No. 10-355 4B DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA

v.

LAWRENCE WALLACE DOWSING, III

Defendant.

)))))))))

From Onslow

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DEFENDANT-APPELLANT’S BRIEF

**************************************************

INDEX

TABLE OF AUTHORITIES ..................................................................................... ii QUESTIONS PRESENTED .....................................................................................1STATEMENT OF THE CASE .................................................................................2STATEMENT OF GROUNDS FOR APPELLATE REVIEW ................................3STATEMENT OF THE FACTS ...............................................................................3ARGUMENT ...........................................................................................................11

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INCLUDE THE CHARGE OF VOLUNTARY MANSLAUGHTER AS A LESSER INCLUDED OFFENSE IN ITS JURY INSTRUCTIONS AND VERDICT SHEET UNDER THE THEORY OF IMPERFECT SELF-DEFENSE..11

II. THE TRIAL COURT ERRED BY NOT DISMISSING THE ARMED ROBBERY CHARGE AT THE CONCLUSION OF THE EVIDENCE ...................................................................... 19

III. THE TRIAL COURT ERRED IN ORDERING RESTITUTION TO MS. FALLS WHEN THE STATE OFFERED NO EVIDENCE THAT WOULD SUPPORT THE RESTITUTION AMOUNT. ..................................................... 22

CONCLUSION .......................................................................................................26CERTIFICATE OF COMPLIANCE WITH RULE 28(J) ......................................27CERTIFICATE OF FILING AND SERVICE ........................................................28APPENDIX INDEX ................................................................................................29

TABLE OF AUTHORITIES

Cases

Beck v. Alabama, 447 U.S. 625 (1980).............................................14

Jackson v. Virginia, 443 U.S. 307 (1979).........................................20

State v. Alston, 161 N.C. App. 367, 588 S.E.2d 530 (2003).............16

State v. Andrews, 170 N.C. App. 68, 612 S.E.2d 178 (2005)...........11

State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983).......................20

State v. Brewington, 635 S.E.2d 512 (2006).....................................15

State v. Brown, 310 N.C. 563, 313 S.E.2d 585 (1984)...............19, 20

State v. Bruton, 264 N.C. 488, 142 S.E.2d 169 (1965).....................21

State v. Buchanan, 108 N.C. App. 338, 423 S.E.2d 819 (1992).......24

State v. Camacho, 337 N.C. 224, 446 S.E.2d 8 (1994)..............13, 15

State v. Carter, 254 N.C. 475, 119 S.E.2d 461 (1961).....................22

State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967).....................20

State v. Daye, 78 N.C. App. 753, 338 S.E.2d 557 (1986)................24

State v. Dooley, 285 N.C. 158, 203 S.E.2d 815 (1974)....................14

State v. East, 345 N.C. 535, 481 S.E.2d 652 (1997).........................18

State v. Fields, 315 N.C. 191, 337 S.E.2d 518 (1985)................20, 22

State v. Gappins, 320 N.C. 64, 357 S.E.2d 654 (1987)....................14

State v. Herndon, 177 N.C. App. 353, 629 S.E.2d 170 (2006).........15

State v. Jones, 358 N.C. 330, 595 S.E.2d 124 (2004).......................11

State v. McAvoy, 331 N.C. 583, 417 S.E.2d 489 (1992)...................14

State v. McConnaughey, 66 N.C. App. 92, 311 S.E.2d 26 (1984). . .15

State v. Mucci, 163 N.C. App. 615, 594 S.E.2d 411 (2004).............26

State v. Nettles, 170 N.C. App. 100, 612 S.E.2d 172 (2005)............19

State v. Perry, 338 N.C. 457, 450 S.E.2d 471 (1994).......................14

State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980).................20, 21

State v. Replogle, 181 N.C. App. 579, 640 S.E.2d 757 (2007).........23

State v. Reynolds, 161 N.C. App. 144, 587 S.E.2d 456 (2003)........23

State v. Ross, 338 N.C. 280, 449 S.E.2d 556 (1994)........................14

State v. Shelton, 167 N.C. App. 225, 605 S.E.2d 228 (2004).........22, 23, 26

State v. Wallace, 309 N.C. 141, 305 S.E.2d 548 (1983)...................14

State v. Williams, 342 N.C. 869, 467 S.E.2d 392 (1996).................15

State v. Wilson, __ N.C. App. __, 676 S.E.2d 512 (2009)................18

State v. Wilson, 304 N.C. 689, 285 S.E.2d 804 (1982).........14, 23, 26

State v. Wilson, 322 N.C. 117, 367 S.E.2d 589 (1988).....................17

State v. Wilson, 340 N.C. 720, 459 S.E.2d 192 (1995).....................23

State v. Wright, 304 N.C. 349, 283 S.E.2d 502 (1981).........14, 17-18

Staton v. Brame, 136 N.C. App. 170, 523 S.E.2d 424 (1999)..........19

Sutton v. N.C. Dep't of Labor, 132 N.C. App. 387, 511 S.E.2d 340 (1999).............................................................................................23

Statutes

N.C. Gen. Stat. § 7A-27(b).................................................................3

N.C. Gen. Stat. § 15A-1340.34.........................................................23

N.C. Gen. Stat. § 15A-1340.36...................................................23, 25

N.C. Gen. Stat. § 15A-1444(a)...........................................................3

N.C. Gen. Stat. § 15A-1446(d).........................................................23

No. 10-355 4B DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA

v.

