No. COA06-1026NINETEEN-C JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

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STATE OF NORTH CAROLINA)

)

)From Rowan County

v.)

)

BILLY JOE CLEVELAND, SR.,)

)

Defendant.)

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DEFENDANT-APPELLANT'S BRIEF

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INDEX

TABLE OF CASES AND AUTHORITIES...... iii

QUESTION PRESENTED...... 1

STATEMENT OF CASE...... 2

STATEMENT OF GROUNDS FOR APPELLATE REVIEW...... 2

STATEMENT OF FACTS...... 2

ARGUMENT...... 6

i. The Court erred in DENYING defendant's REQUEST TO SUBMIT THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER TO THE JURY 6

CONCLUSION...... 13

CERTIFICATE OF SERVICE...... 14

APPENDIX:

Testimony of

Dispatcher Robinson...... App. 1

Testimony of

Wilson...... App. 2-5

Testimony of

Moore...... App. 6-10

Testimony of

Alice Cleveland...... App. 11-13

Testimony of

Dr. Debeck...... App. 14-15

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TABLE OF CASES AND AUTHORITIES

State v. Bradley, 65 N.C. App. 359, 309 S.E.2d 510

(1983)...... 12

State v. Brantley, 129 N.C. App. 725, 501 S.E.2d

676 (1998)...... 12

State v. Lamb, 321 N.C. 633, 365 S.E.2d 600

(1988)...... 12

State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d

488 (2003)...... 11

State v. Locklear, 331 N.C. 239, 415 S.E.2d 726

(1992)...... 7

State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163

(1976)...... 12

State v. Pearce, 296 N.C. 281, 250 S.E.2d 640

(1979)...... 7

State v. Rummage, 280 N.C. 51, 185 S.E.2d 221

(1971)...... 6

State v. Strickland, 307 N.C. 274, 298 S.E.2d 645

(1983)...... 6

State v. Thomas, 332 N.C. 544, 423 S.E.2d 75

(1992)...... 7

State v. Ward, 286 N.C. 304, 210 S.E.2d 407

(1974)...... 11

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QUESTION PRESENTED

I.did The Court err in DENYING DEFENDANT’S REQUEST TO SUBMIT THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER TO THE JURY?

STATEMENT OF THE CASE

The Defendant was arrested on May 10, 2003, and charged with the offenses of First Degree Murder. The Defendant was indicted on May 27, 2003, for the same charge.

Defendant's case was calendared at the October 31, 2005, regular term of Criminal Superior Court for Rowan County, and the Honorable Jerry Cash Martin, Judge of the Superior Court, was duly commissioned to preside. Evidence was presented by the State and the defendant, and at the close of all the evidence, the Defendant made a motion to dismiss which was denied.

The jury for its verdict found the Defendant guilty of second degree murder. A sentencing hearing was conducted, and Defendant was sentenced to a minimum term of 251 months and a maximum term of 311 months in the North Carolina Department of Correction. The Defendant appealed to the North Carolina Court of Appeals in open Court and within apt time.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

The Defendant-Appellant appeals of right to the Court of Appeals from the non-capital judgment of the Superior Court on conviction after jury trial as authorized by N.C.G.S. §7A-27(b).

STATEMENT OF THE FACTS

On May 10, 2003, the Defendant, Billy Cleveland, called 911. When asked if he was reporting an emergency, the Defendant told the dispatcher, "Yeah. Come pick me up. I just killed my wife." T p. 2738. Shortly thereafter, Defendant made a second call where he informed the dispatcher that he was located at Foster Road and told the dispatcher that he would be standing in the road. T p. 2739. Officer Joshua Eller of the Rowan County Sheriff's Department testified that he was dispatched to Foster Road and that he found the Defendant standing in the front yard of his parent's house. T p. 2749. The Defendant Officer Eller that he had "thrown the gun in the creek." T p. 2749. Deputy Eller further testified that he could not remember whether the Defendant stated "he had shot his wife or that he had killed his wife" but he made reference to the fact that she was injured. T p. 2750.

Lieutenant Register Bost testified that on May 10, 2003, he was dispatched to "Crump Circle." T p. 2764. He testified that he entered the mobile home and after cautiously proceeding through the mobile home, he discovered the body of Defendant's wife lying in a bathtub. He observed a massive amount of blood on her body and in the bathroom area. T p. 2767.

An autopsy examination was conducted by Dr. James Sullivan who determined that the deceased had sustained three wounds due to shotgun slugs. T p. 3085. The first wound entered the left side of the neck. The second wound entered the chest near the mid-chest, and the third wound entered the right chest. T p. 3086. Dr. Sullivan expressed the opinion that the cause of LaToya Cleveland’s death was multiple gunshot wounds. T p. 3083.

