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State v. Feeney8/3/2004
d the jury that "the defendant would not be guilty of any murder or manslaughter if he acted in self-defense, as I have just defined it to be, and if he is not the aggressor in bringing on the fight and did not use excessive force under the circumstances." The jury was therefore able to consider the evidence and the law regarding self-defense, and found that the defendant committed second-degree murder. Viewing the evidence in a light most favorable to the State, there is substantial evidence to support every essential element of the charge of second degree murder.
For the reasons explained above, we hold that the trial court did not err. Because there was no error in denying the motion to dismiss, we do not reach the constitutional issues.
No error.
Judge TIMMONS-GOODSON concurs.
Judge WYNN concurs by separate opinion.
Report per Rule 30(e). NO. COA02-1716
WYNN, Judge concurring.
Defendant appeals contending the charge of second degree murder should have been dismissed for want of sufficient evidence. Indeed, the facts of this case support a plausible theory of self-defense; however, the facts, viewed in the light most favorable to the State, also tend to indicate Defendant committed second degree murder. I write separately to highlight additional facts.
As indicated by the majority:
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). "Contradictions and discrepancies [in the evidence] are for thejury to resolve and do not warrant [dismissal]." State v. Pallas, 144 N.C. App. 277, 286, 548 S.E.2d 773, 780 (2001).
"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 (2002). Intent to kill is not an element of second degree murder; however, there must be an intentional act sufficient to show malice. State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 305 (2000).
Viewing the evidence in the light most favorable to the State, the evidence tends to indicate Defendant and the victim were both intoxicated on the night in question. Although Defendant did not know the victim, he agreed to take him home. After they left the Pyrates club, the two men shortly returned to Pyrates and eventually visited the Drifters club, located approximately two miles from Pyrates. Employees at the two clubs visited by Defendant and the victim testified they could sense tension between them and indicated it seemed to be a "weird conflict." Witnesses testified they were calling each other names and indicated they were calling each other "faggots." Defendant admitted he asked the victim to get out of his car and further testified that instead of getting out, the victim began to attack him and a struggle began when the victim attempted to get Defendant's gun. During the struggle, both the victim and Defendant were shot. Defendant's statements to police tend to indicate he was upset over the homosexual name calling and he asked the victim to get out of hiscar. Crime scene
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