{ "id": 8524951, "name": "STATE OF NORTH CAROLINA v. MARK ASHTON DEANS", "name_abbreviation": "State v. Deans", "decision_date": "1984-11-06", "docket_number": "No. 8410SC109", "first_page": "227", "last_page": "235", "citations": [ { "type": "official", "cite": "71 N.C. App. 227" } ], "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": "279 S.E. 2d 570", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "opinion_index": 0 }, { "cite": "303 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574148 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/nc/303/0526-01" ] }, { "cite": "253 S.E. 2d 906", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "297 N.C. 151", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567263 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/nc/297/0151-01" ] }, { "cite": "432 U.S. 233", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6178254 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/us/432/0233-01" ] }, { "cite": "220 S.E. 2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "288 N.C. 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570479 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/288/0632-01" ] }, { "cite": "302 S.E. 2d 144", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "308 N.C. 196", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4708380 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/308/0196-01" ] }, { "cite": "459 U.S. 1056", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6487664, 6487779 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/us/459/1056-01", "/us/459/1056-02" ] }, { "cite": "292 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "306 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567373 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc/306/0001-01" ] }, { "cite": "185 S.E. 2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "279 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571995 ], "year": 1971, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/279/0676-01" ] }, { "cite": "247 S.E. 2d 905", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "parenthetical": "quoting State v. Wrenn, 279 N.C. 676, 185 S.E. 2d 129 (1971) (citations omitted)" } ], "opinion_index": 0 }, { "cite": "295 N.C. 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566309 ], "year": 1978, "pin_cites": [ { "parenthetical": "quoting State v. Wrenn, 279 N.C. 676, 185 S.E. 2d 129 (1971) (citations omitted)" } ], "opinion_index": 0, "case_paths": [ "/nc/295/0559-01" ] }, { "cite": "308 S.E. 2d 258", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 528", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4767283 ], "year": 1983, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0528-01" ] }, { "cite": "309 S.E. 2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "309 N.C. 763", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4764212 ], "year": 1983, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0763-01" ] } ], "analysis": { "cardinality": 809, "char_count": 17807, "ocr_confidence": 0.857, "pagerank": { "raw": 2.1159519180358907e-07, "percentile": 0.7638839175565835 }, "sha256": "5c00734b264d10356786c9a709ba01043f30c62c5a14d0a6da7f6b0b1ea4eb71", "simhash": "1:2f2c0869bf150802", "word_count": 2908 }, "last_updated": "2023-07-14T17:51:06.115640+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Arnold and Hill concur." ], "parties": [ "STATE OF NORTH CAROLINA v. MARK ASHTON DEANS" ], "opinions": [ { "text": "WELLS, Judge.\nDefendant\u2019s single assignment of error is that the trial court erred in denying his motion to dismiss the charge of second degree murder at the close of all evidence. He argues that the evidence established, as a matter of law, perfect self-defense. We disagree and find no error.\nThe standards of appellate review for a denial of a motion to dismiss are well established. They are:\n[W]hether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant\u2019s being the perpetrator of such offense. If substantial evidence of both of the above has been presented at trial, the motion is properly denied. . . . [T]he evidence must be considered in the light most favorable to the State and the State is entitled to every reasonable in-tendment and every reasonable inference to be drawn therefrom. . . . Contradictions and discrepancies in the evidence are strictly for the jury to decide. . . .\nState v. Lowery, 309 N.C. 763, 309 S.E. 2d 232 (1983) (citations omitted). Our supreme court has consistently held that \u201cthe court must consider the defendant\u2019s evidence which explains or clarifies that offered by the State. . . . The court must also consider the defendant\u2019s evidence which rebuts the inference of guilt when it is not inconsistent with the State\u2019s evidence. .' . .\u201d State v. Bates, 309 N.C. 528, 308 S.E. 2d 258 (1983) (citations omitted).\nApplying these principles to this case, we find substantial evidence of each essential element of second degree murder. Murder in the second degree is defined as \u201cthe unlawful killing of a human being with malice but without premeditation and deliberation.