Opinion
No. COA12–1515.
2013-06-4
STATE of North Carolina v. Venisha Chakhan BAJJA.
Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.
Appeal by Defendant from Judgment signed 15 March 2012 by Judge F. Lane Williamson in Gaston County Superior Court. Heard in the Court of Appeals 23 April 2013. Attorney General Roy Cooper, by Assistant Attorney General Jess D. Mekeel, for the State. Glover & Petersen, P.A., by Ann B. Petersen, for Defendant.
STEPHENS, Judge.
Factual and Procedural Background
During the 12 March 2012 criminal session of Gaston County Superior Court, Venisha Chakhan Bajja (“Defendant”) was tried on the charge of first-degree murder. The evidence presented at trial tended to show the following:
On 21 February 2011, Ms. Crystalyn Sanders (“Sanders”) was in her bedroom getting ready for bed when she heard “a lot of arguing outside.” She looked out her window and noticed two women standing across the street wearing long, white t-shirts. The two women were later identified as Ms. Cambria Cannon (“Decedent”) and Ms. Cecilia Moses (“Moses”). As Decedent and Moses argued with Defendant, who was standing across the street from them on the steps leading into her home, Moses was attempting to calm Decedent down. The argument continued and Defendant came down her front steps toward the street. At the same time, Moses and Decedent headed toward Defendant. Sanders testified that, at that point, Decedent appeared as if she was going to start fighting with Defendant. Once Moses and Decedent reached Defendant, however, they began to run in the other direction. As they ran, Defendant “raise[d] her hand and [shot] the gun,” which emitted a “blue flame.”
Moses's first name is spelled three different ways in the materials presented to this Court. Defendant refers to her as “Cecilia,” the State refers to her as “Cecelia,” and the transcript refers to her as both “Cecila” and “Cecilia.” Because the first and last listed variation on Moses's first name appears more frequently than the others, we employ it here.
A shot “rang out,” and Decedent fell down in the street. At that moment, Defendant ran back into her house and, after a minute, ran back out to where Decedent was lying. Defendant and Moses hovered over Decedent for a few minutes before a white car drove up. The driver asked if they needed help and, after hearing their response, drove off. No one called out for help, but Defendant stayed beside Decedent until the paramedics came.
Defendant had known Decedent for about eight years and had been in a relationship with her for more than six of those years. They dated exclusively from 14 June 2004 through January of 2010 before breaking up due to excessive fighting. They got back together in September of 2010 and continued to see each other up to the night of the shooting, no longer dating exclusively. That night, with Decedent's consent, Defendant was dating Moses. In the hours leading up to the shooting, all three women were hanging out and drinking at Defendant's cousin's home. As the evening came to a close, the three women returned to Defendant's house and tensions rose over the sleeping arrangements.
Decedent and Moses wanted the three of them to share a bed together, but Defendant refused. An argument broke out, and Defendant went outside to get away. Moses and Decedent followed her, and Defendant returned inside—leaving them out. Telling her that they wanted back in, Decedent and Moses kicked on the door until they were admitted. One of them began to pull Defendant's hair, and Defendant retreated into her bedroom. Decedent followed her and began cursing, pulling Defendant's hair at the same time. Moses was eventually able to pull Decedent off of Defendant, whose shirt had been ripped, and the two of them went back outside. Shortly thereafter, Defendant followed them outside and asked them to leave. A drink was thrown at Defendant, who then slammed her front door closed, again leaving the two women outside. The entire argument lasted between thirty and forty-five minutes.
Though Defendant testified that she “had scratches and stuff and bruises” as a result of the fight, the investigating detective testified to the contrary, noting that there was no swelling on her face, no cuts or contusions, no blood, and no scratches.
Angry about her hair, Defendant changed clothes and retrieved her gun from under the bed. She had purchased the gun for protection earlier that month because someone had broken into her home. Gun in hand, she went outside and cursed at Decedent. Defendant testified that she took the gun with her to frighten Moses and Decedent into leaving. Defendant said that she started bouncing the gun in her hand as Decedent was walking toward her. All of a sudden, she heard a “popping sound” and saw Decedent running. She heard Decedent say “[y]ou hit me” and watched her fall onto the curb and into the street. Defendant testified that the shooting was accidental and that she did not know the gun was loaded. When asked why she pulled the trigger, Defendant stated that the gun “ended up going off while it was in my hand. I didn't even realize it.” Defendant also testified that there was no blue flame and no recoil from the shot.
