Opinion
No. COA10-1267
Filed 19 July 2011 This case not for publication
Appeal by defendant from judgments entered 13 May 2010 by Judge Eric L. Levinson in Gaston County Superior Court. Heard in the Court of Appeals 11 May 2011.
Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for defendant-appellant.
Gaston County Nos. 08 CRS 12489, 08 CRS 60755
Defendant Michael Levonne Grier appeals his convictions for first-degree murder and possession of a firearm by a felon. After careful review, we find no error.
Facts
The State presented evidence at trial tending to establish the following facts: In July 2008, defendant was living at 542 Belfast Drive ("Belfast home"), in Gastonia, North Carolina, in a home owned by his mother. At the time, defendant was unemployed, had no car, and his mother was paying his bills. When defendant's mother would go over to the Belfast home, she often saw people "hanging around the house," even when defendant was not at home. Not liking the situation, she went to the Belfast home at around 10:00 a.m. on 23 July 2008 and told defendant that he needed to move out of the house.
At approximately 11:45 p.m. on 23 July 2008, Drucilla Isles, who lived two or three houses down from defendant on Belfast Drive, was driving home from work when she saw a man lying face down in the road. Ms. Isles went inside her house and called 911. Officers with the Gastonia Police Department responded to Belfast Drive, secured the scene in the middle of the road, and, since a crowd had started to gather, covered the body with a tarp.
Sometime around 3:00 a.m., after canvassing the crowd, officers identified the body as being Kevin Washington, a friend of defendant's who had been "hanging out" at his house "almost daily" for several weeks, and learned that he had been there earlier that evening. The officers went to defendant's house, which was dark, and knocked on the front door. When they got no response, the officers went around the side of the house to knock on the side door. As they were doing so, they discovered blood on the top of the fence enclosing the back yard. At 5:05 a.m., the SWAT team gained entry of the Belfast home, where they detected the odor of bleach, which grew stronger as they approached the kitchen. In the kitchen, officers found a bottle of bleach, a mop, and a bloody dustpan on the floor. There was blood on the floor between the kitchen table and the door leading outside. There was also blood on the doorknob, as well as on the interior and exterior surfaces of the door. The officers also found two bullets on the floor, one near the kitchen sink and the other between the kitchen table and the side door. There was also a crack pipe and other drug paraphernalia on the kitchen table.
Detective Mike Chambers was sitting in his patrol car at roughly 5:30 a.m., when he saw defendant walking up Belfast Drive toward his house. When Detective Chambers told defendant that the police had been looking for him, he indicated that he had been "walking around." Detective Chambers and defendant walked together toward the Belfast home, where his mother was standing outside talking with officers. As defendant approached his mother, — without anyone having told defendant about the homicide, and the body already having been removed from the street — defendant stated: "I didn't do it, I left him there." At this point, defendant's mother, a retired police officer, asked Detective Chambers to put defendant in a police car for his safety.
The doctor performing the autopsy found six gunshot wounds, including a lethal gunshot wound to Mr. Washington's right upper chest that "injured his internal organs" and resulted in "massive blood loss." The doctor also recovered two bullets from Mr. Washington's body — one from the chest wound and the other from his face — that matched the two bullets found on defendant's kitchen floor.
Defendant was subsequently arrested and charged with first-degree murder, possession of a firearm by a felon, and having attained habitual felon status. After defendant's first trial resulted in a mistrial, defendant was tried again, where he was found guilty of first-degree murder and possession of a firearm by a felon. The State elected not to proceed on the habitual felon indictment, and the trial court sentenced defendant to life imprisonment without parole on the first-degree murder conviction, followed by a presumptive-range term of 20 to 24 months imprisonment for the firearm possession charge. Defendant gave notice of appeal in open court.