LAWRENCE WALLACE DOWSING, III

Defendant.

)))))))))

From Onslow

QUESTIONS PRESENTED

I. DID THE TRIAL COURT COMMIT PLAIN ERROR BY FAILING TO INCLUDE THE CHARGE OF VOLUNTARY MANSLAUGHTER AS A LESSER INCLUDED OFFENSE IN ITS JURY INSTRUCTIONS AND VERDICT SHEET UNDER THE THEORY OF IMPERFECT SELF-DEFENSE?

II. DID THE TRIAL COURT ERR BY NOT DISMISSING THE ARMED ROBBERY CHARGE AT THE CONCLUSION OF THE EVIDENCE?

III. DID THE TRIAL COURT ERR IN ORDERING RESTITUTION TO MS. FALLS WHEN THE STATE OFFERED NO EVIDENCE THAT WOULD SUPPORT THE RESTITUTION AMOUNT?

1

STATEMENT OF THE CASE

On 10 March 2009, an Onslow County Grand Jury indicted Lawrence

Wallace Dowsing, III of one count each of First Degree Murder, Robbery with a

Dangerous Weapon, and Possession of a Firearm by a Convicted Felon. (R pp. 26-

27)

Following a trial by jury during the 14 September 2009 criminal session of

Onslow County Superior Court – the Honorable Judge Jack W. Jenkins presiding –

Mr. Dowsing was convicted of Second Degree Murder, Robbery with a Dangerous

Weapon, and Possession of a Firearm by a Convicted Felon. (R pp. 1 & 81-83)

Following the verdict, Judge Jenkins sentenced Mr. Dowsing to a term of 220 to

273 months for the second degree murder conviction and consecutive terms of 103

to 133 months for the robbery with a dangerous weapon conviction and 15 to 18

months for the felon in possession of a firearm conviction. (R pp. 86-91) In

addition, Judge Jenkins ordered $8,100.00 in restitution. (R pp. 92-93)

Mr. Dowsing gave Notice of Appeal of his convictions to the North Carolina

Court of Appeals in open court on 21 September 2009. (R pp. 1 & 94) Appellate

Entries were entered the following day. (R pp. 95-96)

The Clerk of the North Carolina Court of Appeals mailed the printed record

on 7 April 2010. Undersigned counsel sought two extensions of time to file and

2

serve Mr. Dowsing’s brief, which were granted by this court. This Court ordered

that Defendant’s brief be filed on or before 22 June 2010.

STATEMENT OF GROUNDS FOR APPELLATE REVIEW

Mr. Dowsing appeals his convictions following a trial upon his plea of not

guilty. This is an appeal of right pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-

1444(a).

STATEMENT OF FACTS

A. Introduction

William “Brad” Palmer was found dead in his employer’s truck on the

morning of 1 March 2008. (T p. 170) He had left a small group of friends and

coworkers the night before to buy drugs. (T pp. 208-09) He never returned.

B. Mr. Palmer’s Attempt to Purchase Drugs

Mr. Palmer worked as an electrician for TBA Construction. (T p. 111) TBA

had deployed some of its workers from South Carolina to Jacksonville, North

Carolina to do the plumbing and electrical work for a new Marriott Motel. (T pp.

111 & 156) After finishing work on the evening of Friday, 29 February 2008, Mr.

Palmer and two of his TBA colleagues – John Fleming and Ronnie Groves – met

up with a couple of women to have a cookout. (T p. 113) Later in the evening,

Mr. Palmer, Mr. Fleming, and Mr. Groves rode around the neighborhood in the

TBA truck. (T p. 114) After pulling into the parking lot of a local bar, Mr. Palmer

3

drove the TBA truck back down the road to ask a person he saw walking about

buying drugs. (T p. 115) Mr. Palmer handed this man his business card – which

included his cell phone number – and the trio drove back the house that TBA had

rented for its employees. (T pp. 115 & 278-79).

Just after midnight, Mr. Palmer received a phone call and got ready to leave

the house again. (T pp. 115, 132, 297-98) He took $50.00 in cash from his wallet,

left the wallet with Mr. Groves, and asked his colleagues to call him on his cell

phone if he was not back in 45 minutes. (T p. 117) After he had been gone for

about 45 minutes, his colleagues called Mr. Palmer on his cell phone, but he did

not answer. (T pp. 117-18)

The neighbor living in the house next door happened to arrive home at about

the same time that Mr. Palmer was leaving. He stepped out of the truck to visit

with his neighbor. (T p. 183) As Mr. Palmer pulled the TBA truck out of his

driveway, the neighbor noticed a car parked on the wrong side of the rode with its

parking lights on. That car pulled out and followed behind the TBA truck when

Mr. Palmer drove away, leaving only its parking lights on. (T pp. 184-85)

That night and the next morning, Mr. Fleming called the Sheriff’s

Department and local hospitals to see if Mr. Palmer could be found. (T p. 118)

Meanwhile their two female friends left the house in a taxi to go to a methadone

clinic. (T p. 213) But they soon returned because they saw the TBA truck at the

4

end of a dead-end road in the neighborhood. (T p. 119, 214) The four of them

walked to the spot where the TBA truck was parked. (T pp. 119 & 215) Mr.

Fleming saw Mr. Palmer lying on the floor between the seats. (T p. 119) He went

into the truck and tried to rouse Mr. Palmer before he noticed blood and Mr.