After Decedent fell, Defendant rushed back to her house and hid the gun inside a vacuum cleaner box located in her closet. She testified that she did this because she was worried that the police would not let her go with Decedent to the hospital if they knew about the gun. She then went out to Decedent and told Moses to call 911. When the police arrived, Defendant told them that Decedent was injured in a drive-by shooting and confirmed that assertion shortly thereafter in a written statement. When the detective informed Defendant that “accidents happen[ ],” however, she told him she would take him inside her home and show him where her gun was. When they got inside, Defendant changed her mind and informed the detective that she did not have a gun. Having just submitted to a gunshot residue test, she stated that she had fired a gun earlier that day, but did not own or have one in the house. Then, when the officers found the gun in the vacuum cleaner box, Defendant blurted out: “I didn?t mean to shoot her.” When asked at trial why she was not forthright with the officers from the beginning, Defendant reiterated that she had wanted to go to the hospital with Decedent and believed that telling the truth would make that difficult or impossible.
Once police arrived at the scene of the shooting, an officer began to look for shell casings near Defendant's house. Directly in front of the house, near the curb, the officer found one such casing . Another officer confirmed that the casing was found, specifically, about thirty feet from the front door of the house and seventy-six feet from where Decedent had fallen. The State's forensic firearms and toolmark identification expert testified that the casing found near the house was a match to the three unfired cartridges in Defendant's gun and the bullet found in Decedent's body. She further testified that Defendant's gun, when fully loaded, could hold six cartridges.
No other shell casings were discovered.
The State's expert also clarified that Defendant's gun was a semi-automatic, single-action weapon with a manual safety switch. A semi-automatic weapon does not require the user to reload a new cartridge for each separate shot; a single-action weapon is one that must be cocked before it can be used. Such a weapon is cocked by “pulling the slide back and then ... releasing it forward.” When the expert tested the gun, she noted that there was some difficulty getting the slide to retract “due to excessive ... lubricant buildup.” She could not recall, however, “whether it was just really slow or whether it didn? t move at all.” The expert also noted that the gun's trigger required four pounds of pressure in order to fire consistently.
The gun consistently failed to fire when only three pounds of pressure was placed on the trigger.
Decedent died from her injuries at 4:49 a.m. on 22 February 2011. After performing the autopsy, the State's medical examiner confirmed that Decedent “died from bleeding to death from the gunshot wound.” She testified that the bullet entered Decedent's left flank and ended up over her right hip toward the front of her body. Thus, the bullet crossed both from the left side of the body to the right and from the back of the body to the front, at a downward angle. The medical examiner also noted that Decedent had a bruise around her left eye, which had become swollen, and had bruises on her left upper and lower lips. She also had at least three superficial lacerations on the left side of her neck.
The “flank” is “[t]he part of the body of a person ... between the last rib and the hip; the side.” American Heritage College Dictionary 517 (3d ed.1997).
The State offered evidence that at least three calls were placed to 911 after the shooting, all before midnight, on 21 February 2011. At 11:53:05 p.m., the first caller reported that “someone's out here shooting.” She informed the operator that there were three females outside arguing, one of whom was shooting, and that she heard two gunshots. The second call was made less than a minute later, at 11:53:48 p.m. The caller reported that someone had been shot and was lying on the side of the road. She also stated that she heard “like three or four gunshots,” which caused her to jump up out of bed. About a minute after that, at 11:55:02 p.m., Moses called 911 to request an ambulance. When asked if the person who shot Decedent was still there, Moses said, “No, they just rolled by.” At the same time, another voice called out, “No, they just rolled past.” At that point, the other party took over the phone and became defensive and angry with the operator, eventually hanging up.
Audio recordings of the calls, marked State's Exhibit 3, were admitted into evidence and published to the jury.
The recording suggests—and the State argues—that this party was Defendant.
Defendant moved to dismiss the charge of first-degree murder at the close of the State's evidence, alleging that the State had failed to prove premeditation and deliberation. That motion was denied. Defendant renewed her motion at the close of all the evidence, and it was again denied. On 15 March 2012, a jury found Defendant guilty of first-degree murder. She was sentenced to life in prison without the option of parole. Defendant gave notice of appeal in open court at the end of the trial.
Standard of Review
The sole issue argued on this appeal is whether the evidence was sufficient to send the charge of first-degree murder to the jury. “This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E .2d 29, 33 (2007). On appellate review, “the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, ... and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied.” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (citation omitted), cert. denied, 531 U.S. 890, 148 L.Ed.2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78–79, 265 S.E.2d 164, 169 (1980).
