State v. Irby

• Decision Date: 01 February 1994
• Docket Number: No. 9217SC696,9217SC696
• Citation: 439 S.E.2d 226,113 N.C.App. 427
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Pete Drake IRBY.

Page 226

439 S.E.2d 226

113 N.C.App. 427

STATE of North Carolina v. Pete Drake IRBY.

No. 9217SC696.

Court of Appeals of North Carolina.

Feb. 1, 1994.

Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. Mary Jill Ledford, Raleigh, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Asst. Appellate Defender Constance H. Everhart, Durham, for defendant-appellant.

COZORT, Judge.

Defendant was convicted of two counts of second degree murder and sentenced to life in prison. We find the trial court committed prejudicial error in admitting evidence that the defendant had been involved in a shooting incident three years earlier, and we remand for a new trial.

The State presented the following evidence. On 1 December 1990, Keith Dunevant, aged 33, Kim Dunevant, aged 30, and Coy Dunevant were on a farm owned by Coy Dunevant's mother and located in southern Caswell County. Keith and Kim had gone to the farm to hunt. Keith had a pump shotgun and a fixed blade knife. Kim was armed with a 30-06 rifle. Defendant and his family lived near the farm. At approximately 5:45 p.m., two neighbors, Virginia and Marvin Jones, heard a total of six gunshots coming from the direction of the Irby property. Virginia Jones testified that she first heard three rifle shots, then, three seconds later, a shotgun blast and an almost simultaneous rifle shot, and then three or four seconds later, another rifle shot. Craig Cox testified that sometime after 5:00 p.m., on 1 December 1990, he heard three shotgun blasts and two rifle shots coming from the direction of the Irby property. At 6:15 p.m., Laura Wilson, the daughter of an Emergency Medical Technician, received a telephone call from a woman seeking assistance for her husband who had been shot on Smith Loop Road. Wilson gave the caller the number for emergency assistance. At 6:28 p.m., a caller identifying herself as Vicky Irby called the Sheriff's Department and reported a shooting on Smith Loop Road. The woman stated that her father had been shot and needed an ambulance.

Emergency Medical Technician David R. Smith, and Deputy Sheriff Gwynn Brandon arrived at the scene and found Kim's truck sitting sideways off the right-hand side of the road with the headlights on, the driver's door open, and the passenger window down. The truck was running, in neutral, and the hand brake was set. Kim's rifle was unloaded in the gun rack. Smith observed an orange hunting cap lying left of center in the road and a pump shotgun lying sideways in the road approximately 30 to 50 feet from the hat. Deputy Sheriff Brandon ran over the shotgun when approaching the house. When Smith and Brandon arrived at the Irby house, they saw defendant, his father Acie Irby, Acie's wife Brenda, Acie's daughter Vicky, and another woman. Defendant immediately stated that two men had attacked his father and that he had shot them down at the creek with a 30.30 lever-action rifle, which now was propped against the porch. Deputy Sheriff Brandon secured the rifle, which contained five rounds of ammunition. Smith examined Acie and determined that he had no life threatening injuries.

Deputy Sheriff Brandon examined Keith's .12 gauge shotgun. The breach was closed and ready to fire, but there was no ammunition. Kim's body was discovered approximately 5 to 10 yards off the south side of the road according to Smith, 5 to 50 feet according to Brandon. Kim was lying on his back with a gunshot wound to the face and no vital signs. Keith's body was discovered in a ditch on the north side of the road, approximately 20 to 40 yards from Kim. Keith had a gunshot wound to his chest and had been dead no more than three minutes when his body was discovered. His hunting knife was above his head. His shotgun was approximately 17 feet away. The medical evidence showed that at the time of death, Keith had a blood alcohol level of .24 percent and Kim had a blood alcohol level of .17 percent.

