State v. Taft
| Decision Date | 19 February 2013 |
| Docket Number | No. COA12–646.,COA12–646. |
| Citation | 738 S.E.2d 454 |
| Parties | STATE of North Carolina v. Frederick Karl TAFT, Jr. and Fernandez Kabrer Taft. |
| Court | North Carolina Court of Appeals |
OPINION TEXT STARTS HERE
Appeal by defendants from judgments entered 30 September 2011 by Judge Wayland J. Sermons, Jr., in Martin County Superior Court. Heard in the Court of Appeals 28 November 2012.
Attorney General Roy Cooper, by Special Deputy Attorney General Phillip K. Woods, in the appeal of Frederick Karl Taft, Jr., for the State.
Attorney General Roy Cooper, by Assistant Attorney General David N. Kirkman, in the appeal of Fernandez Kabrer Taft, for the State.
Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for Frederick Karl Taft, Jr., defendant appellant.
Sue Genrich Berry for Fernandez Kabrer Taft, defendant appellant.
Frederick Karl Taft, Jr. (“defendant 1”) and Fernandez Kabrer Taft (“defendant 2”) (together “defendants”) appeal from their convictions of voluntary manslaughter, assault with a deadly weapon inflicting serious injury, and discharging a firearm into an occupied vehicle while in operation. Defendant 1 additionally appeals from his conviction of possession of a firearm by a felon. For the following reasons, we find no prejudicial error.
On 27 July 2009, warrants were issued for the arrest of defendants as a result of a 23 May 2009 shootout. Defendants were thereafter arrested. On 2 February 2010, defendants were each indicted on charges of murder, assault with a deadly weapon with intent to kill and inflicting serious injury, and discharging a weapon into an occupied vehicle while in operation. Defendant 1 was additionally indicted on charges of attempted murder and possession of a firearm by a felon. The charges against defendant 1 and defendant 2 were joined for trial and came on to be tried before a jury at the 26 September 2011 Criminal Session of Martin County Superior Court, the Honorable Wayland J. Sermons, Jr., presiding.
Testimony proffered by the State at trial tended to show that the 23 May 2009 shootout stemmed from a dispute earlier that day between defendant 2 and two males, Jarrell Lovette (“Lovette”) and Gregory Collier (“Collier”). The dispute arose when defendant 2 took a firearm from Lovette and Collier, who were trying to sell the firearm outside of a convenience store in Hamilton, North Carolina, and refused to return the firearm. As a result of the altercation, on the night of 23 May 2009, Lovette, Collier and two of their acquaintances, Patrick Staton (“Staton”) and Travonn Barnes (“Barnes”), traveled by vehicle from Hamilton to defendants' residence in Oak City, North Carolina.
Upon their arrival in Oak City, Staton drove the vehicle by defendants' residence at least one time before the shootout began. Staton then circled back around the block and slowed the vehicle to approximately fifteen miles per hour as they approached defendants' residence for another pass. Collier, Lovette, and Staton testified that they did not see anyone outside defendants' residence on their first pass. However, testimony indicated that defendants were waiting outside their residence with pistols in their hands when the vehicle approached for the subsequent pass.
It is unclear from the testimony proffered at trial who fired the first shots. Lovette and Staton testified that the first shots came from inside the vehicle. However, Collier offered contradictory testimony that the first shots came from outside the vehicle as the vehicle approached defendants' residence. Regardless of who fired the first shots, the evidence tended to show that Barnes, Collier, and Lovette fired shots from the vehicle and defendant 1 and defendant 2 each fired shots at the vehicle.
During the exchange of gunfire, Barnes and Collier were shot. Barnes, who was riding in the rear driver side seat, was struck in the head and killed. Collier, who occupied the rear passenger side seat, was struck in the neck and is now a quadriplegic.
