State v. Everett

• Court: North Carolina Court of Appeals
• Writing for the Court: McGEE.
• Citation: State v. Everett, 163 N.C.App. 95, 592 S.E.2d 582 (N.C. App. 2004)
• Decision Date: 02 March 2004
• Docket Number: No. COA03-95.,COA03-95.
• Parties: STATE of North Carolina v. Karen Elaine EVERETT.

592 S.E.2d 582

163 NC App. 95

STATE of North Carolina v. Karen Elaine EVERETT.

No. COA03-95.

Court of Appeals of North Carolina.

March 2, 2004.

Attorney General Roy Cooper, by Assistant Attorney General Lorrin Freeman, for the State.

Osborn & Tyndall, P.L.L.C., by Amos Granger Tyndall, Chapel Hill, for defendant-appellant.

McGEE, Judge.

Karen Elaine Everett (defendant) was convicted of second-degree murder on 30 August 2001. The trial court found defendant to have a prior record level I and sentenced defendant to a minimum term of 135 months and a maximum term of 171 months in prison. Defendant appeals.

The evidence presented by the State at trial tended to show that on 26 November 2000, personnel from the Wake County Sheriff's Office and the Garner EMS responded to a call from the residence of defendant and her husband, Michael Everett (Everett). Upon arrival at the home, Everett was found lying in the entrance to the kitchen, having suffered multiple gunshot wounds. Everett had no pulse and no signs of cardiac activity. The medical examiner confirmed that Everett died as a result of the gunshot wounds. A special agent with the State Bureau of Investigation testified that one of the wounds was the result of a contact shot, while the other three wounds resulted from shots fired from less than eighteen inches.

Deputy Jamie Landmark (Deputy Landmark) with the Wake County Sheriff's Department testified as to his conversation with defendant after the incident. Defendant told Deputy Landmark that she and her husband had been arguing both the day before and the day of the shooting. Everett had been away from the house for a while on 26 November. When he returned, he and defendant began arguing because Everett thought defendant had been to meet another man the day before. Defendant also told Deputy Landmark that her husband had pushed her and said, "b___, I'll kill you." Defendant said she told Everett he needed to leave. He refused to do so and told defendant she needed to leave. Defendant grabbed a gun and told Everett to "back up off [her]." Defendant told Deputy Landmark that Everett "kept coming towards [her] and she just shot." Deputy Landmark further testified that defendant told him Everett had said something about defendant wanting to play with guns and indicated that Everett was going to get a gun. Defendant also told Deputy Landmark that Everett grabbed her throat and kept telling her he was going to kill her and that he should have done so before.

Defendant testified that she and Everett were married on 3 December 1986. The early years of their marriage were problematic because defendant had a job in the printing industry and Everett was not comfortable with defendant "working with a lot of gentlemen." Arguments between Everett and defendant "turned physical a lot." However, defendant did not call police until a particular argument in 1990 which occurred when defendant failed to meet Everett after work. Defendant had left work with her father, but Everett assumed she had left with someone else and was very upset. Defendant testified that she called police because Everett "had gotten physical. He had choked me. He had ripped my [clothes]. He had slammed me around. He had tore the house up." As a result of this incident, Everett was convicted of assault on defendant.

Defendant testified that during the early years of her marriage to Everett (early nineties), there were periods of time when they would separate from one another. Usually defendant would be the one to leave, but after the birth of their child, Everett would leave the home. Defendant testified that these periods of separation happened five to seven times a year and lasted "a couple of days to a couple of weeks or so."

In June 1998, another serious altercation occurred between defendant and Everett. Defendant decided to help a friend move even though Everett disapproved. While defendant was moving an aquarium, Everett "came at [her.]"

He grabbed me. He started ripping my clothes off. He was raging about how he was going to kill me. He was going to kill me. He threw me through the screen door. He started choking me, banging me on the wall.

....

I was trying to get away from him. I was on the porch. We were on the porch when he was strangling me, and at that time there wasn't a bannister, a railing, and I leaned back and I guess my body weight just carried me off of his hand and I fell into the yard, and I believe that's when my friend [got] in between us.

As a result, defendant obtained a restraining order to protect herself from Everett. The couple again separated for a few months and Everett went to counseling. Defendant and Everett reunited in an attempt to keep their family together.

