State v. Robbins

• Decision Date: 06 December 1983
• Docket Number: No. 60A83,60A83
• Citation: 309 S.E.2d 188,309 N.C. 771
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Phillip Thomas ROBBINS, Jr.

Page 188

309 S.E.2d 188

309 N.C. 771

STATE of North Carolina v. Phillip Thomas ROBBINS, Jr.

No. 60A83.

Supreme Court of North Carolina.

Dec. 6, 1983.

Rufus L. Edmisten, Atty. Gen. by Michael R. Morgan, Asst. Atty. Gen., Raleigh, for the State.

Alonzo Brown Coleman, Jr., and Donald R. Dickerson, Hillsborough, for defendant-appellant.

BRANCH, Chief Justice.

Defendant first assigns as error the trial judge's denial of his motion to dismiss on grounds of insufficient evidence. Defendant contends that the State failed to show the existence of malice sufficient for the jury to find him guilty of second-degree murder.

The test of the sufficiency of the evidence in a criminal case is whether there is substantial evidence of each essential element of the offense charged, or of a lesser included offense of that charged. State v. Roseman, 279 N.C. 573, 184 S.E.2d 289 (1971); State v. Mason, 279 N.C. 435, 183 S.E.2d 661 (1971).

The evidence is to be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom ...

State v. Powell, 299 N.C. 95, 99, 261 S.E.2d 114, 117 (1980).

Second-degree murder is the unlawful killing of a human being with malice, but without premeditation and deliberation. State v. Duboise, 279 N.C. 73, 181 S.E.2d 393 (1971); State v. Downey, 253 N.C. 348, 117 S.E.2d 39 (1960). Malice may be express or implied and it need not amount to hatred or ill will, but may be found if there is an intentional taking of the life of another without just cause, excuse or justification. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). Furthermore, we have often stated the well-settled rule in this jurisdiction that,

If the State satisfies the jury beyond a reasonable doubt or if it is admitted that a defendant intentionally assaulted another with a deadly weapon, thereby proximately causing his death, two presumptions arise: (1) that the killing was unlawful and (2) that it was done with malice. Nothing else appearing, the person who perpetrated such assault would be guilty of murder in the second degree.

State v. Jones, 287 N.C. 84, 100, 214 S.E.2d 24, 35 (1975).

In the instant case, the evidence tended to show that defendant, known as "Jackie," threatened one of the victim's daughters and also stole a gun one week prior to the incident in question; that he inexplicably arrived at the victim's workplace and drove away with her; that the two were seen parked on a dirt road later that night fighting; that the victim screamed for help just before falling out of the car; that she had been shot three times at close range, with one defensive-type gunshot wound in her hand; that she died as a result of multiple gunshot wounds inflicted by the same gun stolen by defendant; and that, when asked who had done this to her, she mumbled replies which sounded like "Ubbins," "Obbins," "Jack Adams," "Abrams," and "Jack."

We hold that the evidence in this case was sufficient to support a jury finding that defendant intentionally assaulted Mrs. Carroway with a deadly weapon and thereby proximately caused her death. This assignment is overruled.

Defendant next contends that the trial judge erred in failing to instruct on the lesser included offense of voluntary manslaughter. Defendant in essence argues that the circumstances surrounding the shooting are in doubt, and since no one knows what actually occurred, the ambiguity in the evidence would permit the jury to infer that the shooting was a result of heat of passion upon adequate provocation. We disagree.

Defendant relies for support on the case of State v. Manning, 251 N.C. 1, 110 S.E.2d 474 (1959). There the Court first held that certain of the solicitor's statements constituted prejudicial error. The Court then, without any prior statement as to the facts in the case, considered the defendant's contention that the judge erred in not instructing on voluntary manslaughter. The Court stated in summary fashion and without citation to authority:

In respect to this contention this Court is of the opinion that the fact that defendant and his wife were together in the woods 10 minutes (R. p. 32), as the State's evidence tends to show, before any shots were heard is a circumstance that requires a charge on manslaughter.

The evidence discloses that there were no eyewitnesses to the shooting, and no one of the State's witnesses knows what actually took place on this occasion. It rests in speculation.

251 N.C. at 5-6, 110 S.E.2d at 477.

Our reading of the entire transcript in that case, however, reveals that there is plenary evidence from which a jury might find premeditation, deliberation, and an intentional assault with a deadly weapon from which to presume malice, and none from which it might find heat of passion upon adequate provocation. We, therefore, conclude that the Manning Court incorrectly found error in the failure to instruct on voluntary manslaughter. That portion of Manning that finds error in the failure of the trial judge to instruct on voluntary manslaughter is accordingly overruled.

It is the duty of the trial court to instruct the jury on the law applicable to the substantive features of the case arising on the evidence, and when there is evidence to support the lesser included offense of voluntary manslaughter, defendant is entitled to have that offense submitted to the jury under proper instructions. State v. Montague, 298 N.C. 752, 259 S.E.2d 899 (1979). Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971). One who kills a human being under the influence of sudden passion, produced by adequate provocation, sufficient to negate malice, is guilty of manslaughter. State v. Wynn, 278 N.C. 513, 180 S.E.2d 135 (1971).

In State v. Hankerson, 288 N.C. 632, 220 S.E.2d 575 (1975) reversed on other grounds, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977), we stated that once the State proves beyond a reasonable doubt that the defendant intentionally inflicted a wound upon the deceased with a deadly weapon which proximately resulted in death, the presumptions of malice and unlawfulness are raised. The burden is then upon the defendant "to go forward with or produce some evidence of all elements of self-defense or heat of passion on sudden provocation, or rely on such evidence as may be present in the State's case." Id. at 650, 220 S.E.2d at 588. We further observed:

If, after the mandatory presumptions are raised, there is no evidence of a heat of passion killing on sudden provocation and no evidence that the killing was in self-defense, Mullaney [v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975)] permits and our law requires the jury to be instructed that defendant must be convicted of murder in the second degree. If, on the other hand, there is evidence in the case of...