NO. COA13-495
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2013
STATE OF NORTH CAROLINA
v. Gaston County
No. 11 CRS 7113
ADRIAN TAREL EPPS,
Defendant.
Appeal by defendant from judgment entered 25 September 2012
by Judge Hugh B. Lewis in Gaston County Superior Court. Heard in
the Court of Appeals 26 September 2013.
Attorney General Roy Cooper, by Special Deputy Attorney
General Amar Majmundar, for the State.
Michael E. Casterline for defendant-appellant.
STEELMAN, Judge.
Where the evidence at trial showed that defendant acted
voluntarily in stabbing McGill, resulting in his death, the trial
court did not err in declining to instruct the jury on involuntary
manslaughter.
I. Factual and Procedural Background
On 6 May 2011, Adrian Tarel Epps (defendant) was hosting a
social event at his house. One of the guests was defendant’s
cousin, who brought her boyfriend, Antwan McGill (McGill). A fight
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occurred in the yard between defendant and McGill, and defendant
was beaten by McGill. Defendant returned to the house by the
screen door to the kitchen. McGill followed defendant to the
house. When McGill approached the screen door, defendant stabbed
him through the door. McGill was dead on arrival at the hospital
emergency room. The coroner found McGill’s death to have resulted
from a single stab wound.
Defendant was charged with first-degree murder. At the jury
instruction conference, defendant requested an instruction on the
lesser offense of involuntary manslaughter. The trial court denied
that request. The trial court instructed the jury on first-degree
murder, second-degree murder, and voluntary manslaughter, as well
as the defenses of self-defense and the castle doctrine. On 25
September 2012, the jury found defendant guilty of voluntary
manslaughter. The jury also found the existence of two aggravating
factors. The trial court found defendant to be a prior felony
record level IV, and sentenced defendant to an aggravated range
sentence of 121-155 months imprisonment.
Defendant appeals.
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II. Involuntary Manslaughter
In his sole argument on appeal, defendant contends that the
trial court erred in refusing to instruct the jury on the lesser
offense of involuntary manslaughter. We disagree.
A. Standard of Review
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo by this Court.”
State v. Osorio, 196 N.C. App. 458, 466,
675 S.E.2d 144, 149
(2009). “The prime purpose of a court’s charge to the jury is the
clarification of issues, the elimination of extraneous matters,
and a declaration and an application of the law arising on the
evidence.” State v. Cameron,
284 N.C. 165, 171,
200 S.E.2d 186,
191 (1973), cert. denied,
418 U.S. 905,
41 L. Ed. 2d 1153 (1974).
“[A] trial judge should not give instructions to the jury which
are not supported by the evidence produced at the trial.”
Id.
“Where jury instructions are given without supporting evidence, a
new trial is required.” State v. Porter,
340 N.C. 320, 331,
457
S.E.2d 716, 721 (1995).
B. Analysis
“An instruction on a lesser-included offense must be given
only if the evidence would permit the jury rationally to find
defendant guilty of the lesser offense and to acquit him of the
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greater.” State v. Millsaps, 356 N.C. 556, 561,
572 S.E.2d 767,
771 (2002). In the instant case, defendant contends that the
evidence at trial would have permitted the jury to find defendant
guilty of involuntary manslaughter and to acquit him of the other
homicide charges.
“The elements of involuntary manslaughter are: (1) an
unintentional killing; (2) proximately caused by either (a) an
unlawful act not amounting to a felony and not ordinarily dangerous
to human life, or (b) culpable negligence.” State v. Fisher, ___
N.C. App. ___, ___, 745 S.E.2d 894, 901 (2013) (quoting State v.
Hudson,
345 N.C. 729, 733,
483 S.E.2d 436, 439 (1997)). Thus, for
the jury to be given an instruction on involuntary manslaughter,
there must have been evidence presented to show that (1) defendant
lacked intent, and that (2) the action causing McGill’s death
either (a) did not amount to a felony and was not ordinarily
dangerous to human life, or (b) was the result of culpable
negligence.
At trial, the evidence presented was that defendant fought
with McGill, and that defendant retreated to the kitchen. The
evidence further showed that defendant stabbed McGill through the
screen door, that the knife had a 10-12 inch blade, that
defendant’s arm went through the screen door up to the elbow, and
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that the stab wound pierced McGill’s lung and nearly pierced his
heart, and was approximately four and one-half inches deep.
