People v. Pouncey

471 N.W.2d 346 (1991)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

D and his two friends, White and Johnston, were at White's home. They left White's house, drove around the corner to the home of Bland, and accused him of stealing White's car. Bland denied stealing the car. D and his friends returned to White's home. As they pulled into the driveway of White's home, Bland, accompanied by his older brother and Powers, approached. Bland repeatedly denied knowing anything about the theft. White went into his house and did not come back outside until after the shooting. D, as well as Johnston, the two Bland brothers, and Powers, remained outside. Powers threatened to put D 'on his head' and called the D names. Powers walked towards D, but Bland held him back. D said 'don't walk up on me.' There were no blows struck and no physical contact. Powers was not armed. D walked into the house retrieved a shotgun and came back outside. D instructed Johnston to hit Powers with a monkey wrench. Johnston swung the wrench, but Powers ducked out of the way. D fired one shot, hitting Powers in the abdomen. Johnston ran home, as did the two Bland brothers, who called the police. D and White drove off in D's car. D testified that at the time that he went into the house to retrieve the gun, he was not angry. The judge instructed the jury on first-degree murder, second-degree murder, involuntary manslaughter, and careless and reckless use of a firearm resulting in death. The judge refused an instruction on voluntary manslaughter, finding that the evidence offered at trial did not support this offense. The jury found D guilty of second-degree murder and felony firearm. The Court of Appeals reversed the decision holding there was sufficient evidence of provocation and passion in the record to support an instruction on voluntary manslaughter. P appealed.