{
  "id": 8527093,
  "name": "STATE OF NORTH CAROLINA v. LANCE CRISP, SR.",
  "name_abbreviation": "State v. Crisp",
  "decision_date": "1983-10-18",
  "docket_number": "No. 8330SC67",
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    "judges": [
      "Judges Webb and Hill concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. LANCE CRISP, SR."
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nDefendant contends the court erred to his prejudice in submitting to the jury the possible verdict of involuntary manslaughter. Resolution of this question requires a two-step analysis: (1) whether the evidence in the record will support a verdict of involuntary manslaughter, and (2) if not, whether erroneous submission of the possible verdict was prejudicial error.\nOur Supreme Court had defined involuntary manslaughter as \u201cthe unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence.\u201d State v. Wilkerson, 295 N.C. 559, 579, 247 S.E. 2d 905, 916 (1978) (citations omitted). \u201cThe crux of [involuntary manslaughter] is whether an accused unintentionally killed his victim by a wanton, reckless, culpable use of a firearm or other deadly weapon.\u201d State v. Wrenn, 279 N.C. 676, 683, 185 S.E. 2d 129, 133 (1971).\nThe record in the instant case is devoid of any evidence that defendant shot Cable \u201cby some unlawful act not amounting to a felony or naturally dangerous to human life.\u201d None of the witnesses, including Ms. Beck, identified any \u201cunlawful act\u201d allegedly committed by defendant which resulted in the unintentional killing of Leonard Cable. We turn, then, to the question whether the evidence shows \u201can act or omission constituting culpable negligence\u201d on the part of defendant.\nThe law is clear that the fact that a shooting occurred does not, standing alone, demonstrate culpable negligence. See State v. Church, 265 N.C. 534, 144 S.E. 2d 624 (1965); State v. Honeycutt, 250 N.C. 229, 108 S.E. 2d 485 (1959). There must be some identifiable act or omission on the part of the defendant which was criminally negligent and which proximately caused the death of the victim. State v. Everhart, 291 N.C. 700, 231 S.E. 2d 604 (1977). We thus examine the evidence produced at trial, considered in the light most favorable to the State, to see whether the evidence establishes such an act or omission. The only evidence produced by the State in support of an unintentional killing is derived from one of the several versions of the incident testified to by Ms. Beck. She indicated that the defendant and the victim struggled for the gun, and the gun discharged. We note that this version is consistent with defendant\u2019s statement to an officer at the scene that defendant attempted to prevent Cable\u2019s suicide by grabbing the gun. The question, then, resolves itself into whether a struggle for the gun under the circumstances here presented constitutes \u201cwanton, reckless, culpable use of a firearm.\u201d We hold that it does not.\nState v. Lindsay, 45 N.C. App. 514, 263 S.E. 2d 364 (1980) involved facts similar to those found here. In Lindsay there was evidence that the decedent had held a gun to her head, that defendant attempted to take the gun away, and that the gun discharged, fatally wounding the victim. On these facts this Court held that the trial court erred in submitting involuntary manslaughter as a possible verdict, saying that \u201c[t]here is no evidence that the shooting resulted from reckless handling of the firearm.\u201d Id. at 516, 263 S.E. 2d at 366. Because the evidence in the present case, like that in Lindsay, fails to demonstrate that defendant was reckless in his handling of the gun, we hold that the trial court erred in submitting to the jury the possible verdict of involuntary manslaughter. We must thus consider the critical question whether the error was prejudicial to the defendant.\nIn deciding whether submission of involuntary manslaughter was prejudicial error under the facts here presented, we are guided by the words of our Supreme Court in State v. Ray, 299 N.C. 151, 167, 261 S.E. 2d 789, 799 (1980):\nWhether such an error is harmless depends . . . upon the facts and circumstances peculiar to each case. We hold simply that the facts and circumstances peculiar to the instant case warrant a conclusion that, absent the erroneous submission of involuntary manslaughter, there is a reasonable possibility that the jury would have returned a verdict of acquittal. The error complained of was therefore prejudicial to the defendant.\nThe evidence in Ray was uncontradicted in establishing an intentional killing, which the defendant alleged was committed in self-defense. State v. Cason, 51 N.C. App. 144, 275 S.E. 2d 221 (1981) also involved an intentional killing allegedly committed in self-defense. In each case, our appellate courts held that the evidence established a \u201creasonable possibility\u201d that the defendant would have been acquitted of all wrongdoing had not the judge erroneously submitted the verdict of involuntary manslaughter.\nIn the present case Ms. Beck\u2019s testimony about the struggle for the gun, coupled with the defendant\u2019s statement that Cable was shot when defendant tried to take the gun from him in an effort to prevent his suicide, raises a clear question whether Cable\u2019s death was the result of an accident. Because the record discloses a reasonable possibility that defendant could have been acquitted of voluntary manslaughter on the grounds of accident, the submission to the jury of involuntary manslaughter when there was no evidence to support it was prejudicial error.