State v. Cruz

Decision Date06 April 2010
Docket NumberNo. COA09-386.,COA09-386.
PartiesSTATE of North Carolina v. Rajohn Almann CRUZ.
CourtNorth Carolina Court of Appeals

Duncan B. McCormick, Lillington, for Defendant-Appellant.

Attorney General Roy Cooper, by Assistant Attorney General Sandra Wallace-Smith, for the State.

STEPHENS, Judge.

Rajohn Almann Cruz ("Defendant") appeals as a matter of right from his convictions for second-degree murder and assault with a deadly weapon inflicting serious injury.1 On appeal, Defendant argues that the trial court erred when it refused his request for a jury instruction of voluntary manslaughter based on imperfect self-defense. After review, we conclude that Defendant's evidence was insufficient to warrant a jury instruction on voluntary manslaughter based on imperfect self-defense, and thus uphold the judgments of the trial court.

I. Factual Background and Procedural History

On 12 September 2005, Defendant was charged in a bill of indictment with first-degree murder, assault with a deadly weapon inflicting serious injury, and robbery with a dangerous weapon. He entered a plea of not guilty to all charges and was tried before a jury on 19 May 2008.

At trial, the State's evidence tended to show the following: Santiago Aquino Rivera ("Santiago") shared apartment A at 1004 Willow Street with Ignacio Tolentino ("Ignacio"), Julio Tolentino ("Julio"), and Renaut Lara Rayon ("Renaut"). Renaut's wife and Julio's wife and child also lived at the Willow Street apartment. Jorge Tolentino Santiago ("Jorge") and Raul Galvan Rivera ("Raul"), along with two other men, lived in apartment B of the Willow Street apartment.

On 7 May 2005 at about 7:00 a.m., Ignacio was sitting on his apartment porch when he saw Defendant running toward him with a gun. Upon noticing Defendant, Ignacio ran into the apartment and attempted to shut the door, but Defendant pushed the door open and went inside. Defendant demanded money, and Ignacio complied. Defendant demanded more money from Santiago who was then asleep on the couch in the living room. Defendant shot Santiago in the chest after Santiago told Defendant that he did not have any money. After shooting Santiago, Defendant shot Ignacio in the knee and beat him with the gun. Ignacio kicked Defendant in the stomach as Defendant attempted to search through Ignacio's pockets. During the scuffle, Ignacio knocked the gun out of Defendant's hand, but Defendant was able to retrieve the gun and pull the trigger; however, the gun did not fire.

While Defendant and Ignacio were fighting, Santiago walked down the hallway to the bedroom where Renaut and Julio were sleeping, whereupon he told Julio that Defendant was hitting his brother. Julio called the police, locked the apartment door to prevent Defendant from leaving. Defendant continued to beat Ignacio with the gun and the two men fought until Julio entered the room and began fighting also. Julio beat Defendant with the telephone while waiting for the police to arrive. Renaut retrieved a shotgun and pointed it at Defendant. Defendant then let go of Ignacio. Renaut cocked the gun and Defendant begged Renaut not to shoot him.

Julio unlocked the door and looked outside to see if anyone had come with Defendant, at which point Defendant attempted to run out of the apartment. Julio pulled Defendant into the yard and Renaut picked up a piece of wood and hit Defendant. Ignacio, Renaut, Julio, Jorge, and at least one other unnamed man beat Defendant and prevented him from leaving. During the fight, Jorge took Ignacio's money from Defendant's hand.

When the officer arrived at the scene, the officer saw Defendant running away from the apartment. The officer ran toward Defendant, and Defendant refused to stop when the officer requested him to do so. Defendant stopped when the officer caught up to Defendant and repeated the order to stop. The officer called EMS after noticing that Defendant and the other men at the scene were bleeding. Defendant told the officer that he had been shot in the head; however, he only suffered a laceration over his right eye and a laceration to the back of his head. Santiago died at the scene from a gunshot wound to his heart.

Defendant's evidence tended to show the following: On 7 May 2005, at approximately 7:00 a.m., Defendant was walking on the street near Santiago and Ignacio's apartment building. As Defendant neared the corner, Santiago and Ignacio began to point at him, and one of the men came out into the yard and began to argue with Defendant. In order to defend himself, Defendant swung and tried to hit the man that approached him. Defendant testified that he fought with the man in the yard, on the porch, and in the doorway of the apartment.

