State v. Hight
| Decision Date | 03 July 2012 |
| Docket Number | No. COA11–1533.,COA11–1533. |
| Citation | 727 S.E.2d 405 |
| Parties | STATE of North Carolina v. Hammett Allen HIGHT, Defendant. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendant from judgment entered on or about 9 June 2011 by Judge Henry W. Hight, Jr. in Superior Court, Vance County. Heard in the Court of Appeals 9 May 2012.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Richard J. Votta, for the State.
Robert W. Ewing for defendant-appellant.
Hammett Allen Hight (“defendant”) appeals from a conviction for voluntary manslaughter. For the following reasons, we find no error in defendant's trial.
On 17 November 2008, defendant was indicted on one count of first-degree murder. Defendant was tried on this charge at the 6 June 2011 Criminal Session of Superior Court, Vance County. The State's evidence tended to show that on 4 October 2008, defendant was working a 12 hour shift from 8 a.m. until 8 p.m. but his supervisor sent him home early around 11:00 a.m. because “he appeared too sleepy.” Once home, defendant informed his wife Tammy Hight that he had hit a guard rail with her car on his way to work that morning. Tammy became angry at him and they got into an argument. During the argument, defendant got a handgun from the kitchen cabinet and threatened to kill himself. After they stopped fighting, defendant got himself something to eat and went to bed; Tammy left with her two daughters Megan and Allison. When Tammy returned, defendant was still in bed and she went outside to see the damage to her car. While looking in her car, she found a bottle of pills and an empty cigarette pack containing what appeared to be marijuana. She put the pills and cigarette packet in her pocket, took them to her older brother Ray Steed, explained the situation to him, and took her daughters to the library. At the time, Ray, who was 12 years older than Tammy, was living part-time with his sister Frances and would from time to time stay in a room in a barn near Tammy and defendant's house, as he had been separated from his wife Connie Steed for about five or six years. Frances' house, Tammy and defendant's house, and the barn were located near each other on land which made up the Steed family farm.
After returning from the library, Tammy and her daughters stopped at their house to change clothes and defendant was still in bed. Tammy and her daughters then went to the barn and had dinner with Ray around 4:30 p.m. Shortly thereafter, Connie Steed stopped by the barn. Tammy decided that she and her daughters would stay at her sister Frances' house that night, rather than with defendant, and returned to her house to get some clothes and her daughter's seizure medication. When Tammy arrived at her house, defendant met her at the door, and asked her about the pills and cigarette pack in her car and she told him that she did not know what he was talking about. Tammy then went to Frances' house to wait for Ray. While they were waiting, Tammy's daughter Megan called Ray on his cell phone and asked him if he was coming. Ray responded by asking if defendant was there and Megan hesitated. Ray then said to Megan that “he'd be there in just a minute” and ended the call. Ray, still at the barn, told Connie that defendant “was at home” with Tammy. Connie Steed testified that sometimes if defendant had been drinking, Tammy would call Ray and he would talk with defendant, so that Tammy and defendant could work out their martial disagreement. Connie noted that Ray was not angry but upset and worried when he received the phone call from Megan. Ray got in his truck and drove across the road to defendant and Tammy's house, with Connie following him in her car. From Frances' driveway, Tammy could see what was going on at her house, so she called 911 because she thought “something bad [was] going on.” However, Tammy had misplaced her keys and could not immediately drive back to her house.