\u201d State v. Wilkerson, 295 N.C. 559, 247 S.E. 2d 905 (1978) (quoting State v. Wrenn, 279 N.C. 676, 185 S.E. 2d 129 (1971) (citations omitted)). While defendant has raised the issue of perfect self-defense only, we have carefully considered the closer question of whether or not the trial court should have instructed the jury only on voluntary manslaughter based on imperfect self-defense. Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation. State v. Wilkerson, supra.\nWhen an individual intentionally takes the life of another with a deadly weapon, two presumptions arise: (1) unlawfulness and (2) malice. State v. Pinch, 306 N.C. 1, 292 S.E. 2d 203, cert. denied, 459 U.S. 1056 (1982). See State v. Kirkley, 308 N.C. 196, 302 S.E. 2d 144 (1983). If, as in this case, \u201cthere is evidence ... of all the elements of self-defense, the mandatory presumption of unlawfulness disappears but the logical inferences from the facts proved may be weighed against this evidence.\u201d State v. Hankerson, 288 N.C. 632, 220 S.E. 2d 575 (1975), rev\u2019d on other grounds, 432 U.S. 233 (1977). In sum, the State maintained the burden of producing evidence that defendant killed Hales under circumstances not amounting to perfect or imperfect self-defense.\nIn the light most favorable to the State, evidence was produced that after Hales threw a coffeepot into defendant\u2019s windshield defendant assaulted Hales with a gun. Lonnie Sloan\u2019s testimony, albeit contradictory to that of defendant and especially that of Franklin, permits the finding that Hales was unarmed and the inference that defendant forced Hales into the trailer office at gunpoint. Uncontradicted testimony established that inside the trailer, Hales was using the telephone while defendant watched, and the inference that he was calling the Garner Police Department as demanded by defendant. Circumstantial physical evidence established that Hales, at some point, obtained a gun. Defendant\u2019s testimony that Hales had a gun in his left hand while using the telephone explains its presence and must be considered. Franklin\u2019s testimony that Hales picked up a hammer when she came to the door and started to come from behind the counter, confirmed by the physical evidence, must also be considered.\nDefendant\u2019s version of the altercation is that Hales attacked him with the hammer, defendant attempted to flee, and defendant was forced to shoot Hales from inside the trailer to defend himself. Physical evidence found at the scene clearly contradicts defendant\u2019s version of the shooting. The shell casing from defendant\u2019s gun was found outside the trailer. Isley\u2019s expert opinion was that the fatal shot came from outside the trailer door. Hales\u2019 vest had no powder burns on it. Scientific testing of defendant\u2019s gun permits the inference that the gun\u2019s muzzle was five feet or more from Hales\u2019 body when the fatal shot was fired. This inference contradicts defendant\u2019s testimony that he shot Hales while the latter was beating him with the hammer to \u201cget [Hales] off of me. I was on my hands and knees and trying to get off the floor, and he was trying to beat me back onto the floor again. That is when I pulled the trigger.\u201d\nFurthermore, Hales\u2019 physical condition indicates that defendant had struck him prior to the fatal shot. The record before us is devoid of any testimony by defendant of a fight between the two men. Yet, Dr. Scarboro found scratches on the deceased\u2019s left ear; contusion, scratches, and a cut on the lip; two apparent bruises on the forehead; and abasions over the knuckles of the right hand. The fourth finding is consistent with defendant\u2019s testimony, but the first three findings are inconsistent with defendant\u2019s testimony and permit the logical inference that prior to the shooting defendant struck Hales.\nConsidered in the light most favorable to the State and after considering defendant\u2019s evidence consistent with that of the State, we hold that there was evidence leading to a reasonable conclusion that defendant held Hales at gunpoint outside the trailer, forced the victim into the trailer at gunpoint, and that Hales was shot while defending himself from an attack by defendant. These facts establish substantial evidence of every element of second degree murder. Accepting defendant\u2019s version that Hales initiated the circumstances leading to his death when he deliberately threw a coffeepot into defendant\u2019s windshield, and recognizing that the law in this state permits one to defend his property with reasonable force, nevertheless, absent use of felonious force by the aggressor, an individual may not endanger life or inflict serious bodily harm. State v. McCombs, 297 N.C. 151, 253 S.E. 2d 906 (1979).\nDefendant argues that the evidence, as a matter of law, constituted perfect self-defense. Perfect self-defense requires that:\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, 279 S.E. 2d 570 (1981). Taking defendant\u2019s version of the incidents as true, he was not entitled to claim this absolute defense. He testified that Hales, after demanding that defendant leave the premises, returned to the office. Defendant intentionally followed Hales into the trailer with a gun knowing the volatile circumstances. Under these facts defendant \u201caggressively and willingly entered into the fight.