“In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994), cert. denied,515 U.S. 1135, 132 L.Ed.2d 818 (1995).
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and quotation marks omitted; emphasis and brackets in original).
Discussion
Defendant argues that the trial court erred in denying her motion to dismiss because “the evidence was insufficient to prove premeditation and deliberation.” We disagree.
“In order to convict a defendant of premeditated, first-degree murder, the State must prove: (1) an unlawful killing; (2) with malice; (3) with the specific intent to kill [another living human being] formed after some measure of premeditation and deliberation.” State v. Peterson, 361 N.C. 587, 595, 652 S.E.2d 216, 223 (2007) (citations omitted), cert. denied,552 U.S. 1271, 170 L.Ed.2d 377 (2008); see alsoN.C. Gen.Stat. § 14–17 (2011). “Premeditation means that the act was thought out beforehand for some length of time, however short[;] no particular amount of time is necessary for the mental process of premeditation.” State v. Bullock, 326 N.C. 253, 257, 388 S.E.2d 81, 83 (1990) (citation omitted). “Deliberation means an intent to kill, carried out in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.” Id. (citation omitted). “[T]he term cool state of blood' does not mean an absence of passion and emotion. One may deliberate, may premeditate, and may intend to kill after premeditation and deliberation, although prompted and to a large extent controlled by passion at the time.” State v. Vause, 328 N.C. 231, 238, 400 S .E.2d 57, 62 (1991) (citations and certain quotation marks omitted).
An unlawful killing is deliberate and premeditated if done as part of a fixed design to kill, notwithstanding the fact that the defendant was angry or emotional at the time, unless such anger or emotion was strong enough to disturb the defendant's ability to reason. The requirement of a “cool state of blood” does not require that the defendant be calm or tranquil. The phrase “cool state of blood” means that the defendant's anger or emotion must not have been such as to overcome the defendant's reason.
State v. Hunt, 330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991) (citations omitted).
Premeditation and deliberation are processes of the mind. In most cases, they are not subject to proof by direct evidence but must be proved, if at all, by circumstantial evidence. Among other circumstances from which premeditation and deliberation may be inferred are (1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulty between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds.
Vause, 328 N.C. at 238, 400 S.E.2d at 62 (citation omitted). Other indicators of premeditation and deliberation include:
(1) entering the site of the murder with a weapon, which indicates the defendant anticipated a confrontation and was prepared to use deadly force to resolve it; (2) firing multiple shots, because some amount of time, however brief, for thought and deliberation must elapse between each pull of the trigger; (3) pausing between shots; and (4) attempting to cover up involvement in the crime.
State v. Taylor, 362 N.C. 514, 531, 669 S.E.2d 239, 256 (2008) (citations omitted), cert. denied,558 U.S. 851, 175 L.Ed.2d 84 (2009). “No fixed length of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree[;] it is sufficient if these processes occur prior to, and not simultaneously with, the killing.” State v. Walters, 275 N.C. 615, 623, 170 S.E.2d 484, 490 (1969) (citation and quotation marks omitted).
Defendant argues that the State failed to provide sufficient evidence of premeditation and deliberation because “there was no evidence of any hatred, ill[-]will[,] or violence between [Defendant] and [Decedent],” Decedent only had “one significant wound,” Decedent initiated the physical altercation, and, after the shooting, Defendant appeared “hysterical” and concerned for Decedent's welfare. In support of her argument, Defendant cites to two cases: State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981), and State v. Williams, 144 N.C.App. 526, 548 S.E.2d 802 (2001), affirmed per curiam,355 N.C. 272, 559 S.E.2d 787 (2002). She alleges that because the Supreme Court and this Court found that the State's evidence was insufficient to support a finding of premeditation and deliberation in those cases—where the defendants shot their victims immediately after they were physically attacked—we must find error in this case as well. We disagree.