When Connie and Ray arrived at defendant and Tammy's house, Connie informed Ray that Tammy's car was not there. Connie and Ray then both walked up the stairs onto the back deck and entered defendant's house through the unlocked back storm door, leading into the laundry room. Connie said that this was how they normally entered defendant's house. Connie noted that Ray did not have anything in his hand when he entered the house. Once inside, they noticed that there were no lights on and began calling for Tammy and the children. After walking around inside the house, they noticed that there was a light on in the master bedroom but the door was closed. Ray opened the bedroom door and entered the room. Connie then saw defendant sitting on the edge of the bed and pointing a handgun at Ray. Defendant then stood up and Connie backed away from the bedroom towards the kitchen and heard Ray asked defendant, “what's going on?” Defendant then shot two times at Ray, hitting him in the stomach. While Connie was in the kitchen looking for a phone to call 911, defendant came into the kitchen swinging the gun “like a pocketbook, or something[.]” Defendant then ran out of backdoor and Connie began helping Ray as he tried to walk out of the house. When Connie and Ray got to the laundry room near the back door, defendant threw a metal pipe at them from the outside, which missed them and hit the floor. Connie helped Ray get to the top of the steps on the deck before they both collapsed. Connie called 911. Defendant then threw the gun near them at the bottom of the steps. Connie reached over, grabbed the gun, and handed it to Ray, who put it under his leg. Defendant then got in the truck to leave, but, upon seeing law enforcement, he drove the truck to the left side of the house. Defendant then got out of the truck, ran to the deck, climbed over the deck railing, went inside the house, picked up the metal pipe in the laundry room with a cloth, and threw it back outside on the ground near Ray.
Shortly after hearing the sound of gunshots from her house, Tammy found her keys, drove to her house, pulled up in her driveway, saw that Ray had been shot, and he was bleeding and unresponsive. Connie handed Tammy defendant's handgun. Defendant told her that “it was self-defense” as Ray had hit him with a metal pipe. A sheriff's deputy arrived at the scene, went inside the house, and placed defendant into custody. Ray Steed later died as a result of a gunshot wound to the abdomen.
Tammy Hight described her relationship with her brother Ray Steed, as Ray was also close to her children and they spent a lot of time together. She also stated that Ray “help[ed] [Tammy and defendant] around the house in whatever we needed to be, you know, needed done.” Also, defendant had let Ray borrow his truck for about two years and, even though Ray was disabled, he would help defendant with his grass-cutting business.
Defendant testified that on the day in question he had been sent home from work for sleeping, as he had been on night shift for eight months, this was the first day working on day shift, and he had not gotten any sleep the night before. He had also fallen asleep while driving to work, hit a guardrail, and damaged his wife's car. Defendant got in “a heated argument” with his wife when he got home. During the argument, defendant got his pistol and “felt like, just ending [his] life.” After the argument, he got something to eat, took the gun to bed with him, and slept most of the day in the master bedroom. He was awakened when he heard Ray Steed open the back door to the house and say “where you at?” Shortly thereafter, “the bedroom door [came] flying open” and Ray entered the bedroom with a pipe in his hand, yelling, Ray hit defendant on the left side of his head and on the left shoulder with the pipe, while defendant was still in bed. Ray then tried to hit defendant again and defendant shot him one time with his handgun. Defendant stated that he shot Ray because he believed he “was going to kill [defendant].” Defendant did not remember going outside or throwing the gun. Defendant was then arrested. Defendant later noticed a bruise on his shoulder and a knot on his head from where Ray had hit him with the pipe but the sheriff's deputy would not take a picture of the bruises.
On 10 June 2011, a jury found defendant guilty of the lesser included offense of voluntary manslaughter. The trial court sentenced defendant to a term of 72 to 96 months imprisonment. On 15 June 2011, defendant filed written notice of appeal. On appeal, defendant argues that the trial court committed plain error in (1) failing to instruct the jury on the defense of habitation and (2) in instructing the jury on the charge of voluntary manslaughter on the grounds that it was not supported by the evidence.
When a defendant fails to preserve instructional or evidentiary errors at trial for appellate review, our Court may nonetheless review for plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Our Supreme Court recently clarified the process for plain error review:
We now reaffirm our holding in Odom and clarify how the plain error standard of review applies on appeal to unpreserved instructional or evidentiary error. For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial. See Odom, 307 N.C. at 660, 300 S.E.2d at 378. To show that an error was fundamental, a defendant must establish prejudice that, after examination of the entire record, the error “had a probable impact on the jury's finding that the defendant was guilty.” See id. (citations and quotation marks omitted) .... Moreover, because plain error is to be “applied cautiously and only in the exceptional case,” Odom, 307 N.C. at 660, 300 S .E.2d at 378, the error will often be...
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