\nFinally, we reiterate the admonitions implicit in Judge Webb\u2019s statements in Cason. Our trial judges in homicide cases arising out of the alleged intentional use of a deadly weapon would be well-advised not to submit involuntary manslaughter as a possible verdict where there is no evidence to support it. In addition to committing the prejudicial error already discussed, the trial judge who submits involuntary manslaughter under these circumstances makes his duty of declaring and explaining the law arising on the evidence impossible to fulfill; in. such a case, the court\u2019s instructions can only result in \u201cconfusion worse confounded.\u201d The present case demonstrates such confusion. After declaring and explaining the law arising on the evidence with respect to second degree murder and voluntary manslaughter, the trial judge defined involuntary manslaughter and instructed the jury that\nIf you find from the evidence . . . that on or about the 19th day of April, 1982, the Defendant Lance Crisp, Sr., intentionally pointed a loaded 30-30 rifle at Cable when not exercising his right of defense of his son, or otherwise grasped and waved and handled the rifle in a criminal \u2014that is, the 30-30 rifle introduced into evidence as State\u2019s Exhibit 6, in a criminally negligent way thereby proximately causing Leonard Cable\u2019s death, then it would be your duty to return a verdict of guilty of involuntary manslaughter.\nHowever, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty. Or if you find that the deceased, Leonard Cable, died by accident or misadventure, or that the State has failed to prove beyond a reasonable doubt that Defendant did not act in a proper defense of his son, your verdict must be not guilty.\nThe problem with the quoted instruction is that there is no evidence that the defendant \u201cintentionally pointed a loaded 30-30 rifle\u201d at Cable; even assuming that defendant did point the gun at Cable, there is not one scintilla of evidence that such act was the proximate cause of Cable\u2019s death. Furthermore, it is significant, we think, that the judge mentioned the defense of accident only in relation to the offense of involuntary manslaughter. Obviously, if the killing was accidental, the jury should have been instructed to find the defendant not guilty of any offense. Moreover, the court\u2019s instructions with respect to \u201cdefense of a family member\u201d adds to the confusion. Assuming arguendo that there is some evidence from which the jury could find that the defendant intentionally shot Cable in defense of his son, the instruction is clearly misplaced in relation to involuntary manslaughter under the circumstances here presented, since the very definition of involuntary manslaughter embodies an unintentional killing.\nOur concern is that when a possible verdict of involuntary manslaughter is erroneously submitted, the jury, rather than struggling with the confusing and contradictory instructions occasioned by the error, might resolve its dilemma by convicting of involuntary manslaughter and acquitting the defendant of murder or voluntary manslaughter, resulting in a manifest miscarriage of justice.\nFor the reasons set out herein, the judgment is reversed and the cause is remanded to the Superior Court for the entry of an order discharging the defendant.\nReversed and remanded.\nJudges Webb and Hill concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Rufus L. Edmisten, by Assistant Attorney General Barry S. McNeill for the State.",
      "McKeever, Edwards, Davis & Hays, by Fred H. Moody, Jr. for the defendant, appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. LANCE CRISP, SR.\nNo. 8330SC67\n(Filed 18 October 1983)\n1. Homicide \u00a7 6.1\u2014 involuntary manslaughter defined\nInvoluntary manslaughter is the unintentional killing of a human being without either express or implied malice (1) by some unlawful act not amounting to a felony or naturally dangerous to human life, or (2) by an act or omission constituting culpable negligence.\n2. Homicide \u00a7 21.9\u2014 involuntary manslaughter \u2014 insufficient evidence \u2014submission of issue as prejudicial error\nEvidence in a second degree murder case that the gun discharged while defendant and decedent struggled for it and that defendant attempted to prevent decedent\u2019s suicide by grabbing the gun failed to show that defendant was reckless in his handling of the gun so as to support the trial court\u2019s submission of an issue of involuntary manslaughter to the jury, and the court\u2019s submission of the involuntary manslaughter issue was prejudicial error where the jury returned a verdict finding defendant guilty of involuntary manslaughter, and the evidence established a reasonable possibility that defendant would have been acquitted of all wrongdoing on the ground of accident had the issue of involuntary manslaughter not been submitted.\nAPPEAL by defendant from Thornburg, Judge. Judgment entered 20 August 1982 in Superior Court, Swain County. Heard in the Court of Appeals 29 September 1983.