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State v. Feeney8/3/2004
Wayne Charles John Feeney (defendant) appeals from his second degree murder conviction. Defendant and victim fought in a car outside a Fayetteville bar. Both were shot and wounded in the struggle. At the scene, an officer testified that defendant was in pain and extremely intoxicated. Doctor's notes showed that the defendant had a blood-alcohol level at the hospital of .16, and a toxicology report the victim had a blood-alcohol level of .33 and had ingested cocaine. Victim later died, and defendant was convicted of second-degree murder. As an initial matter, we note that defendant only brings one assignment of error in his brief on appeal. Thus, the remaining seven assignments of error in the record on appeal are deemed abandoned pursuant to our Rule of Appellate Procedure 28 (b)(5). N.C.R. App. P. 28(b) (2004).
Defendant's remaining assignment of error on appeal is whether "the trial court committed reversible error [by] denying defendant's motion to dismiss the charge against him, made at the close of the State's evidence and at the close of trial, where the evidence was insufficient to convince a trier of fact of the defendant's guilt of the charge [against him] beyond a reasonable doubt in violation of the sixth and fourteenth amendments and Article I, §§ 19, 23 and 27 of the North Carolina Constitution." Defendant failed to develop this argument in his brief and cited no authority in support thereof. Defendant's subsequent argument in his brief on appeal makes no reference to the Constitution, and does not cite to the Constitution. The brief contains a sole argument that the defendant offered evidence of perfect self-defense and cites some authority in support. However, defendant has not made a corresponding assignment of error. This is inappropriate under the Rules of Appellate Procedure. N.C.R. App. P. 28(a), (b)(6) (2004). However, we will suspend the Appellate Rules pursuant to Rule 2 in order to prevent manifest injustice. N.C.R. App. P. 2 (2004). We will consider defendant's argument that the trial court erred in denying his motion todismiss citing evidence of self-defense, without regard to the constitutional issues not addressed.
Our Supreme Court has held:
In determining the sufficiency of the evidence to withstand a motion to dismiss and to be submitted to the jury, the trial court must determine "whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense." Substantial evidence is such relevant evidence as is necessary to persuade a rational juror to accept a conclusion. The trial court must review the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn therefrom.
State v. Squires, 357 N.C. 529, 535, 591 S.E.2d 837, 841 (2003), cert. denied, ___ U.S. ___, ___ L.Ed. 2d ___ (2004) (citations omitted).
Murder in the second degree is the unlawful killing of a human being with malice but without premeditation and deliberation. State v. Gainey, 355 N.C. 73, 91, 558 S.E.2d 463, 475-76, cert. denied, 537 U.S. 896, 154 L.Ed. 2d 165 (2002).
We hold that the State brought sufficient evidence that the defendant intentionally assaulted the victim with a pistol, that the victim received four gunshot wounds, and that he died as a result. The jury was also allowed to hear any evidence brought by the defendant of a struggle over the gun, and any evidence tending to suggest self-defense. The trial court charged the jury concerning the definitions of first-degree murder, second-degree murder, voluntary manslaughter, and self-defense. The trial courtalso instructe
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