IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA14-1119
Filed: 2 June 2015
Johnston County, No. 10 CRS 54081
STATE OF NORTH CAROLINA
v.
ADOLFO REYES MALDONADO
Appeal by Defendant from judgment entered 19 December 2013 by Judge
Thomas H. Lock in Superior Court, Johnston County. Heard in the Court of Appeals
2 March 2015.
Attorney General Roy Cooper, by Special Deputy Attorney General Sandra Wallace-Smith, for the State.
Mark Montgomery for Defendant.
McGEE, Chief Judge.
Adolfo Reyes Maldonado (“Defendant”) appeals from his conviction of felony
murder, with the predicate felony being discharging a firearm into occupied property.
Defendant contends that the trial court erred (1) by not instructing the jury on
diminished capacity on the charge of discharging a firearm into occupied property,
(2) by instructing the jury that discharging a firearm into occupied property could
serve as the predicate felony to Defendant’s felony murder conviction, and (3) by not
submitting voluntary manslaughter to the jury as a lesser-included offense of first- STATE V. MALDONADO
Opinion of the Court
degree murder by premeditation and deliberation. We find no error as to Defendant’s
first two challenges and no prejudicial error as to the third.
I. Background
Defendant and his estranged wife, Elizabeth Reyes (“Ms. Reyes”), had a
tumultuous relationship. The police regularly were called to intervene in their
personal disputes. Defendant sought medical treatment for serious knife wounds
inflicted by Ms. Reyes on multiple occasions. Defendant maintains that Ms. Reyes –
who was approximately six feet tall and almost three hundred pounds, who was
diagnosed with bipolar disorder, and who had a history of alcohol dependency, anger
issues, and paranoid ideation – was abusive throughout their relationship. Officer
Steve Little (“Officer Little”), who was “routinely involved in domestic calls” between
Ms. Reyes and Defendant, testified that he never saw Ms. Reyes with anything more
than superficial injuries and that she always appeared to be the aggressor in her
altercations with Defendant.
However, the State also elicited testimony from Officer Little that, during a
previous interview, he stated that both Ms. Reyes and Defendant drank to excess and
Ms. Reyes “beat him as much as he beat her[.]” Additionally, Christy Metzger (“Ms.
Metzger”), an investigator for the Johnston County Department of Social Services,
testified about an interview she had with Ms. Reyes on 10 May 2010, during which
Ms. Reyes asserted that Defendant was controlling and would not let her have money,
friends, a phone, a car, or a job when they were together.
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The couple separated in May 2010, and Ms. Reyes moved in with her mother
and stepfather, Sandra and John Benjamin Croft (“Ms. Croft” and “Mr. Croft”), along
with the eleven-month-old son (“the Child”) of Ms. Reyes and Defendant. Thereafter,
according to Ms. Metzger, Defendant began calling Ms. Reyes upwards of ten times a
day while Ms. Reyes was at work, and sometimes at night. Ms. Reyes and Defendant
were engaged in an ongoing child support dispute.
Defendant went to Mr. and Ms. Croft’s house (“the house”) on 1 July 2010. A
child support hearing was scheduled for the following day. Defendant argued with
Ms. Reyes and Mr. Croft in front of the house. Defendant then went to his truck,
loaded his shotgun, and returned to the house. Ms. Reyes had gone inside the house.
Mr. Croft testified he ran into the house, closed the front door, and said to Ms. Reyes,
who was in the kitchen with the Child: “Your old man’s trying to kill us. Run.”
Defendant shot the front door and then entered the house. Mr. Croft ran into
the master bedroom and, as he was closing the bedroom door, was shot by Defendant.
Mr. Croft then jumped out a window and ran to a neighbor’s house for help. There
was a subsequent confrontation inside the house between Defendant and Ms. Reyes
that resulted in Ms. Reyes’ death and Defendant being non-critically shot in the face.
Ms. Reyes suffered gunshots to her upper left buttock, upper right chest, and the back
of her head. Defendant called 911 and was taken into custody when the police
arrived.
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At trial, Defendant presented a number of character witnesses who testified to
his peaceful nature. Defendant also presented the expert testimony of Dr. Ginger
Calloway (“Dr. Calloway”). Dr. Calloway testified that, on the night of Ms. Reyes’
death, Defendant was suffering from post-traumatic stress disorder (“PTSD”) as the
victim of ongoing abuse from Ms. Reyes.
