State v. Gaston (Lawyers Weekly No. 13-07-0873, 15 pp.) (Linda Stephens, J.) Appealed from Mecklenburg County Superior Court (Richard D. Boner, J.) N.C. App.
Holding: Where defendant testified that he shot the victim accidentally, he was not entitled to a jury instruction on voluntary manslaughter.
We find no error in defendant’s conviction of second-degree murder.
Voluntary manslaughter is an intentional killing without malice committed either in the heat of passion or through imperfect self-defense resulting from excessive force. Defendant does not contend that his killing of the decedent was committed in the heat of passion. Accordingly, our review is limited to whether there is substantial evidence of imperfect self-defense sufficient to require an instruction on voluntary manslaughter.
Defendant testified that the gun simply “went off,” he “didn’t aim the gun,” he did not know anyone had been shot, he did not pull the trigger on purpose, and he did not intend to kill the decedent. Accordingly, the state contends, the trial court did not err in declining to instruct the jury on either voluntary manslaughter or self-defense. We agree.
To the extent that the cases cited by defendant conflict with the N.C. Supreme Court cases cited by the state, we find that State v. Adams, 2 N.C. App. 282, 163 S.E.2d 1 (1968), State v. Hayes, 88 N.C. App. 749, 364 S.E.2d 712 (1988), and their progeny have been implicitly overruled by State v. Williams, 342 N.C. 869, 467 S.E.2d 392 (1996), and State v. Nicholson, 355 N.C. 1, 558 S.E.2d 109 (2002), on the issue of whether an instruction on self-defense is proper when the defendant offers no evidence that he intended to kill the decedent upon reasonably believing that he must do so to save himself.
Defendant offered no evidence that he formed any belief, reasonable or not, that it was necessary to kill the decedent in order to protect himself from death or great bodily harm. Instead, defendant repeatedly testified that he did not intend to kill the decedent, stating that he did not aim the gun, the gun went off accidentally, and he did not intentionally pull the trigger. The fact that defendant testified he was “a little scared” is irrelevant. Therefore, defendant’s own testimony disproves the first element of self-defense. Accordingly, the trial court committed no error in instructing the jury on accident and declining to instruct the jury on self-defense and voluntary manslaughter.