State v. Gilreath, 9321SC1224

• Decision Date: 21 March 1995
• Docket Number: No. 9321SC1224,9321SC1224
• Citation: 454 S.E.2d 871,118 N.C.App. 200
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Gary G. GILREATH.

Page 871

454 S.E.2d 871

118 N.C.App. 200

STATE of North Carolina v. Gary G. GILREATH.

No. 9321SC1224.

Court of Appeals of North Carolina.

March 21, 1995.

Atty. Gen. Michael F. Easley by Asst. Atty. Gen. John J. Aldridge, III, for the State.

David F. Tamer, Winston-Salem, for defendant-appellant.

JOHN, Judge.

Defendant appeals convictions of first degree burglary, felonious larceny, and voluntary manslaughter. He contends the trial court erred by (1) denying his motion to dismiss the charges of voluntary manslaughter and first degree burglary; and (2) denying his request that the lesser offenses of second degree burglary and involuntary manslaughter be submitted to the jury. Upon careful consideration of defendant's arguments, we determine his assignments of error cannot be sustained.

The State's evidence at trial tended to show that in the early morning hours of 4 July 1990, Kay Yokley (Yokley), whose husband was away on business, heard her kitchen door being kicked in. She observed two men moving through her house, walking from room to room. However, she was able to pick up her eighteen month old child and escape through the kitchen without being seen by the men. While leaving, she grabbed a cordless telephone and subsequently called her mother, Margaret Wall (Mrs. Wall), telling her someone had broken into the house and to call the police. Because the call was disconnected, Mrs. Wall apparently did not hear the latter portion of the conversation requesting that the police be notified. Yokley then went to a neighboring house and telephoned the authorities as well.

Yokley's parents, upon hearing someone was breaking into their daughter's home, immediately drove to her residence. Mr. Wall (Wall) brought a .22 caliber semi-automatic rifle with him. Upon arriving, the Walls noticed a truck in the driveway and parked directly behind it. Mrs. Wall entered the house and screamed for her daughter upon confronting two men, identified by her as defendant and his co-defendant David Bumgarner (Bumgarner), working at disconnecting components of an entertainment center. The two then ran from the dwelling while Mrs. Wall looked for her daughter and granddaughter.

Mrs. Wall then heard her husband yell, "stop, stop. If you don't, I'm going to shoot," followed by one gunshot and then a "whole bunch" of gunshots. When she next saw Wall, he was standing in the carport. He had been shot and the truck was gone. Mrs. Wall ran back into the house to call for help, but could not find the portable phone. She and her husband then returned to their vehicle, went to a neighbor's house for help, and found their daughter.

Lieutenant C.T. Chadwick, Jr. arrived at the Yokley home in response to a radio dispatch. He testified he found some broken glass, a rifle, and a number of spent .22 caliber shell casings at the scene. Upon searching the area, he observed a truck parked in some neighboring woods with broken glass on the passenger's side and four distinct bullet holes in the driver's side door. In the interior of the truck were personal items, as well as a pillow stained with blood. Entering a nearby residence later determined to belong to Bumgarner, Chadwick and other officers located defendant and Bumgarner, who had minor bullet wounds to his face and shoulder. Officers subsequently unearthed a Colt .22 caliber pistol buried in the backyard of the house.

Dr. Wayne Meredith testified as to Wall's injuries which included three gunshot wounds: one superficial wound to the scalp, a wound to the arm, and a serious wound to the chest which damaged many internal organs including Wall's lung, stomach, colon, spleen, pancreas, and kidney. Treatment included removal of portions of his colon and large intestine and removal of his entire spleen, as well as approximately one-third of his pancreas. The process involved several operations and Wall remained in the hospital in excess of one year.

In August 1992 and against medical advice, Wall determined to undergo colostomy removal surgery. He acknowledged the risk involved to his physicians, but stated he would rather be dead than continue to endure his condition as it was. Wall did not survive the operation and died 1 September 1992.

Donald Jason, an expert in the field of pathology, testified as follows:

Q: And in your opinion, sir, what was the cause of death of Bobby Lee Wall?

A: Cause of death was Adult Respiratory Distress Syndrome--that's that injury to the lung that I mentioned--which was due to the operation for reconnection of his large intestine. And that was caused by the fact--by the injuries in his abdomen, particularly the injury to the large intestine, and that was caused by the bullet wound which had gone through the abdomen.

Q: All of these complications were the result of that bullet wound that went through his chest and into his abdomen?

A: That's right. It all began with the bullet wound.

