State v. Richardson, 402PA93

• Decision Date: 08 September 1995
• Docket Number: No. 402PA93,402PA93
• Citation: 341 N.C. 585,461 S.E.2d 724
• Parties: STATE of North Carolina v. Clarence RICHARDSON.
• Court: North Carolina Supreme Court

Page 724

461 S.E.2d 724

341 N.C. 585

STATE of North Carolina v. Clarence RICHARDSON.

No. 402PA93.

Supreme Court of North Carolina.

Sept. 8, 1995.

Michael F. Easley, Attorney General by John G. Barnwell, Assistant Attorney General, for the State-appellant.

Marc D. Towler, Assistant Public Defender, for defendant-appellee.

PARKER, Justice.

Defendant, upon proper bills of indictment, was convicted of one count of assault with a deadly weapon with intent to kill inflicting serious injury and two counts of second-degree murder in violation of N.C.G.S. § 14-32(a) and N.C.G.S. § 14-17, respectively. The trial judge imposed consecutive sentences of fifteen years' imprisonment, forty-five years' imprisonment, and life imprisonment. On defendant's appeal the Court of Appeals found reversible error in defendant's second-degree murder convictions and ordered a new trial. The State's petition for discretionary review of the Court of Appeals' decision was allowed by this Court on 2 December 1993.

The evidence at trial tended to show that Dr. James Kirkpatrick was a dentist in Ohio; he had come to Charlotte, North Carolina, on 17 July 1991 to visit his brothers, Brian and Barry Kirkpatrick. James, a former college varsity football player, was 6'6" tall and weighed 305 pounds. Brian Kirkpatrick was 5'11" tall and weighed 216 pounds. Barry Kirkpatrick was 6' tall and weighed 182 pounds. The brothers spent the evening of 17 July 1991 drinking alcohol and eating. Shortly before midnight, James, Brian, and Barry arrived at Leather and Lace, a private topless club in Charlotte, North Carolina. The brothers entered the foyer of the club but were denied admittance to the club by Dick Pincelli, an employee who believed James Kirkpatrick was intoxicated. James, Brian, and Barry began arguing with Pincelli.

Defendant Richardson was the manager of the club; he was 6'2" tall and weighed 180 pounds. He was made aware of the disturbance in the foyer and went to investigate along with a customer, Danny Thompson. Before entering the foyer, defendant went to his office and got a .45-caliber pistol. When defendant entered the foyer, the three brothers had already left the foyer and were outside the club in the parking lot. By this time Pincelli had called the police.

Defendant testified that as he stood in the foyer in front of the glass front door looking out into the parking lot, he saw Barry Kirkpatrick leaning against a glass pane to the left of the door. James and Brian Kirkpatrick were in the parking lot behind Barry, arguing with each other. As defendant opened the front door of the club to tell the Kirkpatricks to leave, Barry moved and pinned defendant's right arm between the door and the frame. While defendant was pinned James Kirkpatrick reached through the opening in the door and told defendant, "You f--- with us, we will kill you." James then told Barry to let go of the door. As the door opened, defendant shot Barry and then James; he shot at James a second time when James continued to advance towards him. At this time, according to defendant, Brian began running towards the front door; and defendant shot him also.

James Kirkpatrick testified that the brothers argued with Pincelli in the foyer of the club and then left when told the police had been called. According to James, the brothers were in the parking lot walking towards their car when they heard a voice coming from the front door of the club. James and Barry turned towards the voice, and Barry started to walk back towards the door. Barry walked up to the front glass door and put his hands on the door. James grabbed Barry's arm and tried to pull him away from the door, telling him, "It's not worth it." At this time Brian was standing behind James and Barry. James then heard four shots and realized he had been hit. James fell to the ground; he saw Barry lying on the ground next to him, turned over, and saw Brian also lying on the ground.

Defendant waited for the police to arrive; and when they did, he told them, "I did it.... They were all over me." Brian and Barry died at the scene from gunshot wounds to the chest. James lived but suffered serious injuries to his elbow, hip, and abdomen. On the night of the murders, James had a blood alcohol content equivalent to a breathalyzer reading of .21; Brian had a blood alcohol content equivalent to .14 on the breathalyzer; and Barry had a blood alcohol content equivalent to .19 on the breathalyzer.

