{ "id": 11197019, "name": "STATE OF NORTH CAROLINA v. KEVIN BRADLEY MARTIN", "name_abbreviation": "State v. Martin", "decision_date": "1998-10-06", "docket_number": "No. COA97-59", "first_page": "38", "last_page": "47", "citations": [ { "type": "official", "cite": "131 N.C. App. 38" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "417 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "493" } ], "opinion_index": 0 }, { "cite": "331 N.C. 583", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2497387 ], "year": 1992, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0583-01" ] }, { "cite": "360 S.E.2d 470", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "471", "parenthetical": "\"defendant's own testimony tends to show she did not believe it was necessary to kill [decedent], since she did not intend to either stab or hurt him\"" } ], "opinion_index": 0 }, { "cite": "87 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358278 ], "year": 1987, "pin_cites": [ { "page": "289-90", "parenthetical": "\"defendant's own testimony tends to show she did not believe it was necessary to kill [decedent], since she did not intend to either stab or hurt him\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/87/0287-01" ] }, { "cite": "462 S.E.2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "499" }, { "page": "499" } ], "opinion_index": 0 }, { "cite": "341 N.C. 658", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793180 ], "year": 1995, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0658-01" ] }, { "cite": "279 S.E.2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1981, "pin_cites": [ { "page": "572-73" }, { "page": "572-73" }, { "page": "572-73", "parenthetical": "defendant must not have used \"excessive force\"" }, { "page": "572-73" } ], "opinion_index": 0 }, { "cite": "303 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574148 ], "weight": 4, "year": 1981, "pin_cites": [ { "page": "530" }, { "page": "530" }, { "page": "530" }, { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0526-01" ] }, { "cite": "285 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1982, "pin_cites": [ { "page": "807" }, { "page": "808" } ], "opinion_index": 0 }, { "cite": "304 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570499 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "694-95" }, { "page": "695" } ], "opinion_index": 0, "case_paths": [ "/nc/304/0689-01" ] }, { "cite": "237 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1977, "pin_cites": [ { "page": "747", "parenthetical": "citations omitted" }, { "page": "747" }, { "page": "747" } ], "opinion_index": 0 }, { "cite": "293 N.C. 353", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564175 ], "weight": 3, "year": 1977, "pin_cites": [ { "page": "354", "parenthetical": "citations omitted" }, { "page": "354" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/293/0353-01" ] }, { "cite": "251 S.E.2d 471", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "296 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566850, 8566924, 8566892, 8566959, 8567003 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/296/0412-01", "/nc/296/0412-03", "/nc/296/0412-02", "/nc/296/0412-04", "/nc/296/0412-05" ] }, { "cite": "248 S.E.2d 456", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "457" } ], "opinion_index": 0 }, { "cite": "38 N.C. App. 620", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555451 ], "year": 1978, "pin_cites": [ { "page": "621-22" } ], "opinion_index": 0, "case_paths": [ "/nc-app/38/0620-01" ] }, { "cite": "186 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "920" } ], "opinion_index": 0 }, { "cite": "280 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573320 ], "year": 1972, "pin_cites": [ { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/nc/280/0682-01" ] } ], "analysis": { "cardinality": 955, "char_count": 21786, "ocr_confidence": 0.751, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.23848205049792479 }, "sha256": "c64a4e4f50bb4e2d680a0097107819f30c111a67888c52f7a8ce6830ac07014e", "simhash": "1:af3bd8bac41a0e33", "word_count": 3574 }, "last_updated": "2023-07-14T20:31:28.584435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and TIMMONS-GOODSON concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KEVIN BRADLEY MARTIN" ], "opinions": [ { "text": "JOHN, Judge.