Opinion
No. COA10-727
Filed 15 February 2011 This case not for publication
Appeal by Defendant from judgment entered 17 December 2009 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 1 December 2010.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Michael E. Casterline for Defendant-appellant.
Gaston County No. 07 CRS 64489.
Defendant argues the trial court improperly denied his motion to dismiss on the ground that there was insufficient evidence of premeditation and deliberation. When viewing the evidence in the light most favorable to the State, we find no error.
I. Factual and Procedural Background
Lindsey Morgan ("Defendant") was arrested for the murder of his girlfriend, Stephanie King, on 10 September 2007. He was indicted for first-degree murder on 17 September 2007. Defendant's trial commenced on 14 December 2009. At the conclusion of the trial, he was convicted of first-degree murder and received a life sentence.
The State's evidence at trial tended to show the following. Defendant and King were living in a single-wide mobile home situated behind Defendant's parents' residence. They had a daughter, Sarah, who was six months old at the time of King's death. Defendant and King both had two children from prior relationships. All five children lived in the mobile home.
Pseudonyms conceal the identities of the juveniles involved in this case.
King's son, Charlie, age twelve at the time of the trial, testified that King had a tumultuous relationship with Defendant and the two did not live together continuously throughout their four-year relationship. (Defendant is not Charlie's father.) During disagreements between the two, King occasionally took her children to stay in a hotel or with their grandparents. According to Charlie, Defendant once hit King on the leg with a pool cue. Roughly two weeks before King's death, King informed Charlie she would eventually leave Defendant.
On 8 September 2007, Charlie heard Defendant and his mother quarreling during the day, but he did not see any physical confrontation. Defendant told Charlie that on the date of her death, both he and King had been drinking. Later that evening, Defendant and Charlie went on an evening walk. Defendant carried a firearm during the walk. While on the walk, Defendant randomly took mail out of several mailboxes the two passed and hid the mail. On the way home, Defendant shot a parked motor vehicle, shattering the window.
When they returned home, Charlie laid down on the couch. The other children were asleep on the living room floor of the mobile home. Before Charlie fell asleep, he saw Defendant take a kitchen knife into the bedroom where his mother was asleep.
Charlie was awakened by a gunshot. He remained on the couch. About five minutes later, he saw Defendant using the telephone. Charlie heard Defendant inform the person with whom Defendant was speaking that King had shot herself. A police officer arrived shortly after 3:00 a.m. and found Defendant outside his home screaming for help. Defendant informed the police King had shot herself and led them inside. The officer found King unconscious, lying on the bedroom floor with a gunshot wound in her forehead. A rifle was laying on the bed, and the kitchen knife was on the floor.
Defendant appeared to be extremely upset. He was hugging King and crying, and refused to release her when paramedics arrived. The police officers on the scene had to restrain Defendant with handcuffs in order for him to regain his composure. King was barely breathing when paramedic Ray McMillan examined her. McMillan observed a gunshot wound between her eyes; he did not see any powder burns on her face. After King was transported to the hospital, Defendant became physically ill and vomited. The police informed Defendant he was not under arrest. Defendant informed the officers that King shot herself and that he would prove he had done nothing wrong. He accompanied the police to Gaston County Police Headquarters for an interview, which began around 6:00 a.m.
At the conclusion of the interview, Defendant signed a written statement prepared by an officer. According to the statement, Defendant claimed King had become very upset when he told her he was going to leave and take their daughter Sarah with him. They argued loudly. When he returned from the bathroom, King was holding a .22 caliber rifle and claimed she was going to commit suicide. She was sitting on the bed, and the gun was pointed at her face. Defendant taunted King, telling her she would not shoot herself and calling her a "chicken shit." Defendant told her to shoot herself. He then reached for the rifle, which discharged before he could grab it. Defendant held her and called emergency services. The statement was read to the jury, and the trial court admitted Defendant's statement into evidence.
During his interview, Defendant indicated he had been shooting earlier that night and that there was a second firearm on the property. Police officers later recovered another .22 caliber rifle from under Defendant's parents' residence, approximately ten to fifteen yards from the trailer.
Officer Jeff Costner, a member of the crime scene investigation unit, performed a gunshot residue test on Defendant at 4:45 a.m. Officer Costner recovered a .22 caliber rifle from the room in which King was shot. The rifle was covered with blood and tissue paper was stuffed into the end of the barrel. The firearm was 37 1/4 inches in total length, and the end of the barrel was 23 1/2 inches from the trigger.
