Opinion
No. COA12–177.
2013-01-15
STATE of North Carolina v. Jose DeJesus SANTIBANEZ.
Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
Appeal by defendant from judgment entered 6 July 2011 by Judge W. Allen Cobb, Jr., in Sampson County Superior Court. Heard in the Court of Appeals 29 August 2012. Attorney General Roy Cooper, by Assistant Attorney General Philip A. Lehman, for the State. Appellate Defender Staples S. Hughes, by Assistant Appellate Defender Daniel Shatz, for defendant-appellant.
BRYANT, Judge.
Where the trial court's failure to instruct the jury on attempted voluntary manslaughter did not amount to plain error, where there was substantial evidence to support the denial of defendant's motion to dismiss, and where the trial court did not abuse its discretion by failing to find a non-statutory mitigating factor, we hold no error.
Facts and Procedural History
The evidence tended to show the following: On 23 February 2008, defendant Jose DeJesus Santibanez attended a cookout at the home of his cousin, Humberto Sanchez (Sanchez). Among several others in attendance at the cookout were Sanchez's wife Maribel, Sanchez's son Jose, Sergio Rojas (Rojas), Estevan Mejia (Mejia) and his wife and daughter, Basilio Garcia and his wife, defendant's brother Pedro, and defendant's father Cruz.
Following the cookout, the men went into Sanchez's garage, and the women went inside the Sanchez residence. An argument started between defendant and Sanchez as they were playing a game involving gambling. As Rojas stepped in between them in an attempt to break up the argument, defendant hit Rojas in the face. Sanchez told defendant to leave his house and several people left with defendant. Mejia, Sanchez, Basilio, and Rojas remained in the garage. Sometime thereafter, Sanchez armed himself with a loaded shotgun.
Defendant testified that he and his brother, Pedro, went to their parents' house where defendant retrieved a 9 mm semiautomatic pistol. They then drove back to Sanchez's house in order “to talk to him.” Upon arriving at Sanchez's house, Sanchez's daughter, Yuritzi, approached defendant's car and told him that “[Sanchez] was upset and did not wish to speak to [defendant].” At that time, defendant saw his father Cruz, talking to Maribel Sanchez. As Maribel was holding Cruz back, defendant saw Sanchez coming out from the garage, holding a shotgun and shooting in the direction of Cruz and Maribel. Defendant grabbed his gun and began shooting at Sanchez, later testifying that he was trying to protect Cruz. A second person emerged from the garage, shooting in the direction of Cruz, and defendant fired at the second person also. Defendant testified that he saw people shooting from inside the garage. Once Sanchez fell to the ground, the shooting stopped. Defendant approached Sanchez's body with his gun drawn and heard Pedro screaming. After running towards his brother, defendant saw Cruz lying on the ground.
Maribel testified that ten to fifteen minutes after defendant left the Sanchez residence, she saw Cruz approaching her house with a rifle in his hand. She also saw defendant and Pedro coming up the driveway. Maribel approached Cruz while Yuritzi approached defendant near his car. Maribel took cover when she heard gun shots and saw Sanchez fall over. She witnessed defendant aiming a gun at Sanchez, stating “[t]his is your end, son of a b* * * *.”
Mejia testified that he was having a conversation with Rojas and Sanchez when defendant returned to the Sanchez residence. Defendant exited his car and “just came out shooting. He didn't speak, he didn't say anything.” According to Mejia, it was not until Sanchez had already been shot by defendant that Sanchez retrieved his gun from inside his residence. Mejia testified that both Cruz and Rojas were armed. After Mejia saw Sanchez fall to the ground, defendant approached Sanchez and said, “[w]ell you've been f* * * * * now, cousin.” Defendant told Mejia, “[w]ell you're here too and you are going to die [,]” while pointing a gun at him. Police arrived shortly thereafter.
During the melee, Sanchez and Rojas were fatally wounded by gunshots. Defendant, Cruz, Mejia, and Jose Sanchez were shot and injured. On 5 April 2010, defendant was indicted on two counts of first-degree murder—for Sanchez and Rojas—and two counts of assault with a deadly weapon with intent to kill inflicting serious injury—for Jose Sanchez and Mejia.
On 6 July 2011, a jury found defendant guilty of one count of voluntary manslaughter, a lesser included offense of first-degree murder, and not guilty of the remaining charges. Defendant received an active sentence of 70 to 93 months. From this judgment, defendant appeals.
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Defendant advances the following issues on appeal: whether the trial court erred by (I) failing to instruct the jury on attempted voluntary manslaughter as a possible verdict; (II) denying his motion to dismiss; and (III) failing to find a statutory mitigating factor.
I
Defendant argues the trial court erred by failing to instruct the jury on a possible verdict of attempted voluntary manslaughter. However, defendant failed to make this argument before the trial court.