During the charge conference, Defendant requested diminished capacity
instructions on the charges of first-degree murder by premeditation and deliberation
of Ms. Reyes, assault with a deadly weapon with intent to kill inflicting serious injury
on Mr. Croft, attempted murder of Mr. Croft, felony breaking and entering, and
discharging a firearm into occupied property. The trial court ruled that it would
instruct on diminished capacity only on the charges of first-degree murder by
premeditation and deliberation of Ms. Reyes, attempted murder of Mr. Croft, and
felony breaking and entering. However, the trial court ruled that it would not give
diminished capacity instructions on discharging a firearm into occupied property or
assault with a deadly weapon inflicting serious injury on Mr. Croft. Defendant also
argued that discharging a firearm into occupied property could not serve as a
predicate felony to felony murder, on the grounds that there was an insufficient
relationship between Ms. Reyes’ death and Defendant’s shooting into the house. The
trial court disagreed.
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The jury found Defendant guilty of misdemeanor breaking and entering and
felony murder, with the predicate felony being discharging a firearm into occupied
property.1 Defendant appeals from his conviction for felony murder.
II. Standard of Review
This Court reviews challenges to the trial court's decisions regarding jury
instructions de novo. State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149
(2009).
III. Diminished Capacity
Defendant first challenges the trial court’s instructions on the charge of
“willfully” discharging a firearm into occupied property. Specifically, Defendant
argues that the “willful” element of this offense necessarily was subject to a
diminished capacity instruction at trial. See generally N.C. Gen. Stat. § 14-34.1
(2013). We disagree.
“Diminished capacity is a means of negating . . . specific intent” by a defendant.
State v. Roache, 358 N.C. 243, 282, 595 S.E.2d 381, 407 (2004) (citation and internal
quotation marks omitted). It is not a defense to general intent crimes. State v.
Childers, 154 N.C. App. 375, 382, 572 S.E.2d 207, 212 (2002). “[S]pecific-intent
1 The jury also found Defendant guilty of discharging a firearm into occupied property, but the trial court arrested judgment on that conviction. See State v. Best, 196 N.C. App. 220, 229, 674 S.E.2d 467, 474 (2009) (“Under the Double Jeopardy Clause, a defendant may not be punished both for felony murder and for the underlying, predicate felony, even in a single prosecution.” (citation and internal quotation marks omitted)).
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crimes are crimes which have as an essential element a specific intent that a result
be reached, while [g]eneral-intent crimes are crimes which only require the doing of
some act.” State v. Barnes, __ N.C. App. __, __,747 S.E.2d 912, 916 (2013), aff'd per
curiam, 367 N.C. 453, 756 S.E.2d 38 (2014) (emphasis added). The North Carolina
Supreme Court also has recognized the existence of “malice type” crimes, which are
“neither [ ] specific nor [ ] general intent offense[s] but require[ ] willful and malicious
conduct” by a defendant. State v. Jones, 353 N.C. 159, 167, 538 S.E.2d 917, 924 (2000)
(internal quotation marks omitted). Our caselaw has interpreted “willful” to mean
“the wrongful doing of an act without justification or excuse, or the commission of an
act purposely and deliberately in violation of law. [It] means something more than
an intention to commit the offense.” State v. Ramos, 363 N.C. 352, 355, 678 S.E.2d
224, 226 (2009) (citations and internal quotation marks omitted).
N.C.G.S. § 14-34.1, which defines discharging a firearm into occupied property,
provides that
[a]ny person who willfully or wantonly discharges or attempts to discharge any firearm or barreled weapon capable of discharging shot, bullets, pellets, or other missiles at a muzzle velocity of at least 600 feet per second into any building, structure, vehicle, aircraft, watercraft, or other conveyance, device, equipment, erection, or enclosure while it is occupied is guilty of a Class E felony.
Because general intent crimes “only require the doing of some act” proscribed by law,
Barnes, __ N.C. App. at __, 747 S.E.2d at 916, whereas the willful conduct in N.C.G.S.
§ 14-34.1 requires “something more than an intention to commit” such an act, see
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Ramos, 363 N.C. at 355, 678 S.E.2d at 226, Defendant urges this Court to view
discharging a firearm into occupied property as neither a specific nor general intent
crime, but rather as a “malice type” crime. Defendant further urges this Court to
require diminished capacity instructions on “malice type” crimes when evidence of
diminished capacity has been presented at trial.
