{ "id": 9128511, "name": "STATE OF NORTH CAROLINA v. KENNETH WEBSTER WOOD", "name_abbreviation": "State v. Wood", "decision_date": "2002-03-19", "docket_number": "No. COA01-373", "first_page": "413", "last_page": "421", "citations": [ { "type": "official", "cite": "149 N.C. App. 413" } ], "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": "474 S.E.2d 375", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "387", "parenthetical": "holding that a reviewing court \"is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court\"" } ], "opinion_index": 0 }, { "cite": "344 N.C. 198", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867692 ], "year": 1996, "pin_cites": [ { "page": "221", "parenthetical": "holding that a reviewing court \"is not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court\"" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0198-01" ] }, { "cite": "439 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "opinion_index": 0 }, { "cite": "335 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2526577 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/335/0437-01" ] }, { "cite": "332 S.E.2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "314 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691945, 4692673, 4692364 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc/314/0121-02", "/nc/314/0121-01", "/nc/314/0121-03" ] }, { "cite": "327 S.E.2d 266", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "268" } ], "opinion_index": 0 }, { "cite": "74 N.C. App. 106", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523061 ], "year": 1985, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/nc-app/74/0106-01" ] }, { "cite": "285 S.E.2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "304 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570499 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/304/0689-01" ] }, { "cite": "417 S.E.2d 453", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "455", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "331 N.C. 695", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500204 ], "year": 1992, "pin_cites": [ { "page": "699", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/331/0695-01" ] }, { "cite": "413 S.E.2d 301", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "304", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 402", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523492 ], "year": 1992, "pin_cites": [ { "page": "406", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0402-01" ] }, { "cite": "171 S.E.2d 447", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "450", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "276 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560458 ], "year": 1970, "pin_cites": [ { "page": "161", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0157-01" ] }, { "cite": "334 S.E.2d 509", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "512", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520495 ], "year": 1985, "pin_cites": [ { "page": "72", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0068-01" ] }, { "cite": "309 S.E.2d 188", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4763094 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0771-01" ] }, { "cite": "231 S.E.2d 604", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "606" } ], "opinion_index": 0 }, { "cite": "291 N.C. 700", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559009 ], "year": 1977, "pin_cites": [ { "page": "702" } ], "opinion_index": 0, "case_paths": [ "/nc/291/0700-01" ] }, { "cite": "305 S.E.2d 548", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "551" } ], "opinion_index": 0 }, { "cite": "309 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767552 ], "year": 1983, "pin_cites": [ { "page": "145" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0141-01" ] }, { "cite": "512 S.E.2d 80", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "84" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11237688 ], "year": 1999, "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0316-01" ] }, { "cite": "550 S.E.2d 165", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "353 N.C. 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135905, 135878, 135670, 135736, 135615 ], "year": 2001, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0532-03", "/nc/353/0532-05", "/nc/353/0532-01", "/nc/353/0532-04", "/nc/353/0532-02" ] }, { "cite": "544 S.E.2d 249", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "251", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 657", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442945 ], "year": 2001, "pin_cites": [ { "page": "660", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0657-01" ] }, { "cite": "266 S.E.2d 581", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "300 N.C. 