Palmer’s revolver laying on the seat. (T p. 120) Mr. Fleming left the TBA truck

and notified police.

Jacksonville police officer responded to the scene and confirmed that Mr.

Palmer was dead. (T p. 170) Mr. Palmer’s body was in between the seats, on his

knees, facing the rear of the vehicle. (Id.) Mr. Fleming and Mr. Groves turned

over Mr. Palmer’s wallet to the Jacksonville police. (T p. 173)

C. State’s Evidence Tends to Show that Mr. Palmer Pointed a Gun at Defendant and that Latrail Munn was the Shooter

Michelle Kirton – Mr. Dowsing’s girlfriend at the time of the crime –

provided the most detailed account of what transpired that night in the TBA truck.

(T pp. 462-66; App. pp. 1-5) Mr. Dowsing told his girlfriend that he had been

approached by a man in a truck about buying drugs. They exchanged phone

numbers. (T p. 463; App. p. 2) Later that evening, Mr. Dowsing and his friend

Latrial Munn went to meet the man to sell him drugs. Mr. Dowsing was in the

front seat, Mr. Munn was in the middle – towards the rear – and Mr. Palmer was in

the passenger seat. (T p. 464; App. p. 3) Something about the drug deal did not

feel right to Mr. Dowsing. Mr. Dowsing told his girlfriend that the man in the

5

truck pulled a gun on them. Mr. Dowsing struggled with the man and looked to

Mr. Munn for help. The man pointed the gun at Mr. Dowsing and tried to shoot.

(T p. 497; App. p. 6) According to his girlfriend, Mr. Dowsing asked Mr. Munn

what he was waiting for while he was struggling with the armed Mr. Palmer. Mr.

Munn then shot the man. (T pp. 463-64; App. pp. 2-3) Only after Mr. Palmer was

dead did they take his cell phone, the keys to the truck, and the $50.00 (T p. 465;

App. p. 4) SBI Agent Barker confirmed that Jacksonville police considered Latrail

Munn a suspect in this murder. (T p. 361)

David Stover – a jail-house informant – provided an account of the crime

from Mr. Dowsing that was roughly consistent with that given by Ms. Kirton.

While the jail-house informant and Mr. Dowsing were cellmates, Mr. Dowsing

talked about the crime. (T p. 442) According to the jail-house informant, Mr.

Dowsing said that he was drunk when he was first approached by a man in a

construction truck who was looking for drugs. They exchanged numbers. Mr.

Dowsing and a friend later met up with the man in the truck to sell him drugs. Mr.

Dowsing told the jail-house informant that there was a Mexican in the truck along

with the person that he first saw. At some point during the transaction, the person

who Mr. Dowsing had first seen in the truck was shot in the chest. (T pp. 442-43)

The jail-house informant also testified that Mr. Dowsing was very concerned about

his girlfriend talking to the police. (T pp. 445-46) Mr. Dowsing did not confess to

6

shooting the man. But at some point, Mr. Dowsing said that “sometimes you got

to do what you got to do” when having a conversation with another detainee at the

jail who was locked up with murder charges. (T pp. 443, 446, 448) The purported

“do what you got to do” quote was not, however, included in the jail-house

informant’s contemporaneous written statement to police. (T p. 447)

Jacksonville police recruited Willie Anderson – an informant used in drug

cases – to see if he could learn anything about the crime. (T p. 401) He testified

that Mr. Dowsing told him that he knew “who did the murder, but I’m not saying

any names.” (T pp. 412 & 415) In addition, the informant testified that he had

been approached by Latrail Munn and Mr. Dowsing the day before the crime. The

pair showed the informant a pistol and asked the informant if he wanted to buy it

for $150. (T pp. 412-13 & 416) The informant was later shown a picture of a .44

caliber pistol and he testified that the picture looked like the gun he had been

shown. (T pp. 417-18) When the informant later went back to Mr. Munn to

attempt to purchase the gun, Mr. Munn instead gave him a .44 bullet, which the

informant promptly turned over to Jacksonville police. (T pp. 419-20).

Mr. Dowsing was living with his sister at the time of the crime. They lived

less than a mile away from where the crime took place. (T pp. 260-61) A

neighbor who had trouble sleeping during the night of crime happened to see a car

drive up to Mr. Dowsing’s sister’s house at about 4:00 or 4:30 AM on 1 March

7

2008. (T pp. 197-98, 200) Mr. Dowsing got out of the passenger side and went

inside the house. The car then drove away. The neighbor had seen him riding in

that same small silver car and spending time with that car’s driver on several

previous occasions. (T p. 196)

Police interviewed Mr. Dowsing on one occasion before he was arrested. (T

pp. 543-54) He denied making any calls to Mr. Palmer on his cell phone, denied

ever having seen Mr. Palmer, and denied having ever seen the TBA truck. T pp.

547-79) During this interview, police detectives suggested that Mr. Dowsing may

have had to shoot Mr. Palmer in self defense, noting the revolver that was

recovered at the scene of the crime. (T p. 551) After he was charged with first-

degree murder and armed robbery, Mr. Dowsing said to the Jacksonville police

detective that “I was there, but I didn’t shoot him.” (T pp. 573-74)

D. State’s Investigation of Physical Evidence

Jacksonville police processed the TBA truck for any DNA evidence,

fingerprints, and trace evidence. (T pp. 227-32) In addition, police discovered a

large caliber bullet hole in the driver’s side door of the truck and the plastic armrest

of the front seat. (T pp. 67, 73-74) A projectile was recovered from that door (T

p. 80) Further testing revealed the possible presence of blood on the projectile (T

p. 354) Police never recovered Mr. Palmer’s cell phone, the keys to the truck, any

8

cash, or controlled substances from around the crime scene or the TBA truck. (T

pp. 233, 245-47)

The SBI performed DNA testing and found a partial match between Mr.