Officers Putnam and Howell went to the Carolinas Medical Center at 7:00 a.m. Officer Putnam performed a gunshot residue test on King, who was still alive. Her hands were in paper bags when he performed the test. King's arm was measured to be 25.18 inches from inside the arm pit to the fingers.
A Union County Department of Social Services ("DSS") employee, Elizabeth Anest, received a call about the incident at approximately 11:00 a.m. on the day of the shooting (the victim appears to have been shot in the early hours of 9 September 2007). She spoke with Defendant on the phone. According to Anest, Defendant was very calm and "matter of fact." She stated he was not crying. Defendant told Anest that King had shot herself and had threatened to kill herself in the past.
The next day (10 September), DSS employee Lisa Moeller met with Defendant's mother and Defendant. According to Moeller, Defendant was "very friendly" and "flirtatious." He was not emotional about the incident. Moeller also testified that Defendant indicated he had recently returned from being questioned and that "everything looked good."
The police interviewed Defendant again on 10 September, after which Defendant signed another written statement. In his second statement, Defendant changed his account of the shooting. This time, he claimed that after calling King a "chicken shit," Defendant panicked and grabbed the rifle while she was sitting on the corner of the bed. While he was pulling the gun away and raising it, the barrel was facing King about a foot away from her face. Defendant's right finger was on the trigger. He "accidentally pulled the trigger and shot [King] in the face." He then fell on King and panicked. Defendant sat on the corner of the bed and "had a cigarette in one hand and a house phone in the other." He finished the cigarette to calm down and then called emergency services. In the statement, Defendant indicated that he "felt like a murderer but . . . did not mean to shoot [King]." Defendant also indicated the bruising on King's face was the result of fights on the Friday and Saturday preceding the day of the shooting. Officer Howell read the statement to the jury and the trial court admitted it into evidence.
SBI forensic firearm examiner Jessica Rosenberry examined and test fired the rifle found in the room with King. She concluded the rifle could have fired the bullet that ultimately killed King. SBI forensic chemist Michael Gurdziel analyzed the gunshot residue tests. He did not find any residue based on the tests that had been performed on King's hands, which were bagged when the police performed the test. He concluded that he was unable to determine whether King had fired a weapon.
Dr. Thomas Owens, M.D., performed an autopsy on 10 September. He concluded King died at around 5:30 p.m. on 9 September from a gunshot wound to the head. The absence of soot or stippling around the bullet wound indicated the firearm had to be "some distance" away from King's forehead when the rifle was fired. According to Dr. Owens, the rifle could have been more than a foot away from King's head when it discharged. If King was sitting up, the gun would have been pointing at an upward angle to the head. If she was leaning back, the gun would have been roughly level. And if she was lying on the bed, the gun would have been pointed down and forward, which would have been consistent with someone standing over her. The bullet did not exit King's skull. Owens did not indicate it would have been physically impossible for King to have shot herself.
Dr. Owens also concluded King had other wounds on her face, bruises and cuts, that were consistent with being struck in the mouth or being hit with some sort of object. He concluded the bruising on King's lip and mouth area had occurred within less than twenty-four hours of his examination. King had a bruise on her buttock estimated to be between eighteen and twenty-four hours old. There was a bruise on the back of her left hand estimated to be approximately twenty-four hours old. Dr. Owens concluded King's non-gunshot injuries were consistent with domestic abuse. He also concluded that shortly before her death, she had a blood alcohol level ("BAC") of 100 milligrams per deciliter, or .10 BAC using the driving under the influence scale.
After the State rested, Defendant moved to dismiss the charge of first-degree murder, arguing the State had failed to produce any evidence of premeditation and deliberation. The trial court denied Defendant's motion. Defendant did not testify and did not offer any evidence. He renewed his motion to dismiss at the close of evidence, which was again denied. Defendant was convicted of first-degree murder and sentenced to life in prison. He timely appealed to this Court.
II. Jurisdiction
We have jurisdiction over Defendant's appeal of right. See N.C. Gen. Stat. § 15A-1444(a) (2009) ("A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered."); N.C. Gen. Stat. § 7A-27(b) (2009) (stating appeal shall be to this Court).
