Opinion
No. COA12–687.
2013-02-19
STATE of North Carolina v. Shawn Darnell HOWARD.
Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant.
Appeal by Defendant from judgments entered 15 November 2011 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 7 January 2013. Attorney General Roy Cooper, by Special Deputy Attorney General Jill Ledford Cheek, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Barbara S. Blackman, for Defendant.
DILLON, Judge.
Shawn Darnell Howard (Defendant) appeals from judgments entered upon his convictions for first degree murder and discharging a firearm into occupied property. After careful review, we find no error.
I. Factual & Procedural Background
The State's evidence at trial tended to show the following: On the morning of 29 July 2008, Defendant's landlord, Jacob Massachi (Mr. Massachi), went to Defendant's apartment to collect past-due rent. Mr. Massachi had permitted Defendant and Defendant's girlfriend, who was pregnant, to remain in the apartment for several weeks notwithstanding a previously entered eviction order. When Mr. Massachi determined that Defendant would be unable to pay the past-due rent that day, he asked two of his employees, David Smith (Mr. Smith) and David Baldwin (Mr. Baldwin), to begin moving Defendant's belongings out of the unit that afternoon.
Mr. Baldwin encountered Defendant on the way to the apartment unit and noted that Defendant was pacing and appeared to be upset. Defendant informed Mr. Baldwin that he was thinking of “wasting” Mr. Massachi. Mr. Baldwin testified that he did not take this statement seriously because he did not believe that anyone was “stupid” enough to carry out such a threat.
Mr. Baldwin and Mr. Smith began to move Defendant's furniture and belongings out of the unit. Defendant's girlfriend packed some clothes and left to stay at a neighbor's apartment for the time being. Defendant came and went from the unit and once attempted to stop Mr. Baldwin and Mr. Smith from removing some furniture. Following this incident, Defendant and Mr. Massachi again discussed the past-due rent, and Defendant asked Mr. Massachi to accept a check. Mr. Massachi left to determine whether Defendant's check was “good,” but returned shortly thereafter and directed Mr. Baldwin and Mr. Smith to proceed with the eviction.
Sometime after 4:00 p.m., Mr. Massachi decided to finish the eviction the following day, so he padlocked the door to the unit. Mr. Massachi walked with Mr. Baldwin and Mr. Smith to his van and entered the van; the driver's side window was down. As Mr. Massachi turned the ignition, Defendant approached the driver's side of the van from behind, armed with a 12–gauge shotgun. Defendant stated, “you not taking my check” and fired the gun at Mr. Massachi's head from point-blank range. Mr. Massachi died within minutes.
Following the shooting, Mr. Baldwin observed Defendant retreat down an alley, get into the passenger side of a car, and flee the scene. Defendant went to the apartment of a friend, Sheree Robinson (Ms. Robinson). Defendant informed Ms. Robinson that he had shot someone, but that he had “blanked out” during the shooting. Law enforcement officers apprehended Defendant later that evening.
Defendant was subsequently indicted on charges of first degree murder and discharging a firearm into occupied property. The matter came on for trial in Mecklenburg County Superior Court on 7 November 2011. During jury selection, the State exercised five peremptory strikes, one of which was used to strike Ernestine Nixon (Ms. Nixon), an African American, who stated during voir dire that she had testified as a witness in her son's murder trial and believed that her son's conviction was unfair. Defendant, also an African American, objected to the State's attempt to strike Ms. Nixon, contending that the peremptory challenge was racially motivated. Defendant pointed out that the State had not moved to strike Malla Meri (Ms. Meri), a Caucasian female, from the jury pool, despite the fact that Ms. Meri had stated that she had served a year in prison and also felt that she had been treated unfairly by the judicial system. The trial court determined that Defendant had failed to make a prima facie showing of discrimination and overruled Defendant's objection.
The State presented evidence detailing the factual account set forth above. Defendant did not present any evidence. On 15 November 2011, the jury returned verdicts convicting Defendant of first degree murder and discharging a firearm into an occupied vehicle. The jury convicted Defendant of first degree murder both “on the basis of malice, premeditation and deliberation” and “under the first degree felony murder rule.” (Original in all caps). The trial court sentenced Defendant to life imprisonment without parole for the murder conviction and to a term of 25 months to 39 months imprisonment for discharging a weapon into occupied property. Defendant appeals.