Detective Jamie Beach testified that he was employed by the Kannapolis Police Department but that in May of 2003, he was employed with the Rowan County Sheriff's Department. He testified that on May 10, 2003, he advised Defendant of his Constitutional Rights against self-incrimination and Defendant gave him a waiver of those Rights. T p. 2862. Detective Beach stated that the Defendant rode in his car with him to a location on Cool Springs Road. Defendant told the officers to stop at a bridge, and he pointed to a location where he believed the shotgun could be found. T p. 2868. Detective Beach went to that location and saw and recovered a shotgun. T p. 2869.

Detective Tonya Barber testified that she met with the Defendant on May 12, 2003, at the Rowan County Detention Center. At that time, she obtained from the Defendant a waiver of Defendant's Constitutional Rights and Defendant provided a statement to Detective Barber. Detective Barber read the following statement to the jury:

After shooting Toya, I picked up the shotgun shells and put them in my pocket. I don't remember what color the shells were, I think they were slugs. I only had three. I think I threw the empty shells out on the road. I do not know where I threw them exactly. I did throw them out before I threw the shotgun.

When I shot Toya, she was already in the bathtub. She was running water in the tub. I was not in my right state of mind. That is one thing I never thought I would do.

T p. 2985-6.

The Defendant called two expert witnesses who rendered opinions concerning the Defendant's state of mind at the time of the incident. In rebuttal, the State called an expert witness who likewise entered an opinion. Defendant's first expert witness was Dr. Stephen Kramer who was accepted as an expert in the field of psychiatry and forensic psychiatry. Dr. Kramer testified that it was his opinion that the Defendant did not have the ability to think in a cool state of mind and engage in reflective thought in May 10, 2003. Dr. Kramer stated, "I believe it's more likely than not that he was enraged by the behaviors in the previous 48 to 72 hours." T p. 3877.

Defendant called Dr. Jerry Noble who was accepted in the field of clinical and forensic psychology. T p. 4139. When asked whether he had an opinion as to the ability of Defendant to think or react in a cool state of mind, Dr. Noble responded, "I don't believe he was able to act in a cool state of mind. Because his – his mechanisms for regulating and controlling violent emotions, I think were just shot and overwhelmed in this time period." T p. 4176.

In rebuttal, the State called Dr. Karla Debeck. Dr. Debeck was tendered and accepted as an expert in forensic psychiatry. T p. 4246. Dr. Debeck testified that Defendant told her:

He said when he was walking through the woods, he heard what he described moaning like sex. He said when he heard the moaning, he walked up to the bedroom window and he saw his wife having sex with another man. He said this was dark skinned and tall, and he said I snapped.

T p. 4255. Dr. Debeck expressed her opinion that the Defendant had the capacity to make and carry out plans and the ability to form specific intent. T p. 4268.

At the conclusion of all the evidence, a charge conference was held. During that conference, Defendant's counsel requested that the Court instruct the jury on the offense of voluntary manslaughter as a lesser included offense. T p. 4322. The District Attorney objected, and the Court denied Defendant's request. T p. 4333.

The jury returned a verdict of finding the Defendant guilty of second degree murder, and Defendant was sentenced to a minimum term of 251 months and a maximum term of 311 months in the North Carolina Department of Correction.

ARGUMENT

i.The Court erred in DENYING defendant's REQUEST THAT THE LESSER INCLUDED OFFENSE OF VOLUNTARY MANSLAUGHTER BE SUBMITTED TO THE JURY.

Assignment of Error No. 1 (Transcript p. 4333)

A. Standard of Review

This issue presents a question of law governed by the de novo standard of review.

B. Applicable Legal Principles

Voluntary manslaughter is a killing in the sudden heat of passion, as in a killing during a mutual fight. State v. Rummage, 280 N.C. 51, 185 S.E.2d 221 (1971). Voluntary manslaughter is a lesser-included offenses of murder.

