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State v. Feeney8/3/2004
photos indicate Defendant's gun holster was located in between the driver's seat and the driver's side door jamb, which was a location in which the victim would have a difficult time getting the gun. Even though there was blood throughout the car, no blood was found on the gun holster. Also, notwithstanding Defendant's testimony that the victim attacked him, no visible injuries, marks or bruises were seen on Defendant's face and no one saw the victim with a weapon.
Defendant presented evidence from police officers indicating the victim had a reputation for violence and from several witnesses who observed the victim experience several severe mood swings, from a state of rage to calm, that evening. Furthermore, the evidence tends to corroborate several aspects of Defendant's testimony_i.e., the victim asked Defendant for a ride; Defendant asked the bouncer if the victim was "okay;" Defendant attempted to "get rid" of the victim by going to a different nightclub, hoping to leave the victim there, after the victim began to act weird in his car; and witness testimony was consistent with Defendant's version of how the victim left the second nightclub with him. However, no one witnessed the events that took place in Defendant's car.
At best, the evidence supports the theories presented by the prosecution and the defense. "If there is substantial evidence, either direct or circumstantial, that the defendant committed the offense charged, then a motion to dismiss is properly denied." Gainey, 355 N.C. at 89, 558 S.E.2d at 474. Furthermore, as indicated, "contradictions and discrepancies [in the evidence] arefor the jury to resolve and do not warrant [dismissal]." Pallas, 144 N.C. App. at 286, 548 S.E.2d at 780. Accordingly, I agree with the majority's conclusion that "there is substantial evidence to support every essential element of the charge of second degree murder.
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