II. Analysis
Defendant first contends that the trial court erred in failing to instruct the jury on second degree murder. We disagree.
“[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “Failure to instruct upon all substantive or material features of the crime charged is error.” State v. Bogle, 324 N.C. 190, 195, 376 S.E.2d 745, 748 (1989).
“An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater.” State v. Millsaps, 356 N.C. 556, 561, 572 S.E.2d 767, 771 (2002).
The determinative factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense of murder in the first degree, including premeditation and deliberation, and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder.
State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). Even where a jury returns a verdict for both first degree murder under premeditation and deliberation and for felony murder, “[t]he critical issue. is not whether the jury would have found felony murder [and, therefore, first degree murder, regardless of premeditation and deliberation], but rather whether defendant adduced any evidence negating premeditation and deliberation; if so, the trial court must instruct on the lesser-included offenses supported by the evidence.” Millsaps, 356 N.C. at 566, 572 S.E.2d at 774. “In other words, defendant must present some affirmative evidence to support a verdict of second-degree murder before the trial court is required to instruct the jury on that lesser included offense.” State v. Robinson, 342 N.C. 74, 80, 463 S.E.2d 218, 222 (1995). “A defendant is not entitled to an instruction on a lesser included offense merely because the jury could possibly believe some of the State's evidence but not all of it.” State v. Annadale, 329 N.C. 557, 568, 406 S.E.2d 837, 844 (1991).
“Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation.” State v. Wilkerson, 295 N.C. 559, 577, 247 S.E.2d 905, 915 (1978) (citations and quotation marks omitted). “ ‘Premeditation means that the act was thought out beforehand for some length of time, however short, but no particular amount of time is necessary for the mental process of premeditation.’ “ State v. Jones, 342 N.C. 628, 630–31, 467 S.E.2d 233, 234 (1996) (citation omitted). Deliberation is defined as the “ ‘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. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991) (citations omitted).
North Carolina courts have frequently examined the question of whether sufficient evidence existed to negate the elements of premeditation and deliberation, thereby requiring an instruction on second degree murder. In State v. Rios, 169 N.C.App. 270, 610 S.E.2d 764 (2005), this Court held that “[t]he fact that a defendant was angry or emotional will not negate the element of deliberation during a killing unless there was evidence the anger or emotion was strong enough to disturb defendant's ability to reason.” Id. at 280, 610 S.E.2d at 771;see also State v. Vaughn, 324 N.C. 301, 308, 377 S.E.2d 738, 742 (1989) (holding that an individual “may be excited, intoxicated and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention to commit murder in the first degree”). Further, in State v. Lambert, 341 N.C. 36, 460 S.E.2d 123 (1995), we held that the evidence did not negate the elements of premeditation and deliberation where the defendant informed police that she had “blacked out” and could not remember killing her husband. Id. at 45–47, 460 S.E.2d at 129.
Here, Defendant concedes that the evidence before the jury was sufficient to support a finding of premeditation and deliberation. The question is whether there was any evidence to negate this. Defendant points to the evidence indicating that he was angry about being evicted, the lapse of time between his statement that he was thinking of “wasting” Mr. Massachi and the moment he fired the fatal gunshot, and Ms. Robinson's testimony regarding his statement that he had “blanked out” at the time of the shooting. We do not find that any of these circumstances negated the established elements of premeditation and deliberation, as none of these circumstances precluded Defendant from forming the requisite intent and plan to carry out the murder. Consequently, the trial court was not required to give an instruction on the lesser-included offense of second degree murder.
Defendant next contends that the trial court committed clear error in denying his Batson challenge because he had made a prima facie showing of racial discrimination. Similar to his contention before the trial court, Defendant's contention on appeal highlights the fact that the State did not attempt to strike Ms. Meri, a Caucasian, from the jury pool, despite the fact that both Ms. Nixon and Ms. Meri voiced “continued displeasure about how particular criminal charges had been resolved” but also indicated that they “would be fair in this case.” This argument is meritless.
When confronted with a Batson challenge, “[a]ppellate courts must uphold the trial court's findings unless they are ‘clearly erroneous.’ “ State v. Cofield, 129 N.C.App. 268, 275, 498 S.E.2d 823, 829 (1998) (citations omitted). In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that “the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant.” Id. at 89.