Defendant testified that in 2000, Everett's temper worsened and she and Everett were arguing "[v]ery frequently." One night in September, Everett accused defendant of "fooling around with somebody" and that night defendant slept on the couch. Defendant testified that she woke up during the night and Everett was holding a gun in her face saying that he should kill her. After defendant told Everett the gun might explode because it had never been cleaned, Everett put the gun down and unloaded it. The next morning defendant and her daughter moved to defendant's mother's house for about three weeks.

Defendant testified that on 25 November 2000, she and Everett argued because defendant had not yet brought back all of her things from her mother's house, and because of this, Everett thought defendant was planning to leave him. Defendant and Everett spent that day apart. Around 5:00 p.m., defendant returned home with their daughter and the argument between Everett and defendant resumed. That evening, Everett took their daughter to a movie. Upon returning home from the movie, Everett again started arguing with defendant and continued to argue with her throughout the evening.

On the morning of 26 November 2000, the argument resumed and Everett told defendant "he should have finished [her] off when he had a chance to." When Everett returned that evening, he inquired as to whether defendant had retrieved her things from her mother's house. Defendant responded that she had not gotten all of her things, and an argument ensued. Defendant told Everett that one of them needed to leave. Defendant announced that she was leaving and attempted to get up from the couch to get their daughter from the back bedroom. Defendant testified that Everett "pushed [her] back down. He had his—he never choked me, but he had his arm—his hand on my neck, push[ed] me down, and [had] his knee kind of in my shoulder." Everett told defendant "[t]hat the only way [she] was leaving [was] if somebody took [her] out, out on a stretcher." Defendant thought Everett was going to kill her.

Defendant testified that Everett was "different that night" in that "[h]e wasn't raging and ranting like he usually did. He wasn't trying to tear things up. He was just cold, very cold and calm and very direct when he said what he said." Everett eventually got off defendant and went into the kitchen. Defendant grabbed the gun from a living room table because she "wanted him to stay off of [her]." As Everett walked towards the kitchen, he said to defendant, "you want to play with guns now?" He then said, "I'll go get mine and kill everything in here." Defendant told Everett she wanted to leave and "wanted him to stay away from [her]" but he "started coming towards [her]." Defendant testified that she told him to stop and when he continued coming towards her, she fired a shot towards the window to scare him. Defendant testified that Everett still did not stop and she fired the gun when "[h]e was right on top of [her]." Defendant testified that Everett said nothing as he came towards her. She further testified to the events by saying, "[i]t's like I didn't even hit him. I thought maybe that I had missed him, because I thought it would throw him back and it didn't. He just kept walking and he turned to go down the hallway." Defendant continued to fire the gun because she "thought he was going to get the other gun."

We first note defendant has failed to present an argument in support of assignments of error numbers one and two and they are deemed abandoned pursuant to N.C.R.App. P. 28(b)(6).

I.

Defendant first argues that the trial court erred when it refused her specific request to instruct the jury that defendant had no duty to retreat in her own home. During the charge conference, defendant specifically requested an instruction that defendant had no duty to retreat. The trial court did instruct on self-defense but denied defendant's specific request, stating that "I don't see where retreat fits in this one, so I'm not going to give it, because I don't see where there was any retreat." Defendant's counsel persisted by saying, "I think, and I don't know if the State would argue this, but if they argue, you know, that she could have left as opposed to do[ing] what she did, then I think it's incumbent that the jury know that she didn't have to do that." The trial court responded by saying, "I don't believe they're going to argue that she should have retreated. That's not their theory." The trial court concluded that the instruction would not be given but stated, "[w]ell, if they argue some form of retreat, I'll have to give it."

The issue is whether defendant was entitled to a jury instruction informing the jury of the law relating to the right not to retreat when a party is attacked on one's own premises. "Where the defendant's or the State's evidence when viewed in the light most favorable to the defendant discloses facts which are `legally sufficient' to constitute a defense to the charged crime, the trial court must instruct the jury on the defense.' " State v. Marshall, 105 N.C.App. 518, 522, 414 S.E.2d 95, 97, disc. review denied, 332 N.C. 150, 419 S.E.2d 576 (1992) (quoting State v. Clark, 324 N.C....