Dowsing’s DNA profile and DNA that was recovered from a fingerprint smudge

on the exterior driver’s side door of the TBA truck. (T p. 370) Comparing that

result against the SBI’s DNA population database, an SBI agent testified that there

was only a remote possibility that the DNA recovered from the fingerprint smudge

could belong to someone other than Mr. Dowsing. (T p. 372) The odds of the

DNA in question originating from another African American man were markedly

less remote –“36.2 million times more likely to be observed if it came from

Lawrence Dowsing, III, than if it came from another unrelated individual in the

North Carolina black population.” (Id.) SBI testing of the traces of blood

recovered from the bullet revealed the presence of Mr. Palmer’s DNA. (T p. 389)

SBI Agent Tanner was admitted as an expert witness in the field of forensic

firearm identification. (T p. 322) He determined that the projectile recovered from

the door of the TBA truck was a .44 caliber bullet that was most likely fired from a

Ruger .44 revolver. In addition, he testified that the recovered projectile was

consistent with a .44 Super Remington cartridge that was given to an informant –

Willie Anderson – by Latrail Munn. (T pp. 345, 419-20, 434-35) Mr. Dowsing’s

9

girlfriend testified that two years prior to the crime, she had taken her father’s .44

caliber Ruger revolver and sold it to a man for $200. (T p. 502)

After autopsy, the medical examiner determined that the cause of death was

a gun shot wound to the abdomen that caused massive internal bleeding. Mr.

Palmer died within three to five minutes of receiving the wound. (T pp. 644-46)

The bullet entered Mr. Palmer’s right chest and exited from the left lower mid

back. (T pp. 652-53) The examiner concluded that the wound was caused from

extremely close range because of searing at the edges of the entrance wound. (T

pp. 647-48)

Jacksonville police executed a search warrant on Mr. Dowsing’s residence

on 6 March 2008. (T pp. 247-54) Police recovered a cell phone bill issued to Mr.

Dowsing and his cell phone. (T pp. 249, 251-253) The State introduced cell

phone records through the testimony of a Verizon employee. She testified that a

telephone call was made from the cell phone that was registered to Mr. Dowsing to

the cell phone number listed on Mr. Palmer’s TBA business card at about 12:07

AM on 1 March 2008 (T pp. 279, 297-98)

After Mr. Dowsing’s cell phone was seized, Jacksonville police retrieved a

number of text messages from 16 February 2008. (T p. 565-68) These messages

appeared to have something to do with another individual wanting to purchase a

10

gun from a female. (T pp. 565-66) But police were not able to determine what

relevance – if any – these messages had to their investigation. (T p. 589)

ARGUMENT

I. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INCLUDE THE CHARGE OF VOLUNTARY MANSLAUGHTER AS A LESSER INCLUDED OFFENSE IN ITS JURY INSTRUCTIONS AND VERDICT SHEET UNDER THE THEORY OF IMPERFECT SELF-DEFENSE

Assignments No. 8 & 13; R p. 103 & Addendum to Record p. 2.1

A. Standard of Review

Defense counsel did not request an instruction on voluntary manslaughter

based on a theory of imperfect self-defense. This Court must therefore review the

trial court's failure to instruct for plain error. State v. Andrews, 170 N.C. App. 68,

75, 612 S.E.2d 178, 183 (2005). Under the plain error standard of review, Mr.

Dowsing has the burden of showing: (i) that a different result probably would have

been reached but for the error or (ii) that the error was so fundamental as to result

in a miscarriage of justice or denial of a fair trial. State v. Jones, 358 N.C. 330,

346, 595 S.E.2d 124, 135 (2004).

1 Mr. Dowsing has filed along with this Brief a Motion to Amend the Record on Appeal to include an Assignment of Error relating to the trial court’s failure to include the lesser included offense of voluntary manslaughter in its instructions to the jury and verdict sheet.

11

B. Instruction on Voluntary Manslaughter and Imperfect Self-Defense Required

The State introduced evidence that Mr. Palmer was shot by Latrail Munn

while Mr. Dowsing and Mr. Palmer were scuffling for control of Mr. Palmer’s .22

pistol. (T pp. 463-64) From this and other consistent evidence, a rationale juror

could conclude that Mr. Munn shot Mr. Palmer in order to protect himself and Mr.

Dowsing from being shot.

