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State v. Kozoman6/7/2005
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
On 7 October 2002, James Robert Kozoman ("defendant") was indicted and charged with first degree murder in the death of John Edward McGhee ("McGhee"). Defendant pled not guilty and was tried before a jury on 8 December 2003. Defendant was convicted of second degree murder and sentenced to between 219 and 272 months in prison. Defendant gave notice of appeal in open court.
At trial the State's evidence tended to show that on 22 September 2002, defendant shot and killed his neighbor McGhee. Earlier that day defendant and McGhee, who had known each other for several years and were friends, had been working on a truck together and drinking beer and wine. Defendant and an elderly friend of McGhee's, Robert Gregory ("Gregory"), who was with both of them, stated they were joking and getting along with each other.
After several hours, McGhee went into his house and emerged with a shotgun, appearing very angry. McGhee pointed the shotgun at defendant and began yelling at defendant that he would kill him, his mother, his girlfriend, and his children. Defendant stated he did not know what caused McGhee to act that way and was scared. Gregory got between the two men and tried to calm McGhee down. Defendant backed away and proceeded across the road to the house where he lived with his mother and girlfriend.
Defendant had been in an altercation with his girlfriend earlier on the day of the incident and was not supposed to return home that night. Defendant beat on the front door to try to get someone to let him in the house. When his girlfriend refused to open the door, defendant went around to the unlocked back door and entered. Defendant tried to call the police, but his girlfriend would not let him because she was afraid their children would be taken away. The commotion awakened defendant's mother and he instructed her to call the police - which she did. Defendant then left his mother's house with his rifle. Defendant stated he went back towards McGhee's residence because he was afraid McGhee would try to sneak up to his mother's house to carry out his threats and he wanted to make sure McGhee remained at his residence. Defendant remained in the bushes and shadows watching McGhee and Gregory. McGhee appeared angry and said something to the effect of "I'm was going to get my shit and do this." Defendant stated that he believed that McGhee was referring to carrying out his earlier threats. McGhee then went inside his residence and returned with the shotgun again. Defendant testified McGhee took two or three steps out the door, pointed the shotgun in his direction and fired. McGhee then turned to the side and opened the shotgun as if he were going to reload. Defendant then fired two shots at McGhee, who collapsed after the second shot.
Defendant fled the scene and attempted to drive to his brother's residence, but was stopped and arrested for driving under the influence and speeding en route. Upon his arrest, the officer took the .22 caliber rifle that was used in the shooting from defendant's vehicle for safe-keeping, unaware of defendant's involvement in the previous altercation with McGhee.
After being remanded to the county jail following a magistrate's hearing, defendant said to the arresting officer "I think I killed my neighbor tonight with that rifle." Defendant wasread his Miranda rights and made a brief statement, but was not questioned immediately regarding the shooting due to his intoxic
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