State v. McAvoy

• Decision Date: 25 June 1992
• Docket Number: No. 27A90,27A90
• Citation: 417 S.E.2d 489,331 N.C. 583
• Parties: STATE of North Carolina v. Steven James McAVOY.
• Court: North Carolina Supreme Court

Page 489

417 S.E.2d 489

331 N.C. 583

STATE of North Carolina v. Steven James McAVOY.

No. 27A90.

Supreme Court of North Carolina.

June 25, 1992.

Lacy H. Thornburg, Atty. Gen. by Jane P. Gray, Sp. Deputy Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by Benjamin Sendor, Sp. Asst. Appellate Defender, Raleigh, for defendant-appellant.

FRYE, Justice.

Defendant was tried in a non-capital trial upon a true bill of indictment charging him with first-degree murder. The jury returned a verdict of guilty as charged, and the trial court sentenced defendant to a term of life imprisonment. We find no prejudicial error in defendant's trial.

The State's evidence tended to show that on the evening of 7 September 1988, defendant was working as a bartender at the Winner's Circle Club. Around 11:30 or 11:45 p.m., Gary Gray was in the club and told Annette Underwood and Michelle Williams that his wife and defendant were "seeing each other." Gray said that he wanted to take photographs of his wife and the defendant to use as evidence in order to gain custody of the Grays' children if he and his wife separated.

When defendant went to a storage room behind the bar in the club to answer the telephone, Gray walked to a door between a hallway and the storage room, opened the door, and talked with defendant. The two men exchanged words, and defendant pushed Gray back into the hallway. Gray then went around to the front of the bar. As more words were exchanged between the two men, defendant pulled out a gun and aimed it at Gray's head. There was conflicting testimony at trial as to what the two men said to each other and whether defendant pulled out his gun before or after Gray yelled at him. There was testimony that defendant pulled out his gun, and Gray slapped at it once as he stood on the ledge of the bar yelling, "Shoot me. Go ahead shoot me."

After Gray's challenge, defendant shot Gray in the head. Defendant then asked someone to call the police. Anita Hawkins testified that she then went to a telephone in the back of the club, but defendant followed her and told her that it did not work and to use the telephone outside. As she walked outside, Hawkins observed another patron calling the police on a pay telephone. She also testified that when she returned inside, defendant was using the same telephone that he had told her did not work.

When the police arrived at approximately 11:50 p.m., defendant was on the telephone. The police arrested him. Officer Paul Rocco of the Greensboro Police Department testified that defendant was cooperative and told police where his gun was when they asked. Officer Rocco also testified that he did not detect any odor of alcohol about the defendant.

There was also evidence tending to show that Gray was a carpet installer and was wearing a leather holster containing an all-purpose knife. The knife contained a double-edged razor blade.

Gray died on 12 September 1988. At trial, it was stipulated that the gunshot wound to the head, inflicted by defendant, caused Gray's death. It was also stipulated that the bullet removed from Gray's body was fired from defendant's pistol.

Defendant testified in his own defense. According to defendant, Gray confronted him two weeks to a month before the shooting. On that occasion, Gray entered the club and accused defendant of going out with his wife, Carol Gray. Gray told defendant if he ever caught him going out with his wife, he would kill him.

Defendant testified that on 7 September 1988, when he went to the storage room to answer the telephone, Gray told him that five people in the bar that night had said that defendant was going out with Carol. After defendant denied the accusation, Gray replied, "Well, I'm going to tell you right now, I'm going to kill you." Gray reached for defendant's shirt, and defendant stepped away. As defendant stepped back from Gray, he noticed that Gray was carrying a weapon on his side. It looked like a pearl-handled pistol in a holster. Defendant further testified that as he stepped back into the club, Gray walked to the other side of the bar from defendant, leaned over the bar, and screamed at defendant more than once, "Shoot me or I'm going to kill you." Defendant testified that he was not sure, but he might have told Gray, "Leave and I won't call the police." After Gray shouted his first threat, defendant drew a pistol from his belt. Gray then reached back with his right hand toward his right hip to grab what defendant thought was a pistol. Defendant then shot Gray.