III. Analysis
Defendant's sole argument on appeal is that the trial court improperly denied his motion to dismiss because the State presented insufficient evidence of premeditation and deliberation. He contends that the killing grew out of a quarrel, and that because Defendant did not plan the killing prior to the quarrel or have time to cool down prior to the killing, there is insufficient evidence of premeditation and deliberation. We disagree.
The denial of a motion to dismiss in a criminal case is reviewed de novo. See, e.g., State v. Powell, 299 N.C. 95, 98-102, 261 S.E.2d 114, 117-19 (1980) (according no deference to the trial court's analysis). A trial court properly denies a motion to dismiss when "there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
What constitutes substantial evidence is a question of law for the court. To be "substantial," evidence must be existing and real, not just "seeming or imaginary." Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.
Id. (citations omitted).
First-degree murder "is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation." State v. Hamlet, 312 N.C. 162, 169, 321 S.E.2d 837, 842 (1984). A murder is premeditated if the defendant "thought out the act beforehand for some period of time, however short." Olson, 330 N.C. at 564, 411 S.E.2d at 595. No particular amount of time is required. Id. The deliberation element is satisfied if the defendant has "carried out an intent to kill in a cool state of blood and not under the influence of a violent passion or sufficient legal provocation." Id. The term "cool state of blood" does not require an absence of passion or emotion — "`[o]ne 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.'" Id. at 564, 411 S.E.2d at 595-96 (quoting State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991)).
Because premeditation and deliberation are mental processes, they must typically be established by circumstantial evidence. There are numerous factors from which premeditation and deliberation may be implied, including the following:
(1) absence of provocation on the part of the deceased, (2) the statements and conduct 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 difficulties 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.
Id. at 565, 411 S.E.2d at 596.
After reviewing the evidence presented at trial, we conclude the State presented substantial evidence of premeditation and deliberation under its theory of the case. There was clearly ill will between Defendant and King, and King may have told Defendant she was planning on leaving with their young child. King had previously left with her children on several occasions. Defendant quarreled with King on the day of the shooting. There was evidence King endured physical abuse near the time of the shooting. Defendant's previous attacks on King demonstrate his ill will towards her without violating the character evidence rule. See State v. Alston, 341 N.C. 198, 229, 461 S.E.2d 687, 703 (1995) (evidence of defendant's prior assaults on murder victim did not violate the character evidence rule because they were relevant to showing malice or ill will. Defendant's own statements suggest he provoked King, rather than vice versa.
Based on the evidence presented at trial, one could readily conclude Defendant entered the bedroom and shot King in the head while she was sleeping. Since the bullet did not exit the skull, it would not have put a hole in the mattress. Defendant's conduct after the shooting also suggests the shooting was deliberate. Several individuals who interacted with him after the shooting described him as "matter of fact" and "calm." A DSS employee described him as flirtatious. When asked about the police investigation, he said that everything "looked good."
Defendant contends State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981), is analogous to this case. There, the victim and another man entered the defendant's residence and insulted him while he was lying on a couch. Id. at 295, 278 S.E.2d at 222. The two argued and the defendant shot the victim in the chest with a rifle, killing him. Id. The defendant was five feet seven inches tall and weighed 140 pounds, while the victim was five feet ten inches tall and weighed from 180 to 200 pounds. Id. at 296, 278 S.E.2d at 222. The other man was six feet two inches, weighed 247 pounds, and the defendant knew the man had been trained in martial arts during his military service. Id. The defendant was found guilty of first-degree murder.
On appeal, our Supreme Court held the State failed to present substantial evidence of premeditation and deliberation because "[t]he shooting was a sudden event, apparently brought on by some provocation on the part of the deceased." Id. at 297, 278 S.E.2d at 223. The Court concluded there was "no evidence that defendant acted in accordance with a fixed design or that he had sufficient time to weigh the consequences of his actions." Id. at 298, 278 S.E.2d at 224. In the matter at bar, however, Defendant's own statements indicate he provoked the quarrel. The State's theory of the evidence suggests Defendant shot King while she was lying on the bed. It is the jury's role as fact finder — and not this Court's role — to resolve factually conflicting evidence and draw ultimate conclusions.
After considering the evidence in the light most favorable to the State, we hold the State presented substantial evidence of premeditation and deliberation.
No Error.
Judges STEELMAN and STEPHENS concur.
Report per Rule 30(e).