\nDefendant appeals convictions of first-degree murder under the felony murder rule and assault with a deadly weapon with intent to kill inflicting serious injury. On appeal, defendant contends the trial court erred by denying his request to instruct the jury on self-defense and by denying his motion to dismiss. We conclude the trial court did not err.\nThe State\u2019s evidence at trial tended to show the following: On the morning of 22 June 1993, defendant and Sean Burney (Burney) argued on the telephone regarding Burney\u2019s demand for payment of $150.00 to $200.00, representing estimated damage to Burney\u2019s truck several years earlier when he and defendant were throwing rocks at a passing train. A rock thrown by defendant had ricocheted off the train and dented the door of Burney\u2019s truck. Claiming the damage was accidental, defendant refused to pay. The 22 June 1993 conversation concluded with an agreement to meet \u201cat the park in Eaglewood\u201d to settle the dispute by fighting. Burney testified defendant said, \u201c[y]ou better bring all your damn boys.\u201d\nAfter the conversation with defendant, Burney and Brian Bell (Bell) left to pick up Randy Dalton (Dalton). Burney, Bell and Dalton drove to the home of Billy Strickland (Strickland), where they met Strickland, Pat O\u2019Quinn (O\u2019Quinn), and another friend. Strickland testified the group planned to go swimming and had no intentions of fighting defendant that day.\nO\u2019Quinn related that Burney and Dalton left Strickland\u2019s residence to go to the store between 11:30 a.m. and 12:00 p.m., and that they were gone approximately ten to fifteen minutes. In the meantime, two vehicles pulled onto the shoulder of the road in front of Strickland\u2019s house. One was a pickup truck driven by Sean Terry (Terry), with defendant and Tony Lugo (Lugo) as passengers in the truck bed. The other was an automobile operated by Jim Johnson (Johnson).\nJohnson and Terry parked their vehicles at the road and approached O\u2019Quinn and Bell who were standing on the porch of Strickland\u2019s home. Terry inquired about the problems between Burney and defendant, and O\u2019Quinn warned that defendant should leave before Burney returned. About that time, Burney and Dalton returned, and Burney drove his vehicle into the driveway. Neither Burney nor Dalton was armed.\nAs Burney described it, he was stepping out of the automobile when he noticed it start to roll backward. Burney placed his right foot on the brake and reached back inside the vehicle so as to set the emergency brake. When he was \u201cabout halfway out of the car,\u201d he heard gunshots. While his \u201cright foot was still in the car,\u201d he felt the impact of a bullet fired by defendant which knocked him to the ground. Burney, was struck in the left side of his neck and the bullet exited his back below the shoulder blade. The automobile began to roll over Burney\u2019s feet, but he avoided it and ran into the house. As he fled, Burney observed defendant walking around with a rifle in his hand saying repeatedly, \u201cWhat\u2019s up now?\u201d Burney testified these constituted \u201cfighting words.\u201d\nBell and O\u2019Quinn both testified they observed defendant standing in the bed of the pickup truck shooting a .22 caliber rifle at Burney and Dalton. O\u2019Quinn stated he saw Dalton \u201cslouch down into the V of the [open passenger side] door\u201d and Burney \u201cfall flat down on the concrete.\u201d O\u2019Quinn testified that he heard several more shots, saw the windows on Burney\u2019s vehicle shatter, and then entered the house to place a 911 emergency call.\nTerry, Johnson and Lugo attempted to assist Dalton after the shooting stopped. Dalton was sitting in the front passenger\u2019s seat of Burney\u2019s vehicle, his legs inside and his head resting on dashboard. Dalton had been shot in the upper left abdomen, and later died as the result of blood loss from a severed mesenteric artery. Burney recovered from his neck wound after hospitalization.\nLaw enforcement officers later located six spent shell casings outside the truck Terry had driven to Strickland\u2019s residence, and an additional casing in the truck bed. No firearms were discovered in or near Burney\u2019s automobile.