An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1366
NORTH CAROLINA COURT OF APPEALS
Filed: 1 July 2014
STATE OF NORTH CAROLINA
v. Cumberland County
No. 09 CRS 058449
MARLON CURTIS MCKENZIE
Defendant.
Appeal by Defendant from a judgment entered on or about 21
November 2012 by Judge Claire V. Hill in Cumberland County
Superior Court. Heard in the Court of Appeals on 10 April 2014.
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Brandon L. Truman, for the State.
William D. Spence, for Defendant-appellant.
DILLON, Judge.
Marlon Curtis McKenzie (“Defendant”) appeals from a
conviction for second-degree murder. For the following reasons,
we find no error in Defendant’s trial.
I. Background
On 26 July 2010, Defendant was indicted for one count of
first-degree murder. Defendant was tried at the 13 November
2012 Criminal Session of Cumberland County Superior Court. The
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State’s evidence tended to show that in the early morning hours
of 14 June 2009, Eric Edmonds, Nicholas Hicks, Shonta Parson,
Defendant, and Defendant’s brother, Lestroy Lyte, were drinking
beer and smoking marijuana in a shed located in the back of
Defendant’s mother’s house in Fayetteville. Defendant, Mr.
Edmonds, and Mr. Hicks lived in the same neighborhood.
Around 2 a.m., Mr. Edmonds, Mr. Hicks, and Ms. Parson
decided to leave the shed and return to Mr. Edmonds’ residence
to cook some food. Upon arriving at his house, Mr. Edmonds
discovered that his house key was missing so he returned to the
shed and got in a non-physical confrontation with Defendant
about the missing key. Mr. Edmonds told Defendant that he
“better find” his keys, and threatened to hurt him physically.
Mr. Edmonds then angrily threw a bottle on the ground and broke
it. Mr. Edmonds, Mr. Hicks, and Mr. Lyte then walked back to Mr.
Edmonds’ house to look for the key, taking Defendant’s key ring
with him by accident. Defendant and Ms. Parson then went inside
Defendant’s house.
A short time later, Ms. Parsons received a call on her
speaker phone from Mr. Lyte stating that Mr. Edmonds had found
his house key on Defendant’s key ring. Defendant heard this and
then stated, “[h]e found out. He found out. I’m gonna shoot
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him. I’m gonna shoot him.” He then took a handgun out of his
dresser and placed it underneath his shirt. Defendant and Ms.
Parson then drove to Mr. Edmonds’ residence, arriving
approximately 10 to 15 minutes after the initial confrontation
between Defendant and Mr. Edmonds.
Upon Defendant arriving at his house, Mr. Edmonds
approached Defendant’s car. Mr. Edmonds was not armed with a
weapon or holding any object in his hands. Mr. Edmonds asked
Defendant in a “normal” tone of voice “[j]ust tell me how my
keys got on your key ring.” Defendant answered, “It must have
slipped on there.” In response, Mr. Edmonds and Mr. Hicks
laughed, not threatening Defendant in any way. Defendant then
started yelling for his brother Mr. Lyte to get in the car, and
acting nervous, shaking and appearing scared.
When Mr. Lyte got to the car, Defendant fired the handgun
from inside the car at Mr. Edmonds, hitting him four times--once
in his right upper abdomen, once in his right cheek, once in his
right elbow, and once in his right upper posterior chest or
back. Mr. Edmonds died as a result of his gunshot wounds. At
the close of the State’s evidence, Defendant moved to dismiss
the charges, and his motion was denied.
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Defendant did not testify at trial but he presented the
following evidence: Defendant’s brother Mr. Lyte testified that
on the night in question Mr. Edmonds, Mr. Hicks, Ms. Parson, Mr.
Lyte, and Defendant had been drinking beer and smoking
marijuana. Mr. Lyte said Defendant and Mr. Edmonds got in a
confrontation about Mr. Edmonds’ missing key and Mr. Lyte made
several threats concerning Defendant. Specifically, Mr. Edmonds
said he could “have one of us missing,” and could “have our
house shot up.” Mr. Lyte also testified that at Mr. Edmonds’
house, Mr. Edmonds was not armed, was not holding any object,
and never made physical contact with Defendant. Mr. Lyte stated
that while he was getting in Defendant’s car, he heard gunshots
but did not see Defendant shoot Mr. Edmonds.
On 21 November 2012, a jury found Defendant guilty of
second-degree murder. The trial court sentenced Defendant to an
active term of 157 to 198 months of imprisonment. Defendant
gave written notice of appeal from his conviction on 28 November
2012.
II. Analysis
Defendant argues on appeal that the trial court erred in
(1) denying his motion to dismiss for insufficiency of the
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evidence; and (2) restricting his right to cross-examine the
State’s witness in violation of his constitutional rights.
A. Sufficiency of the Evidence
Defendant contends the trial court erred in denying his
motion to dismiss for sufficiency of the evidence because the
evidence showed no malice for second-degree murder, but at most
only supported a conviction for manslaughter because the facts
showed that the killing was committed in the heat of passion
under adequate provocation. Defendant contends that the
evidence showed there was adequate provocation by the victim’s
death threats towards him, his brother, and his family and
Defendant acted under influence of passion rendering him
“incapable of cool reflection[.]”
