US v. Samuel Pheasant

Filing 920090402

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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 Circuit Judge.

SHEDD,

Circuit

Judges,

and

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 offenses. and involuntary manslaughter as lesser included

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 This court reviews for abuse of discretion the United

Cir. 1993).

district court's denial of a requested jury instruction. 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 Manslaughter is defined as the 18 U.S.C.

being with malice aforethought."

"unlawful killing of a human being without malice." § 1112(a) (2006). 2

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. West to stop the truck.

Pheasant ordered

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. Pheasant ground. punching out Teesateskie, Pheasant ended Instead of up on the

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. "sudden quarrel" or "heat of passion." Elk, 658 F.2d 644, 649 (8th Cir. 1981). occurred hours earlier when There was no

See United States v. Rather, the provocation said something that After

Teesateskie

upset Pheasant and later punched Pheasant in the mouth. 3

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 Moreover, the forensic pathologist died of a single gunshot to the

shot from twenty yards away. testified that Teesateskie

"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 4

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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