

investigator a few weeks later. (Tpp. 858-62)

Defendant testified that he opened the Wagon Wheel at about

3:00 p.m. on the afternoon of February 14, 1998, and tended bar

until Hemric came in at 6:00 p.m. Hemric said that she would tend

bar by herself because there were not a lot of customers, so

defendant shot pool, had a few beers, and socialized with the

customers. (Tp. 874) Defendant testified that Larry Lundy was an

occasional customer at the bar and that he had a reputation as

someone “who would start a fight and would get into a fight quite

easily.” (Tp. 880) Lundy had also told defendant that he had

been in prison. (Tp. 881)

14

At some point before 9:30 p.m., Hemric told defendant that

Lundy had come in the bar and brought in a large cup of liquor;

that she had told Lundy that he could not bring the liquor in and

that he would have to either leave or pour it out; and that Lundy

had given her a hard time, but had eventually thrown out the

liquor. At 9:30, defendant approached Lundy and told him it was

against the law for him to bring liquor into the bar; that he did

not appreciate Lundy giving Hemric a hard time; and that Lundy

should “just cool it and everything would be alright.” Both

defendant and Lundy went back to shooting pool and defendant felt

that “the whole thing was forgotten and . . . everything was

fine.” (Tpp. 875-76)

At about 2:00 a.m., Hemric and defendant announced that it

was closing time. All of the customers left except for Chandler

and Lundy. Defendant started to shut out the lights and Hemric

started to empty the register. Hemric told defendant that she

thought that Chandler wanted either Hemric or defendant to take

her home or follow her home if her cousin did not come back by the

time she was ready to leave. (Tpp. 876-78) Hemric told defendant

that Chandler had said she was afraid Lundy might try to follow

her home because he had been making sexual advances toward her

earlier in the evening. (Tp. 880)

Lundy went outside to start up his truck. Defendant went

behind the bar with Hemric, Lundy came back inside and walked

straight to the bar, and Hemric told Lundy she could not sell him

15

any more beer. Lundy said that “he didn’t want a damn beer. He

wanted a pickled egg” and Hemric put an egg on the bar counter.

Defendant reminded him that the egg cost fifty cents and he had

not paid yet. Lundy said something about “worrying about fifty

cents for the egg and . . . that he had more money than everybody

in the place.” Hemric said that “she didn’t care how much money

he had he owed 50 cents for the egg and that’s all she was

concerned about.” (Tpp. 884-87) Lundy then “got agitated and got

quickly aggressive” and “his aggression seemed to grow more as the

conversation went along.” Lundy slammed some change on the

counter, slid six dimes across the bar, and said, “There’s your

fifty cents;” and defendant slid one dime back to him. Lundy did

not eat the egg. Defendant testified that at that point he was

concerned about Lundy’s motives in reentering the bar after it was

closed. Defendant and Hemric each asked Lundy to leave, and Lundy

did not leave. Defendant repeatedly asked Lundy to leave during

the ensuing exchange. (Tpp. 887-91)

Lundy challenged defendant to go outside and fight, and

defendant refused. Lundy then “progressively continued to tell

[defendant] he was going to take [him] outside and beat [him up]

and [they] were going to fight. And the more this come about the

more [defendant] told him that he just needed to leave.”

Defendant was afraid of what Lundy would do and did not want to

turn his back on him to call 911. At that point “it was obvious

that [Lundy] was not going to leave . . . until [he and defendant]

fought.” Defendant took out his gun, laid it on top of the bar,

16

and held onto it. The gun was not cocked. (Tpp. 892-95)

Defendant put the gun on the bar to show Lundy that if he came

across the bar at defendant or produced a weapon, defendant was

prepared to defend himself. Defendant told Lundy to leave and

Lundy did not do so. Defendant testified that Lundy then “really

became more aggressive[,] . . . slamming his hand on the bar and

leaning towards me and coming at me and cursing me and telling me

that he was going to beat me up and he hadn’t been in prison for

five years and not learned how to be a man.” Defendant testified

he was scared defendant was going to seriously hurt him or Hemric.

(Tp. 896-98) There was only one way he and Hemric could get out –

through a small area at the end of the bar; and they would have to

go past Lundy to get to the front door. Defendant testified that

he “continued to tell [Lundy] to leave and . . . the fighting

thing kept coming up . . . and I continued to tell him we weren’t

going to fight. He kept banging his hands on the table and

leaning toward me.” Defendant testified that he cocked the hammer

when he heard someone say “he’s got a gun;” that Lundy lunged at

him; and that the gun went off. Defendant testified he was scared

for his safety because he believed Lundy was attacking him. (Tpp.