While the men were fighting, someone hit Defendant with an unknown object in the back of the head. The blow to the head caused Defendant to close his eyes and left him dizzy. After being hit in the head, Defendant put his hand on his pistol but did not pull the gun out of his pocket. When Defendant opened his eyes, he saw a man holding and pointing a shotgun at his head. At this point, Defendant, thinking that he was going to be shot, closed his eyes and listened to the gun click as the man pulled the trigger. The gun did not fire. Defendant, in an attempt to get away from the men, pulled his pistol and fired a shot at the man holding the shotgun but was unsure whether he shot anyone. As Defendant attempted to leave the apartment, someone held Defendant and kicked him, whereupon Defendant fired another shot at the ground. The second shot hit the man who was holding Defendant in his leg.

After Defendant shot both men, he ran from the apartment but was hit in the face with a two-by-four stick by one of the other men living at the apartment. Defendant hit this man with his pistol, breaking it into two pieces. The two men continued to hold and beat Defendant until the police arrived. Defendant ran toward the police officer and complied with the officer's instructions to stop and sit down. Defendant denies robbing or attempting to rob the men at the apartment.

During the jury instruction conference, the following exchange took place between defense counsel, Mr. Foxworth, and the trial judge:

MR. FOXWORTH: You're going to charge on the self-defense?
THE COURT: I'm going to charge self-defense, but the self-defense that I'm going to be charging is going to only apply to premeditation and deliberation and second degree. It's not going to apply to felony murder, robbery or the felonious assault.
MR. FOXWORTH: And you'll give that?
THE COURT: Which one do you want me to give?
MR. FOXWORTH: The imperfect language is in the voluntary manslaughter.
THE COURT: No, sir, I'm not going to give involuntary sic manslaughter. It's going to be first degree murder by way of felony murder, premeditation and deliberation, or second degree murder or not guilty.
. . . .
MR. FOXWORTH: You're not going to instruct on self-defense, perfect and imperfect?
THE COURT: No, if you want me to do self-defense, it's going to be based on premeditation-deliberation or second degree.
MR. FOXWORTH: I understand that.
. . . .
THE COURT: What self-defense instruction do you want me to give?
MR. FOXWORTH: Perfect and imperfect.
THE COURT: Number?
MR. FOXWORTH: 308.45.
THE COURT: That's the one I'll give.
MR. FOXWORTH: And the imperfect language is in the voluntary manslaughter because if they find imperfect, that's what he sic must find is voluntary if you find imperfect.
THE COURT: Which one of the instructions do you want me to give on self-defense?
MR. FOXWORTH: Which instruction?
THE COURT: Yes.
MR. FOXWORTH: I want you to give 308.45, which is perfect self-defense, but that's all it speaks of. It doesn't speak of imperfect, but I also am requesting the Court to give imperfect self-defense, which you said you were going to give.
THE COURT: Can you have imperfect self-defense in first degree murder?
MR. FOXWORTH: Yes, sir, I think you can.
THE COURT: I thought you just said that it relates to voluntary manslaughter?
MR. FOXWORTH: Well, it says if they find imperfect self-defense, then the courts have said then that's what the verdict has to be, voluntary manslaughter.
THE COURT: I'm going to give 308.45.
MR. FOXWORTH: So, you won't give imperfect self-defense?
THE COURT: I'm going to give 308.45 as it lends itself to premeditation-deliberation and second degree. I don't think you're entitled to it, but out of an abundance of caution I'm going to give it.
MR. FOXWORTH: But not imperfect.
THE COURT: Is that word there something you didn't quite understand?
MR. FOXWORTH: All right. But we'd just like the Court to note the exception.
THE COURT: Exception noted.

As shown in the transcript, the court noted that a self-defense instruction would be given with regard to the first-degree murder charge and second-degree murder charge only "out of an abundance of caution." At the jury instruction conference, the trial judge denied Defendant's request to instruct on voluntary manslaughter based on the law of imperfect self-defense as it applies to second-degree murder.

Defendant was found not guilty of robbery with a firearm, but guilty of second-degree murder and assault with a deadly weapon inflicting serious injury. On 29 May 2008, the trial court imposed an active term of imprisonment of 189 to 236 months for second-degree murder and a consecutive active term of 29 to 44 months imprisonment for assault with a deadly weapon inflicting serious injury. Defendant gave notice of appeal in open court.

II. Voluntary Manslaughter Under a Theory of Imperfect Self-Defense

Defendant argues that the trial court erred in denying his request to instruct the jury on voluntary manslaughter based on imperfect self-defense. We disagree.

Our Court reviews a trial court's decisions regarding jury instructions de novo. State v. Osorio, ___ N.C.App. ___, ___, 675 S.E.2d 144, 149 (2009). The trial court must instruct the jury on...

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