Defendant’s argument fails on both fronts. His brief correctly notes that our
North Carolina Supreme Court recognized the existence of “malice type” crimes in
Jones, 353 N.C. at 167, 538 S.E.2d at 924. However, we are also bound by State v.
Byrd, 132 N.C. App. 220, 222, 510 S.E.2d 410, 412 (1999), which held that
“discharging a firearm into occupied property is a general intent crime[.]” See In re
Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989) (“Where a panel of the
Court of Appeals has decided the same issue, albeit in a different case, a subsequent
panel of the same court is bound by that precedent, unless it has been overturned by
a higher court.”).
Even if we were to entertain the contention, arguendo, that our Supreme
Court’s post-Byrd recognition of “malice type” crimes in Jones might prompt this
Court to view discharging a firearm into occupied property as a “malice type” crime,
the end result for Defendant would be no different. Defendant has provided no
authority holding that “malice type” crimes are subject to diminished capacity
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instructions.2 Moreover, in other crimes requiring malicious conduct, such as second-
degree murder, see N.C. Gen. Stat. § 14-17(b)(1) (2013), it is well-established that
“[d]iminished capacity that does not amount to legal insanity is not . . . a defense to
the element of malice.” See State v. West, 180 N.C. App. 664, 668, 638 S.E.2d 508,
511 (2006) (citing State v. Page, 346 N.C. 689, 698, 488 S.E.2d 225, 231 (1997)). As
such, to the extent that there may be a meaningful distinction between general intent
and “malice type” crimes, this distinction does not seem to come into play in the realm
of diminished capacity instructions. “Diminished capacity is a means of negating . . .
specific intent” only. See Roache, 358 N.C. at 282, 595 S.E.2d at 407. Therefore, the
trial court did not err by declining to give a diminished capacity instruction on the
charge of discharging a firearm into occupied property.3
2 Defendant does cite State v. Gunn, 24 N.C. App. 561, 211 S.E.2d 508 (1975), for the contention that diminished capacity can negate the willfulness requirement of N.C.G.S. § 14-34.1. In Gunn, the trial court instructed the jury that discharging a firearm into occupied property was a specific intent crime. Id. at 563, 211 S.E.2d at 510. The jury still found the Gunn defendant guilty of this offense. Id. On appeal, this Court did not endorse the trial court’s classification of discharging a firearm into occupied property as a specific intent crime, but rather it found that there was no prejudicial error because the specific intent instruction only made the State overcome an even higher burden at trial. Id. 3 Also, contrary to Defendant’s position, it is not the case that “eliminat[ing] diminished
capacity as a defense” here transformed discharging a firearm into occupied property into a strict liability offense by “effectively negat[ing] the statutory requirement that the discharge be willful [or] wanton.” The act that is proscribed by N.C.G.S. § 14-34.1 is not simply discharging a firearm into occupied property. It is “willfully or wantonly” discharging a firearm into occupied property, N.C.G.S. § 14-34.1 (emphasis added), and the State had the burden of proving this at trial.
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IV. “Interrelationship” Between the Predicate Felony and Homicide
Defendant challenges the use of discharging a firearm into occupied property
as the predicate felony to his felony murder conviction. Specifically, Defendant
argues that there was an insufficient “interrelationship” between the death of Ms.
Reyes and Defendant’s shooting into the house to support his felony murder
conviction in the present case. We disagree.
The elements of felony murder are (1) that a defendant, or someone with whom
the defendant was acting in concert, committed or attempted to commit a predicate
felony under N.C. Gen. Stat. § 14-17(a) (2013);4 (2) that a killing occurred “in the
perpetration or attempted perpetration” of that felony; and (3) that the killing was
caused by the defendant or a co-felon. See State v. Williams, 185 N.C. App. 318, 329,
332, 648 S.E.2d 896, 904, 906 (2007). Regarding the second element, that the killing
must occur “in the perpetration or attempted perpetration” of a predicate felony, id.,
“[t]he law does not require that the homicide be committed to escape or to complete
the underlying felony.” State v. Terry, 337 N.C. 615, 622, 447 S.E.2d 720, 723 (1994).
Indeed, “there need not be a ‘causal relationship’ between the underlying felony and
4 The predicate felonies under this section are “any arson, rape or a sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon[.]” Id. (emphasis added). In order to support a felony murder conviction, these predicate felonies also must be committed with “a level of intent greater than culpable negligence,” regardless of “[w]hether [they are] ‘general intent,’ ‘specific intent,’ or ‘malice [type]’ crimes[.]” Jones, 353 N.C. at 167, 538 S.E.2d at 924. In the present case, the jury found that Defendant acted willfully, which “means [he acted with] something more than an intention to commit the offense.” See Ramos, 363 N.C. at 355, 678 S.E.2d at 226.