Defendant contends that he was intoxicated and barely aware of his
actions; that he was afraid for his life and acting to fend off an
attack; and that his actions were reckless but not intended to
cause death.
Defendant relies on State v. Debiase, 211 N.C. App. 497,
711
S.E.2d 436, disc. review denied,
365 N.C. 335,
717 S.E.2d 399
(2011). In Debiase, defendant and the victim, guests at a party,
got into an altercation, which concluded with defendant striking
the victim with a bottle, inflicting an injury from which the
victim eventually died. We held that:
despite the fact that Defendant acted
intentionally at the time that he struck Mr.
Lien with the bottle, the evidence contained
in the present record is susceptible to the
interpretation that, at the time that he
struck Mr. Lien, Defendant did not know and
had no reason to believe that the bottle would
break or that the breaking of the bottle would
inflict a fatal wound to Mr. Lien's neck.
Death resulting from such a series of events
would, under the previous decisions of this
Court and the Supreme Court, permit an
involuntary manslaughter conviction.
Debiase, 211 N.C. App. at 506,
711 S.E.2d at 442. We held that
the trial court erred by declining to instruct the jury on the
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lesser-included offense of involuntary manslaughter, and remanded
for a new trial.
The facts of the instant case are distinct from those in
Debiase. In Debiase, defendant was holding the bottle during the
fight. As a result, the jury was permitted to consider the
possibility that his use of the bottle was not intentional. In
the instant case, however, defendant was not armed with the knife
during the fight, nor was defendant involved in an altercation at
the time of the fatal stabbing. Sometime after the fight had
ended, defendant was in the kitchen, inside of the house, when
McGill approached the screen door. Defendant consciously grabbed
the knife, which he had not been previously holding, and stabbed
McGill through the screen door.
Defendant cites us to numerous other cases with fact patterns
similar to the facts in Debiase, reaching the same result. In
each of those cases, a defendant instinctively or reflexively
lashed out, involuntarily resulting in the victim’s death. In the
instant case, however, defendant’s conduct was entirely voluntary.
The evidence in the record shows that defendant’s conduct was
intentional, and that the stabbing was not an action which was (a)
not a felony, or (b) resulting from culpable negligence. Based
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upon our review of the record, we see no evidence which would have
merited an instruction on involuntary manslaughter.
We hold that the trial court did not err by refusing to
instruct the jury on the lesser-included offense of involuntary
manslaughter.
NO ERROR.
Judge BRYANT concurs.
Judge HUNTER, ROBERT C. dissenting.
NO. COA13-495
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
STATE OF NORTH CAROLINA,
v. Gaston County
No. 11 CRS 7113
ADRIAN TAREL EPPS,
Defendant.
HUNTER, Robert C., Judge, dissenting.
Based on decisions by this Court and our Supreme Court and
taking the evidence in the light most favorable to defendant, I
believe the evidence would permit a reasonable jury to find
defendant guilty of involuntary manslaughter. Consequently, I
would conclude that the trial court committed reversible error in
failing to charge the jury on involuntary manslaughter and that
defendant is entitled to a new trial.
Background
On 6 May 2011, Adrian Epps (“defendant”) and his girlfriend,
Jamie Vittatoe (“Ms. Vittatoe”), decided to have a small get-
together at their home near the town of Stanley, North Carolina.
They invited defendant’s cousin Anitra Adams (“Ms. Adams”) who
invited her boyfriend of two months Antwan Rashard McGill (“Mr.
McGill”). After Ms. Adams and Mr. McGill arrived, around 8 or 9
that night, Ms. Adams asked if defendant had any orange juice to
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mix with vodka. Defendant replied that they did not; instead, he
cut up lime wedges for her to squeeze into her drinks. Over the
course of the evening, the couples drank alcohol and smoked
marijuana. While no one was able to definitively establish how
much the parties drank, several of the witnesses testified that
both defendant and Mr. McGill were quite intoxicated. In fact,
one witness testified that defendant was so intoxicated that he
was “stumbling” around and fell down twice. Moreover, several
witnesses claimed that Mr. McGill got sick in the bathroom from
consuming too much alcohol. According to the postmortem toxicology
report, Mr. McGill had a blood alcohol level of .16 and a small
amount of Xanax in his system.
At some point during the evening, defendant and Mr. McGill
began arguing; the witnesses provided contradictory accounts of
the altercation. Defendant contended that the argument started
when Mr. McGill made a derogatory comment about Ms. Vittatoe.