894, 899-902) He also testified that he did not know whether the

shooting was an accident or self-defense because he did not know

what caused the gun to discharge, and that Lundy may have bumped

him or he may have fired as a “reflex from being attacked.” (Tpp.

913-14) Defendant further testified that only three to four

17

minutes passed between the time Lundy first said he wanted to

fight with defendant and when the gun went off. (Tp. 900)

As soon as he fired, defendant “knew that a tragic thing had

happened[,] . . . laid the . . . gun down on the bar,” and told

Hemric to call the police. Hemric fumbled with the phone and kept

saying “it’s not going through.” Defendant took the phone, tried

to calm her down, and called 911. The dispatcher asked what Lundy

was doing before defendant shot him, and defendant replied, “He’s

been rowdy in the bar all night giving me a hard time.” Defendant

testified he did not give a lengthy description of what occurred

because he only wanted to alert the authorities that he had shot

Lundy. (Tpp. 903-06) When the police arrived, they asked

defendant to wait outside. He saw the cocked gun laying on the

bar and reached over to uncock it because it was dangerous. An

officer told him to leave it alone so he did. He waited at a

picnic table outside the bar. Defendant testified he felt

terrible about what had happened and that he had not been in any

fights since high school. (Tpp. 907-08)

Other relevant facts will be discussed below.

ARGUMENT

I. THE TRIAL COURT ERRED BY FAILING TO SUBMIT THE VERDICT OF INVOLUNTARY MANSLAUGHTER TO THE JURY.

Assignment of Error No. 19, Rp. 65The Trial Court erred by failing to submit the verdict of

involuntary manslaughter to the jury, violating defendant’s rights

18

under the Fourteenth Amendment to the U.S. Constitution, Article

I, §§ 19 and 23 of the North Carolina Constitution, and North

Carolina common law. During the charge conference, the Trial

Court stated it would submit to the jury verdicts of first degree

murder, second degree murder, voluntary manslaughter, and not

guilty. Defendant requested an involuntary manslaughter verdict.

(Tp. 919) The Trial Court ruled that it would not submit that

verdict. Defendant objected and the Trial Court overruled the

objection. (Tp. 921) The Trial Court thereafter instructed the

jury on and submitted the verdicts of first degree murder (under

the theory of premeditation and deliberation), second degree

murder, voluntary manslaughter (under theories of heat of passion

and imperfect self-defense), and not guilty. (Tpp. 106-77) The

Trial Court also gave a self-defense instruction. (Tpp. 1069-70)

The jury found defendant guilty of voluntary manslaughter. (Rp.

42)

It is reversible error for a trial court to fail to submit

lesser included offenses to the crime charged that are supported

by the evidence. State v. Lytton, 319 N.C. 422, 426-27, 355

S.E.2d 485, 487 (1987). See State v. Camacho, 337 N.C. 224, 234,

446 S.E.2d 8, 13 (1994). When determining if the evidence is

sufficient for submission of a lesser included offense, the

evidence must be viewed in the light most favorable to the

defendant. State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352,

357 (1994). See State v. Whitaker, 316 N.C. 515, 522, 342 S.E.2d

514, 519 (1986) (trial court must submit lesser included offense

19

unless evidence “point[s] inexorably and unerringly” to greater

offense). Involuntary manslaughter is “the unlawful and

unintentional killing of another human being, without malice,

which proximately results from an unlawful act not amounting to a

felony . . . or from an act or omission constituting culpable

negligence.” State v. Wallace, 309 N.C. 141, 145, 305 S.E.2d 548,

551 (1983). “[E]very unintentional killing of a human being

proximately caused by a wanton or reckless use of firearms, in the

absence of intent to discharge the weapon, . . . and under

circumstances not evidencing a heart devoid of a sense of social

duty, is involuntary manslaughter.” State v. Wrenn, 279 N.C. 676,

683, 185 S.E.2d 129, 133 (1971).