I
Defendant first argues that, as the evidence at trial supported submission of second-degree murder as a possible alternative verdict to first degree-murder, the trial court erred in not instructing the jury on the lesser included offense. A "[d]efendant is `entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.'" State v. Leazer, 353 N.C. 234, 237, 539 S.E.2d 922, 924 (2000) (quoting Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 847 (1973)). "The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements." State v. Leroux, 326 N.C. 368, 378, 390 S.E.2d 314, 322 (1990). Thus the "sole factor" in determining whether the trial court is required to instruct on a lesser included offense is "the presence, or absence, of any evidence in the record which might convince a rational trier of fact to convict the defendant of a less grievous offense." State v. Wright, 304 N.C. 349, 351, 283 S.E.2d 502, 503 (1981). In making and in reviewing this determination, the evidence must be viewed in the light most favorable to the defendant. State v. Barlowe, 337 N.C. 371, 378, 446 S.E.2d 352, 357 (1994).
Defendant was charged with first-degree murder, which is defined as "the unlawful killing of a human being with malice and with premeditation and deliberation." State v. Fleming, 296 N.C. 559, 562, 251 S.E.2d 430, 432 (1979); N.C. Gen. Stat. § 14-17 (2009). Second-degree murder, which is a lesser included offense of first-degree murder, State v. Larry, 345 N.C. 497, 517, 481 S.E.2d 907, 918 (1997), is defined as the "the unlawful killing of a human being with malice but without premeditation and deliberation[,]" State v. Duboise, 279 N.C. 73, 81, 181 S.E.2d 393, 398 (1971); N.C. Gen. Stat. § 14-17. "If the evidence satisfies the State's burden of proving each element of first-degree murder, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial, the trial court should exclude second-degree murder from the jury's consideration." State v. Geddie, 345 N.C. 73, 94, 478 S.E.2d 146, 156 (1996).
A homicide is "premeditated" if "the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing." State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991). And the homicide is "deliberate" when the defendant executes the intent to kill "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. As "[p]remeditation and deliberation are mental processes" they "ordinarily are not susceptible to proof by direct evidence," and thus are typically proven, if at all, by circumstantial evidence. State v. Graves, 343 N.C. 274, 278, 470 S.E.2d 12, 15 (1996). Circumstances from which premedication and deliberation may be inferred include: (1) the lack of provocation by the victim; (2) the conduct and statements of the defendant before and after the killing; (3) any threats or declarations of the defendant before or during the incident resulting in the killing; (4) animosity or prior difficulty between the parties; (5) the dealing of "lethal blows" after the victim 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. State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991).
With respect to provocation, defendant points to the testimony of Desiree Haulk indicating that she spoke with Mr. Washington on his cell phone at around 10:00 p.m. on 23 July 2008, roughly an hour before he was killed; that he told her that someone had "gypped" him out of some money, giving him a $5.00 bill instead of a $50.00 bill; that he was "going to go take care of it"; and, that during a subsequent phone conversation occurring around 10:45 p.m., Mr. Washington told Ms. Haulk to pick him up at defendant's house. Defendant contends that Ms. Haulk's testimony "is some evidence from which the jury could infer that [defendant] was the person who gypped [Mr. Washington] out of some money." From this inference, defendant argues, the jury could further conclude that Mr. Washington, "believing [defendant] had cheated him out of money, went to [defendant]'s house and provoked an argument that led to the shooting." Defendant acknowledges in his brief, however, that Ms. Haulk indicated that Mr. Washington did not tell her who had "gypped" him out of the money. As our Supreme Court has held, "mere speculation is not sufficient to negate evidence of premeditation and deliberation." State v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 67 (1998). More significantly, however, Ms. Haulk testified that Mr. Washington told her that he was going to defendant's house to "plug his [cell] phone up because his battery was going dead. . . ." Consequently, the evidence at trial failed to demonstrate any provocation on the part of Mr. Washington.
Defendant's statements and conduct after the killing also support an inference of premedication and deliberation. Jaspar Lowery, whom defendant describes as a "jailhouse snitch," testified that defendant told him that he had "killed the motherfucker," referring to Mr. Washington. The evidence also tends to show that defendant, when he returned to his house after "walking around" for approximately six hours, stated: "I didn't do it, I left him there." (Emphasis added.) Notably, at the time defendant made this statement, Mr. Washington's body had been removed and defendant had not been told by anyone at the crime scene that Mr. Washington had been killed.