Defendant and Mr. McGill went outside where a physical fight
ensued. Defendant claimed that Mr. McGill pulled his legs out
from under him and beat him so severely that defendant passed out
twice. When defendant woke up the first time during the fight, he
felt “dizzy.” At this point, while defendant was still on the
ground, Mr. McGill kicked him in the face, and defendant stated
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that it felt like his face “exploded” and his ears began ringing.
When he woke up the second time, defendant alleged that he saw Ms.
Adams and Mr. McGill sitting in Ms. Adams’s car in the driveway.
Defendant went back inside his house through a screen door located
off a side porch. Defendant stated that he was in severe pain,
his head was “killing” him, he felt lightheaded, and his vision
was blurry. Defendant left the outside door propped open because
he believed Mr. McGill and Ms. Adams were leaving. When he entered
the kitchen, defendant and Ms. Vittatoe began cleaning the blood
out of his mouth. Defendant heard footsteps outside on his
driveway. He turned and saw Mr. McGill coming toward the screen
door. Fearing that Mr. McGill was coming back to hurt him further
or to harm Ms. Vittatoe, defendant ran to the screen door and held
it shut. During the struggle, defendant claimed he heard Ms. Adams
yell something about a gun. At this point, defendant grabbed the
knife he had used earlier to cut limes, turned, and stabbed once
through the closed screen door. Defendant testified that he
“wasn’t trying to pay attention to exactly where [he] might hit
[Mr. McGill] at, or how hard [he] might’ve swung the knife, or
anything like that.” Defendant went on to allege:
I wasn’t trying to gauge I’m going to hit [Mr.
McGill] here with [the knife], I’m going to
hit him there with it, I’m going to use this
much force, I’m not going to use that much
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force, I’m going to pull back at this moment
of that moment. None of that was going through
my head. Only thing was going through my head
was I need to protect myself. I was in fear
for my life that it was going to either be my
life or his life.
Ms. Adams and Devan Williams, a friend of Mr. McGill’s, took
Mr. McGill to the hospital where he was pronounced dead in the
emergency room. According to the pathologist who performed the
autopsy, Mr. McGill died as a result of excessive bleeding from a
single stab wound in his upper chest.
At trial, defendant requested the trial court instruct on
involuntary manslaughter. However, the trial court denied his
request because involuntary manslaughter did not “apply” and noted
defendant’s objection for purposes of an appeal. The jury was
instructed on first-degree murder, second-degree murder, voluntary
manslaughter, and the defenses of self-defense and defense of
habitation. The jury found defendant guilty of voluntary
manslaughter. The trial court sentenced defendant to a minimum of
121 months to a maximum of 155 months imprisonment. Defendant
appealed.
Argument
Defendant’s sole argument on appeal is that the trial court
committed reversible error by refusing to instruct the jury on
involuntary manslaughter. Specifically, defendant contends that
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although there was contradictory evidence presented at trial,
there was sufficient evidence presented to permit the jury to find
him guilty of involuntary manslaughter. Taking the evidence in
a light most favorable to defendant, I agree.
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo by this Court.”
State v. Osorio, 196 N.C. App. 458, 466,
675 S.E.2d 144, 149
(2009). “An instruction on a lesser-included offense must be given
only if the evidence would permit the jury rationally to find
defendant guilty of the lesser offense and to acquit him of the
greater.” State v. Millsaps,
356 N.C. 556, 561,
572 S.E.2d 767,
771 (2002). “In determining whether the evidence is sufficient to
support the submission of the issue of a defendant’s guilt of a
lesser included offense to the jury, courts must consider the
evidence in the light most favorable to the defendant.” State v.
Debiase,
211 N.C. App. 497, 504,
711 S.E.2d 436, 441 (internal
quotation marks omitted), disc. review denied,
365 N.C. 335,
717
S.E.2d 399 (2011). Our Supreme Court has noted that “[c]onflicts
in the evidence are for the jury to resolve, not this Court” when
deciding whether the trial court erred in not submitting an
instruction on involuntary manslaughter. State v. Lytton,
319
N.C. 422, 427,
355 S.E.2d 485, 488 (1987). “It is reversible error
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for the trial court to fail to instruct on a lesser offense when
evidence has been introduced which supports the finding of such a
lesser offense.” State v. Fisher, 318 N.C. 512, 524,
350 S.E.2d
334, 341 (1986).