In the instant case, there was substantial evidence that

defendant did not intentionally shoot Lundy, and that Lundy’s

death resulted from defendant’s “wanton or reckless use” of a

firearm. Defendant testified:

As [Lundy] became more aggressive and kept throwing himself at me, I continued to tell him to leave and hoping – the fighting thing kept coming up and all of this and I continued to tell him we weren’t going to fight. He kept banging his hands on the table and leaning toward me like this. And I heard someone say ‘he’s got a gun.’ At that point I cocked the hammer. He made maybe one more motion and then came at me and the gun went off. And I guess I shot him.

(Tp. 899) Defendant later testified: “I recall that he lunged at

me and that the gun went off.” (Tp. 901) When the prosecutor

asked defendant on cross-examination, “Was it accident or was it

20

self-defense?” defendant answered, “I cannot honestly answer that

question.” (Tp. 913) When the prosecutor asked him to explain,

defendant stated: “At the extreme moment that the gun went off, I

cannot honestly answer that question. Up until that point I was

prepared to defend myself and my actions being defensive and I was

scared to death and I felt I had to defend myself.” (Tp. 914)

When the prosecutor asked defendant if he knew what caused the gun

to discharge, defendant answered: “No, sir, I do not know

precisely what caused the gun to discharge whether I pulled the

trigger whether I was bumped or reflex from being attacked.”

(Tpp. 914-15) Anne Hemric testified that defendant shot Lundy

immediately after Lundy “reached out . . . towards” defendant.

(Tp. 844) Chandler testified that a month and a half after the

incident, she told an investigator that Lundy “lunged toward the

gun” and that Lundy may have hit the gun when he did so. (Tpp.

531-32) Special Agent Goodman’s testimony that a single action

trigger pull weapon is “more capable [than a double-action trigger

pull weapon] of going off . . . [u]nintentionally,” (Tpp. 584-85),

also supported the submission of an involuntary manslaughter

verdict.

The jury could find from this evidence that defendant did not

intentionally pull the trigger and that the gun went off because

he was bumped or as a reflex action. The jury could also find

from this evidence that defendant’s conduct in this case –

pointing and cocking a loaded pistol at Lundy – constituted

“wanton or reckless use of a firearm.” In such a situation, our

21

appellate court’s cases are clear that the trial must submit an

involuntary manslaughter verdict. State v. Lytton, supra; State

v. Wrenn, supra; State v. Tidwell, 112 N.C. App. 770, 776, 436

S.E.2d 922, 927 (1983). Thus, the evidence does not “point

inexorably and unerringly” to the conclusion that defendant shot

the gun intentionally. Therefore, the Trial Court erred by

failing to submit an involuntary manslaughter verdict to the jury.

The Trial Court’s error was prejudicial. As shown above, a

reasonable juror could have found that defendant shot the gun

unintentionally. In such a case, “[t]he credibility of the

evidence and whether in fact defendant did or did not possess the

requisite intent is for the jury to decide.” Barlowe, 337 N.C. at

378, 446 S.E.2d at 357. Further, the Trial Court’s error “is not

cured by the guilty verdict of [voluntary manslaughter] since it

cannot be known whether the jury would have convicted defendant of

[involuntary manslaughter] had it been properly instructed.” Id.

Accordingly, defendant is entitled to a new trial.

II. THE TRIAL COURT ERRED BY ADMITTING IRRELEVANT AND HIGHLY PREJUDICIAL EVIDENCE OF A STATEMENT DEFENDANT MADE NINE DAYS BEFORE LUNDY WAS KILLED.

Assignment of Error No. 11, Rp. 63The Trial Court violated Evidence Rules 401, 402, 403, and

404 by allowing State’s witness Brandon to testify that nine days

before Lundy was killed, defendant stated that he kept a gun in

the bar “[s]o he didn’t have to put up with any shit.” (Tp. 728)

22

Out of the presence of the jury, the State presented the

testimony of Caswell County Sheriff’s Deputy Gwynn Brandon.

Brandon testified on voir dire that on February 6, 1998, he

entered the Wagon Wheel and told defendant a person in the parking

lot was being charged with possession of marijuana. Brandon

noticed a .45 caliber pistol behind the bar and he asked defendant

what the pistol was for. Defendant said “so he didn’t have to

‘put up with any shit.’” (Tpp. 712-13) Defendant objected to the

Brandon’s testimony concerning defendant’s statement. (Tp. 713)

The Trial Court overruled defendant’s objection, and found that

the evidence was admissible to show absence of accident or mistake

and that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice. (Tpp. 724-25)