This evidence, excluding defendant's denial, tends to show that defendant knew that Mr. Washington had been fatally injured and, instead of attempting to get medical help, left the scene and went on a six-hour walk. Our courts have held similar circumstances to be evidence of premeditation and deliberation. See State v. Sierra, 335 N.C. 753, 759, 440 S.E.2d 791, 795 (1994) (finding "evidence of premeditation and deliberation" where "[d]efendant did not check on his victim after he shot him, instead leaving him to die" and "[a]fter the shooting, defendant returned home, hid the murder weapon, and went to sleep"); State v. Hunt, 330 N.C. 425, 428, 410 S.E.2d 478, 481 (1991) (concluding evidence supported finding of premeditation and deliberation where, during scuffle with victim, defendant shot victim several times, and then "left the deceased to die without attempting to obtain assistance for the deceased").
With respect to ill-will between defendant and Mr. Washington, the evidence shows that both men were friends with Tammy Smith, but that, in the "few weeks" prior to the incident on 23 July 2008, defendant's relationship with Ms. Smith had become "closer." Torrence Smith, a long-time friend and neighbor of defendant's, testified that defendant believed that "something might have happened" between Mr. Washington and Ms. Smith at his house and that he was "disappointed." Thus there is some — albeit weak — evidence of animosity between defendant and Mr. Washington supporting an inference of premeditation and deliberation.
Defendant, however, contends that the evidence of the friction between defendant and Mr. Washington regarding Ms. Smith supports his argument that the shooting was committed without premeditation and deliberation and thus the jury should have been instructed on second-degree murder. Specifically, defendant points to Mr. Lowery's testimony that defendant, Mr. Washington, and Ms. Smith were smoking crack at defendant's house on 23 July 2008, prior to the shooting. When defendant returned to the house after going out to buy some cigarettes, defendant saw that Ms. Smith had some "dope." Believing that Ms. Smith "didn't have no money" to pay for the drugs, defendant got into an "argument" with Ms. Smith, accusing her of giving Mr. Washington a "blow job" in exchange for the crack. This evidence, defendant contends, suggests that "[defendant] became so angry that the shooting occurred spontaneously while he was in the middle of an argument with [Ms. Smith] or [Mr. Washington] or both of them."
Defendant's argument, however, is premised on "mere speculation." Gary, 348 N.C. at 524, 501 S.E.2d at 67. Mr. Lowery did not specify when defendant's argument with Ms. Smith occurred in relation to the shooting. Nor did he provide any testimony that would support a reasonable inference that the argument escalated to such a level that "the emotions produced by the scuffle or quarrel . . . overc[a]me . . . defendant's faculties and reason." State v. Harden, 344 N.C. 542, 555, 476 S.E.2d 658, 664 (1996), cert. denied, 520 U.S. 1147, 137 L. Ed. 2d 483 (1997). Mr. Lowery's testimony, moreover, mentions only an argument between defendant and Ms. Smith; he does not indicate that there was any quarrel between defendant and Mr. Washington.
"The nature and number of the victim's wounds is another indicator of premeditation and deliberation." Leazer, 353 N.C. at 239, 539 S.E.2d at 926. The pathologist that performed the autopsy testified that Mr. Washington suffered six gunshot wounds: a "lethal gunshot wound to the right upper chest"; two shots to his face; two "graze" shots to the back of his left shoulder; and, one "through-and-through wound" to his left arm. Our Supreme Court has held that premeditation and deliberation may be inferred from defendant's firing multiple shots, inflicting multiple wounds, because "some amount of time, however brief, for thought and deliberation must elapse between each pull of the trigger." State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653 (1987). The multiple gunshot wounds to Mr. Washington's head and chest as well as to his shoulder and arm are evidence that defendant shot Mr. Washington with deliberation and premeditation. See Sierra, 335 N.C. at 759, 440 S.E.2d at 795 ("[T]he nature and number of the victim's wounds provided evidence that the killer premeditated and deliberated. In the case at hand, defendant fired a .9-millimeter Ruger pistol at the victim at least six times. . . . The victim was unarmed and was hit three times."). As the Supreme Court observed in Leazer, 353 N.C. at 239, 539 S.E.2d at 926, "[n]o matter what defendant's intent may have been before he inflicted the first wound, there was adequate time between each [shot] for defendant to have premeditated and deliberated his actions."
