State v. Gardner, COA22-781, ___ N.C. App. ___ (Jul. 5, 2023)

In this Guilford County case, defendant appealed his conviction for second-degree murder, arguing error in failure to provide a jury instruction on voluntary manslaughter. The Court of Appeals found no error. 

Based on texts and cellphone evidence admitted at trial, defendant arranged to meet with the victim, a gay man, for a sexual encounter on June 9, 2017. The next morning, the Greensboro Fire Department found the victim’s car burned to the frame, with the skeletal remains of the victim inside the trunk. An autopsy determined the victim died of homicidal violence of undetermined means, and that he was most likely dead before being burned. A search of the apartment where defendant sometimes lived with his girlfriend found a missing 4’ x 4’ patch of carpet and blood stains matching the victim’s DNA. At trial defendant requested that the jury be instructed on the lesser-included offense of voluntary manslaughter, but the trial court denied this request, and noted defendant’s objection to the ruling to preserve appellate review.

The Court of Appeals found no evidence in the record to support the argument that defendant acted “in the heat of passion” justifying a voluntary manslaughter instruction. Defendant offered a theory that involved the victim’s HIV-positive status and the possibility of defendant becoming enraged when he discovered this after sexual activity. However, the court explained this theory was “pure speculation” and the record contained no evidence that defendant’s passion was “sufficiently provoked.” Slip Op. at 11. Because no evidence supported the required element of heat of passion to justify a voluntary manslaughter instruction, the court found no error.  

The court also found the evidence admitted supported a finding of implicit malice for second degree murder, referencing State v. Rick, 126 N.C. App. 612 (1997), for the idea that “implicit malice can be inferred by the nature of the crime and the circumstances of [the victim’s] death.” Slip Op. at 13.