State v. Patterson, 60

• Decision Date: 17 May 1979
• Docket Number: No. 60,60
• Citation: 297 N.C. 247,254 S.E.2d 604
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Gregory Dean PATTERSON.

Page 604

254 S.E.2d 604

297 N.C. 247

STATE of North Carolina v. Gregory Dean PATTERSON.

No. 60.

Supreme Court of North Carolina.

May 17, 1979.

Rufus L. Edmisten, Atty. Gen., by R. W. Newsom, III, Associate Atty. Gen., Raleigh, for the state.

Chambers, Stein, Ferguson & Becton, P.A., by J. LeVonne Chambers and Louis L. Lesesne, Jr., Charlotte, and Young M. Smith, Sr., Hickory, for defendant.

EXUM, Justice.

The parties stipulated at trial that the deceased, Michael Millsap, "died March 2, 1976, as a proximate result of gunshot wounds inflicted upon him by the defendant Gregory Dean Patterson." The defense was self-defense. Defendant has presented only one assignment of error. It questions the correctness of Judge Snepp's instructions to the jury regarding the inferences of malice and unlawfulness which may arise upon proof that defendant intentionally inflicted a wound upon deceased which caused death. Disagreeing with the conclusion of the Court of Appeals, we find error in this instruction entitling defendant to a new trial.

The state's evidence consisted essentially of the testimony of three witnesses to the shooting. They observed defendant and Millsap arguing at the home of Theodoria Hunter. Defendant had parked his car in the driveway. Millsap blocked the driveway with his car, got out and walked to defendant's car in which defendant was sitting. The argument ensued. Millsap jerked the keys from defendant's car, grabbed defendant by the shirt, and began hitting him. Defendant did not fight back. Millsap then threw defendant's keys at defendant and began walking toward Hunter's house. Defendant shot Millsap twice with a pistol. Millsap ran into the house and defendant followed and shot him three more times. The deceased was a large man, six feet four inches tall and weighing approximately 240 pounds. Theodoria Hunter had dated the deceased for eight years and has one five year old child by him, but she had not dated him for about three months at the time of the shooting. She was at that time dating defendant.

Defendant testified in his own behalf and offered corroborating witnesses as well as evidence of his good character and reputation. This evidence tended to show that the deceased on one occasion two months before this shooting had assaulted and threatened defendant. Defendant testified that on the day of the killing he had gone to see Theodoria Hunter. Before he could get out of his car, which was parked in her driveway, the deceased accosted him saying, "I got you now." The deceased ripped defendant's shirt, took defendant's car keys, and beat defendant severely. Defendant, temporarily blinded in his right eye, got his pistol and began shooting at the deceased. Defendant testified:

"I got out of the car, and I couldn't see with my right eye. I just started shooting like with a water pistol; just started shooting; just started shaking, just started shooting. I do not know how many times I shot. I was excited. I was scared."

After the shooting defendant went directly to the Catawba County Sheriff's office, turned in his weapon, and reported the incident. Defendant is a relatively small man, five feet four inches tall and weighing 165 pounds.

Judge Snepp submitted four alternative verdicts to the jury: murder in the first degree, murder in the second degree, voluntary manslaughter, and not guilty. He correctly charged that in order to convict defendant of second degree murder:

"(T)he State must prove beyond a reasonable doubt three things: First, that the defendant intentionally shot Millsap with a deadly weapon without justification or excuse;

Second, that the shooting produced Millsap's death; and

Third, that the defendant acted with malice."

Judge Snepp had earlier defined malice as meaning "hatred, ill-will or enmity," and also that state of mind "which prompts a person . . . to intentionally inflict a wound with a deadly weapon upon another person which proximately results in his death without just cause, excuse or justification." Immediately after giving this definition of malice he charged on the inferences which may arise from proof that defendant intentionally inflicted a wound on deceased with a deadly weapon causing death, as follows:

"Now if the State satisfies you beyond a reasonable doubt that Gregory Patterson intentionally shot Michael Millsap with a deadly weapon or that he intentionally inflicted a wound upon Millsap with a deadly weapon and thereby proximately caused Millsap's death, And there is no evidence which raised in your mind a reasonable doubt that the defendant acted without malice or without justification or excuse, that is, I say, that if the State satisfies you beyond a reasonable doubt that Gregory Patterson intentionally shot Michael Millsap with a deadly weapon or that he intentionally inflicted a wound upon Millsap with a deadly weapon thereby proximately causing Millsap's death, And there is no evidence which raises in your mind a reasonable doubt that the defendant acted without malice, you may infer that the defendant acted unlawfully and with malice.