Defendant offered the following testimony on his own behalf: During the afternoon of 3 July 1990, defendant went to visit Bumgarner at the latter's residence, but Bumgarner was not home. Defendant decided to wait for Bumgarner, and while doing so, consumed "a couple beers." When Bumgarner returned, he and defendant decided to take a ride and visit some friends.

Defendant admitted taking valium during the course of the evening. He remembered leaving a friend's house with Bumgarner driving the truck, and further claimed the next thing he remembered was being awakened by Bumgarner and being told to get out of the truck. They then walked through the back door of a home defendant assumed belonged to Bumgarner. Defendant could not recount exactly what happened in the house before seeing Mrs. Wall, but he realized upon seeing her that they were not at Bumgarner's residence.

Upon retreating from the house, defendant saw a man standing at the corner of the garage pointing a rifle. Defendant put his hands in the air, continued towards the truck, and told the man he just wanted to leave. As defendant shut the truck door after getting in, the man began shooting at the driver's side where defendant was seated. Because a vehicle was parked behind the truck, defendant pulled up and back several times in order to turn and drive across the yard to leave. The man continued to shoot and defendant told Bumgarner there was a pistol under the seat. Bumgarner retrieved the pistol and fired it out the driver's side window into the air. Defendant did not recall taking anything from Yokley's house.

Bumgarner testified he stopped at Yokley's home to see if his dog would fight with her dog. He further stated he followed defendant into the house and that both immediately ran to the truck when they encountered Mrs. Wall. Further, he indicated it was defendant who asked for the pistol and fired from the truck.

In rebuttal, the State offered Bumgarner's statement to Deputy J.L. Mecum that he and defendant entered the Yokley residence for the purpose of stealing some VCR and radio equipment as well as a camcorder.

I.

Defendant first contends the trial court erred by denying his motion to dismiss the charges of voluntary manslaughter and first degree burglary. We disagree.

In ruling upon a motion to dismiss, the trial court must view the evidence in the light most favorable to the State, which is entitled to every reasonable inference to be drawn therefrom. State v. Bates, 313 N.C. 580, 581, 330 S.E.2d 200, 201 (1985) (citations omitted). If there is "substantial evidence" of each element of the charged offense and of defendant being the perpetrator of the offense, the motion should be denied, State v. Riddick, 315 N.C. 749, 759, 340 S.E.2d 55, 61 (1986) (citing State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651-52 (1982)). "Substantial evidence is that amount of evidence which a reasonable mind might accept as adequate to support a conclusion". State v. Rich, 87 N.C.App. 380, 382, 361 S.E.2d 321, 323 (1987) (citing State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981)). In addition, " '[t]he trial court is not required to determine that the evidence excludes every reasonable hypothesis of innocence....' " Riddick, 315 N.C. at 759, 340 S.E.2d at 61 (quoting State v. Powell, 299 N.C. 95, 101, 261 S.E.2d 114, 118 (1980)).

A.

We first consider the charge of voluntary manslaughter. Defendant argues his actions were not the cause of Wall's death and that the State failed to prove he did not act in self-defense.

1.

Proximate cause is an element of manslaughter, State v. Sherrill, 28 N.C.App. 311, 313, 220 S.E.2d 822, 824 (1976), that is, criminal responsibility arises only if a defendant's act has "caused or directly contributed" to the victim's death. State v. Luther, 285 N.C. 570, 573, 206 S.E.2d 238, 240 (1974). Further, "the act of the accused need not be the immediate cause of death. He is legally accountable if the direct cause is the natural result of [the] criminal act." State v. Minton, 234 N.C. 716, 722, 68 S.E.2d 844, 848 (1952) (citations omitted).

Despite testimony from the pathologist that Wall died as a result of complications from the bullet wound to his chest and abdomen, defendant insists the cause of death was Wall's decision against medical advice to undergo colostomy reversal surgery. However, "[t]he act complained of does not have to be the sole proximate cause of death, nor the last act in sequence of time.... It is enough if defendant['s] unlawful acts join and concur with other causes in producing the result." State v. Cummings, 46 N.C.App. 680, 683, 265 S.E.2d 923, 925-26, aff'd, 301 N.C. 374, 271 S.E.2d 277 (1980 (citations omitted). The pathologist's testimony presented sufficient evidence from which the jury could find Wall's gunshot wound caused or directly contributed to his death, whatever complications may have arisen as a result of the later surgery.

In State v. Jones, 290 N.C. 292, 225 S.E.2d 549 (1976), the State's evidence tended to show the victim...