\nHope Mills Police Chief John Hodges (Chief Hodges) was on duty the afternoon of the shooting. After hearing a radio alert, he stopped and questioned defendant near the crime scene. After defendant gave Chief Hodges a false name, Johnson identified defendant, and defendant was then transported to the police station. While there, defendant told Captain Tonzie K. Collins (Collins) the murder weapon was hidden behind a shed near the crime scene. Defendant led Chief Hodges and Collins to the site and a .22 caliber rifle was recovered. State Bureau of Investigation ballistics expert A.L. Langley testified all seven spent shell casings found at the scene of the shooting were fired from the retrieved rifle. Upon being returned to the station, defendant was left alone to prepare a written statement and he escaped. He was recaptured later that night with two friends approximately one mile from the South Carolina border.\nDefendant testified on his own behalf as follows: On the morning of 22 June 1993, Burney telephoned defendant regarding the repair money, threatening to \u201ctake it out of [defendant\u2019s] ass\u201d if it was not forthcoming. Burney vowed that \u201cif he got his hands on me, he would kill me,\u201d which defendant understood to mean either kill or seriously injure defendant. Burney cursed repeatedly and threatened violence toward defendant\u2019s family during the conversation. Burney finally told defendant to meet him to fight it out, and said, \u201cbring all your boys and all your weapons because we\u2019ll have ours.\u201d Defendant believed Burney because Burney had a reputation for violence and for carrying weapons.\nCurtis Moody (Moody) overheard the foregoing conversation and began telephoning other friends to assist defendant in fighting Burney. Defendant\u2019s friend, Sean Marks, and Moody\u2019s friends, Terry, Lugo and Johnson arrived in response to Moody\u2019s calls and Terry brought a rifle.\nAnticipating a fight with Burney, defendant and his five companions drove to Eaglewood Park. As they neared their destination, Terry handed a rifle through the window to the truck bed where defendant and Lugo were riding. Defendant explained that he was prepared to fight because he feared Burney or his friends might have a gun. Defendant observed Lugo take the weapon and wrap a bandana around it to catch ejected spent shell casings when the rifle was fired, and as Lugo explained, \u201cto catch the shells from \u2014 falling around and, uh, possibly getting in trouble.\u201d However, defendant had no intention of either Lugo or himself firing the first shot.\nWhen the group realized Burney was not at the park, defendant directed Terry, the vehicle driver, to take him home. However, Terry decided to stop at Strickland\u2019s house, notwithstanding defendant\u2019s protestation that it was not a good idea and his reiterated request to be taken home. Terry exited the truck and approached Burney\u2019s friends to talk things through and calm the situation.\nAt that point, Burney pulled into the driveway, \u201cdriving mighty fast.\u201d Dalton and Burney \u201cjumped out of the car,\u201d Burney yelling to defendant, \u201c[d]on\u2019t go nowhere[,] I have something for you.\u201d Burney\u2019s friends who had been standing on the porch, began approaching defendant. Lugo handed the rifle to defendant and he fired a warning shot into the air. When Burney reached back into his automobile after the car began to roll, he again turned toward defendant and said \u201csomething to the effect that, uh, \u2018He\u2019s armed, Randy. Get the gun.\u2019 \u201d According to defendant, Dalton then\nturned to the passenger\u2019s side of the car, which the door was still open, kneeled down, reached under the seat of the car and came out with something in his hand. I\u2019m not clear on what it was. He began to turn toward me, uh, with that object in his hand. At that point, I was, uh, very fearful for my life, and I started shooting in the direction of the car, never actually aiming the gun at Mr. Dalton.\nAfter firing a total of seven shots, defendant realized he had injured Dalton. He \u201cthen got scared, jumped out of the truck and ran,\u201d dropping the rifle behind a shed. Approximately one and one-half hours later, Chief Hodges stopped defendant, who assumed a false name because he \u201cwas scared of being charged with something as serious as what had just took place.\u201d Defendant indicated during his testimony that he would not have shot at Dalton and Burney had he not feared for his own safety, and that he never intended to kill Dalton.