On 30 September 2011, the jury returned separate verdicts finding each defendant guilty of voluntary manslaughter, assault with a deadly weapon inflicting serious injury with the aggravating factor that the serious injury is permanent and debilitating, and discharging a weapon into an occupied vehicle while in operation. In addition, the jury also returned a guilty verdict on the charge for possession of a firearm by a felon against defendant 1. The trial court entered judgments as to both defendants. Defendant 1 was sentenced to terms of 117 to 150 months, 46 to 65 months, 94 to 122 months, and 20 to 24 months, the last three terms to be served concurrently and consecutive to the first term. Defendant 2 was sentenced to terms of 51 to 71 months, 31 to 47 months, and 51 to 71 months, the last two terms to be served concurrently and consecutive to the first term. Defendant 1 and defendant 2 timely appealed.
Each defendant raises multiple issues on appeal. For the common issues raised by both defendants, we address defendants' arguments together. For the dissimilar issues raised by each defendant, we address each defendant's arguments separately.
Both defendants argue that the State failed to offer substantial evidence that the shootings of Barnes and Collier were anything but perfect self-defense and defense of family. Thus, defendants contend that the trial court erred in failing to grant their motions to dismiss the charges at the close of the State's evidence. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007).
Perfect self-defense is a complete defense “and requires a verdict of not guilty, not only as to the charge of murder in the first degree but as to all lesser included offenses as well.” State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 573 (1981). In order for perfect self-defense to justify a killing, the following four elements must be present at the time of the killing:
(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 the 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.
Id. at 530, 279 S.E.2d at 572–73. If defendant “was the aggressor in bringing on the difficulty, or defendant used excessive force, the defendant under those circumstances has only the imperfect right of self-defense, having lost the benefit of perfect self-defense, and is guilty at least of voluntary manslaughter.” Id. at 530, 279 S.E.2d at 573. “The above principles are equally applicable when a person acts in defense of a family member.” State v. Irby, 113 N.C.App. 427, 433, 439 S.E .2d 226, 231 (1994).
When there is some evidence in a case that a defendant acted in self-defense, it is well established that “[t]he burden is upon the State to prove beyond a reasonable doubt that the defendant did not act in self-defense....” State v. Herbin, 298 N.C. 441, 445, 259 S.E.2d 263, 267 (1979). “However, ... the test on a motion to dismiss is whether the State has presented substantial evidence which, taken in [the] light most favorable to the State, is sufficient to convince a rational trier of fact the defendant did not act in self-defense.” State v. Gilreath, 118 N.C.App. 200, 208, 454 S.E.2d 871, 876 (1995). “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).
In the present case, defendants argue that the State's own evidence unequivocally establishes that the shooting was committed in defense of self and family. We disagree.
First, although both Staton and Lovette testified that the first shots were fired from inside the vehicle, Collier testified that the first shots were fired from outside the vehicle as the vehicle was approaching defendants' residence. Second, testimony also revealed that defendants continued to fire shots at the vehicle after the vehicle had passed defendants' residence and was driving away. Viewing this evidence in the light most favorable to the State, we find the evidence sufficient to raise questions for the jury as to whether defendants were the aggressors in bringing on the affray or whether defendants used excessive force to repel an attack.
Despite the evidence, defendants additionally argue that even if they fired the first shot or continued to fire after the vehicle had passed, self-defense and defense of family includes reasonably responding to repel an apparent or imminent threat. While defendants are correct in their assertion, the reasonableness of their apprehension and response are questions for the jury to decide. See Herbin, 298 N.C. at 447, 259 S.E.2d at 268 (); see also State v. Marsh, 293 N.C. 353, 237 S.E.2d 745 (1977); State v. Kirby, 273 N.C. 306, 160 S.E.2d 24 (1968). Therefore, the trial court did not err in denying defendants' motion to dismiss.
In addition to challenging the sufficiency of the evidence supporting the charges against defendants, defendant 2 contends that the trial court erred by providing an acting in concert instruction to the jury over his objection. On...
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...to defeat a motion to dismiss if the trial court made any error in the acting-in-concert instruction. See State v. Taft, ––– N.C.App. ––––, 738 S.E.2d 454, 2013 WL 602999, at *5, 2013 N.C.App. LEXIS 160, at *13, (unpublished) ("After reviewing the arguments and applicable case law, we find ......