Under Batson, the defendant must first successfully establish a prima facie case of purposeful discrimination. If the prima facie case is not established, it follows that the peremptory challenges are allowed. If the prima facie case is established, however, the burden shifts to the prosecutor to offer a race-neutral explanation for each peremptory challenge at issue. If the prosecutor fails to rebut the prima facie case of racial discrimination with race-neutral explanations, it follows that the peremptory challenges are not allowed. If the prosecutor does rebut the prima facie case with race-neutral explanations, the defendant has a right of surrebuttal to show that the prosecutor's explanations were merely pretextual. If the trial court finds that the race-neutral reasons are not pretextual, the peremptory challenges are allowed. If the trial court finds, however, that the race-neutral explanations are pretextual, it follows that the peremptory challenges at issue are purposefully discriminatory; they are therefore not allowed.
Cofield, 129 N.C.App. at 275, 498 S.E.2d at 828–29 (internal citations omitted).
The first step “of the Batson analysis, a prima facie showing of racial discrimination, is not intended to be a high hurdle for defendants to cross. Rather, the showing need only be sufficient to shift the burden to the State to articulate raceneutral reasons for its peremptory challenge.” State v. Hoffman, 348 N.C. 548, 553, 500 S.E.2d 718, 722 (1998). In undertaking our review, we consider any relevant factors, which include the following:
the defendant's race, the victim's race, the race of the key witnesses, questions and statements of the prosecutor which tend to support or refute an inference of discrimination, repeated use of peremptory challenges against blacks such that it tends to establish a pattern of strikes against blacks in the venire, the prosecution's use of a disproportionate number of peremptory challenges to strike black jurors in a single case, and the State's acceptance rate of potential black jurors.
State v. Quick, 341 N.C. 141, 145, 462 S.E.2d 186, 189 (1995).
Here, both Defendant and the excused juror in question, Ms. Nixon, are African American, while the victim, Mr. Massachi, was Caucasian. We cannot agree, however, with Defendant's contention that the State's exclusion of Ms. Nixon from the jury pool was sufficient to raise a prima facie inference of racial discrimination. Of the five peremptory challenges exercised by the State, Ms. Nixon was the only African American excused from the pool of potential jurors. Moreover, the State did not assert challenges to the two African American individuals—one male and one female—who ultimately served as members of the jury. We thus discern no racially motivated pattern in the State's use of its peremptory challenges.
Furthermore, our review of the trial transcript reveals that the State had at least two race-neutral bases for its use of a peremptory strike to exclude Ms. Nixon as a potential juror. First, Ms. Nixon testified that she had served as a witness in her son's murder trial and that she believed her son's conviction was unfair. In contrast, Mr. Meri's perception of the judicial system as “unfair” did not arise in the context of a murder trial and would likely have had little bearing, if any, on her ability to perform her duty as a juror in the present case. Second, the transcript further reveals that Ms. Nixon equivocated when asked whether she could serve as an impartial juror. See State v. Waring, 364 N.C. 443, 480, 701 S.E.2d 615, 639 (2010) (finding no prima facie case of discrimination where the dismissed African American juror had equivocated on her view of the death penalty while the two remaining Caucasian jurors had stated definitively that they were not opposed to it). When asked how her experience with the judicial system might affect her ability to serve as a juror, Ms. Nixon responded, “I couldn't say now at this point ... but I feel like I could be fair.” When asked whether she “could set aside” her previous experiences in performing her role as a juror, Ms. Nixon responded, “I think I could.” Ms. Meri, in contrast, responded unequivocally that her prior experiences with the judicial system would not affect her ability to serve as an impartial juror. We accordingly hold that the trial court did not err in allowing the State to excuse Ms. Nixon from the jury pool.
Ms. Meri indicated that she had been convicted of a crime in 1989 and served one year in prison as a result. Although Ms. Meri did not specify the crime that served as the basis for her conviction, she did state that the offense was not similar in substance or circumstance to the charges in the instant case.
For the foregoing reasons, we find no error.
NO ERROR. Chief Judge MARTIN and Judge ERVIN concur.
Report per Rule 30(e).