Involuntary manslaughter is a lesser included offense of
second-degree murder and voluntary manslaughter. State v. Thomas,
325 N.C. 583, 591,
386 S.E.2d 555, 559 (1989). Unlike voluntary
manslaughter which requires that a defendant have an intent to
kill, see State v. Wilkerson,
295 N.C. 559, 579,
247 S.E.2d 905,
916 (1978), “involuntary manslaughter can be committed by the
wanton and reckless use of a deadly weapon such as a firearm [see
State v. Wallace,
309 N.C. 141,
305 S.E.2d 548 (1983)] or a knife
[see State v. Fleming,
296 N.C. 559,
251 S.E.2d 430 (1979)][,]”
State v. Buck,
310 N.C. 602, 605,
313 S.E.2d 550, 552 (1984).
Here, the evidence, when taken in the light most favorable to
defendant, could support a verdict of involuntary manslaughter
based on the theory that defendant killed Mr. McGill as a result
of his reckless use of the knife. At trial, defendant’s own
testimony establishes that he was not trying to intentionally
inflict a fatal wound; specifically, defendant testified that he
was not aiming at any particular area on Mr. McGill’s body or
consciously using any specific amount of force. Instead, his
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testimony indicates that he was acting instinctively and
reflexively when he grabbed the knife, turned, and made a single
stabbing motion toward Mr. McGill through a closed screen door.
While it is uncontroverted that defendant intentionally used the
knife, our Supreme Court has made it clear that the element of
intent for purposes of manslaughter is whether the defendant
intended to inflict a fatal wound, not whether the use of the
weapon was intentional. See Buck, 310 N.C. at 607,
313 S.E.2d at
553 (concluding that the trial court erred in not submitting the
involuntary manslaughter instruction when “[the] defendant was
wielding the butcher knife generally to defend against a felonious
assault upon him, [but] the actual infliction of the fatal wound,
according to [the] defendant, was not intentional”). While the
testimony of other witnesses contradicts defendant’s testimony
concerning his lack of intent to kill Mr. McGill, their testimony
does not matter because the trial court must consider the evidence
in a light most favorable to defendant. Thus, the conflict in the
evidence was for the jury to resolve, not the trial court by
refusing to submit the lesser included offense to the jury.
Consequently, I believe that defendant’s own description of the
events coupled with the fact that Mr. McGill was struck only once
through a closed screen door during the altercation was enough to
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warrant the submission of the involuntary manslaughter instruction
to the jury.
Unlike the majority, I believe the facts of these case are
similar to those of Debiase. There, during an altercation, the
defendant struck the victim with a beer bottle; although several
of the witnesses claimed that the defendant struck him multiple
times, defendant alleged to only have hit the victim once.
Debiase, 211 N.C. App. at 499-501,
711 S.E.2d at 438-39. The
victim died as a result of massive blood loss from a “gaping wound”
on his neck.
Id. at 498,
711 S.E.2d at 437-38. The victim also
suffered a second, superficial wound on his head.
Id. The
pathologist who conducted the autopsy contended that both wounds
could only have come from a broken beer bottle.
Id. This suggested
that the beer bottle broke at some point during the defendant’s
altercation with the victim.
At trial, the court refused to give an instruction on
involuntary manslaughter. This Court reversed, concluding that
the evidence, when taken in the light most favorable to the
defendant, had the tendency to show that the defendant did not
intend to kill or seriously injure the victim. Id. at 504,
711
S.E.2d at 441. In order to reach its conclusion, the Court
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reviewed numerous decisions of both this Court and our Supreme
Court noting, in pertinent part, that:
despite the fact that [the] [d]efendant acted
intentionally at the time that he struck [the
victim] with the bottle, the evidence
contained in the present record is susceptible
to the interpretation that, at the time that
he struck [the victim], [the] [d]efendant did
not know and had no reason to believe that the
bottle would break or that the breaking of the
bottle would inflict a fatal wound to [the
victim’s] neck.
Id.