\u201d Id.\nDefendant was entitled to, and the trial court instructed the jury on, imperfect self-defense which reduces criminal responsibility to voluntary manslaughter. Imperfect self-defense arises where the first two elements of perfect-defense have been met, but either three or four has not been met. State v. Norris, supra. We considered, and the most salient question, was whether the trial court erred in not granting defendant\u2019s motion to dismiss the second degree murder charge and instruct only on involuntary manslaughter. The trial court did not so err because, as discussed above, the State presented substantial evidence of second degree murder even though the defendant introduced ample evidence from which the jury may have convicted on the lesser charge.\nWe hold that the State having proffered sufficient evidence of second degree murder, it was for the jury to resolve the contradictions and discrepancies. State v. Lowery, supra.\nNo error.\nJudges Arnold and Hill concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Attorney General Rufus L. Edmisten, by Associate Attorney General Michael Smith, for the State.", "DeMent, Askew & Gaskins, by Johnny S. Gaskins, for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. MARK ASHTON DEANS\nNo. 8410SC109\n(Filed 6 November 1984)\n1. Homicide \u00a7 26\u2014 second degree murder \u2014 self-defense\u2014evidence insufficient to dismiss charge\nIn a prosecution for second degree murder, there was no error in the denial of defendant\u2019s motion to dismiss the second degree murder charge and instruct only on voluntary manslaughter, based on imperfect self-defense, where the evidence, taken in the light most favorable to the State, led to a reasonable inference that defendant held the victim at gunpoint outside a trailer, forced the victim into the trailer at gunpoint, and shot the victim while the victim was defending himself from an attack by defendant.\n2. Homicide \u00a7 21.8\u2014 perfect self-defense \u2014 evidence insufficient\nDefendant\u2019s evidence of perfect self-defense, taken as true, showed that the victim returned to a trailer after demanding that defendant leave the premises and that defendant followed with a gun knowing the volatile circumstances. He therefore \u201caggressively and willingly entered into the fight\u201d and perfect self-defense was not established as a matter of law.\nAppeal by defendant from Preston, Edwin S., Judge. Judgment entered 10 October 1983 in WAKE County Superior Court. Heard in the Court of Appeals 27 September 1984.\nDefendant was tried by jury and found guilty of second degree murder in the shooting of Joseph Willie Hales. The state offered evidence which tended to show that on 4 April 1983 Lonnie Sloan and his wife, Teresa, were driving on Highway 70 in Wake County. Lonnie Sloan drove past Hales Auto Sales at approximately five miles per hour when he saw defendant, standing beside his truck, pointing a gun at Hales, who was standing some three feet from the office trailer and facing defendant. Sloan did not see anything in Hales\u2019 hand. Hales was backing toward the trailer.\nSloan turned onto Mechanical Boulevard and again saw defendant pointing a gun at Hales who continued to back toward the office. Sloan proceeded on Mechanical Boulevard, turned around, and returned to Hales Auto Sales approximately two minutes after last seeing defendant and Hales in the lot. Sloan saw defendant walking from the trailer to defendant\u2019s truck and saw him hand a gun to a female sitting in the truck. Defendant had blood on the left side of his head. Sloan went to a nearby telephone and called the police.\nPatrolman Larry Garris, Garner Police Department, was sent to the scene in response to Sloan\u2019s report. He saw defendant\u2019s truck leaving Hales Auto Sales and stopped it. Patrolman Garris described defendant as bleeding profusely from head wounds and covered with blood to his feet. Defendant told Garris that a man, indicating someone at Hales Auto, had hit him with a hammer, but he did not tell Garris that he had shot anyone. Garris left defendant with Patrolman J. W. Pearce, who had independently arrived, and went to Hales\u2019 office. He found Hales lying on his right side between two wood stoves. Garris detected no pulse.\nPatrolman Pearce returned to Hales Auto with defendant and his companion Sheila Franklin. He entered the office, inspected Hales, and thought he detected a pulse. Defendant was questioned, responding that Hales had hit him with a hammer and that he had shot him. Pearce recovered defendant\u2019s fully cocked gun from his truck.\nOfficer Albert Isley, Jr., a City-County Bureau of Identification crime scene specialist, performed a thorough premises search. He found a .22 caliber pistol near Hales\u2019 right hand. The magazine was loaded. No bullet was in the firing chamber and the gun\u2019s hammer was in a \u201csafe cocked\u201d position, rendering the gun incapable of firing.\nA hammer was found at the left foot of the victim. Defendant\u2019s gun holster was underneath Hales\u2019 feet. A bullet fragment from defendant\u2019s gun was found at the rear of the trailer behind the office counter. On the counter, a telephone book was found opened to a page containing a listing for the Garner Police Department.