"However, if there is other evidence, then you will also consider it in determining whether the State has proved beyond a reasonable doubt that the defendant acted with malice and without justification and excuse." (Emphasis supplied.)

Soon after the jury retired to consider their verdict they returned to the courtroom to ask for additional instructions regarding the definitions of first and second degree murder. During these additional instructions Judge Snepp charged as follows "Now if the State satisfies you beyond a reasonable doubt that Gregory Patterson intentionally shot Michael Millsap with a deadly weapon or that he intentionally inflicted a wound upon Millsap with a deadly weapon and thereby proximately caused Millsap's death and there is no other evidence which raises in your mind a reasonable doubt that the defendant acted without malice or without justification or excuse you may infer that the defendant acted unlawfully, and with malice.

"However, if there is other evidence and you will also consider it in determining whether the State has proved beyond a reasonable doubt that the defendant acted with malice and without justification and excuse." (Emphasis supplied.)

Defendant contends, and we agree, that Judge Snepp committed error in utilizing the language emphasized in the above instructions. ¹

Nowhere in his instructions did Judge Snepp tell the jury that it was not compelled to nor need it necessarily infer malice and unlawfulness, I. e., absence of justification. The instructions say, in essence, that unless the jury has a reasonable doubt as to the existence of malice and unlawfulness it "may infer" their existence upon proof of the necessary underlying facts. In this context, it is likely the jury understood the word "may" to mean "should." The complained of instructions are thus susceptible to an interpretation that the jury should infer malice and unlawfulness in the absence of evidence raising a reasonable doubt as to the existence of these elements.

So interpreted the instructions impermissibly placed upon defendant a burden to raise a reasonable doubt as to the facts to be inferred or, in other words, to rebut the inferences themselves or else be found guilty as a result of the inferences. This Court has consistently disapproved instructions which place this kind of burden upon a defendant in a criminal case. State v. Hayes, 273 N.C. 712, 161 S.E.2d 185 (1968); State v. Holloway, 262 N.C. 753, 138 S.E.2d 629 (1964); State v. Ramsey, 241 N.C. 181, 84 S.E.2d 807 (1954); State v. Holbrook, 223 N.C. 622, 27 S.E.2d 725 (1943); State v. Baker, 213 N.C. 524, 196 S.E. 829 (1938); State v. Harrington, 176 N.C. 716, 96 S.E. 892 (1918).

All of the cases cited dealt with instructions on the so-called "presumption" which arises in larceny cases upon proof of possession of stolen property by the defendant recently following its theft. While the word "presumption" is oftentimes used in this context, it is clear that recent possession is merely an evidentiary fact from which a jury may, but is not compelled, to infer that the defendant was indeed the thief. "This presumption is to be considered by the jury merely as an evidential fact, along with the other evidence in the case, in determining whether the state has carried the burden of satisfying the jury beyond a reasonable doubt of the defendant's guilt." State v. Baker, supra, 213 N.C. at 526, 196 S.E. at 830. In the cases cited the trial judge in instructing the jury either made express reference to the defendant's duty, in the presence of the presumption, to "raise a reasonable doubt" that he in fact stole the property or phrased his instructions in such a way that they could be interpreted to place this duty upon the defendant. This Court, in each case, held the instructions to be prejudicially erroneous on the ground that the instruction either (1) placed upon the defendant a burden to raise a reasonable doubt as to his guilt (Holloway, Baker And Harrington ) or (2) impermissibly placed upon the defendant a burden to rebut a "presumption" of guilt (Hayes, Ramsey and Holbrook ).

As we tried to make clear in State v. Hankerson, 288 N.C. 632, 649-52, 220 S.E.2d 575, 588-89 (1975), Rev'd on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), the inferences of malice and unlawfulness that may arise upon proof of the intentional infliction of a wound with a deadly weapon proximately resulting in death have the same legal effect, at least in the presence of evidence tending to rebut these inferences, as does the inference of guilt in a larceny case arising from proof of recent possession. In such circumstances the inferences of malice and unlawfulness are mere inferences of fact flowing logically from proof of the intentional infliction of the...