Brandon testified before the jury that he entered the Wagon

Wheel on February 6, 1998 at 9:30 p.m.; that he noticed a .45

caliber pistol behind the bar; that he asked defendant why he had

the weapon; and that defendant stated: “So he didn’t have to put

up with any shit.” Defendant objected, and the Trial Court

overruled the objection and instructed the jury that “this

evidence is being received for the limited purpose of showing

absence of mistake and absence of accident, if you so find. It’s

not being admitted into evidence for any other purpose and you may

not consider it for any other purpose.” (Tpp. 726-28)

23

A. Applicable Principles.

“Relevant evidence” is “evidence having any tendency to make

the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence.” Rule 401; see Rule 402. “[T]o

qualify as ‘relevant’ the evidence must reasonably tend to prove a

material fact in issue other than the character of the accused.”

State v. Wilson, 108 N.C. App. 117, 122, 423 S.E.2d 473, 476

(1992). “When a criminal defendant offers testimony concerning

his good character, the State is free to offer evidence of his bad

character in rebuttal. However, until such evidence is offered,

the State may not offer evidence of defendant’s bad character.”

State v. Slade, 71 N.C. App. 212, 214, 321 S.E.2d 490, 491 (1984);

accord Rule 404(a). Finally, under Rule 403, 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.”

B. The Trial Court Violated Evidence Rules 401, 402, and 404 by Admitting the Evidence of Defendant’s Statement.

In the instant case, Brandon’s evidence of defendant’s

statement was inadmissible character evidence and was not

admissible for any proper purpose. First, Deputy Brandon’s

testimony concerning defendant’s statement was not admissible

because it only tended to show defendant’s bad character as a

person who is eager to shoot people. Evidence of a defendant’s

bad character is not admissible to show that he acted in

24

conformity with that character on a particular occasion. Rule

404(a); State v. Woodard, 102 N.C. App. 687, 692, 404 S.E.2d 6, 9,

appeal dismissed and disc. rev. denied, 329 N.C. 504, 407 S.E.2d

550 (1991). Thus, using defendant’s prior actions to show his

propensity for violence is clearly prohibited by our Rules of

Evidence. See State v. Morgan, 315 N.C. 626, 638, 340 S.E.2d 84,

92 (1986) (using bad act evidence to show defendant has a

propensity for violence “is precisely what is prohibited by Rule

404(b)”); State v. Brooks, 113 N.C. App. 451, 458, 439 S.E.2d 234,

238 (1994) (evidence of defendant’s abuse of wife inadmissible

because only purpose was to show defendant’s violent disposition).

Second, the evidence was not admissible for any proper

purpose. Thus, the evidence was not relevant to show

premeditation and deliberation or malice, or to rebut defendant’s

claim of self-defense. Defendant’s general statement nine days

before the shooting had no tendency to show his intent with

respect to Larry Lundy -- defendant’s statement in no way shows

that he had any plans to kill Lundy or that he even had any ill

feelings toward Lundy. See State v. Fleming, 296 N.C. 559, 563,

251 S.E.2d 430, 432 (1979) (“[c]ircumstances immediately connected

with the killing” can be submitted as evidence of malice)

(emphasis added); State v. Faust, 254 N.C. 101, 107, 118 S.E.2d

769, 772 (1961) (defendant’s general threats not connected with

deceased not admissible to show malice); see also State v. Groves,

324 N.C. 360, 370, 378 S.E.2d 763, 770 (1989) (defendant’s threats

“to kill the decedent, or to kill a group of which he was a

25

member” probative of premeditation and deliberation) (emphasis

added); State v. Blalock, 77 N.C. App. 201, 204, 334 S.E.2d 441,

443 (1985) (evidence of defendant’s prior assault on victim and

members of victim’s family relevant to rebut self-defense claim).

Indeed, the statement is so vague as to have no probative value

whatsoever – the statement does not specify what kinds of things

defendant did not want to put up with or what he intended to do

with the gun to keep these things from happening. Thus, defendant

might have meant by his statement that he intended to show the gun

to people who were acting inappropriately in some way but not

point it or fire it at them. See 1 Charles E. Torcia, Wharton’s

Criminal Evidence (14th ed. 1985) § 94 at 347-48 (evidence

inadmissible when it is so general and vague that it does not have

any rational probative value); accord State v. Mills, 83 N.C. App.

606, 611, 351 S.E.2d 130, 133 (1986). Further, the evidence was

not admissible to rebut defendant’s claim of self-defense because

at the time Brandon testified, defendant had not presented any

evidence of self-defense; hence, the State had nothing to rebut.