The standard of review for a trial court’s denial of a
defendant’s motion to dismiss for insufficiency of the evidence
is well established:
A defendant’s motion to dismiss should be
denied if there is substantial evidence of:
(1) each essential element of the offense
charged, and (2) of defendant’s being the
perpetrator of the charged offense.
Substantial evidence is relevant evidence
that a reasonable mind might accept as
adequate to support a conclusion.
State v. Johnson, 203 N.C. App. 718, 724, 693 S.E.2d 145, 148
(2010) (citations and quotation marks omitted). Additionally,
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“[t]he Court must consider the evidence in the light most
favorable to the State and the State is entitled to every
reasonable inference to be drawn from that evidence.
Contradictions and discrepancies do not warrant dismissal of the
case but are for the jury to resolve.” State v. Phillpott, ___
N.C. App. ___, ___, 713 S.E.2d 202, 209 (2011) (citation
omitted), disc. review denied, 365 N.C. 544, 720 S.E.2d 393
(2012). Also, we are not concerned about issues regarding the
weight of the evidence. State v. Fritsch, 351 N.C. 373, 379,
526 S.E.2d 451, 455-56, cert denied, 531 U.S. 890, 148 L. Ed. 2d
150 (2000) (citation omitted).
Voluntary manslaughter is the unlawful killing of another
human being without malice and without premeditation and
deliberation in the heat of passion produced by adequate
provocation. State v. Tidwell, 323 N.C. 668, 673, 374 S.E.2d
577, 580 (1989) (citation omitted).1
1
Voluntary manslaughter can also be established by a showing
of imperfect self-defense. See State v. Lyons, 340 N.C. 646,
663, 459 S.E.2d 770, 779 (1995). But, here, Defendant’s theory
at trial was that there was sufficient evidence to establish
voluntary manslaughter, not second-degree murder, based on
evidence that he shot the victim in the heat of passion with
adequate provocation, not pursuant to imperfect self-defense.
The trial court gave only an instruction as to voluntary
manslaughter based on a heat of passion theory, as requested by
Defendant. Defendant raises no argument on appeal regarding the
jury instructions.
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A killing is without malice if the defendant
acts in the heat of passion upon adequate
provocation so that the defendant’s state of
mind overcomes his ability to reason and to
control his actions. State v. Montague, 298
N.C. 752, 259 S.E.2d 899 (1979); State v.
Best, 79 N.C. App. 734, 340 S.E.2d 524
(1986). The act of provocation must be such,
however, that it “would naturally and
reasonably arouse the passions of an
ordinary man beyond his power of control.”
State v. McLawhorn, 270 N.C. 622, 628, 155
S.E.2d 198, 203 (1967).
State v. Mathis, 105 N.C. App. 402, 406, 413 S.E.2d 301, 304,
disc. review denied, 331 N.C. 289, 417 S.E.2d 259 (1992).
“Voluntary manslaughter is a lesser included offense of second-
degree murder[.]” State v. Owens, 65 N.C. App. 107, 109, 308
S.E.2d 494, 497 (1983) (citation omitted).
In contrast, second-degree murder is “[t]he unlawful
killing of a human being with malice but without premeditation
and deliberation[.]” State v. Bedford, 208 N.C. App. 414, 417,
702 S.E.2d 522, 526-27 (2010) (citation and quotation marks
omitted).
What constitutes malice varies depending
upon the facts of each case. Our courts have
specifically recognized three kinds of
malice:
One connotes a positive concept of express
hatred, ill-will or spite, sometimes called
actual, express or particular malice.
Another kind of malice arises when an act
which is inherently dangerous to human life
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is done so recklessly and wantonly as to
manifest a mind utterly without regard for
human life and social duty and deliberately
bent on mischief. Both these kinds of malice
would support a conviction of murder in the
second degree. There is, however, a third
kind of malice which is defined as nothing
more than that condition of mind which
prompts a person to take the life of another
intentionally without just cause, excuse, or
justification.
State v. Grice, 131 N.C. App. 48, 53, 505 S.E.2d 166, 169 (1998)
(citations and quotation marks omitted), disc. rev. denied, 350
N.C. 102, 533 S.E.2d 473 (1999). This third type of malice can
be inferred from the intentional inflection of a wound with a
deadly weapon that results in death. State v. Reynolds, 307
N.C. 184, 191, 297 S.E.2d 532, 536 (1982); State v. Deans, 71
N.C. App. 227, 232, 321 S.E.2d 579, 582 (1984) (stating that
malice is presumed when “an individual intentionally takes the
life of another with a deadly weapon[.]”), disc. rev. denied,
313 N.C. 332, 329 S.E.2d 386 (1985). Therefore, this offense
can be established by showing a voluntary unlawful killing
committed with a deadly weapon. State v. Mercer, 275 N.C. 108,
113, 165 S.E.2d 328, 332 (1975), overruled on other grounds by
State v. Caddell, 287 N.C. 266, 290, 215 S.E.2d 348, 363 (1975).