In sum, we are compelled to conclude that the evidence in this case does not support the submission of second-degree murder to the jury as a possible alternative verdict. Even when considered in the light most favorable to defendant, as is required under the applicable standard of review, "[b]ecause there was positive, uncontradicted evidence of each element of first-degree murder, an instruction on second-degree murder was not required." Leazer, 353 N.C. at 240, 539 S.E.2d at 926. The trial court, therefore, properly "exclude[d] second-degree murder from the jury's consideration." Geddie, 345 N.C. at 94, 478 S.E.2d at 156.
II
Defendant next contends that the trial court erred in its instructions to the jury concerning the testimony and credibility of the prosecution's witness Mr. Lowery. During the charge conference, the trial judge asked the prosecutor and defense counsel if either objected to giving the jury an instruction on informant testimony in addition to an instruction on interested witnesses. The prosecutor objected, arguing that the interested witness instruction more appropriately addressed Mr. Lowery's testimony. Although defense counsel argued in favor of giving an instruction on informant testimony, the trial court ultimately agreed with the State, denied defense counsel's oral request, and instructed the jury according to the pattern jury instruction on the treatment of testimony of an interested witness, which provides:
You may find that a witness is interested in the outcome of this trial. In deciding whether or not to believe such a witness, you may take the witness's interest into account. If, after doing so, you believe the testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
N.C.P.I. — Crim. 104.20. Although defense counsel failed to submit a written proposed jury instruction or identify a specific pattern jury instruction during the charge conference, defendant now argues on appeal that the trial court erred in not instructing the jury according to N.C.P.I. — Crim. 104.30, which provides:
You may find from the evidence that a State's witness is interested in the outcome of this case because of the witness' activities as an informer. If so, you should examine such testimony with care and caution in light of that interest. If, after doing so, you believe the testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
N.C. Gen. Stat. § 15A-1231(a) (2009) "provides for conferences on jury instructions and states that `any party may tender written instructions.'" State v. McNeill, 346 N.C. 233, 240, 485 S.E.2d 284, 288 (1997) (quoting N.C. Gen. Stat. § 15A-1231(a)), cert. denied, 522 U.S. 1053, 139 L. Ed. 2d 647 (1998). "[W]here `a specifically requested jury instruction is proper and supported by the evidence, the trial court must give the instruction, at least in substance.'" State v. Jones, 337 N.C. 198, 206, 446 S.E.2d 32, 36 (1994) (quoting State v. Ford, 314 N.C. 498, 506, 334 S.E.2d 765, 770 (1985)). Requested special instructions, however, "`should be submitted in writing to the trial judge at or before the jury instruction conference.'" State v. Augustine, 359 N.C. 709, 729, 616 S.E.2d 515, 530 (2005) (quoting Rule 21 of the General Rules of Practice for the Superior and District Courts), cert. denied, 548 U.S. 925, 165 L. Ed. 2d 988 (2006). Thus, where, as here, "the defendant fails to submit his request for instructions in writing," the "trial court's ruling denying [the] requested instructions is not error. . . ." McNeill, 346 N.C. at 240, 485 S.E.2d at 288; see also State v. Martin, 322 N.C. 229, 237, 367 S.E.2d 618, 623 (1988) ("The defendant in this case did not submit his request for instructions in writing. We hold it was not error for the court not to charge on this feature of the case."); State v. Craig, 167 N.C. App. 793, 794, 606 S.E.2d 387, 387 (2005) ("Defendant contends the trial court erred by denying his request to give a special instruction on the defense of justification of possession of a firearm by a felon. Where, as here, Defendant failed to submit the special instruction in writing, the trial court did not err[] by declining to give it.").