1. State’s Evidence Supported Lesser Included Offense of Voluntary Manslaughter

Ms. Kirton testified that Mr. Dowsing – then her boyfriend – confessed his

involvement in the crime to her.2 (T p. 463; App. p. 2) He told her that

something went wrong during the drug sale to Mr. Palmer and that Mr. Palmer

pointed his .22 pistol at him and tried to shoot. (T p. 497; App. p. 6) Mr. Dowsing

thought that Mr. Palmer was going to shoot him and struggled with Mr. Palmer for

control of the .22 pistol. During this struggle, Mr. Dowsing asked Mr. Munn

“what are you waiting for?” (T pp. 463-64, 498, 500-01; App. pp. 2-3, 7, 10)

Consistent with this account, the police recovered Mr. Palmer’s pistol outside of its

holster on the front seat of the TBA truck. (T p. 170) In addition, when he was

2 The State’s evidence does not support a conclusion that Mr. Dowsing hoped that his girlfriend would tell this story to the police. When Mr. Dowsing received a copy of Ms. Kirton’s statement in discovery, he was displeased and communicated that she had betrayed his trust. (T pp. 505-06) Likewise, the jail-house informant testified that Mr. Dowsing was extremely nervous about the possibility of his girlfriend talking to the police. (T pp. 445-46)

12

charged with first-degree murder, Mr. Dowsing confessed to being at the scene of

the crime, but denied shooting Mr. Palmer. (T pp. 573-74) The State had no other

compelling evidence of motive for the shooting and no evidence that contradicted

the testimony of Ms. Kirton.

The State thought that Ms. Kirton’s testimony was credible. The State relied

on Defendant's statements to his girlfriend to establish an essential element for

first-degree murder. (T pp. 686-87) At the close of the State’s evidence, the State

argued that it had met its burden on the elements of premeditation and deliberation

based on the statement "what are you waiting for" that Defendant made to Latrail

Munn before Mr. Palmer was shot. But this utterance was made while Mr.

Dowsing and Mr. Palmer were struggling for control of Mr. Palmer’s gun, after

Mr. Palmer had pointed his pistol at Defendant and tried to shoot him. (T pp. 463-

64, 497) The State did not argue that only a portion of his statement should be

believed.

2. Trial Court was Obligated to Include Lesser Included Offense of Voluntary Manslaughter because it was Supported by the Evidence

A trial court must instruct on a lesser offense when there is evidence in the

record which might convince a rational trier of fact to convict the defendant of the

less grievous offense. State v. Camacho, 337 N.C. 224, 233-35, 446 S.E.2d 8, 13-

14 (1994) (holding that defendant has a constitutional right to instructions on lesser

13

included offenses when conflicting evidence could support a rational juror to

convict on second degree murder or voluntary manslaughter); Beck v. Alabama,

447 U.S. 625, 634 (1980) (holding that including a supported “lesser included

offense ensures that the jury will accord the defendant the full benefit of the

reasonable doubt standard”). The trial court has a duty to instruct on a lesser

included offense “even absent a special request therefore, whenever there is some

evidence to support it.” State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503

(1981) (emphasis in original).

Imperfect self-defense exists when a person believes it necessary to kill his

adversary in order to save himself or another from death or great bodily harm, and

the belief is reasonable under the circumstances. State v. Ross, 338 N.C. 280, 283,

449 S.E.2d 556, 559-60 (1994); State v. McAvoy, 331 N.C. 583, 595-596, 417

S.E.2d 489, 497 (1992); State v. Perry, 338 N.C. 457, 466-67, 450 S.E.2d 471,

476-77 (1994). “[V]oluntary manslaughter is an intentional killing without

premeditation, deliberation or malice but done in the heat of passion suddenly

aroused by adequate provocation or in the exercise of imperfect self-defense where

excessive force under the circumstances was used or where the defendant is the

aggressor.” State v. Wallace, 309 N.C. 141, 149, 305 S.E.2d 548, 553 (1983); see

also State v. Wilson, 304 N.C. 689, 695, 285 S.E.2d 804, 808 (1982).

14

When there is any evidence in the record supporting these elements, a

defendant is entitled to the instruction “even though there is contradictory evidence

by the State or discrepancies in defendant's evidence.” State v. Dooley, 285 N.C.

158, 163, 203 S.E.2d 815, 818 (1974). In deciding whether to give a self-defense

instruction, the trial court must consider the evidence in the light most favorable to

defendant. State v. Gappins, 320 N.C. 64, 71, 357 S.E.2d 654, 659 (1987).

North Carolina decisions support the conclusion that such instructions were

required in Mr. Dowsing’s case. In State v. Conacho, supra, the defendant’s

evidence showed that he was attacked by the victim with a knife before he picked

up a hammer and struck the victim, causing her death. 337 N.C. at 233-34, 446

S.E.2d at 13. The defendant’s evidence conflicted with the State’s evidence –

which tended to show that the defendant was lying in wait with the intent to

murder the victim. Nevertheless, it was error for the trial court to fail to give an

instruction on the lesser included crimes of second degree murder and voluntary

manslaughter. Id.; accord State v. Herndon, 177 N.C. App. 353, 629 S.E.2d 170

(2006) (approving an instruction on voluntary manslaughter by imperfect self-

defense when the evidence conflicted as to whether the victim shot at the defendant

first, and conflicted as to whether the victim was approaching the defendant with

his gun pointed or merely standing by his car); State v. McConnaughey, 66 N.C.

App. 92, 97, 311 S.E.2d 26, 29 (1984). Cf., State v. Brewington, 635 S.E.2d 512,

15

518 (2006) (no self-defense instruction where victim found with gun in pocket, and

no evidence defendant knew gun was there); State v. Williams, 342 N.C. 869, 874,

467 S.E.2d 392, 394-95 (1996) (defendant's belief that force needed was

unreasonable where he was not threatened during confrontation, did not actually

see man who reached for a gun, and was standing some distance away when he

fired gun).