See State v. Tann, 57 N.C. App. 527, 531-32, 291 S.E.2d 824, 827

(1982). Therefore, the statement was not relevant to show malice

or premeditation and deliberation, or to rebut defendant’s claim

of self-defense.

Moreover, the evidence was not admissible to show “absence of

mistake and absence of accident” as the Trial Court instructed the

jury. The State offered the evidence of defendant’s statement

during its case-in-chief. Defendant had not offered any evidence

26

of accident or mistake at that point; thus, evidence tending to

show “absence of mistake and absence of accident” was not relevant

and should not have been admitted. See State v. Cardwell, 133

N.C. App. 496, 508, 516 S.E.2d 388, 397 (1999); Tann, 57 N.C. App.

at 531-32, 291 S.E.2d at 827. Further, it was error to admit the

evidence because it did not tend to show lack of accident or

mistake -- defendant’s statement does not indicate that he had

ever intentionally shot the gun or that he even knew how to

operate the gun. Moreover, defendant’s act of making a statement

has no similarity whatsoever to the act of intentionally shooting

someone. Evidence of similar acts may be admitted to show lack of

accident or mistake because “[t]he doctrine of chances

demonstrates that the more often a defendant performs a certain

act, the less likely it is that the defendant acted innocently.”

State v. Stager, 329 N.C. 278, 305, 406 S.E.2d 876, 891 (1991).

Where, as here, the evidence sought to be admitted is not at all

similar to the act for which the defendant is on trial, the

proffered evidence lacks logical relevancy. See id.; State v.

Boczkowski, 130 N.C. App. 702, 707-08, 504 S.E.2d 796, 799-800

(1998).

Further, the bad character evidence was not admissible to

rebut defendant’s evidence of good character; nor did defendant

“open the door” to the bad character evidence. See State v.

Lynch, 334 N.C. 402, 412, 432 S.E.2d 349, 354 (1993). The State

introduced the bad character evidence during its case-in-chief,

before defendant had introduced any evidence. Introduction of

27

evidence of a defendant’s bad character in this situation is

impermissible, even if the defendant later offers evidence. See

State v. Jones, 229 N.C. 276, 278, 49 S.E.2d 463, 464 (1948);

Cardwell, supra; State v. Slade, supra; State v. Tann, supra.

Third, this Court’s prior decisions show that Brandon’s

evidence was not admissible. In State v. Slade, 71 N.C. App. 212,

321 S.E.2d 490 (1984), the defendant shot and killed the victim

during the course of an argument. During its case-in-chief, the

State was allowed to produce evidence of “the general reputation

of defendant to shoot people.” Id. at 214, 321 S.E.2d at 492.

The defendant then offered evidence of self-defense. This Court

held that the State’s bad character evidence was improperly

admitted and stated that “[s]ince defendant had not testified as a

witness nor offered evidence of his good character, the State was

precluded from showing his bad character for any purpose

whatsoever.” Id. This Court also found that the error was

prejudicial and warranted a new trial: “Defendant’s theory at

trial of entitlement to use force to repel the threatened assault

by [the victim] placed the question of reasonable force before the

jury. In addition, defendant should not be placed in a situation

in which he feels compelled to testify in order to rebut the

prosecution’s premature reputation evidence.” Id.

In State v. Alley, 54 N.C. App. 647, 284 S.E.2d 215 (1982),

the defendant was charged with procuring another to burn a

building and the State cross-examined the defendant about prior,

28

unrelated, noncriminal fires. This Court noted that there was no

evidence introduced that the fires were criminal in nature and the

prior fires were too vaguely described to have any relevance

except “to create a prejudicial inference that the fires occurred

because of defendant’s unlawful conduct.” Id. at 651, 284 S.E.2d

at 217. This Court granted a new trial and stated that “[t]he

only logical relevance the excepted-to evidence had was to infer

defendant’s disposition to set fires to his property, and this is

not a permissible tendency.” Id.

Slade and Alley demonstrate that where evidence of a

defendant’s reputation or prior acts is only tangentially linked

to the facts of the case or is otherwise general or vague, and

where that evidence only tends to show defendant’s bad character,

that evidence must be excluded. In the instant case, the only

purpose of admitting evidence that defendant had a pistol “so he

wouldn’t have to put up with any shit” was to show defendant’s bad

character and propensity for violence. Thus, the evidence was

inadmissible under Rules 401, 402, and 404.

