United States v. Pheasant , 320 F. App'x 160 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5121
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SAMUEL EDDIE PHEASANT,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Bryson City. Lacy H. Thornburg,
District Judge. (2:06-cr-00025-LHT-DLH-1)
Submitted: March 13, 2009 Decided: April 2, 2009
Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Randolph M. Lee, LAW OFFICES OF RANDOLPH M. LEE, Charlotte,
North Carolina, for Appellant. Gretchen C. F. Shappert, United
States Attorney, Charlotte, North Carolina; Don D. Gast,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a jury trial, Samuel Eddie Pheasant was
convicted of first degree murder and use of a firearm during and
in relation to a crime of violence, resulting in death. After
the court imposed sentence of life imprisonment plus ten years,
Pheasant noted an appeal. He contends that the district court
abused its discretion by refusing to instruct the jury as to
voluntary and involuntary manslaughter as lesser included
offenses. Finding no abuse of discretion, we affirm.
An instruction on a lesser included offense is
warranted only where the lesser included offense includes some,
but not all of the elements of the charged offense; the evidence
concerning the elements differentiating the two offenses is in
sharp dispute; and the jury could rationally convict the
defendant of the lesser offense and acquit him on the greater
offense. United States v. Baker, 985 F.2d 1248, 1258-59 (4th
Cir. 1993). This court reviews for abuse of discretion the
district court’s denial of a requested jury instruction. United
States v. Stotts, 113 F.3d 493, 496 (4th Cir. 1997).
The distinction between murder and manslaughter is the
presence of malice. Murder is the “unlawful killing of a human
being with malice aforethought.” Manslaughter is defined as the
“unlawful killing of a human being without malice.” 18 U.S.C.
§ 1112(a) (2006).
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Here, the evidence of malice was not contested. The
evidence showed that Pheasant took offense at something Dennis
Teesateskie said while the two were riding to a convenience
store with Tracy West and Steven Kekahbah. Pheasant ordered
West to stop the truck. When the truck eventually stopped for a
stop sign, Pheasant jumped out, wrapped a length of chain around
his hand and ordered Teesateskie off the truck. Instead of
Pheasant punching out Teesateskie, Pheasant ended up on the
ground. After this outing, Pheasant met with Joseph Johnson and
discussed some yard work that Pheasant agreed to do for Johnson,
returned to his home, picked up his rifle and ammunition, and
went to the home of Teesateskie’s girlfriend in Big Cove.
Teesateskie and his girlfriend and her children were
in a truck about to leave the girlfriend’s house. Pheasant, who
had already loaded the rifle, aimed the rifle at Teesateskie.
Teesateskie saw Pheasant and got off the truck; Pheasant shot
him. When later asked why he shot Teesateskie, Pheasant
replied, “because he pissed me off, man.”
Contrary to Pheasant’s assertion, the evidence would
not support a verdict of voluntary manslaughter. There was no
“sudden quarrel” or “heat of passion.” See United States v.
Elk, 658 F.2d 644, 649 (8th Cir. 1981). Rather, the provocation
occurred hours earlier when Teesateskie said something that
upset Pheasant and later punched Pheasant in the mouth. After
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those events, Pheasant went and discussed yard work he was to do
for Mr. Johnson, sitting and visiting with him for a while; he
also went home, collected his rifle and drove to Big Cove. This
evidence negates any assertion that the shooting was done in the
heat of passion “without deliberation and reflection.” Id.(citations omitted).
Although Pheasant proposes that the killing shot was
fired as the two men fought over the rifle, this theory is
refuted by the evidence. Pheasant admitted that he fired the
shot from twenty yards away. Moreover, the forensic pathologist
testified that Teesateskie died of a single gunshot to the
“upper abdomen, lower chest area” and that there was no soot
deposit on or near the wound, indicating that the shot was not
fired at close range.
Additionally, the evidence would not support a
conviction for involuntary manslaughter. Pheasant asserts in
his brief that it is possible that he merely wished to talk to
Teesateskie and brought the rifle for protection. If this were
the case, the evidence could support a finding of self defense,
but not involuntary manslaughter. Or, the evidence could
support a finding of a non-premeditated killing, which would be
second degree murder. There is no evidence to show that
Pheasant engaged in an unlawful act, which is not a felony, or a
lawful act in an unlawful or reckless manner, which resulted in
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Teesateskie’s death. We find that a rational jury could not
have found Pheasant guilty of involuntary manslaughter.
Accordingly, we find that the district court did not
abuse its discretion in refusing to instruct the jury on the
voluntary and involuntary manslaughter as lesser included
offenses of murder. See Stotts, 113 F.3d at 496. We therefore
affirm Pheasant’s conviction for murder. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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