Moreover, Mr. Dowsing did not have to testify, offer evidence, or give

advance notice in order for the jury to be instructed on the law of imperfect self-

defense: "[I]f defendant does not present evidence, but based upon the State's

evidence, the jury reasonably could find that the defendant in fact reasonably

believed it necessary to kill his adversary to protect himself from death, the jury

instruction on self-defense should be given." State v. Alston, 161 N.C. App. 367,

372-373, 588 S.E.2d 530, 535 (2003).

3. Imperfect Self-Defense and Voluntary Manslaughter Instructions Required With Acting in Concert Theory Relied on by the State

The trial court concluded that the State’s evidence supported an “acting in

concert” instruction. (T p. 725; R p. 70) The State’s evidence demonstrated that

Latrail Munn was at least a participant – if not the shooter. Ms. Kirton explicitly

testified that Mr. Munn was the person who shot Mr. Palmer. (T pp. 463-64) Mr.

Dowsing’s neighbor saw someone give Mr. Dowsing a ride home – someone

16

driving a car that she often saw at Mr. Dowsing’s house. (T pp. 196-98) Mr.

Anderson – the police informant – testified that Mr. Munn and Mr. Dowsing were

together when they tried to sell him the handgun. (T pp. 412-13) Later, Mr. Munn

supplied the informant with a .44 caliber bullet – consistent with the one recovered

from the crime scene. (T pp. 419-20) The jail-house informant testified that Mr.

Dowsing told him that a second person – his “boy” – was with him when he went

to participate in the drug transaction. (T pp. 442-43)

Under the theory of acting in concert, “a person may be found guilty…if he

is present at the scene…and the evidence is sufficient to show he is acting together

with another who does the acts necessary to constitute the crime….” State v.

Wilson, 322 N.C. 117, 141, 367 S.E.2d 589, 603 (1988). If Mr. Dowsing could be

found guilty of murder under the theory of acting in concert, it follows that he

could likewise be found guilty of the lesser included offense of voluntary

manslaughter based on Latrial Munn’s imperfect self-defense – also under the

theory of acting in concert. Because the evidence supports a conclusion that

Latrail Munn’s action constituted the crime of voluntary manslaughter, a rational

jury could have concluded that Mr. Dowsing was only guilty of the lesser offense

as well. In the light most favorable to Mr. Dowsing, the State introduced sufficient

evidence for the jury to conclude that Mr. Dowsing was at most guilty of voluntary

manslaughter.

17

C. The Failure to Give the Proper Instructions Constitutes Plain Error

The failure to instruct on imperfect self-defense and voluntary manslaughter

under the circumstances of this case constituted plain error. See, e.g., Wright, 304

N.C. at 351, 283 S.E.2d at 503 (holding that the trial court is obligated to give

instructions on lesser included offense when supported by the evidence even if not

requested by either party). A different result probably would have been reached

had the jury been instructed it could consider voluntary manslaughter. If Mr.

Palmer was the first to draw a weapon and point it at Mr. Dowsing during a drug

transaction – then a jury certainly could find that firing one shot in order to avoid

death or injury was objectively reasonable.

The fact that the jury did not find Mr. Dowsing guilty of first-degree murder

– either on the basis of premeditation or on felony-murder by robbery – also

supports a conclusion that the jury may have found imperfect self-defense had it

been an alternative. (R p. 81) Cf. State v. Wilson, __ N.C. App. __, 676 S.E.2d

512 (2009) (when jury instructed on both first-degree and second-degree murder

and returns a verdict of guilty of first-degree murder, any error for failing to

instruct on voluntary manslaughter is harmless) (citing State v. East, 345 N.C. 535,

553, 481 S.E.2d 652, 664 (1997)).

18

Had this jury been instructed properly, it could have found Mr. Dowsing

guilty of voluntary manslaughter by reason of imperfect self-defense. The failure

to instruct on a lesser offense was certainly a fundamental error, and resulted in a

miscarriage of justice. Mr. Dowsing is therefore entitled to a new trial.

II. THE TRIAL COURT ERRED BY NOT DISMISSING THE ARMED ROBBERY CHARGE AT THE CONCLUSION OF THE EVIDENCE

Assignments No. 1 & 2; R p. 102.

A. Standard of Review

Mr. Dowsing preserved his right to appeal the issue of the sufficiency of the

evidence by making a motion to dismiss at the close of the evidence. (T p. 685-88

& 707); N.C. R. App. P. 10(b)(3) (2009). The standard of review by the appellate

court of a trial court's ruling on sufficiency of the evidence in a criminal case is de

novo. State v. Nettles, 170 N.C. App. 100, 103, 612 S.E.2d 172, 174 (2005)

(sufficiency ruling is question of law); Staton v. Brame, 136 N.C. App. 170, 174,

523 S.E.2d 424, 427 (1999) (questions of law reviewed de novo).

B. Dismissal is Appropriate when State’s Evidence only Raises Suspicion or Conjecture as to an Essential Element of the Crime

In considering a motion to dismiss criminal charges, the trial court must

consider all of the evidence in the light most favorable to the State, giving the State

the benefit of every reasonable inference that might be drawn therefrom. State v.

Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984). In making his or her

19

determination, “the trial judge must decide whether there is substantial evidence of

each element of the offense charged. Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Brown, 310 N.C. at 566, 313 S.E.2d at 587.