Under federal and North Carolina law, a lesser-included offense instruction must be given to the jury if the evidence "would permit a jury rationally to find [defendant] guilty of the lesser offense and acquit him of the greater." State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654, (1983) quoting Beck v. Alabama, 447 U.S. 625, 635, 65 L.Ed.2d 392, 401 (1980). An instruction on a lesser-included offense is required unless the evidence is so positive as to each element of the greater offense that it admits to no reasonable inference that the defendant committed some lesser offense. State v. Thomas, 332 N.C. 544, 423 S.E.2d 75 (1992). Where the evidence is in conflict concerning the defendant's mens rea, instructions on lesser-included offenses are required. State v. Locklear, 331 N.C. 239, 415 S.E.2d 726 (1992). Regarding such conflicts, the Supreme Court of this state has said:

Such conflicts may arise from evidence introduced by the State, State v. Hicks, 241 N.C. 156, 84 S.E.2d 545 (1954), or the defendant. They may arise when only the State has introduced evidence. Peacock, 313 N.C. 554, 330 S.E.2d 190; Williams, 284 N.C. 67, 199 S.E.2d 409.

State v. Thomas, 325 N.C. at 599, 386 S.E.2d at 561.

An error in not giving an instruction on a lesser-included offense is not cured by a conviction of the greater offense. State v. Pearce, 296 N.C. 281, 250 S.E.2d 640 (1979).

Defendant is entitled to a new trial because the Trial Court erroneously refused to charge the jury on voluntary manslaughter. During the charge conference, Defendant requested that the jury be charged on voluntary manslaughter. Defendant's counsel argued to the Court that voluntary manslaughter "is homicide committed without premeditation, but under the influence of sudden passion." T p. 4323. Defendant's counsel cited evidence presented through the testimony of three expert witnesses tending to show that the Defendant prior to committing the homicide, had "heard moans of sex, and that when he looked in the window, he saw a tall, dark, black man having sexual intercourse with his wife." T p. 4324. Defendant's counsel argued that under the law that provocation was sufficient to allow the jury to consider that "there was sudden passion that would have caused the defendant to commit an intentional act." T p. 4327. The Court in denying Defendant's request stated:

And in the Court's view, all of that came through reports that those doctors considered in formulating opinions and came in not for the truth of the matter asserted within those reports, but came in as – for a limited purpose, as underlying data or basis for the opinion that the doctor may give.

T p. 4330.

The Court's conclusion that the only evidence suggesting that the Defendant's act was the result of sudden provocation came from testimony of experts as underlying data or basis for their opinions was in error. The Court was in error for two reasons. First, there was additional evidence permitting the jury to consider that the Defendant's acts were the result of suddenly aroused passion, and, second, the testimony of the State's witness regarding the statements of the Defendant, even if an underlying basis for the expert's opinion, was elicited by the prosecutor, and not limited in any way by the Court.

There was abundant evidence presented which warranted an instruction on voluntary manslaughter, including but not limited to, the account of the incident related by defendant to the State’s expert.

Dr. Kramer expressed the opinion that it was “more likely than not that [defendant] was enraged by the behaviors in the previous 48 to 72 hours.” T p. 3877. Evidence of that behavior presented to the jury included the testimony of Dispatcher Robinson who related the report that LaToya was on drugs and was shooting at Defendant. T p. 3424. It also included the testimony of Tonja Wilson who related that on May 9, 2003 she heard LaToya talking to Defendant on the phone telling him that she was going to “take this man to her house, and that they was gonna have sex on their beds and all this and that.” T p. 3552. Ms. Wilson testified that on May 9, she and LaToya were riding around smoking “crack rock.” T p. 3555. While they were doing this, LaToya was calling of text-messaging defendant. She testified that in each of those messages she referred to “the guy from Freightliner” and “they were going to make passionate love on their bed.” T p. 3557.

Ronnie Moore testified that on May 8, 2003 he was called by defendant and told that LaToya “was tripping”. T p. 3574. He testified that he went to the residence to help Defendant remove his cars and he saw LaToya shooting at Defendant with a handgun. T p. 3578. He testified that on May 9, he was at Defendant’s residence he saw LaToya angrily arguing with Defendant. T p. 3583. On that day Defendant came to Mr. Moore’s house to take a shower, and LaToya walked into his house unannounced and unexpected and appeared to be mad, demanding money. T p. 3588.

Alice Cleveland, Defendant’s mother, testified that on the morning of May 10, Defendant left her home in the morning believing he was going to South Carolina with Ronnie Moore and Ronnie’s girlfriend Penny. T p. 3619. He came back to her house sometime before noon. She testified that when he came back, “[h]e act like he was – like he was in another world.” T p. 3620. She further testified, “he act like – like he seen something that he shouldn’t have seen. And the way he was acting, like I’m assuming it was Toya.” T p. 3620-1.