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559928 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0150-01" ] }, { "cite": "295 S.E.2d 391", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1982, "pin_cites": [ { "page": "393", "parenthetical": "citing State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980)" }, { "page": "393" } ], "opinion_index": 0 }, { "cite": "306 N.C. 724", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573657 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "727", "parenthetical": "citing State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980)" }, { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nc/306/0724-01" ] } ], "analysis": { "cardinality": 836, "char_count": 18289, "ocr_confidence": 0.757, "pagerank": { "raw": 2.271370189982641e-07, "percentile": 0.7837976268114473 }, "sha256": "b9fb979291a61c37fcdf91dc618924848ef0d2cd981dbf9db7ae441965fb2737", "simhash": "1:57bac562274a9fe0", "word_count": 2992 }, "last_updated": "2023-07-14T21:06:37.161258+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges TIMMONS-GOODSON and BRYANT concur." ], "parties": [ "STATE OF NORTH CAROLINA v. KENNETH WEBSTER WOOD" ], "opinions": [ { "text": "SMITH, Judge.\nDefendant was indicted on 21 February 2000 for first degree murder and felonious breaking or entering. Following a trial, defendant was convicted by a jury of second degree murder and felonious breaking or entering. The trial court entered judgments on the verdicts, and defendant appeals.\nThe evidence at trial tended to show that on 21 August 1998, defendant was at a game room shooting pool and drinking alcoholic beverages with a friend, Michael Pasour. The game room was located at the apartment building where Pasour lived with Tina Padgett and her six year old son, Joshua. A stranger drove up outside the game room and allegedly attempted to persuade Joshua to get inside the vehicle. Defendant saw the driver motion to Joshua. After the stranger drove away, Joshua told Pasour and defendant that the stranger had tried to pick him up. They informed the boy\u2019s mother, who called 911. Officer Christopher Moore arrived on the scene around 7:20 p.m. He reported that defendant was angry. In his typewritten report, Moore stated that he heard defendant say \u201che would kick\u201d the stranger\u2019s \u201cass.\u201d Defendant admitted at trial that he recalled saying to the officer that such a person deserved to have his \u201ctail beat.\u201d Defendant was able to identify the vehicle the stranger drove, and provided a partial license plate number.\nAfter the officer left, defendant also left in his red truck. On the way home, defendant observed the vehicle driven by the stranger. He returned to Padgett\u2019s apartment and called for Pasour. The two men then went in search of the alleged perpetrator. Defendant drove to an apartment complex where Roger Dale McDaniel lived. Roxanne Bell, who was washing her car outside the complex, observed a red truck pull into the parking lot and two men get out \u201cin a rage.\u201d Bell heard defendant say that McDaniel was a pervert. Defendant and Pasour knocked on the door to McDaniel\u2019s apartment. They also beat and kicked on the door, which eventually broke free and opened. Pasour looked inside the apartment for McDaniel but found no one. The men began walking toward defendant\u2019s truck. McDaniel then emerged from behind the apartment building. Defendant, Pasour, and McDaniel approached each other. McDaniel reached inside his shirt to retrieve a handgun. Defendant testified that he wrestled McDaniel in an attempt to disarm him; he claimed that Pasour struck McDaniel in the face and that McDaniel dropped the gun and fell to the ground. Defendant admitted that he kicked the weapon several feet away from the place where McDaniel fell. Witnesses testified that defendant and Pasour then struck McDaniel with their fists and kicked him as he lay on the ground. Roxanne Bell testified that she saw defendant kick McDaniel in the head.\nAn autopsy revealed that McDaniel had bruises on his face, neck, and body. He also had blood in his lungs and stomach. The pathologist testified that the victim died from an injury to his spinal cord and from the aspiration of blood.\nI.\nDefendant first alleges the trial court erred in denying defendant\u2019s requested instruction on the lesser included offense of involuntary manslaughter. We disagree.\nThe trial court \u201chas an obligation to fully instruct the jury on all substantial and essential features of the case embraced within the issue and arising on the evidence.\u201d State v. Harris, 306 N.C. 724, 727, 295 S.E.2d 391, 393 (1982) (citing State v. Ward, 300 N.C. 150, 266 S.E.2d 581 (1980)).\nThe purpose of a charge is to give a clear instruction which applies the law to the evidence in such a manner as to assist the jury in understanding the case and in reaching a correct verdict.