If, however, the evidence is sufficient only to raise a suspicion or conjecture

as to either the commission of the offense, the motion to dismiss should be

allowed. State v. Bates, 309 N.C. 528, 533, 308 S.E.2d 258, 262 (1983) (citing

State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967)). Moreover, the Due Process

Clause of the United States Constitution requires the State to prove each essential

element of a crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307

(1979). A conviction must be reversed unless any rational trier of fact could have

found all of the essential elements beyond a reasonable doubt. Id., 443 U.S. at 319.

C. The State did not Show Substantial Evidence of Each of the Essential Elements of Robbery with a Dangerous Weapon

None of the evidence tended to prove that the taking of the keys, cell phone,

and $50.00 was anything other than an "afterthought" under State v. Powell, 299

N.C. 95, 102, 261 S.E.2d 114, 119 (1980), and that the use of force and the taking

did not constitute a "single transaction" under State v. Fields, 315 N.C. 191, 203,

337 S.E.2d 518, 525 (1985). The robbery charge should thus have been dismissed

at the close of evidence. (T p. 707)

20

The “gist of the offense [of armed robbery] is not the taking but the taking

by force or putting in fear. Powell, 299 N.C. at 102, 261 S.E.2d at 119. In Powell,

the North Carolina Supreme Court concluded that there was “no substantial

evidence giving rise to the reasonable inference that the defendant took the objects

from the victim’s presence by use of a dangerous weapon.” Id. Instead, the

evidence tended to show that the victim was murdered during the act of a rape and

– in the light most favorable to the State – the items were taken as an afterthought

once the victim had died. Id.

Such is the case here. It is undisputed that the killing took place during a

botched transaction for the sale of narcotics. The most detailed account of what

transpired was introduced by the State through the testimony of Michelle Kirton –

who was Mr. Dowsing’s girlfriend at the time of the crimes. As set forth above,

Ms. Kirton recounted what Mr. Dowsing had told her about the night of the crime.

(T pp. 463-64; App. pp. 2-3) She testified that something went wrong during the

drug transaction and Mr. Palmer pulled his pistol on Mr. Dowsing. A struggle

ensued, during which Mr. Munn shot the victim. It was only after Mr. Palmer was

dead – according to the State’s witness – that Mr. Munn and Mr. Dowsing took the

$50.00, the cell phone, and the truck keys. (T p. 465; App. p. 4)

The State was bound by Ms. Kirton’s testimony because it was not

contradicted or shown to be false by any other facts or circumstances in evidence.

21

State v. Bruton, 264 N.C. 488, 499, 142 S.E.2d 169, 176 (1965). As a result, the

State's evidence tended to exculpate Mr. Dowsing of the crime of robbery with a

dangerous weapon and his motion to dismiss should have been allowed at the close

of the evidence. State v. Carter, 254 N.C. 475, 479, 119 S.E.2d 461, 464 (1961).

The State’s evidence does not suggest a single transaction. Instead, the force

was used in response to Mr. Palmer pointing a gun at Mr. Dowsing during the

botched drug deal. The taking of the three items – arguably done to impede

investigation of the crime – does not constitute a “single transaction” with the

killing. Fields, 315 N.C. at 203, 337 S.E.2d at 525.

The armed robbery conviction should thus be vacated.

III. THE TRIAL COURT ERRED IN ORDERING RESTITUTION TO MS. FALLS WHEN THE STATE OFFERED NO EVIDENCE THAT WOULD SUPPORT THE RESTITUTION AMOUNT

Assignment No. 12; R p. 104

Based solely on the unsworn statement of the prosecutor, the trial court

ordered that the Defendant pay restitution in the amount of $7,900.00 to Bernice

Falls. (T p. 760 & 764; R p. 92) Because the State introduced no evidence at

either trial or sentencing to support the amount of restitution, the restitution order

must be vacated. State v. Shelton, 167 N.C. App. 225, 233, 605 S.E.2d 228, 233-

34 (2004).

22

A. Standard of Review

Whether the trial court’s restitution order is supported by competent

evidence adduced at trial or sentencing is a question of law, which is reviewed de

novo. See generally State v. Wilson, 340 N.C. 720, 726-27, 459 S.E.2d 192, 196

(1995). Under the de novo standard of review, the reviewing court considers the

matter anew and freely substitutes its own judgment for the lower court’s. Sutton

v. N.C. Dep't of Labor, 132 N.C. App. 387, 389, 511 S.E.2d 340, 341 (1999).

B. This Argument is Preserved for Appellate Review

Mr. Dowsing is not barred from challenging the restitution order on appeal.

Even where a defendant does not object to a trial court’s restitution order, the issue

is deemed preserved for appellate review. State v. Replogle, 181 N.C. App. 579,

584, 640 S.E.2d 757, 761 (2007); Shelton, 167 N.C. App. at 233, 605 S.E.2d at

233; State v. Reynolds, 161 N.C. App. 144, 149, 587 S.E.2d 456, 460 (2003); N.C.

Gen. Stat. § 15A-1446(d)(18). This issue is properly before the Court.

C. There Was No Evidence to Support the Restitution Order as to Bernice Falls

Under N.C. Gen. Stat. § 15A-1340.34(a), a sentencing court must determine

whether to order the defendant to make restitution. However, the amount of

restitution “must be limited to that supported by the record.” N.C. Gen. Stat. §

15A-1340.36(a). As a result, in order for a restitution order to be valid, it “must be

supported by evidence adduced at trial or at sentencing.” State v. Wilson, 340 N.C.