Defendant was taken into custody and advised of his Miranda rights. He gave the following statement while seated in a deputy's car. He stated that the Dunevant's truck came down the road when his parents left in the car to go to the store. His mother returned to the house and told him that two hunters stopped in the road, approached the car, pointed a gun in Acie's face, pulled him out of the car, and started to beat him. His mother pushed the truck out of the road with her car and returned to the house. She told defendant to bring his gun because the men were going to kill his father. When defendant arrived, the two men were still beating his father. One of the men, Keith, started walking towards him with a switchblade knife. Keith shoved the defendant into the ditch, and as defendant tried to get out of the ditch, Keith reached for his shotgun. Defendant thought he heard Keith say that he was going to kill him, but Keith was drunk and difficult to understand. Defendant shot Keith. Keith spun around and fell into the ditch. Defendant heard his father yell for help. Defendant heard Kim say he was going to kill Acie and saw Kim with something in his hand continuously beating Acie. Although Kim's back was to defendant, Kim had turned his face towards him. Defendant was 50 to 60 feet away when he shot Kim in the head. Defendant and his father walked back to the house.

At the police station, defendant signed a waiver of his Miranda rights. He stated that he wanted to correct part of his earlier statement. He had not given the information earlier because he did not want to get his mother in trouble. In his revised statement, defendant stated that he heard five or six gunshots as his parents were going down the road. When defendant's mother came back to get him, she grabbed a .12 gauge shotgun and some birdshot shells. When they arrived at the scene, defendant saw Keith and Kim beating Acie. Keith approached defendant and shoved him into a gully. Defendant's mother told him that Keith had a shotgun and was going to shoot defendant who was face down in the ditch. Defendant's mother grabbed the .12 gauge shotgun and shot Keith in the legs to stop him. When defendant got up, Keith was sitting in the gully with the shotgun and was getting ready to turn around and shoot defendant when defendant shot Keith. When Keith fell back, the shotgun went to his side. The remainder of defendant's statement did not change.

Dr. John D. Butts, the chief medical examiner for the State of North Carolina, testified that Keith Dunevant was fatally wounded by a bullet shot once in the upper right back, just right of the base of the neck and shoulder. The bullet exited in the midline center of the chest. Keith also suffered a shotgun wound to the lower back of his legs. The shotgun pellets came from behind Keith and traveled downwards. From the pattern of the buckshot on the legs, Dr. Butts testified that it was possible that the wounds were inflicted while Keith was running. The wounds to the legs were inflicted by a gun approximately 30 feet away. Keith had bruises on his right knuckles and a fresh cut on one of his knuckles. There were no injuries to his left hand.

Dr. Butts further testified that Kim Dunevant died as a result of a bullet entering the left side of the neck and exiting at the edge of his jaw on the right. Kim's hands were free of bruising, with no scrapes or cuts. On the back of his left hand, Kim had a small discoloration.

Dr. David Dubois, the emergency room physician who examined Acie on 1 December 1990, testified that Acie was unable to recall his birthday or state why he was at the hospital. A physical examination showed that Acie had a bruise to the right eyebrow and some blood in the right nasal passage. There was no evidence that Acie had been hit in the abdomen or any other area of the face. There were no broken bones or deep lacerations.

The State also presented evidence that on 23 December 1988, Sam Butler and some friends were driving on the road and threw some firecrackers in the road. Butler accelerated down the road and heard two gunshots from two guns. He lost control and had a flat tire. As he tried to get the truck out of the ditch, he heard bullets whizzing over his head. Later that day, defendant told a neighbor that he had shot at someone who had thrown firecrackers in his yard.

Defendant presented no evidence. On appeal, defendant argues that the trial court erred in (1) denying defendant's motion to dismiss the charges; (2) permitting evidence about a prior incident in which defendant fired shots at a truck on the road; (3) relying upon aggravating factors which were not supported by the evidence or were improper as a matter of law; and (4) failing to find as a mitigating factor that defendant acted under strong provocation.

In his first assignment of error, defendant argues that the trial court erred in denying defendant's motion to dismiss because the State failed to present substantial evidence that defendant acted with malice. The trial court must grant defendant's motion to dismiss if, viewing the evidence in the light most favorable to the State, the State fails to present substantial evidence of each element of the crime charged. State v. Herring, 322 N.C. 733, 738, 370 S.E.2d 363, 367 (1988). "Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The test of sufficiency of the evidence is the same whether the evidence is direct, circumstantial, or a combination of the two. State v. Thomas, 296 N.C. 236, 244, 250 S.E.2d 204, 209 (1978). Where evidence is circumstantial, " 'the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.' " Id. at 244-45, 250 S.E.2d at 209 (quoting State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965)).

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