As rebuttal evidence, the District Attorney called Dr. Karla Debeck, who was tendered and accepted as an expert in the field of Forensic Psychiatry. T p. 4246. The District Attorney asked Dr. Debeck whether she conducted “Interviews with the defendant”. T p. 4254. Dr. Debeck responded that she had. T p. 4254. She was then asked to relate what the Defendant had told her about “the events of May 10, 2003”. T p. 4254. Dr. Debeck then related the Defendant’s account of what he saw and heard at his house on the morning of May 10. This account was presented to the jury without any limitation as to how or for what purpose it was to be considered. Defendant’s account, as related by the State’s witness was:

… he reported to me with regards to the alleged incident that he had been at his mother’s house, he went to get some money, and that something had made him go back to his wife’s house. He said that he wanted to check on his wife and children. He said that he smoked a joint and that it was sometime after 10:00 a.m. He indicated that he parked his car on the side of the driveway to see what she was doing. He said it wasn’t where he would normally park. He said he did this so he could see whether someone was there.

He said when he was walking through the woods, he what he described moaning like sex. He said when he heard the moaning, he walked up to the bedroom window, and he saw his wife having sex with another man. He said that the man was dark skinned and tall. And he said, I snapped.

T p. 4255.

In order to be entitled to an instruction on voluntary manslaughter, there must be some evidence showing that the killing was intentional, but done in the heat of passion aroused by adequate provocation. State v. Lassiter, 160 N.C. App. 443, 586 S.E.2d 488 (2003), rev. denied, 357 N.C. 660, 590 S.E.2d 853 (2003). The above cited evidence, all of which was received by the Court without any objection or limitation, clearly raises an inference that would permit the jury to find that the deceased was engaged in an ongoing pattern of provocation against Defendant which culminated in the Defendant’s discovery of his wife engaged in sexual intercourse with another man. This is sufficient evidence to support a finding of guilt of voluntary manslaughter. State v. Ward, 286 N.C. 304, 210 S.E.2d 407 (1974).

The ongoing pattern of provocation, coupled with evidence showing the discovery of his wife committing adultery, suggest a crime of passion. The jury should have been allowed to consider whether this was an intentional crime committed in the heat of passion.

The trial court must give a requested jury instruction when the request is a correct statement of the law and is supported by the evidence in the case. State v. Monk, 291 N.C. 37, 54, 229 S.E.2d 163, 174 (1976). It is reversible error to deny a requested instruction that states the law correctly and is supported by the evidence. State v. Lamb, 321 N.C. 633, 644, 365 S.E.2d 600, 605-606 (1988) (applying rule); State v. Brantley, 129 N.C. App. 725, 731, 501 S.E.2d 676, 680 (1998)(vacating conviction); State v. Bradley, 65 N.C. App. 359, 363, 309 S.E.2d 510, 513 (1983) (same). Both criteria were met in this case. The instruction on voluntary manslaughter which Defendant requested was correct in law as is shown in State v. Lassiter. The instruction was supported by the evidence.

A different result could well have been reached had the requested instruction been given. See N.C. Gen. Stat. § 15A-1443(a). The jury unanimously rejected the State’s vigorous contention that the Defendant’s actions were committed after the formation of as specific intent to kill formed after premeditation and deliberation. There was an abundance of evidence from which the jury might have further found that the act was committed in the heat of passion produced by adequate provocation. The failure to instruct on voluntary manslaughter, therefore, constituted prejudicial error, and the Defendant is entitled to a new trial.

CONCLUSION

In denying the Defendant's request for an instruction on manslaughter, the trial court was ruling that no reasonable juror could have found that the Defendant killed LaToya Cleveland but doubted that he did so with malice. This was error. Because a reasonable juror could have found the Defendant guilty only of manslaughter, a new trial is required.

This the ____ day of October, 2006.

Richard G. Roose

Attorney for Defendant-Appellant

115 South Fayetteville Street, Suite 400

Asheboro, North Carolina 27203

(336) 626-8000

Certificate of Service

The undersigned hereby certifies that the foregoing Defendant-Appellant's Brief was served this day upon the State of North Carolina by depositing a copy of same in the United States Mail addressed to:

Mr. Richard Votta

Asst. Attorney General

Health & Public Assistance

PO Box 629

Raleigh NC 27602

This the day of October, 2006.

Richard G. Roose

Attorney for Defendant-Appellant

115 South Fayetteville Street, Suite 400

Asheboro, North Carolina 27203

(336) 626-8000

TABLE OF CONTENTS FOR APPENDIX

AppendixAppearing in

PagesBrief atCONTENTS OF APPENDIXPAGE :

1Testimony of

Dispatcher Robinson9

2-5Testimony of

Wilson9

6-10Testimony of

Moore9

11-13Testimony of

Alice Cleveland10

14-15Testimony of

Dr. Debeck10