In any event, the instruction given by the trial court "covered the essence of defendant's request." Augustine, 359 N.C. at 729, 616 S.E.2d at 530. In arguing for giving the jury the instruction on informant testimony, defense counsel stated: "I'll just simply say, your Honor, I think [Mr. Lowery] does have an interest. I mean, he does not get his deal until this case is concluded." The transcript indicates that defense counsel's "real interest" in advocating for the instruction on informant testimony was that the jury should know of Mr. Lowery's deal with the State, in which he agreed to testify at defendant's trial consistent with his statement to the police, in which he indicated that defendant told him that he killed Mr. Washington, in exchange for dismissal of several drug charges and an agreed-upon sentence for the remaining charges, and that the jury should have the opportunity to determine the impact, if any, of Mr. Lowey's plea agreement on the credibility of his testimony against defendant. Id. "Because the instructions substantively reflected the concept defendant wished to convey to the jury, defendant has failed to demonstrate that the instruction was deficient." Id. at 730, 616 S.E.2d at 530 (internal citations and quotation marks omitted).
Defendant also contends that the trial court should have instructed the jury regarding Mr. Lowery's testimony according to the pattern jury instruction concerning testimony of a witness with immunity or quasi-immunity, which provides:
There is evidence which tends to show that a witness was testifying under an agreement with the prosecutor for a charge reduction in exchange for the testimony. If you find that the witness testified in whole or in part for this reason you should examine this testimony with great care and caution in deciding whether or not to believe it. If, after doing so, you believe the testimony in whole or in part, you should treat what you believe the same as any other believable evidence.
N.C.P.I. — Crim. 104.21.
Acknowledging that he failed to request this instruction at trial, defendant, on appeal, requests plain error review. Under this standard, "the appellate court must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt." State v. Odom, 307 N.C. 655, 661, 300 S.E.2d 375, 379 (1983). As our appellate courts have recognized, "`[i]t is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'" Id. at 661, 300 S.E.2d at 378 (quoting Henderson v. Kibbe, 431 U.S. 145, 154, 52 L. Ed. 2d 203, 212 (1977)).
Contrary to defendant's contention, this Court has held that a trial court's omission of a jury instruction concerning the testimony of a witness testifying pursuant to a grant of quasi-immunity does not constitute error in the absence of a specific request by the defendant for such an instruction. See State v. Aldridge, 67 N.C. App. 655, 658, 314 S.E.2d 139, 142 (1984) ("Where testimony is given pursuant to such `quasi-immunity,' the trial court is not required to give a special interested witness instruction absent a request."); State v. Maynard, 65 N.C. App. 81, 83-84, 308 S.E.2d 665, 667-68 (1983) (concluding that trial court did not err in failing to give quasi-immunity instruction where "[t]here was no special request" for such an instruction), disc. review denied, 310 N.C. 628, 315 S.E.2d 694 (1984).
Even assuming error for the sake of argument, defendant cannot demonstrate prejudice. Defendant had the opportunity to cross-examine Mr. Lowery regarding his "great deal" with the State as well as to argue to the jury that the deal motivated Mr. Lowery's testimony and had an impact on his credibility. Given that the jury had before it evidence of the initial charges against Mr. Lowery, his statement that he contacted the police because he was "hoping [he] might get something" in exchange for the information, and the details of the resulting plea agreement defendant has failed to show that the trial court's refusal to give the N.C.P.I. — Crim. 104.21 instruction had a probable impact on the jury's finding defendant guilty. See State v. Mewborn, 178 N.C. App. 281, 293, 631 S.E.2d 224, 232 (2006) (finding no prejudice from trial court's refusal to give N.C.P.I. — Crim. 104.21 instruction where "defendant had the opportunity to cross-examine [witness] about any alleged agreement and to argue to the jury regarding the impact of any alleged agreement upon [witness'] credibility" and "jury had before it evidence of [witness'] arrest, the charges pending against [witness], his cooperation with police, his plea agreement, and his pending sentencing hearing"). Defendant's arguments are overruled.
No Error.
Judges BRYANT and McCULLOUGH concur.
Report per Rule 30(e).