\nDefendant\u2019s friends, Moody and Terry, corroborated defendant\u2019s version of events. When asked about Burney\u2019s reputation for violence, Terry recounted incidents of Burney and a friend assaulting Terry, pointing guns at him and threatening to cut him. According to Terry, Burney exited his vehicle after entering Strickland\u2019s driveway, directed defendant not to go anywhere, and approached defendant looking \u201clike he was wanting to hit [him].\u201d\nLindsay Cobb, Heather McBride Cashwell and Amber Smith Stout (Stout), also called as witnesses for defendant, testified Burney had a reputation for starting fights and for violence. Stout further stated, \u201cHe gets into a lot of trouble. I\u2019ve heard that he carries a gun, and sometimes a knife.\u201d On rebuttal, she testified Burney was \u201cknown to shoot up a couple houses.\u201d\nDeputy Sheriff Ritchie J. Alfano of the Cumberland County Sheriff\u2019s Department testified Burney had a reputation as a troublemaker who \u201cwas known to be in quite a few fights.\u201d He described Burney as having a reputation for picking fights when his friends were around in order to impress them.\nDuring his testimony, Burney denied having a reputation for violence, but admitted having pleaded guilty to assault with a deadly weapon involving a knife, and to breaking or entering and larceny.\nFollowing the jury\u2019s guilty verdicts, defendant was sentenced to life imprisonment for first-degree murder, plus twenty years for assault with a deadly weapon with intent to kill inflicting serious injury. Defendant entered timely notice of appeal.\nThe essential issue on appeal is whether the trial court erred by denying defendant\u2019s request to instruct the jury on self-defense as to the felonies underlying his felony murder conviction, i.e., assault with a deadly weapon and discharging a firearm into occupied property. We hold the court\u2019s refusal to do so was not error under the circumstances sub judice.\nThe trial court has broad discretion in presenting the issues to the jury, State v. Flippin, 280 N.C. 682, 687, 186 S.E.2d 917, 920 (1972). However, in determining whether to submit an instruction on self-defense, the court must consider the evidence in the light most favorable to the defendant. State v. Blackmon, 38 N.C. App. 620, 621-22, 248 S.E.2d 456, 457 (1978), disc. review denied, 296 N.C. 412, 251 S.E.2d 471 (1979).\nOur Supreme Court has set forth the law of self-defense as follows:\nThe right to act in self-defense rests upon necessity, real or apparent, and a person may use such force as is necessary or apparently necessary to save himself from death or great bodily harm in the lawful exercise of his right of self-defense. A person may exercise such force if he believes it to be necessary and has reasonable grounds for such belief. The reasonableness of his belief is to be determined by the jury from the facts and circumstances as they appeared to the accused at the time .... However, the right of self-defense is only available to a person who is without fault, and if a person voluntarily, that is aggressively and willingly, enters into a fight, he cannot invoke the doctrine of self-defense unless he first abandons the fight, withdraws from it and gives notice to his adversary that he has done so.\nState v. Marsh, 293 N.C. 353, 354, 237 S.E.2d 745, 747 (1977) (citations omitted).\nNorth Carolina law recognizes both \u201cperfect\u201d and \u201cimperfect\u201d self-defense. See, e.g., State v. Wilson, 304 N.C. 689, 694-95, 285 S.E.2d 804, 807 (1982). Perfect self-defense excuses a murder charge completely, and is established by showing that, at the time of the killing:\n(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\n(2) defendant\u2019s 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\n(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\n(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.\nState v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981).\nImperfect self-defense arises when the defendant reasonably believed it was necessary to kill the deceased in order to save himself from death or great bodily harm, but defendant, although without murderous intent, was the aggressor or used excessive force. Wilson, 304 N.C. at 695, 285 S.E.2d at 808. One who exercised the right of imperfect self-defense in killing an adversary remains \u201cguilty of at least voluntary manslaughter.\u201d Id.