\nId. (citation omitted). Nevertheless, a trial court \u201cis not required to submit lesser included offenses for a jury\u2019s consideration when the State\u2019s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence related to any element of the crime charged.\u201d State v. Washington, 142 N.C. App. 657, 660, 544 S.E.2d 249, 251, disc. review denied, 353 N.C. 532, 550 S.E.2d 165 (2001) (citation omitted). In fact, \u201c[t]he mere possibility that a jury might reject part of the prosecution\u2019s evidence does not require submission of a lesser included offense.\u201d State v. Hamilton, 132 N.C. App. 316, 321, 512 S.E.2d 80, 84 (1999).\nInvoluntary manslaughter is \u201cthe unlawful and unintentional killing of another human being, without malice, which proximately results from an unlawful act not amounting to a felony ... or from an act or omission constituting culpable negligence.\u201d State v. Wallace, 309 N.C. 141, 145, 305 S.E.2d 548, 551 (1983). Culpable negligence is \u201csuch reckless or careless behavior that the act imports a thoughtless disregard of the consequences of the act or the act shows a heedless indifference to the rights and safety of others.\u201d State v. Everhart, 291 N.C. 700, 702, 231 S.E.2d 604, 606 (1977).\nIn this case, the trial court instructed the jury on the elements of first degree murder, second degree murder, and voluntary manslaughter, which is the unlawful killing of a human being without malice, premeditation, or deliberation. State v. Robbins, 309 N.C. 771, 309 S.E.2d 188 (1983). As mentioned above, several witnesses observed the altercation between defendant, Michael Pasour, and the victim, Roger Dale McDaniel. In fact, Kristy Harbison testified that she watched defendant \u201cstomp\u201d the victim in the face. Chris James testified that he observed the attack and saw defendant kick the victim in the head and stomach. James also testified that after the beating the men pranced around as if they were happy, and \u201cthey gave each other a high five.\u201d This evidence is wholly inconsistent with involuntary manslaughter, which involves a killing resulting from culpable negligence or from an act not amounting to a felony. Defendant\u2019s assignment of error to the contrary is overruled.\nII.\nDefendant next argues the trial court erred in denying defendant\u2019s request for an instruction that defendant\u2019s actions were brought about by heat of passion. Heat of passion is a killing done without premeditation and under the influence of a \u201c \u2018sudden passion.\u2019 \u201d State v. Davis, 77 N.C. App. 68, 72, 334 S.E.2d 509, 512 (1985) (citation omitted). Heat of passion has been defined by our Supreme Court as \u201cany of the emotions of the mind known as rage, anger, hatred, furious resentment, or terror, rendering the mind incapable of cool reflection.\u201d State v. Jennings, 276 N.C. 157, 161, 171 S.E.2d 447, 450 (1970) (citations omitted). As explained above, the trial court is obliged to instruct the jury on the \u201cessential features of the case embraced within the issue and arising on the evidence.\u201d Harris, 306 N.C. at 727, 295 S.E.2d at 393. Defendant contends that the deadly assault resulted from the heat of passion aroused by the victim\u2019s alleged attempt to abduct the six-year-old boy.\nIn the case sub judice, the testimony presented at trial indicates that a significant amount of time passed following the attempted abduction. First, there was the arrival of Officer Moore. Next, on his way home after the attempted abduction, defendant observed the alleged abductor\u2019s car, drove back to the apartment building where Michael Pasour lived, and defendant and Pasour went in search of the man. After breaking into McDaniel\u2019s apartment, the two men walked back to defendant\u2019s truck, ostensibly to leave the apartment complex. Witnesses then observed the altercation involving defendant, the victim, and Pasour. As mentioned above, Kristy Harbison saw defendant \u201cstomp\u201d the victim in the face. Chris James observed the attack and saw defendant kick the victim in the head and stomach. This evidence of the time and acts involved does not support a jury instruction on the heat of passion brought about by a sudden provocation which would \u201c \u2018naturally and reasonably arouse the passions of an ordinary man beyond his power of control.\u2019 \u201d State v. Mathis, 105 N.C. App. 402, 406, 413 S.E.2d 301, 304 (1992) (citation omitted).\nBy contrast, defendant testified that following the attempted abduction, he was upset but \u201cnot furious.