\nThe trailer was spotted with a substantial amount of blood on the floor in the area of the deceased, the floor toward the door, and the porch. All of the blood was defendant\u2019s.\nOutside the trailer, Isley found a bullet casing on the ground next to the office porch. Testing by the State Bureau of Investigation [hereinafter SBI] determined that the bullet fragment and shell casing came from defendant\u2019s gun. Defendant\u2019s gun automatically ejected an expended round to the right and slightly backwards. In Isley\u2019s opinion the gun was fired from the area of the door but it was impossible to have fired the weapon from inside the trailer and have the casing land on the ground outside the trailer. On recross examination, Isley admitted that the gun could have been fired anywhere from two feet inside the trailer to the porch. On redirect examination, Isley\u2019s opinion was that the gun was fired from the porch area and not inside the door.\nThe SBI also conducted powder burn tests on the deceased\u2019s vest through which the fatal shot entered. Deceased\u2019s vest had no powder residue. Powder residue would not have been present if the gun was fired five feet or more from its target.\nDr. Dawson Scarboro, a pathologist and certified as an expert witness, stated that the victim died from one gunshot wound that entered below the left armpit, severing the aorta, and exiting near the right armpit. The victim also had contusions and scratches on the left ear; contusion, scratches and a cut on the left of his lip; bruises on the forehead; and abrasions over the knuckles of the right hand.\nDefendant had four lacerations on the head. They ranged from approximately one-half inch to slightly over one inch, but no concussion or fracture was present. One cut was on the top of the head, one on the left side, and two on the back of the head.\nDefendant offered evidence which tended to show that he and Sheila Franklin were returning from a vacation weekend at the beach when they passed Hales Auto. He had consumed approximately one-half bottle of wine before leaving the beach. He saw a portable camper on Hales\u2019 lot, and he decided to stop. Defendant had never transacted business at Hales\u2019.\nDefendant and Franklin looked at a camper and Hales demonstrated it to defendant. Hales and defendant unsuccessfully negotiated for a purchase price, defendant stating he could buy a comparable camper at a competitor\u2019s for less. Hales became verbally abusive and ordered defendant to leave.\nDefendant and Franklin returned to defendant\u2019s truck and began backing up to leave. Hales went to the office trailer and returned. Franklin saw Hales throw a coffeepot into defendant\u2019s windshield. Defendant parked the truck and exited. Hales approached from the rear of the truck, gun in his hand, ordering defendant to leave or be hurt. Defendant obtained his holstered gun from inside the truck, removed it, loaded the firing chamber and asked Hales to call the police. Defendant denied pointing his gun at Hales, but Franklin testified that both men pointed at each other. Hales lowered his gun to his side.\nDefendant demanded that Hales call the police or pay for his windshield. Defendant retrieved the coffeepot, put it into the truck, and followed Hales into the office. Hales, standing behind a work counter, had the telephone receiver in his right hand and the gun in his left. Hales put the phone down and told defendant he would not call the police and to leave the premises. Defendant repeated his request that Hales call the police. Franklin stepped onto the porch near the door and pleaded with defendant to leave and get the police. Defendant turned to look at Franklin. Hales picked up a hammer. Franklin ran back to defendant\u2019s truck and as defendant,turned toward Hales, Hales struck defendant on the left side of the head knocking defendant to the floor. Hales repeatedly struck defendant with the hammer as defendant got to his feet and tried to flee out the door.\nAs defendant started toward the door, Hales hit him in the back of the head again knocking defendant to the floor. Hales, kicking defendant and yelling that he was going to kill him, hit defendant twice more with the hammer. Defendant, on his knees just inside the door, fired one shot to repel the attack.\nDefendant stumbled to his truck, put the gun on the dashboard, and Franklin assisted him into the truck. Franklin was driving the truck to the Garner Police Department when stopped by Patrolman Garris.\nThe Garner Rescue Squad transported defendant to the hospital. In route, defendant told rescue personnel that Hales had gone into a rage.\nDefendant offered several witnesses who had previous business dealings with Hales. On several independent occasions, Hales demonstrated a violent disposition and conduct in the course of business transactions.\nAt the close of all the evidence, defendant moved, and the trial court denied, dismissal of the charge.\nAttorney General Rufus L. Edmisten, by Associate Attorney General Michael Smith, for the State.\nDeMent, Askew & Gaskins, by Johnny S. Gaskins, for defendant." }, "file_name": "0227-01", "first_page_order": 261, "last_page_order": 269 }