\nAs defendant correctly recognizes, neither perfect nor imperfect self-defense is available to defend against first-degree murder under the felony murder theory. State v. Richardson, 341 N.C. 658, 668, 462 S.E.2d 492, 499 (1995). In felony murder cases, self-defense is available only to the extent that perfect self-defense applies to the relevant underlying felonies. Id. Imperfect self-defense is not available as a defense to felonies underlying a felony murder charge. See id. at 668-69, 462 S.E.2d at 499. We therefore consider whether defendant was entitled to an instruction on perfect self-defense as to the felonies underlying the felony murder charge.\nThe evidence is undisputed that defendant and his companions drove to Eaglewood park in search of Burney, prepared to fight and in possession of a rifle. The group thereafter continued to Strickland\u2019s residence where the fatal shooting occurred. Defendant argues he \u201csought to avoid [the] confrontation by twice telling Sean Terry not to stop at [Strickland\u2019s] house and to take [him] home.\u201d Viewing this latter evidence in the light most favorable to defendant, it is nonetheless ineffective to constitute a showing of withdrawal because it transpired prior to the actual confrontation with Burney and Dalton, and was not communicated to defendant\u2019s adversaries. See Marsh, 293 N.C. at 354, 237 S.E.2d at 747.\nSoon after defendant and his friends arrived at Strickland\u2019s house, Burney and Dalton drove into the driveway, not completely blocking the vehicle in which defendant was located. According to defendant, he fired \u201ca warning shot\u201d as Burney and Dalton exited their automobile and began to approach defendant. Neither Burney nor Dalton were in possession of a weapon, deadly or otherwise. Burney reached back into his automobile, again turned to defendant and said, \u201csomething to the effect that, \u2018uh, He\u2019s armed, Randy. Get the gun.\u2019 \u201d Defendant stated Dalton then reached under \u201cthe seat of the car and came out with something in his hand,\u201d but that he was \u201cnot clear on what it was.\u201d Although defendant could not identify the object in Dalton\u2019s hand, he testified \u201c[a]t that point, I was, uh, very fearful for my life, and I started shooting in the direction of the car,\u201d firing a total of seven shots. Pointedly, however, defendant insisted he was \u201cnever actually aiming the gun at Mr. Dalton,\u201d and that he never \u201cat any time that day intend[ed] to kill Mr. Dalton.\u201d\nEven viewing the foregoing in the light most favorable to defendant, we determine the trial court did not err by denying his motion for a jury instruction on self-defense. Defendant voluntarily, \u201caggressively and willingly,\u201d Norris, 303 N.C. at 530, 279 S.E.2d at 572-73, sought out a confrontation when he and his friends drove to the park and to Strickland\u2019s house looking for Burney. When Bumey drove into Strickland\u2019s driveway, defendant neither communicated any desire to avoid confrontation nor attempted to leave the scene. The right of self-defense is available only to one who is \u201cwithout fault,\u201d Marsh, 293 N.C. at 354, 237 S.E.2d at 747, and one who voluntarily enters into a fight \u201ccannot invoke the doctrine of self-defense unless he first abandons the fight,\u201d id,., and notifies his adversary of his withdrawal, id. To the contrary, defendant brandished a rifle and fired it into the air. After hearing Burney say to Dalton \u201csomething to the effect that, uh, \u2018He\u2019s armed, Randy. Get the gun,\u201d defendant continued steadfast in the affray, firing six additional shots towards Burney\u2019s vehicle, see Norris, 303 N.C. at 530, 279 S.E.2d at 572-73 (defendant must not have used \u201cexcessive force\u201d), killing Dalton and wounding Burney.\nFinally, in order for defendant to have been entitled to an instruction on self-defense, it must have \u201cappeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm.\u201d Id. Taking defendant\u2019s own testimony in the light most favorable to him, he fired the rifle several times in the direction of Burney\u2019s vehicle, never aiming the weapon at Dalton or intending to kill him. This testimony belies defendant\u2019s insistence that he was entitled to a self-defense instruction. See State v. Daniels, 87 N.C. App. 287, 289-90, 360 S.E.2d 470, 471 (1987) (\u201cdefendant\u2019s own testimony tends to show she did not believe it was necessary to kill [decedent], since she did not intend to either stab or hurt him\u201d). Because the evidence fails to support several elements of perfect self-defense, see Norris, 303 N.C. at 530, 279 S.E.2d at 572-73, the trial court\u2019s failure to deliver the requested instruction thereon was not erroneous.