Defendant testified that he shot Gray because he thought Gray was going to shoot him. Defendant said he intended only to hurt Gray, not kill him.

Defendant testified that he told Anita Hawkins she could not use the telephone behind the bar because it would not reach 911 (emergency assistance). Later he realized that it was 411 (directory assistance) that could not be reached on that telephone. He knew the telephone could be used for outgoing calls generally; he himself made a call from the telephone to Robert Patavoni, the manager of the club, after the police arrived.

Evidence also tended to show that Gray said something like "shoot me, MF. If you don't shoot me, I'll shoot you." According to one witness, defendant told Gray that if Gray would calm down and go home, defendant would not call the police. Gray then screamed, "Shoot me, shoot me ..., you MF or I'll kill you." Defendant then shot Gray.

Defendant first assigns as error the failure of the trial court to dismiss the charge of murder. Defendant argues that the evidence at trial was insufficient to support a conviction for first-degree murder, second-degree murder or voluntary manslaughter and that the trial court erred in instructing the jury to consider verdicts finding him guilty of any of those offenses. This assignment of error is without merit.

In ruling on a motion to dismiss, the trial court must determine whether there is substantial evidence of each element of the offense charged, or any lesser offense, and that the defendant is the perpetrator. State v. Earnhardt, 307 N.C. 62, 296 S.E.2d 649 (1982).

Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). The term "substantial evidence" simply means "that the evidence must be existing and real, not just seeming or imaginary." State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).

State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Further, the trial court must consider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference. Id. at 237, 400 S.E.2d at 61. If there is substantial evidence of each element of the offense charged, or any lesser included offenses, the trial court must deny the motion to dismiss as to those charges supported by substantial evidence and submit them to the jury for its consideration; the weight and credibility of such evidence is a question reserved for the jury. Id. at 236-37, 400 S.E.2d at 61.

Murder in the first degree is the unlawful killing of another human being with malice and with premeditation and deliberation. N.C.G.S. § 14-17; State v. Woodard, 324 N.C. 227, 330, 376 S.E.2d 753, 755 (1989). The intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice. State v. Judge, 308 N.C. 658, 661, 303 S.E.2d 817, 820 (1983). Premeditation is defined as thought beforehand for some length of time, however short. Id. Deliberation means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation. Id.

The evidence taken in the light most favorable to the State in the present case tended to show that defendant acted with malice, premeditation and deliberation. It is undisputed that defendant shot Gray and that Gray died as a result of the gunshot wound to his head inflicted by defendant. Substantial evidence tended to show that even though Gray could not reach defendant behind the bar and held no weapon himself, defendant responded to Gray's verbal taunts by pulling out a gun and shooting Gray in the forehead. Furthermore, substantial evidence tended to show that thereafter defendant made no effort to assist Gray. In fact, the jury reasonably could have found from the evidence presented that defendant prevented the person whom he had asked to call the police from doing so by telling her the telephone did not work, when in fact it did. Taken in the light most favorable to the State, such substantial evidence would permit, but not require, a jury to reasonably conclude that defendant did not believe it necessary to kill the deceased to save himself from death or great bodily harm and that the State had carried its burden of disproving self-defense. See State v. Bush, 307 N.C. 152, 297 S.E.2d 563 (1982). Further, such evidence would support, but not compel, a reasonable finding by the jury that the State had carried its burden in the present case of showing that the defendant did not act in the heat of passion suddenly aroused by just cause or legal provocation. Id. Taken in the light most favorable to the State, there was substantial evidence that defendant acted with malice, premeditation and deliberation. The trial court did not err in denying defendant's motion to dismiss at the conclusion of all of the evidence.

By his next assignment of error, defendant contends that the trial court erred by orally reinstructing the jury on the elements of murder in the first degree, murder in the second degree, voluntary manslaughter, and self-defense after ruling that it could not provide those instructions in writing...