State v. Jackson

• Court: North Carolina Court of Appeals
• Writing for the Court: McCULLOUGH.
• Citation: State v. Jackson, 550 S.E.2d 225, 145 N.C. App. 86 (N.C. App. 2001)
• Decision Date: 17 July 2001
• Docket Number: No. COA00-987.,COA00-987.
• Parties: STATE of North Carolina v. Darrius Charles Anton JACKSON.

550 S.E.2d 225

145 NC App. 86

STATE of North Carolina v. Darrius Charles Anton JACKSON.

No. COA00-987.

Court of Appeals of North Carolina.

July 17, 2001.

Attorney General Michael F. Easley, by Special Deputy Attorney General Isaac T. Avery, III, and Assistant Attorney General Patricia A. Duffy, for the State.

Hosford and Hosford, P.L.L.C., by Sofie W. Hosford, Wilmington, for defendant appellant.

McCULLOUGH, Judge.

On 4 March 1999, a jury convicted thirty-one-year-old Darrius Charles Anton Jackson (defendant) of voluntary manslaughter and nonfelonious hit and run in connection with the death of twenty-two-year-old Brian Melvin (decedent). The trial court sentenced defendant to a term of 64-86 months in prison on the voluntary manslaughter charge, and for an additional term of 45 days on the nonfelonious hit-and-run charge.

At trial, the State's evidence tended to show the following: On the evening of 2 March 1999, Wilmington Police Officer Leroy Cain responded to a reported fight on North 30th Street in the Creekwood Housing Development (Creekwood). Officer Cain arrived with his partner, Officer Alvin Wilson, only to find the area "fairly quiet." As the officers prepared to leave Creekwood, they noticed a group of about ten people "bunched up together" and "fighting" on the corner of Clayton Place and North 30th Street. Officers Cain and Wilson called for backup.

By the time the officers reached the crowd, it had grown to nearly fifty people, who were "yelling and screaming back and forth at each other." Officers managed to separate defendant, whose shirt had been ripped off, and decedent, both of whom had their fists up and were yelling at each other. While officers tended to the rest of the crowd, Ahmad Carr punched defendant in the back of the head. Officer Wilson brandished his pepper spray and ordered decedent to leave the area. The three officers advised the disorderly crowd that they could take out warrants if they wished and instructed them to leave and go their separate ways.

As the crowd began to disperse, Officer Cain observed decedent walking southbound on North 30th Street in the northbound lane of the road about four to six feet from the curb. Defendant walked in the opposite direction and headed northbound up North 30th Street. According to Officer Cain, decedent was walking slowly down the road when a red automobile struck him from behind. Officers Cain, Shea, and Wilson observed the incident. Officers Cain and Shea estimated the vehicle was traveling between thirty and forty miles per hour in a twenty-five-mile-per-hour zone when it struck decedent. All three officers stated the vehicle did not swerve, did not brake, and did not slow down. Instead, the vehicle continued southbound on North 30th Street. Decedent was treated for a lethal brain injury until 3 March 1999 when doctors pronounced him brain dead. An autopsy later revealed decedent died as a result of blunt trauma to the head that produced massive skull fractures and bruising and swelling of the brain.

Officers Janice Bates and Amy Ward of the Wilmington Police Department testified they observed a red automobile stopped at the intersection of North 30th Street and Princess Place Drive. When the officers pulled in behind the vehicle, defendant and his wife stepped out of the car and approached the patrol car. While the officers detained the visibly upset couple, defendant stated, "I did it, I hit him. She had nothing to do with it."

Officer Thomas Witkowski testified defendant appeared "upset" and "angry" when he first arrived at the Wilmington Police Department on the night of 2 March 1999. Officers Witkowski and Gronau advised defendant of his rights, and he agreed to answer any questions, giving both an oral and a written statement. In his written statement, defendant admitted that

I then get in my car with my wife and leave the scene. [Decedent] gets in the middle of the street in front of my car. The police already have done nothing; and [decedent] already made a threat in front of them, and walks away, so I hit him and keep going. I wasn't going to stop to get jumped or get my car messed up. I then stopped at the light for the police.

At trial defendant testified on his own behalf. Defendant stated that on the evening of 2 March 1999, he, his wife, stepmother, and stepdaughters drove to Creekwood after receiving phone calls from his sister, Benee Cotton. Defendant's sister told defendant that someone assaulted two of his sisters, Pauline and Janese, and broke the car windows out of his sister Kathy's car. Defendant testified that, when he reached the area, he located Pauline among a crowd of people standing in the street. When defendant approached his sister, decedent emerged from behind the crowd and told defendant, "I'm the one who hit your sister." He then stated that if anybody wanted to do anything, "[t]hey've got to deal with me." Defendant recalled handing his eyeglasses to Pauline before at least ten people, including decedent, attacked him physically, ripped his shirt off, and dragged him across the street. Defendant stated that, when officers arrived, decedent and the others ended their physical assault, but that decedent continued to intimidate and threaten him with words and gestures.