Like Debiase, I believe that the evidence in the present case
was sufficient to support a reasonable conclusion that Mr. McGill’s
death resulted from defendant’s reckless use of the knife. It is
uncontroverted that defendant and Mr. McGill had been engaged in
a physical altercation which resulted after both had been consuming
alcohol and drugs for several hours. Defendant’s own testimony
suggests that he reacted instinctively when he believed Mr. McGill
was coming to hurt either himself or Ms. Vittatoe. In his
testimony, defendant claimed that he struck at Mr. McGill without
any conscious effort to hit him in any particular way. Moreover,
the way in which he wounded Mr. McGill supports his contention
that he was acting unintentionally. During the struggle, defendant
swung the knife only once through a closed screen door. As a
result, I believe the evidence in the present case was
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“susceptible,” Debiase, 211 N.C. App. at 504,
711 S.E.2d at 441,
to an interpretation that defendant did not intend to inflict a
fatal wound when he swung once at Mr. McGill with the knife.
Moreover, I disagree with the majority’s conclusion that
Debiase is distinguishable because: (1) the altercation between
Mr. McGill and defendant was over by the time defendant stabbed
Mr. McGill; and (2) defendant had not been holding the knife when
the fight began but, instead, grabbed it from the table once they
were struggling at the door. While the fight between defendant
and Mr. McGill had momentarily ceased at the time defendant entered
his kitchen and began cleaning his wounds, Mr. McGill resumed his
attack by trying to come in defendant’s home. In addition, while
the majority is correct that the Debiase defendant had the bottle
in his hand prior to the altercation intensifying, id. at 499-502,
711 S.E.2d at 438-440, our Supreme Court has concluded that a
defendant who grabs a weapon during the fight may still be entitled
to the involuntary manslaughter instruction. See Buck,
310 N.C.
at 603-604,
313 S.E.2d at 551-52 (holding that a defendant was
entitled to an involuntary manslaughter jury instruction when the
defendant’s testimony was that he “instinctively” grabbed a
butcher knife off a table to scare the victim). Thus, as in
Debiase, defendant produced sufficient evidence for a reasonable
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jury to find him guilty of involuntary manslaughter, and the trial
court erred in not giving the instruction on it.
In so concluding, I am mindful of other cases in which our
Courts have held that a defendant was not entitled to an
instruction on involuntary manslaughter when there was no evidence
that the killing was unintentional other than the defendant’s own
claim that he had not meant to kill and his actions were such that
“[f]atal consequences were not improbable.” Fisher, 318 N.C. at
526,
350 S.E.2d at 342. In Fisher, the defendant used a hunting
knife during a fight and testified that he used it to
“indiscriminately cut[] and jab[]” the victim.
Id. While the
defendant contended he was entitled to an instruction on
involuntary manslaughter because the victim’s death was
accidental, this Court disagreed, noting that
In this case, the defendant admits that he
knowingly slashed and stabbed the deceased
with a hunting knife. The defendant’s use of
a knife indicates a clear intent to inflict
great bodily harm or death on the deceased.
There can be no claim of accidental injury
where one knowingly and willingly uses a knife
to slash and stab his victim. Fatal
consequences were not improbable in light of
the defendant’s use of his hunting knife in
such a manner. As such, the defendant’s
actions would not fit within the definition of
involuntary manslaughter and therefore the
defendant would not qualify for such an
instruction.
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Id. at 525-26,
350 S.E.2d at 342.
Here, however, the manner in which defendant killed Mr.
McGill, a single stabbing motion through a closed screen door
during a struggle where both parties were intoxicated and defendant
claimed to be “dizzy” and in severe pain, supports the theory that
Mr. McGill’s death was unintentional. In other words, unlike
Fisher where the defendant’s own actions conflicted with his claim
that he did not intend to kill the victim, the manner in which
defendant used the knife in the present case does not. Fatal
consequences were not necessarily probable based on the manner in
which defendant used the knife. Thus, I believe the facts at issue
here are distinguishable from those cases because the record
contains evidence other than defendant’s “mere claim of lack of
intent,” Debiase, 211 N.C. App. at 509, 211 S.E.2d at 444, that
supports defendant’s contention that he did not intend to kill or
injure Mr. McGill in any particular way. Consequently, I believe
defendant’s actions fit within the definition of involuntary
manslaughter when the evidence is taken in the light most favorable
to defendant.
Conclusion
In summary, while acknowledging that there was contradictory
evidence presented at trial, I must respectfully dissent from the
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majority as I believe that the trial court erred in not submitting
an instruction to the jury on involuntary manslaughter when taking
the evidence in the light most favorable to defendant. Thus, I
would hold that defendant is entitled to a new trial.
