State v. DeBiase, 211 N.C. App. 497 (May. 3, 2011)

In a case in which the defendant was convicted of second-degree murder, the trial court committed reversible error by denying the defendant’s request for a jury instruction on involuntary manslaughter. The evidence tended to show that the defendant did not intend to kill or seriously injure the victim: the victim became angry at the defendant when the defendant offered drugs to the victim’s girlfriend; after the victim punched or shoved the defendant, others separated the men; the victim then charged at the defendant, who struck him on the head or neck with a beer bottle, shattering the bottle; the defendant and the victim struggled and fell; and the defendant did not stab the victim. Cause of death was a large laceration to the neck. The court rejected the State’s argument that the defendant’s admission that he intentionally hit the victim with the bottle supported the trial court’s refusal to instruct on involuntary manslaughter. Although the intentional use of a deadly weapon causing death creates a presumption of malice, if the defendant adduces evidence or relies on a portion of the State’s evidence raising an issue on the existence of malice and unlawfulness, the presumption disappears, leaving only a permissible inference which the jury may accept or reject. Here, the defendant’s evidence sufficed to so convert the presumption.