23

at 726, 459 S.E.2d at 196. Moreover, “there must be something more than a guess

or conjecture as to an appropriate amount of restitution.” State v. Daye, 78 N.C.

App. 753, 758, 338 S.E.2d 557, 561(1986). Here, there was no evidence to support

the trial court’s order that Mr. Dowsing pay $7,900.00 in restitution to Bernice

Falls. In contrast, the State introduced evidence to support the $200.00 award to

Mr. Bruce and Defendant does not challenge that award of restitution. (T p. 159; R

p. 92)

First, the restitution worksheet that the prosecutor submitted to the court was

not sufficient to support the restitution order. An unsworn statement of the

prosecutor “does not constitute evidence and cannot support the amount of

restitution recommended.” State v. Buchanan, 108 N.C. App. 338, 341, 423

S.E.2d 819, 821 (1992). The worksheet in this case was an unsworn statement of

the prosecutor. Thus, the worksheet did not provide a basis for restitution.

Second, the prosecutor failed to present any evidence to support his request

for restitution. During the sentencing hearing, the prosecutor failed to present any

affidavit or document from Ms. Falls to support the amount that he requested.

D. Defense Counsel Did Not Stipulate to the Restitution Amount

At no time during the sentencing hearing did defense counsel stipulate that

the restitution amount was valid or otherwise supported by any evidence. (T pp.

760-64)

24

It is well-settled that stipulations “must be definite and certain in order to

afford a basis for judicial decision, and it is essential that they be assented to by the

parties or those representing them.” Replogle, 181 N.C. App. at 584, 640 S.E.2d at

761 (citation omitted). The defense attorney did not comment on the restitution

amount suggested by the assistant district attorney in any fashion. In contrast, trial

counsel explicitly stipulated to the prior record level worksheet. (T p. 763).

Nothing in the record can be construed as defense attorney’s a “definite and

certain” indication that the restitution amount of $7,900.00 was proper.

E. The Trial Court Did Not Consider Any Factors Relating to the Defendant Before Issuing the Restitution Order

Before making a determination of the amount of restitution to be made, the

trial court must first take into consideration the defendant’s financial situation.

Under North Carolina’s restitution statute, the trial court:

shall take into consideration the resources of the defendant including all real and personal property owned by the defendant and the income derived from the property, the defendant's ability to earn, the defendant's obligation to support dependents, and any other matters that pertain to the defendant's ability to make restitution....

N.C. Gen. Stat. § 15A-1340.36(a) (2009). The trial court made no inquiry into any

of these factors. (T pp. 121-24)

While a trial court need not make specific findings of fact on these factors, it

“shall” take them into consideration before determining an amount of restitution to

25

be made. State v. Mucci, 163 N.C. App. 615, 626, 594 S.E.2d 411, 419 (2004)

(remanding case for resentencing because “the trial court did not consider any of

the factors related to defendant's ability to pay the full amount of restitution”).

Because the trial court made no inquiry into the defendant’s ability to pay or

related factors, the restitution order must be vacated.

F. Conclusion

As the State did not present any evidence to support the restitution order and

the trial court made no inquiry into Defendant’s ability to pay, the trial court erred

by ordering Mr. Dowsing to pay $7,900.00 in restitution to Ms. Falls.

Accordingly, the restitution order must be vacated. State v. Wilson, 340 N.C. at

727, 459 S.E.2d at 198; State v. Shelton, 167 N.C. App. at 233, 605 S.E.2d at 233.

CONCLUSION

For the reasons stated herein, Lawrence Dowsing’s convictions should be

vacated – or the order for restitution should be vacated – and the matter remanded.

Respectfully submitted, this 22 day of June, 2010.

/s/ David Neal

David L. NealN.C. Bar No. 27992Attorney for Defendant-AppellantPost Office Box 968Hillsborough, NC 27278(919) 732-2156

26

(919) 246-9112(fax)David.L.Neal@gmail.com

27

CERTIFICATE OF COMPLIANCE WITH RULE 28(J)

Undersigned hereby certifies that the foregoing brief was written in Times

New Roman proportional type, 14 point font, and contains no more than 6,275

words (as reported by the word-processing software’s word count feature),

exclusive of covers, indexes, table of authorities, certificates, and appendixes.

This the 22nd of June 2010.

/s/ David L. Neal David L. Neal

28

CERTIFICATE OF SERVICE AND FILING

I hereby certify that Defendant-Appellant’s Brief and Appeal Information

Statement has been filed by electronic filing to the North Carolina Court of

Appeals pursuant to N.C. R. App. P. 26(a)(2).

I further certify that a copy of the above and foregoing has been served on

the State by electronic mail, addressed to:

Leonard G. GreenUtilities UnitNorth Carolina Department of JusticePO Box 629Raleigh, NC 27602

LGreen@ncdoj.gov

This, the 22nd of June 2010.

/s/ David L. Neal David L. Neal

29

No. 10-355 4B DISTRICT

NORTH CAROLINA COURT OF APPEALS

* * * * * * * * * * * * * * * * * *

STATE OF NORTH CAROLINA

v.

LAWRENCE WALLACE DOWSING, III

Defendant.

)))))))))

From Onslow

*******************************APPENDIX TO DEFENDANT-APPELLANT’S BRIEF

*******************************

INDEX

Excerpt of Trial Testimony of State’s Witness Michelle Kirton ………………………………...……………………………….App. 1