C. The Trial Court Violated Evidence Rule 403 by Admitting the Evidence of Defendant’s Statement.

Even if this Court finds that the evidence of defendant’s

statement had some slight relevance apart from showing defendant’s

bad character, the Trial Court should have excluded it under Rule

403. Although the decision whether to exclude evidence under Rule

403 is within the trial court’s discretion, that discretion is not

29

absolute and is reviewable. E.g., State v. Maxwell, 96 N.C. App.

19, 22-25, 384 S.E.2d 553, 555-57 (1989), disc. rev. denied, 326

N.C. 53, 389 S.E.2d 83 (1990).

As shown above, because the statement was made over a week

before Lundy’s death, had absolutely nothing to do with Lundy, and

did not show that defendant knew how to shoot or operate the gun,

the probative value of the statement was negligible or

nonexistent. Moreover, the danger of unfair prejudice from the

admission of this evidence is manifest. The vague and

inflammatory wording of the statement made it very likely that the

jury would use this evidence for an improper purpose -- to show

that defendant was a person of violent character and that he must

have acted in conformity with this character when he shot Lundy.

See State v. McCray, 342 N.C. 123, 131, 463 S.E.2d 176, 181 (1995)

(evidence that deceased involved in prior unrelated shooting

properly excluded under Rule 403 because evidence had little

probative value and suggested that victim was violent person);

Maxwell, 96 N.C. App. at 25, 384 S.E.2d at 557 (evidence of

defendant’s prior affair should have been excluded under Rule 403

where evidence did “little more than impermissibly inject

character evidence which raises the question of whether defendant

acted in conformity with these character traits at the time in

question”). Therefore, even if the evidence had some slight

relevance, the relevance was substantially outweighed by the

danger of unfair prejudice, and the Trial Court should have

excluded the evidence.

30

D. The Erroneous Admission of the Evidence Was Prejudicial.

The Trial Court’s error in admitting the evidence was highly

prejudicial and defendant must be granted a new trial. Defendant

admitted shooting Lundy, but claimed that the shooting was

accidental or in self-defense. The improperly admitted evidence

tended to portray defendant as a violent person who was willing to

shoot anyone who acted up in his bar. This evidence severely

undermined defendant’s claims of self-defense and accident, and

there is a reasonable possibility that but for the erroneous

admission of the evidence, a different result would have been

reached at trial. G.S. § 15A-1443(a). Accordingly, defendant

must be granted a new trial.

III. THE TRIAL COURT ERRED BY FAILING TO FIND STATUTORY MITIGATING FACTORS 8.A. AND 15.

Assignment of Error No. 26, Rp. 66The Trial Court erred by failing to find two statutory

mitigating factors that were supported by uncontradicted evidence.

At the sentencing hearing, defendant requested that the Trial

Court find statutory mitigating factors 6(a), 8(a), 10, 11(a), 12,

18, and 19. (Tpp. 1126-28) The Trial Court found statutory

mitigating factors 11(a), 11(b), 12, 17, 18, and 19, found one

nonstatutory aggravating factor, determined that the aggravating

factor outweighed the mitigating factors, and sentenced defendant

31

in the aggravated range to a minimum term of ninety months

imprisonment.1 (Rpp. 45-48)

It is well settled that

[a] duty is placed on upon the judge to examine the evidence to determine if it would support any of the statutory factors even absent a request by counsel. The sentencing judge is required to find a statutory factor when the evidence in support of it is uncontradicted, substantial, and manifestly credible. Failure to find a statutory factor so supported is reversible error.

State v. Cameron, 314 N.C. 516, 520, 335 S.E.2d 9, 11 (1985).

Although the decision whether to find a mitigating factor is

within the discretion of the trial court, that discretion is not

absolute and is reviewable. E.g., State v. Daniel, 319 N.C. 308,

312, 354 S.E.2d 216, 218 (1987).

In the instant case, the Trial Court erred by failing to find

two statutory mitigating factors that were supported by

uncontradicted, substantial, and manifestly credible evidence.

First, the Trial Court erred by failing to find statutory

mitigating factor 8.a., that “[t]he defendant acted under strong

provocation.” G.S. § 15A-1340.16(e)(8). It is well settled that

“strong provocation” “requires a showing of a threat or challenge

by the victim to the defendant,” State v. Faison, 90 N.C. App.