\u201d After failing to find McDaniel in his apartment, defendant and Pasour attempted to return to defendant\u2019s truck when McDaniel appeared from behind the apartment building and approached the two men. According to defendant, when McDaniel went for a weapon under his clothing, the two men grabbed him and tried to separate him from the handgun. Once the weapon was free, defendant admitted that he kicked the gun \u201cat least six\u201d times to remove it from the immediate vicinity of the altercation. He claimed he purposefully did not pick up the weapon because he had a criminal record and did not want his fingerprints on the gun. Defendant then claims he turned and noticed Pasour hitting and kicking McDaniel, and he persuaded Pasour to stop the attack because he \u201cdid not want the man to die.\u201d He testified that he rolled McDaniel onto his stomach because he heard him choking and apparently wanted to help him breathe more easily until the authorities arrived. This evidence indicates that defendant was capable of cool reflection during the confrontation which ended in McDaniel\u2019s death. The trial court did not err in refusing defendant\u2019s requested instruction on heat of passion.\nIII.\nDefendant next argues the trial court erred in overruling defendant\u2019s objections to an instruction that defendant would lose the benefit of self-defense if the jury determined that he was the aggressor in bringing on the fight resulting in McDaniel\u2019s death. The trial court instructed the jury that defendant would be excused from murder or manslaughter based on self-defense,\nif he was not the aggressor in bringing on the fight, and did not use excessive force under the circumstances. If the Defendant voluntarily and without provocation entered the fight, he would be considered the aggressor.\nSelf defense completely excuses a defendant for the killing of another person if four conditions are met:\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 (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. Maynor, 331 N.C. 695, 699, 417 S.E.2d 453, 455 (1992) (citations omitted). If only the first two elements of self defense are met, the defendant loses the right to perfect self defense but may nevertheless be entitled to imperfect self defense and in that case would be guilty of at least voluntary manslaughter. State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982). In State v. Temples, 74 N.C. App. 106, 109, 327 S.E.2d 266, 268, disc. review denied, 314 N.C. 121, 332 S.E.2d 489 (1985), this Court held that it was error for the trial court to instruct the jury on entering a fight voluntarily when \u201cthere is no evidence from which the jury could find that defendant voluntarily entered a fight with the deceased.\u201d In the instant case, however, more than sufficient evidence was presented to indicate that defendant could have been the aggressor in the fight resulting in the victim\u2019s death. Defendant admitted to Officer Moore minutes after the attempted abduction that a person who would try to pick up a young child deserved to have his \u201ctail beat.\u201d As he was driving home, he observed the car driven by the alleged abductor, returned to pick up Michael Pasour, and the two men drove to the victim\u2019s apartment. The men pounded and kicked on the door to McDaniel\u2019s apartment until the lock on the door broke. Roxanne Bell testified that, moments later, when McDaniel approached the two men outside the apartment building, defendant and Pasour \u201cstarted walking up on him,\u201d and that defendant called McDaniel a \u201cpervert.\u201d McDaniel then reached for his handgun and the two men grabbed him and subsequently disarmed him; both men, according to Bell, then struck McDaniel with their fists and kicked him. On this evidence, the jury could find that defendant was the aggressor or voluntarily entered the fight resulting in the death of McDaniel. Thus the trial court\u2019s jury instruction on the issue of self defense was not error.\nIV.\nDefendant next contends the trial court erred in denying his motion to suppress evidence of a threat that defendant allegedly made because the State failed to provide timely discovery of the statement. We disagree.\nOn motion of a defendant, the trial court must order the State:\nTo divulge, in written or recorded form, the substance of any oral statement relevant to the subject matter of the case made by the defendant, regardless of to whom the statement was made, within the possession, custody or control of the State, the existence of which is known to the prosecutor or becomes known to him prior to or during the course of trial.\nN.C. Gen. Stat. \u00a7 15A-903(a)(2). In State v. Patterson, 335 N.C. 437, 439 S.E.2d 578 (1994), the Supreme Court held it was error for the trial court to fail to find that the State violated the discovery statute regarding the disclosure of a statement made by the defendant. In Patterson, the State did not disclose the statement until the trial was underway. Id. In spite of this violation, the Supreme Court held that the trial court\u2019s failure to find the State in violation of the discovery statutes was harmless error.