Second-degree murder “may be reduced to voluntary manslaughter
upon a showing that defendant killed his victim in the heat of
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passion caused by provocation adequate to negate the element of
malice.” State v. Best, 79 N.C. App. 734, 736-37, 340 S.E.2d
524, 526 (1986) (citation omitted), overruled on other grounds
by State v. Maynor, 331 N.C. 695, 700, 417 S.E.2d 453, 456
(1992).
Viewing the evidence in the light most favorable to the
State, there was sufficient evidence that Defendant
intentionally shot and killed Mr. Edmonds with a handgun to
establish malice for second-degree murder. The trial court did
not err by failing to dismiss the case for insufficiency of
evidence. We are unpersuaded by Defendant’s argument that
evidence only pointed to a conviction for voluntary
manslaughter, as his argument suggests that we view the evidence
in the light most favorable to him rather than the State. See
Phillpott, ___ N.C. App. at ___, 713 S.E.2d at 209.
Specifically, while testimony was presented that Mr. Edmonds did
threaten bodily harm to Defendant during their confrontation,
Defendant did not shoot Mr. Edmonds at this time. Rather the
evidence showed that there were 10 to 15 minutes between that
confrontation and when Defendant drove over to Mr. Edmonds’
house and shot him, giving Defendant a cooling-off time between
the confrontation and the shooting and showing that the killing
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was not done in the “heat of passion.” The jury weighed this
evidence in convicting Defendant of second-degree murder, and we
will not reweigh it on appeal. Fritsch, 351 N.C. at 379, 526
S.E.2d at 455-56. Accordingly, we find no merit in Defendant’s
arguments and they are overruled.
B. Cross-examination of the State’s witnesses
Defendant next contends that his right to confront the
witnesses against him under Article I, Section 23 of the North
Carolina Constitution and the Sixth Amendment of the United
States Constitution was violated when the trial court refused
his cross-examination of (1) the State’s witness, Ms. Deana
Smith, about the victim’s conviction listed on the back of a
fingerprint card; (2) the State’s witness, Detective Jason
Sondergaard about Defendant’s reactions to being arrested which
were documented in his police report; and (3) the State’s
witness, Ms. Shonta Parson, about a prior conviction involving
her passing a counterfeit check. Defendant concludes that
because of these infringements on his rights, he is entitled to
a new trial.
We note that Defendant failed to raise either
constitutional argument at trial. We have stated that “[i]t is
well settled that this Court will not review constitutional
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questions that ‘[were] not raised or passed upon in the trial
court.’” State v. Carpenter, 155 N.C. App. 35, 41-42, 573
S.E.2d 668, 673 (2002), (quoting State v. Elam, 302 N.C. 157,
160-61, 273 S.E.2d 661, 664 (1981)), disc. review denied, 356
N.C. 681, 577 S.E.2d 896 (2003); N.C.R. App. P. 10(a)(1) (“In
order to preserve an issue for appellate review, a party must
have presented to the trial court a timely request, objection or
motion, stating the specific grounds for the ruling the party
desired the court to make[.]”). Defendant, however, requests,
in the alternative, that “to the extent” Defendant did not base
his challenges on these constitutional arguments, we review his
arguments pursuant to N.C.R. App. P. 2 “to prevent manifest
injustice[.]”
Pursuant to Rule 2 of the North Carolina Rules of Appellate
Procedure, we may exercise our discretion to review Defendant’s
argument in order to “prevent manifest injustice to a party[.]”
State v. Mobley, 200 N.C. App. 570, 573, 684 S.E.2d 508, 510
(2009) (citation omitted), disc. review denied, 363 N.C. 809,
692 S.E.2d 393 (2010). Our discretion under Rule 2 “is
exercised ‘cautiously’ and only in exceptional circumstances [to
consider] significant issues of importance. However, it has
been exercised on several occasions to review issues of
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constitutional importance.” Id. (citation omitted). In the
case at hand “[t]here are no exceptional circumstances,
significant issues, or manifest injustices that would be
corrected by our review of the merits of” Defendant’s arguments.
Holland v. Heavner, 164 N.C. App. 218, 222, 595 S.E.2d 224, 228
(2004). We are cognizant of our discretion in this matter, and
in light of the consistent, unchallenged evidence concerning
Defendant’s role in Mr. Edmonds’ death, including the testimony
of multiple witnesses and evidence presented by the State and
the defense, we decline to invoke Rule 2 and will not address
Defendant’s unpreserved constitutional arguments. See State v.
Davis, 202 N.C. App. 490, 497, 688 S.E.2d 829, 834 (2010)
(“While this Court may pass upon constitutional questions not
properly raised at the trial level in the exercise of its
supervisory jurisdiction ‘[t]o prevent manifest injustice [,]’
N.C.R. App. P. 2, because there was copious unchallenged
evidence before the jury that the substance at issue was cocaine
. . . we decline to invoke Rule 2 in this case.”). Defendant’s
constitutional arguments are dismissed.
For the foregoing reasons, we find no error in Defendant’s
trial.
NO ERROR.
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Judge STROUD and Judge HUNTER, JR. concur.
Report Per Rule 30(e).