The sole issue presented for our review is whether the trial court erred in instructing the jury that it could find that defendant acted in self-defense only if defendant reasonably believed that under the circumstances it was necessary "to kill" the victims. Defendant contended, and the Court of Appeals agreed, that the jury should have been instructed that the jury could find that defendant acted in self-defense if it found that defendant reasonably believed under the circumstances that it was "necessary to shoot [or use deadly force against] the deceased in order to save himself from death or great bodily harm." State v. Richardson, 112 N.C.App. 252, 259, 435 S.E.2d 84, 88 (1993). The State contends that the Court of Appeals erred in modifying the pattern jury instructions on self-defense for second-degree murder.

This Court has repeatedly held that a defendant is entitled to an instruction on perfect self-defense when evidence is presented tending to show:

"(1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and

(2) defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

(3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

(4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm."

State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992) (quoting State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981)); see also State v. Watson, 338 N.C. 168, 179-80, 449 S.E.2d 694, 701 (1994), cert. denied, --- U.S. ----, 115 S.Ct. 1708, 131 L.Ed.2d 569 (1995); State v. Reid, 335 N.C. 647, 670, 440 S.E.2d 776, 789 (1994); State v. Maynor, 331 N.C. 695, 699, 417 S.E.2d 453, 455 (1992); State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987); State v. Mize, 316 N.C. 48, 51, 340 S.E.2d 439, 441 (1986); State v. Wilson, 304 N.C. 689, 694-95, 285 S.E.2d 804, 807 (1982).

"Under the law of perfect self-defense, a defendant is altogether excused if all of the above four elements existed at the time of the killing." Reid, 335 N.C. at 670, 440 S.E.2d at 789. "[U]nder the law of imperfect self-defense, if the first two elements existed at the time of the killing, but defendant although without murderous intent, was the aggressor in bringing on the affray or used excessive force, defendant is guilty at least of voluntary manslaughter." McAvoy, 331 N.C. at 596, 417 S.E.2d at 497.

In his brief defendant contends that the instruction given by the trial court "blurred the distinction between [an] unreasonable belief in the necessity to act in self-defense and [the] use of excessive force in self-defense, thereby denying defendant the possibility of a verdict of voluntary manslaughter where it was reasonably necessary to use deadly force, but not to kill."

In McAvoy the Court determined that if the defendant had an unreasonable belief that it was necessary to kill to save himself from death or great bodily harm, the defendant was guilty of murder. Id. at 601, 417 S.E.2d at 500. The Court also concluded that if the defendant was reasonable in his belief that it was necessary to kill to save himself from death or great bodily harm but used more force than was reasonably necessary to protect himself, then defendant was guilty of manslaughter. Id. In McAvoy the defendant argued that elements two and four of the self-defense instruction are legally equivalent and that the same verdict should result from the disproof of either element. Id. at 596, 417 S.E.2d at 497. This Court rejected defendant's argument and determined that elements two and four are not legally equivalent. The Court held that the State's disproof of element two, that defendant's belief that it is necessary "to kill" to save himself from death or great bodily harm was reasonable, permits a conviction of murder; whereas, the State's disproof only of element four, that defendant did not use excessive force to protect himself from death or great bodily harm, permits a conviction of manslaughter. Id. at 601, 417 S.E.2d at 500.

Recognizing that we addressed this issue in McAvoy, defendant contends that McAvoy is not dispositive since the Court in McAvoy "left unaddressed the issue of what belief is necessary on the part of a defendant under element (2)." Defendant argues that if the belief in elements one and two is a belief that it is necessary "to kill," then there is no legal difference between elements two and four and the "problem of inconsistent verdicts arising from the equivalence of those two elements remains." On the other hand this problem is, according to defendant, eliminated if the belief in elements one and two is defined as belief in the "necessity to shoot (or use deadly force against)" the deceased. Defendant then identifies the conflict thusly: "[S]ince killing based upon an unreasonable belief in the need to kill in self-defense is identical to the use of excessive force, these two phrasings of one criterion should result in identical legal consequences." This very contention was rejected by this Court in McAvoy, where the Court stated:

We agree with the...