Defendant felt the situation was getting out of control when he and his wife finally left. Defendant was "upset" and "angry" while driving away from the crowded area. Defendant stated that he could not avoid striking decedent when he jumped into the path of defendant's automobile. Defendant said that, although he was not speeding, he did not have enough time to stop or swerve to avoid decedent. Defendant testified he did not know if decedent had a weapon, but thought decedent was trying to prevent him from leaving. Defendant stated he did not stop because "it was a hostile situation from beginning to end," and he thought if he stopped, his life or his wife's life could be threatened. Defendant eventually stopped at the intersection of North 30th Street and Princess Place Drive where he was apprehended by Officers Ward and Bates.

Defendant assigns as error the trial court's denial of his motion for nonsuit and the trial court's refusal to instruct the jury on self-defense. For the reasons set forth herein, we affirm the judgment of the trial court.

Defendant's first assignment of error challenges the trial court's denial of his motion for nonsuit as to the charges of second-degree murder and the lesser included offense of voluntary manslaughter. "A motion to dismiss and a motion for nonsuit are equivalent." State v. Lindsay, 45 N.C.App. 514, 515, 263 S.E.2d 364, 365 (1980). In ruling upon defendant's motion to dismiss on the grounds of insufficient evidence, the trial court is required to interpret the evidence in the light most favorable to the State, drawing all reasonable inferences in the State's favor. State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 860 (1981). "`The question for the court is whether substantial evidence— direct, circumstantial, or both—supports each element of the offense charged and defendant's perpetration of that offense.'" State v. McCullers, 341 N.C. 19, 29, 460 S.E.2d 163, 168 (1995) (quoting State v. Abraham, 338 N.C. 315, 328, 451 S.E.2d 131, 137 (1994) (quoting State v. Rannels, 333 N.C. 644, 659, 430 S.E.2d 254, 262 (1993))). The term "substantial evidence" simply means that the evidence must be existing and real, not just seeming or imaginary, and adequate to support a conclusion. State v. McAvoy, 331 N.C. 583, 589, 417 S.E.2d 489, 493 (1992). "Whether evidence presented constitutes substantial evidence is a question of law for the court." State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991).

Defendant argues there was insufficient evidence to show that he intentionally struck decedent with his automobile to satisfy the requisite element of intent in both second-degree murder and voluntary manslaughter. As a result, defendant contends he is entitled to a new trial in which the jury should consider only the offense of involuntary manslaughter. We disagree. "Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation." State v. Foust, 258 N.C. 453, 458, 128 S.E.2d 889, 892 (1963). Manslaughter is a lesser included offense of second-degree murder. State v. Holcomb, 295 N.C. 608, 613, 247 S.E.2d 888, 891 (1978). "Voluntary manslaughter is defined as `the unlawful killing of a human being without malice, express or implied, and without premeditation and deliberation.'" State v. McNeil, 350 N.C. 657, 690, 518 S.E.2d 486, 506 (1999), cert. denied, 529 U.S. 1024, 120 S.Ct. 1432, 146 L.Ed.2d 321 (2000) (quoting State v. Rinck, 303 N.C. 551, 565, 280 S.E.2d 912, 923 (1981)). Generally, voluntary manslaughter occurs when one kills intentionally but does so in the heat of passion suddenly aroused by adequate provocation or in the exercise of self-defense where excessive force is used or defendant is the aggressor. State v. Barts, 316 N.C. 666, 692, 343 S.E.2d 828, 845 (1986).

"Neither second degree murder nor voluntary manslaughter has as an essential element an intent to kill." State v. Ray, 299 N.C. 151, 158, 261 S.E.2d 789, 794 (1980). "`[T]he expression, intentional killing, is not used in the sense that a specific intent to kill must be admitted or established.'" State v. Phillips, 264 N.C. 508, 515, 142 S.E.2d 337, 342 (1965) (emphasis in original) (quoting State v. Gordon, 241 N.C. 356, 359, 85 S.E.2d 322, 323 (1955)). Intentional killing refers to the fact that the act which resulted in death is intentionally committed and is an assault which in itself amounts to a felony or is likely to cause death or serious bodily injury. Ray, 299 N.C. at 158, 261 S.E.2d at 794.

Intent is a mental attitude which can rarely be proven by direct evidence, and must ordinarily be proven by circumstances from which it can be...