\nDefendant also contends the trial court erred by denying his \u201cmotion to dismiss the underlying felony for felony murder of discharging a firearm into occupied property.\u201d Faced with a criminal defendant\u2019s motion to dismiss, the trial court must \u201cconsider the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference.\u201d State v. McAvoy, 331 N.C. 583, 589, 417 S.E.2d 489, 493 (1992). The trial court must deny the motion if it determines there is substantial evidence to support each element of the offense charged and that defendant was the perpetrator. Id.\nFocusing on the requirement of N.C.G.S. \u00a7 14-34.1 (1997) that the proscribed offense constitutes discharging a firearm into a vehicle \u201cwhile it is occupied,\u201d defendant maintains the State failed to satisfy its burden of presenting evidence that Burney\u2019s vehicle was occupied at the time of the shooting. We do not agree.\nBurney testified he heard gunshots when he was \u201cabout halfway out of the car,\u201d and that he was struck by a bullet while his \u201cright foot was still in the car.\u201d Terry, the pickup truck driver, stated that after the shooting, he and others approached Burney\u2019s automobile to check on Dalton. Dalton remained seated in the passenger seat of the vehicle, with his \u201chead ... up at the dashboard\u201d and his feet and legs still inside. Further, Terry viewed bullet holes in Burney\u2019s automobile, and related that when he and others opened the passenger side door, Dalton \u201cfell out of the car.\u201d O\u2019Quinn testified he observed defendant shooting at Burney and Dalton, and saw Dalton \u201cslouch down into the V of the [open passenger side] door\u201d of Burney\u2019s vehicle.\nViewing the evidence in the light most favorable to the State, we hold there was substantial evidence to satisfy the element of \u201coccupancy\u201d under G.S. \u00a7 14-34.1, and that the trial court did not err in denying defendant\u2019s motion to dismiss.\nNo error.\nJudges GREENE and TIMMONS-GOODSON concur.", "type": "majority", "author": "JOHN, Judge." } ], "attorneys": [ "Attorney General Michael F. Easley, by Special Deputy Attorney General Thomas F. Moffitt, for the State.", "Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Benjamin Sendor, for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KEVIN BRADLEY MARTIN\nNo. COA97-59\n(Filed 6 October 1998)\n1. Criminal Law\u2014 felony murder \u2014 self defense \u2014 evidence insufficient\nThe trial court did not err in a prosecution for felony murder by denying defendant\u2019s request for an instruction on self-defense as to the underlying felonies, assault and discharging a firearm into occupied property. In felony murder cases, self-defense is available only to the extent that perfect self-defense applies to the relevant underlying felonies and the evidence here failed to support several elements of perfect self-defense.\n2. Fir\u00e9arms and Other Weapons\u2014 discharging a firearm into occupied property \u2014 automobile\u2014occupancy\nThe trial, court did not err in a felony murder prosecution by denying defendant\u2019s motion to dismiss the underlying felony of discharging a firearm into occupied property where, viewing the evidence in the light most favorable to the State, there was substantial evidence to satisfy the element of occupancy. One victim testified that he heard gunshots when he was about halfway out of the car and that he was struck while his foot was still in the car, and other witnesses testified that the other victim remained in the vehicle after the shooting, viewed bullet holes in the automobile, and related that the second victim fell out of the car when the passenger door was opened.\nAppeal by defendant from judgment entered 7 February 1996 by Judge Dexter Brooks in Cumberland County Superior Court. Heard in the Court of Appeals 22 October 1997.\nAttorney General Michael F. Easley, by Special Deputy Attorney General Thomas F. Moffitt, for the State.\nAppellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Benjamin Sendor, for defendant-appellant." }, "file_name": "0038-01", "first_page_order": 72, "last_page_order": 81 }