State v. Bullard

• Decision Date: 18 February 1986
• Docket Number: No. 8518SC821,8518SC821
• Citation: 79 N.C.App. 440,339 S.E.2d 664
• Parties: STATE of North Carolina v. Alfonza BULLARD.
• Court: North Carolina Court of Appeals

Page 664

339 S.E.2d 664

79 N.C.App. 440

STATE of North Carolina v. Alfonza BULLARD.

No. 8518SC821.

Court of Appeals of North Carolina.

Feb. 18, 1986.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Richard H. Carlton, for the State.

Public Defender Wallace C. Harrelson and Asst. Public Defender Charles L. White, Greensboro, for defendant-appellant.

HEDRICK, Chief Judge.

Defendant first assigns as error the trial court's refusal to submit to the jury the possible verdict of guilty of involuntary manslaughter. Defendant contends that the evidence in this case could support a finding of an unintentional homicide resulting from the reckless use of a deadly weapon. In support of this argument, defendant relies on the testimony of police officers regarding statements made by defendant following his arrest. Defendant told the officers that he swung the knife at the victim, but that he did not remember cutting him. This argument is without merit.

Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from an act not amounting to a felony nor naturally dangerous to human life, or from a culpably negligent act or ommission. State v. Redfern, 291 N.C. 319, 230 S.E.2d 152 (1976). The submission to the jury of a possible verdict of involuntary manslaughter when the defendant has been charged with murder is necessary "only when there is evidence from which a jury could find such an included crime was committed." State v. Whitley, 311 N.C. 656, 667, 319 S.E.2d 584, 591 (1984).

There is no evidence from which a jury could find that defendant committed involuntary manslaughter in this case. All of the evidence shows that defendant intentionally took a swipe at the victim with a utility knife. The trial court, therefore, properly refused to submit the possible verdict of involuntary manslaughter to the jury. See, State v. Whitley, 311 N.C. 656, 319 S.E.2d 584.

Defendant next contends that the trial court erred in failing to find the following statutory mitigating factors listed in G.S. 15A-1340.4(a)(2):

b. The defendant committed the offense under duress, coercion, threat, or compulsion which was insufficient to constitute a defense but significantly reduced his culpability.

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i. The defendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating.

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1. Prior to arrest or at an early stage of the criminal process, the defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer.

We disagree with defendant's contention.

Where the evidence in support of a mitigating factor is uncontradicted and manifestly credible, it is error for the trial court to fail to find such mitigating factor. State v. Jones, 309 N.C. 214, 306 S.E.2d 451 (1983). The defendant has the burden of establishing such mitigating factors by the preponderance of the evidence. State v. Hinnant, 65 N.C.App. 130, 308 S.E.2d 732 (1983), cert. denied, 310 N.C. 310, 312 S.E.2d 653 (1984).

Defendant argues that evidence tending to show that defendant struck the victim with the knife after the victim started a heated argument by calling defendant by an obscene name and that the victim appeared to be armed compelled the trial court to find that defendant committed the offense under "duress, coercion, threat, or provocation." The trial court did not err in failing to make such a finding, however, because this evidence was not uncontradicted or manifestly credible. Neither witness to the encounter testified that the victim was armed and one witness denied that the victim initiated the confrontation by calling defendant by an obscene name.

In support of his...