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the homicide, only an ‘interrelationship.’ ” Id. at 622, 447 S.E.2d at 724. “[A]ll that
is required is that the elements of the underlying offense and the murder occur in a
time frame that can be perceived as a single transaction.” State v. Moore, 339 N.C.
456, 462, 451 S.E.2d 232, 234 (1994) (citation and internal quotation marks omitted).
Otherwise, there must be a “break in the chain of events leading from the initial
felony to the act causing death” in order to render the felony murder rule inapplicable
in a particular case. Cf. id. at 461, 451 S.E.2d at 234.
In Moore, the defendant assaulted his girlfriend at the home of her sister and
her sister’s boyfriend. Id. at 460, 451 S.E.2d at 233. The defendant left the sister’s
house but returned later in the day. Id. After the defendant’s girlfriend repeatedly
refused to speak to him, the defendant began shooting into the sister’s house. Id.
This prompted the sister’s boyfriend to go outside, confront the defendant, and
exchange gunfire. Id. The sister’s boyfriend returned to the house – with serious
gunshot wounds – and reloaded his gun, but he was unable to go back outside because
the defendant continued to shoot into the house until police arrived. Id. at 460, 451
S.E.2d at 234. The sister’s boyfriend later died from his injuries, and the defendant
was found guilty of felony murder at trial; the predicate felony was discharging a
firearm into occupied property. Id. at 459, 451 S.E.2d at 233.
On appeal, the Moore defendant argued that the sister’s boyfriend’s going
outside to confront him constituted a break in the chain of events between the
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defendant’s firing into the house and the death of the sister’s boyfriend. Id. at 461,
451 S.E.2d at 234. However, our Supreme Court held that the requirement under
N.C.G.S. § 14-17(a), that the killing be committed in the perpetration of a predicate
felony was “sufficiently broad to include the entire series of relevant events beginning
with the original shooting into the house and continuing until the sirens were heard
and the shooting ceased.” Id. at 462, 451 S.E.2d at 235.
The present case is distinguishable from Moore to an extent, in that the Moore
defendant shot into the house before and after his direct confrontation with the
sister’s boyfriend. See id at 460, 451 S.E.2d at 233–34. In the present case, Defendant
stopped shooting into the house once he forced his way through the front door and
continued shooting inside the house. Defendant also argues that, once he was inside
the house, Ms. Reyes attempted to take the gun from him and that this confrontation
by Ms. Reyes constituted a break in the chain of events that led to her death. Even
taking Defendant’s account of the events as true, just as the Moore Court held that
the sister’s boyfriend “did not break the chain of events by going outside to defend his
home,” id. at 462, 451 S.E.2d at 235, Ms. Reyes did not break the chain of events by
defending herself inside her home after Defendant continued his assault indoors.
Therefore, Defendant’s shooting into the house and Ms. Reyes’ subsequent death
inside the house “occur[red] in a time frame that can be perceived as a single
transaction.” See id. at 462, 451 S.E.2d at 234. The trial court did not err by allowing
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the discharging of a firearm into occupied property to serve as the predicate felony to
Defendant’s felony murder conviction.
V. The Trial Court Not Instructing the Jury On Voluntary Manslaughter
Defendant contends the trial court erred by not providing the jury with an
instruction on voluntary manslaughter as a lesser-included offense of first-degree
murder by premeditation and deliberation. Specifically, Defendant argues that the
jury should have received an instruction on voluntary manslaughter based on the
theory of imperfect self-defense. We find no prejudicial error by the trial court.
A defendant is entitled to a charge on a lesser-included offense when there is some evidence in the record supporting the lesser offense. Conversely, [w]here the State's evidence is positive as to each element of the offense charged and there is no contradictory evidence relating to any element, no instruction on a lesser[-]included offense is required.
State v. James, 342 N.C. 589, 594, 466 S.E.2d 710, 713-14 (1996) (citations and
internal quotation marks omitted). An instruction of voluntary manslaughter, based
on the theory of imperfect self-defense, is appropriate where there is evidence that a
defendant (1) believed it was necessary to kill the deceased in order to save himself
from death or great bodily harm; (2) the belief was reasonable; and (3) although
initially acting without murderous intent, the defendant was the original aggressor
in the circumstance. State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 573 (1981).