\nIn the present case, however, the State provided defendant with a copy of the typewritten report by Officer Christopher Moore on 23 May 2000, nearly three weeks before the trial began on 12 June 2000. The State received this report from Officer Moore on or around 22 May 2000, and supplied defendant with a copy the following day. We cannot say the disclosure of Officer Moore\u2019s typewritten report twenty days prior to trial violated the statutory requirement of timely discovery. Defendant\u2019s assignment of error is overruled.\nV.\nFinally, defendant argues the trial court unconstitutionally instructed the jury on the offense of first degree murder. Defendant specifically alleges that all the evidence showed that defendant responded to an armed attack by the victim and that he thus could not be found guilty of first degree murder.\nWe note that defendant did not object to the first degree murder instruction on constitutional grounds during the trial, and that we are therefore not required to consider defendant\u2019s assignment of error. See State v. Wilkinson, 344 N.C. 198, 221, 474 S.E.2d 375, 387 (1996) (holding that a reviewing court \u201cis not required to pass upon a constitutional issue unless it affirmatively appears that the issue was raised and determined in the trial court\u201d). Thus, the assignment of error is overruled.\nDefendant has offered no argument in support of the remaining assignments of error in the record. Therefore they are deemed abandoned. N.C.R. App. P. 28(b)(5).\nNo error.\nJudges TIMMONS-GOODSON and BRYANT concur.", "type": "majority", "author": "SMITH, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Assistant Attorney General Thomas J. Pitman, for the State.", "Rudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. KENNETH WEBSTER WOOD\nNo. COA01-373\n(Filed 19 March 2002)\n1. Homicide\u2014 murder \u2014 instruction on involuntary manslaughter refused\nThe trial court did not err in a prosecution which resulted in a second-degree murder conviction by denying defendant\u2019s requested instruction on the lesser included offense of involuntary manslaughter. Several witnesses observed the altercation between defendant, another man, and the victim; one witness watched defendant \u201cstomp\u201d the victim in the face; another testified that he saw defendant kick the victim in the head and stomach; and this witness also testified that defendant and the other man danced around after the beating as if they were happy, giving each other a high five. This evidence is wholly inconsistent with a killing resulting from culpable negligence or an act not amounting to a felony.\n2. Homicide\u2014 heat of passion \u2014 instruction refused\nThe trial court did not err in a first-degree murder prosecution (which resulted in a second-degree murder conviction) by refusing defendant\u2019s requested instruction on heat of passion where the prosecution arose from the beating of a man who allegedly attempted to abduct a child. A significant amount of time passed following the attempted abduction and defendant\u2019s evidence indicates that he was capable of cool reflection during the confrontation.\n3. Homicide\u2014 self-defense \u2014 instruction on aggressor \u2014 evidence sufficient\nThe trial court did not err in its instruction on self-defense in a prosecution resulting in a second-degree murder conviction where the court instructed the jury that defendant would lose the benefit of self-defense if the jury determined that defendant was the aggressor where there was more than sufficient evidence that defendant could have been the aggressor.\n4. Discovery\u2014 threat made by defendant \u2014 timely furnished\nThe trial court did not err in a first-degree murder prosecution (which resulted in a second-degree murder conviction) by denying defendant\u2019s motion to suppress evidence of a threat allegedly made by defendant where defendant contended that the State failed to provide timely discovery, but the State received the report on 22 May and supplied it to defendant on 23 May, nearly three weeks before the trial began.\n5. Appeal and Error\u2014 constitutional objection \u2014 not raised at trial\nThe Court of Appeals did not consider a defendant\u2019s argument that the court unconstitutionally charged on first-degree murder where defendant did not object at trial on constitutional grounds.\nAppeal by defendant from judgment entered 16 June 2000 by Judge L. Oliver Noble, Jr., in Cleveland County Superior Court. Heard in the Court of Appeals 31 January 2002.\nAttorney General Roy Cooper, by Assistant Attorney General Thomas J. Pitman, for the State.\nRudolf Maher Widenhouse & Fialko, by M. Gordon Widenhouse, Jr., for defendant-appellant." }, "file_name": "0413-01", "first_page_order": 447, "last_page_order": 455 }