\nDefendant was charged in a proper bill of indictment with first degree murder. The evidence introduced at trial tended to show the following:\nOn 19 April 1982 decedent Leonard Cable went to defendant\u2019s home where defendant lived with his seventeen-year-old girl friend and defendant\u2019s three-year-old son. Cable and Crisp, longtime friends, shared some \u201cliquor\u201d and then left together in Cable\u2019s van. They returned to the house at approximately ten o\u2019clock that evening. Shortly after their return they took defendant\u2019s 30-30 rifle outside and twice fired the gun. After they came back into the house, defendant and Cable discussed plans for a joint trip to visit relatives in Charlotte. Defendant told Ms. Beck, his girl friend, to pack for the trip. Shortly after she began to do so, the rifle discharged, killing Leonard Cable. Police arriving at the scene found both defendant and Ms. Beck splattered with blood and Cable on the floor with a gunshot wound in his head. The rifle was next to the body. The defendant made a statement to police at the scene, related by the officer at trial as follows:\nMr. Crisp\u2019s exact words were that Leonard Cable picked the weapon up and told Mr. Crisp \u201c T show you how you can end your God damn troubles,\u2019 and he put the gun to his head and blew his brains out.\u201d He also told me that he told Mr. Cable not to do it and he grabbed the weapon and it went off.\nThe State introduced expert testimony that the decedent\u2019s fingers had been injured in the course of the incident, and that this injury probably occurred because Cable\u2019s fingers were in front of the gun, rather than on the trigger, when it discharged.\nThe evidence other than that set out above was confused and confusing. The only surviving eyewitness to the incident, other than the defendant, was the seventeen-year-old girl friend, Tommie Elaine Beck. Ms. Beck testified at trial that she was under psychiatric care and was taking medication prescribed by a doctor at the Smoky Mountain Mental Health Center. She stated that this medication \u201cmakes me forget what happened on April the 19th and since I\u2019ve been taking that medication I don\u2019t really remember what happened on April the 19th. I can just barely remember.\u201d\nMs. Beck testified as a witness for the State. On direct examination she first testified that she was packing her clothes when she heard the gun go off. She went on to say that the decedent had kissed her, provoking an angry response from defendant. She stated:\nLeonard had the gun when I turned my back and then Lance took it away from Leonard and then I was packing the clothes and I felt something hit me on the ear and heard a gun go off. I turned around and Lance said \u201cLeonard has blowed his brains out.\u201d\nImmediately after testifying to the above, Ms. Beck stated that defendant threatened her if she ever told the police what she \u201chad seen,\u201d and that he placed the gun next to the body \u201cso it would look like . . . suicide.\u201d On cross-examination Ms. Beck testified that \u201cLance and Leonard came in drunk and they were fighting over the gun and then the gun went off. . . .\u201d She next testified that while she was packing \u201cLance and Leonard were in the bedroom. . . . [T]hey were not arguing or having any kind of fight or anything like that. ... I had my back to Leonard. I heard the gun go off but I hadn\u2019t heard Leonard Cable say anything before then.\u201d Ms. Beck\u2019s final account of the incident was as follows:\nAfter Leonard had been pointing the gun around, Lance took it away from him. I think they were fighting over it, but I\u2019m not sure, but I think they were. Lance tried to take the gun away from Leonard and Leonard kept pulling the gun back from him and they kept pulling the gun from one another back and forth. They were not hitting each other and they were not arguing or squabbling over the weapon. In fact, I didn\u2019t ever hear them have any arguments that night. I don\u2019t remember what Lance did with the gun when he finally got it away from Leonard, I can\u2019t remember anything hardly anymore, because I am in no shape to be up here in the witness stand today. I have already had one nervous breakdown and the next one could put me away.\nAt the conclusion of her testimony, Ms. Beck stated: \u201cWhat I have told here today is . . . half true.\u201d A Special Agent with the North Carolina Bureau of Investigation testified as to statements made to him by Ms. Beck, for the limited purpose of corroborating her testimony. He stated: \u201cI have taken four separate statements from Ms. Beck and on two occasions she told me that Leonard Cable committed suicide, on one occasion she told me that Lance had the gun in his hand and Leonard grabbed it and it went off and on one occasion she told me that there was a scuffle over the gun and that it went off while it was in Leonard\u2019s hands.\u201d\nThe court submitted second degree murder, voluntary manslaughter, involuntary manslaughter, and not guilty as permissible verdicts. The jury found defendant guilty of involuntary manslaughter and from a judgment imposing a prison sentence of ten years defendant appealed.\nAttorney General Rufus L. Edmisten, by Assistant Attorney General Barry S. McNeill for the State.\nMcKeever, Edwards, Davis & Hays, by Fred H. Moody, Jr. for the defendant, appellant."
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  "file_name": "0493-01",
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