In the present case, Defendant points out that the jury acquitted him of all
charges requiring specific intent. This included convicting Defendant of
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misdemeanor breaking and entering, but acquitting Defendant of felony breaking and
entering, which had the added element of entering the house with felonious intent.
See generally N.C. Gen. Stat. § 14-54 (2013). Thus, Defendant maintains that the
jury could reasonably have concluded that, although he was the original aggressor,
Defendant entered the house without the felonious intent to seriously injure anyone
inside,5 and that it became reasonably necessary for him to defend himself – lethally
– during the subsequent confrontation with Ms. Reyes inside the house. Assuming
arguendo that this would support an instruction on voluntary manslaughter, the trial
court’s failure to give such an instruction did not amount to prejudicial error.
In State v. Swift, 290 N.C. 383, 407, 226 S.E.2d 652, 669 (1976), the North
Carolina Supreme Court held
[i]t is a well[-]established rule that when the law and evidence justify the use of the felony[ ]murder rule, then the State is not required to prove premeditation and deliberation, and neither is the court required to submit to the jury second-degree murder or manslaughter unless there is evidence to support it.
Following Swift, “[t]he application of this standard . . . resulted in divergent lines of
cases in the context of felony murder.” State v. Millsaps, 356 N.C. 556, 561, 572
S.E.2d 767, 771 (2002) (citations omitted). For example,
[i]n one group of cases, the Court has simply found that, applying the applicable evidentiary standard, the evidence
5 When the jury was instructed on felony breaking and entering, the only felonious intent the jury was instructed to consider was whether Defendant intended to commit an assault with a deadly weapon inflicting serious injury when he entered the house.
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did not support submission of a lesser-included offense. Another group of cases suggests that if any evidence is presented to negate first-degree murder, then the jury must be instructed on the lesser-included offenses supported by the evidence. Yet another group of cases holds or suggests in dicta that if the evidence supports a conviction based on felony murder, the failure to instruct on [lesser-included offenses] is not error or not prejudicial error.
Id. After examining each of these lines of cases, our Supreme Court in Millsaps
articulated the following principles regarding felony murder.
(i) If the evidence of the underlying felony supporting felony murder is in conflict and the evidence would support a lesser-included offense of first-degree murder, the trial court must instruct on all lesser-included offenses supported by the evidence whether the State tries the case on both premeditation and deliberation and felony murder or only on felony murder. State v. Thomas, 325 N.C. 583, 386 S.E.2d 555. (ii) If the State tries the case on both premeditation and deliberation and felony murder and the evidence supports not only first-degree premeditated and deliberate murder but also second-degree murder, or another lesser offense included within premeditated and deliberate murder, the trial court must submit the lesser- included offenses within premeditated and deliberate murder irrespective of whether all the evidence would support felony murder. State v. Phipps, 331 N.C. 427, 418 S.E.2d 178; State v. Wall, 304 N.C. 609, 286 S.E.2d 68; see also State v. Vines, 317 N.C. 242, 345 S.E.2d 169 (holding that the failure to submit second-degree murder and involuntary manslaughter was not prejudicial error where the trial court submitted premeditation and deliberation, voluntary manslaughter, and felony murder; and the jury did not find premeditation and deliberation). (iii) If the evidence as to the underlying felony supporting felony murder is not in conflict and all the evidence supports felony murder, the trial court is not required to instruct on the lesser offenses included within premeditated and
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deliberate murder if the case is submitted on felony murder only. See State v. Covington, 290 N.C. 313, 226 S.E.2d 629.
Id. at 565, 572 S.E.2d at 773-74. Pursuant to the second principle in Millsaps, the
trial court erred if it submitted both felony murder and murder by premedication and
deliberation to the jury but did not instruct on voluntary manslaughter, assuming
arguendo it was supported by the evidence. See id. However, because “[D]efendant
was found guilty of murder in the first degree on the theory of felony murder and was
found not guilty on the charge of first-degree murder [by] premeditation and
deliberation, no prejudice resulted from the court's failure to charge on voluntary
manslaughter.” See Wall, 304 N.C. at 621, 286 S.E.2d at 75.6
NO ERROR IN PART; NO PREJUDICIAL ERROR IN PART.
Judges BRYANT and STEELMAN concur.
6 Defendant also contends that he was entitled to an instruction on voluntary manslaughter under a “heat of passion” theory. For similar reasons, we find no prejudicial error by the trial court.
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