237, 239, 368 S.E.2d 28, 29 (1988), and that the defendant’s

actions must be consistent with “a state of passion without time

1 Defendant had one prior record point from a conviction for driving while impaired and he was sentenced as a Level II offender. (Rpp. 43-44)

32

to cool.” State v. Highsmith, 74 N.C. App. 96, 327 S.E.2d 628,

disc. rev. denied, 314 N.C. 119, 332 S.E.2d 486 (1985). In the

instant case, all of the evidence shows that immediately before

defendant shot Lundy, Lundy reentered the bar after it was closed,

refused to leave the closed bar when asked to do so several times,

threatened defendant with physical violence, challenged defendant

to fight in the parking lot, and “leaned” or “lunged” across the

bar counter toward defendant while forcefully banging on the

counter with his hands and saying “Shoot me then.” Further, the

evidence shows that defendant retrieved the pistol from behind the

bar and shot Lundy during the course of this heated argument.

Therefore, all of the evidence shows that Lundy’s behavior

escalated from the time he reentered the Wagon Wheel until

defendant’s pistol discharged, that Lundy threatened and

challenged defendant, and that defendant was in “a state of

passion without time to cool” at the time he shot Lundy.

Accordingly, the Trial Court erred when it failed to find

mitigating factor 8(c).

Second, the Trial Court erred by failing to find statutory

mitigating factor 15, that “[t]he defendant has accepted

responsibility for [his] criminal conduct.” G.S. § 15A-1340.16(e)

(15). In the instant case, the undisputed evidence shows that

defendant accepted responsibility for the shooting of Lundy.

First, defendant called 911 and admitted the shooting to the

dispatcher immediately after the shooting occurred. (Tpp. 360,

904; State’s Exhibit 2) Second, defendant freely admitted the

33

shooting to law enforcement personnel. Thus, defendant told

Deputy Stephens and Sergeant Fleetwood that he had shot Lundy.

(Tpp. 644, 681) Later, at the Sheriff’s Department, defendant

waived his Miranda rights told Sheriff’s Investigator Taylor that

he had shot Lundy. (Tpp. 692, 696) Third, defendant did not

attempt to suppress any of these incriminating statements. See

State v. Crisp, 126 N.C. App. 30, 41, 483 S.E.2d 462, 467, appeal

dismissed and disc. rev. denied, 346 N.C. 284, 487 S.E.2d 559

(1997). Fourth, defendant admitted during his testimony at trial

that he had shot Lundy and expressed remorse for having done so.

(Tpp. 899, 903, 908) Further, defendant again expressed remorse

for the shooting at the sentencing hearing, stating, “I would like

to express to the family that I am deeply sorry for this tragedy

and that to somehow perceive that I’m not remorseful. I am. I am

terribly sorry for this tragedy.” (Tp. 1139) See State v.

Lovett, 119 N.C. App. 689, 460 S.E.2d 177 (1995). Therefore, all

of the evidence in the instant case shows that defendant accepted

responsibility for his conduct, and that the Trial Court erred

when it failed to find mitigating factor 15.

“[W]henever there is error in a sentencing judge’s failure to

find a statutory mitigating circumstance and a sentence in excess

of the presumptive term is imposed, the matter must be remanded

for a new sentencing hearing.” Daniel, 319 N.C. at 315, 354

S.E.2d at 220. Accordingly, defendant must be granted a new

sentencing hearing in this case.

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CONCLUSION

For reasons stated in Arguments I and II, defendant

respectfully contends he is entitled to a new trial. For reasons

stated in Argument III, defendant respectfully contends he is

entitled to a new sentencing hearing.

Respectfully submitted this the 6th day of July, 2000.

______________________________Anne M. GomezAssistant Appellate Defender

Malcolm Ray Hunter, Jr.Appellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 600Durham, North Carolina 27701(919) 560-3334

ATTORNEYS FOR DEFENDANT

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed by mail pursuant to Rule 26 by sending it first-class mail, postage prepaid to the Clerk of the North Carolina Court of Appeals, Post Office Box 2779, Raleigh, North Carolina 27602, by placing it in a depository for that purpose.

I further hereby certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon Barbara A. Shaw, Assistant Attorney General, North Carolina Department of Justice, Post Office Box 629, Raleigh, North Carolina 27602, by first-class mail, postage prepaid.

This the 6th day of July, 2000.

____________________________

Anne M. Gomez

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Assistant Appellate Defender

36