In Corn, our Supreme Court awarded a new trial when the evidence showed that the victim had attacked the defendant in the defendant's home while he was resting on the couch. Corn, 303 N .C. at 298, 278 S.E.2d at 224. As the altercation escalated, the defendant shot the victim in the leg. Id. at 295, 278 S.E.2d at 222. When the victim kept moving toward him, the defendant shot him again “several times in the chest.” Id. When police arrived, the victim was dead, and they found the defendant in his home repeatedly stating that he “killed the son-of-a-bitch.” Id. Holding that “the State [had] failed to show by substantial evidence that [the] defendant killed [the victim] with premeditation and deliberation,” the Court reasoned that the shooting was a sudden event, brought on by the victim. Id. at 297, 278 S.E.2d at 223. The Court pointed out that there was no evidence that the defendant “acted in accordance with a fixed design or that he had sufficient time to weigh the consequences of his actions” and pointed out that there was no history of ill-will between the parties. Id. at 298, 278 S.E.2d at 224.
In Williams, we addressed a scenario in which the victim's friend was involved in a fight with a third party. Williams, 144 N.C.App. at 527, 548 S.E.2d at 803. When the victim attempted to break up the fight, the defendant pushed him back and told the victim to allow a “one on one fight.” Id. The victim “then punched [the defendant] in the jaw, causing him to stagger backwards several feet. [The defendant] produced a handgun and fired a shot which struck [the victim] in the neck” and eventually killed him. Id. at 527, 548 S.E.2d at 804. Noting that murder is not deliberate and premeditated if the purpose to kill was “formed and immediately executed in a passion, especially if the passion was aroused by a recent provocation of mutual combat,” and citing Corn, we determined that there was not sufficient evidence to support a conviction of first-degree murder. Id. at 530–31,548 S.E.2d at 805–06 (citation omitted). In so holding, we relied on the fact that the defendant had immediately retaliated against the victim's assault and that there was no evidence of animosity between the victim and the defendant. See id. at 531, 548 S.E.2d at 805.
In this case, unlike Corn and Williams, the evidence does not show that Defendant immediately retaliated against Decedent. While there is evidence that Decedent initiated the physical altercation, the two parties were entirely separate leading up to and at the moment Decedent was shot. Defendant was in her home before the shooting—where she was completely safe—while Decedent was outside in the street. Instead of immediately reacting to an assault by Decedent, Defendant went to her bedroom, changed her clothes, pulled her gun out from underneath her mattress, and left the safety of her home to confront Moses and Decedent. The State's evidence shows that Defendant then raised her hand, pointed the weapon at Decedent, who had begun to run away, and fired. This is ample evidence of premeditation and deliberation. See also Taylor, 362 N.C. at 531, 669 S.E.2d at 256 (noting that entering the site of the murder with a weapon constitutes evidence of premeditation and deliberation); Hunt, 330 N.C. at 428, 410 S.E.2d at 481 (characterizing the fact that the victim was fleeing when he was killed as evidence of premeditation and deliberation).
The fact that Decedent was running away when she was shot is supported by the testimony of Sanders, the neighbor, as well as the testimony of the medical examiner, who determined that the bullet traveled from Decedent's back left flank downward and to the right before it stopped above her right hip.
Unlike the parties in Corn and Williams, Decedent and Defendant had a history of fighting with one another. Though Defendant asserts that there is no evidence of “hatred, ill[-] will[,] or violence,” the State correctly contends that such animosity is not required for a finding of premeditation and deliberation. Instead, the State argues it is sufficient to show “ill-will or previous difficulty between the parties.” See also Vause, 328 N.C. at 238, 400 S.E.2d at 62. As Defendant admitted breaking up with Decedent because of too much fighting, evidence of previous difficulty between the parties was present here.
In support of its argument that the trial court did not err in denying Defendant's motion to dismiss, the State also points to evidence that Defendant fired multiple shots and attempted to cover up her involvement in the case, facts that further indicate premeditation and deliberation. See Taylor, 362 N.C. at 531, 669 S.E.2d at 256. Specifically, the State cites evidence that: (1) the first two 911 callers remembered hearing two and “three or four” shots fired, respectively; (2) the forensic firearms expert testified that the gun only had three of a possible six bullets remaining in the chamber; (3) Defendant made a statement to one of the officers that she heard “two loud popping [sounds], like a firecracker”; (4) Defendant hid the gun in a vacuum cleaner box in order to conceal her involvement in the crime; and (5) Defendant lied to the police on multiple occasions about the extent of her involvement in the shooting.
Giving the State the benefit of every reasonable inference and resolving any contradictions in its favor, we conclude that the evidence of premeditation and deliberation presented at trial was more than sufficient to support the trial court's denial of Defendant's motion to dismiss.
NO ERROR. Judges McGEE and HUNTER, JR., ROBERT N., concur.
Report per Rule 30(e).