Because defendant failed to object to the jury instructions in this case, this [argument] must be analyzed under the plain error standard of review. Plain error with respect to jury instructions requires the error be so fundamental that (i) absent the error, the jury probably would have reached a different verdict; or (ii) the error would constitute a miscarriage of justice if not corrected. Further, in deciding whether a defect in the jury instruction constitutes plain error, [we] must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt.
State v. Pate, 187 N.C.App. 442, 445, 653 S.E.2d 212, 215 (2007) (citation omitted).
Defendant argues that there was “substantial doubt” as to the cause of Sanchez's death based on the testimony of Doctor Falvy Carl Barr, Jr., a forensic pathologist and medical examiner for Sampson County, who performed the autopsy on Sanchez. Dr. Barr testified that Sanchez suffered five gunshot injuries—gunshot wounds number 1, 2, 4 and 5 “all came from left to right” of Sanchez's body and gunshot wound number 3 “came from right to left.” Defendant directs us to the following exchange to support his contention that it “unquestionably was sufficient to allow the jury to conclude that the shots fired by [defendant] which inflicted the four left-to-right wounds to [Sanchez], did not proximately cause [Sanchez's] death.”:
[Defense counsel]: Is there a possibility then that there could have been a second individual who shot a firearm from the right to left?
[Dr. Barr]: Yes, sir, it's possible.
...
[Defense counsel]: Sir, regarding Mr. Sanchez ... the wound that did come right to left, that was the fatal wound?
[Dr. Barr]: Yes, sir.
[Defendant's counsel]: And the other four that came left to right were not fatal but obviously was a gunshot?
[Dr. Barr]: Yes, sir.
However, Dr. Barr went on to say that the combination of five gunshot wounds “was the cause of death.”
Defendant further asserts that State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993), is dispositive on this issue. In Collins, the defendant who was convicted of first-degree murder contended the trial court committed plain error by not instructing the jury on attempted murder. Collins, 334 N.C. at 57, 431 S.E.2d at 190. During the defendant's trial,
Dr. Page Hudson, former Chief Medical Examiner for the State of North Carolina, was accepted by the trial court as an expert in forensic pathology. Dr. Hudson testified at length and gave his unequivocal opinion as an expert that the gunshot wound, which had been inflicted to the victim's chest more than a month before the victim died, was not a cause of his death. Dr. Hudson testified unequivocally that the victim had died of complications from a gallbladder disease, entirely unrelated to the gunshot wound which evidence indicated the defendant had inflicted. Dr. Hudson also gave his unequivocal expert opinion that the gunshot wound did nothing to cause or aggravate the defendant's gallbladder disease.
Id. at 61, 431 S.E.2d at 192. The Supreme Court granted a new trial holding that the trial court erred in failing to submit the lesser-included offense of attempted murder because there was “substantial evidence tending to show that [the defendant's] actions fell short of the completed offense of murder.” Id. at 60, 431 S.E.2d at 192. As noted by the Supreme Court, Collins was clearly “one of those rare cases in which the trial court's error in failing to instruct on the lesser-included offense was, on the evidence presented, error so fundamental that it denied the defendant a fair trial and quite probably tilted the scales against him.” Id. at 62, 431 S.E.2d at 193.
The facts in the instant case are readily distinguishable from those found in Collins. Here, Sanchez sustained several gunshot wounds that caused his death. Dr. Barr testified that “of those five gunshot wounds, one of them I determined was lethal. Four of them had various elements of being critical, but I did not think that they were lethal, although the combination of five of them was the cause of death.” (emphasis added). Furthermore, Dr. Barr testified that “[i]n incidents where there are multiple gunshot wounds one thing that always has to be remembered is that there's movement on the part of both the p [e]rpetrator as well as the victim[.]” Here, defendant admitted that he ran back and forth laterally while shooting ten to eleven rounds. Unlike in Collins, there is no evidence that Sanchez died from causes completely unrelated to the gunshot wounds inflicted by defendant.
Defendant argues there could have been another person who shot a firearm and caused Sanchez's death. However, there was no testimony that anyone else shot at Sanchez. Defendant's speculation is insufficient to show the existence of evidence that would require an instruction on attempted voluntary manslaughter. Based on the foregoing, we hold that the trial court's failure to give a jury instruction on attempted voluntary manslaughter did not amount to plain error. See Pate, 187 N.C.App. at 445, 653 S.E.2d at 215. Defendant's argument is overruled.
II
At the close of all the evidence, defendant moved to dismiss the charges against him. Defendant argues that because “the evidence did no more than allow speculation that [defendant] proximately caused [Sanchez's] death,” the trial court erred by denying his motion to dismiss. Defendant bases his argument on the testimony of Dr. Barr as discussed in Issue I.
The standard of review for a motion to dismiss is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant's being the perpetrator of such offense. If so, the motion is properly denied. When ruling on a motion to dismiss, all of the evidence should be considered in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence.
State v. Ly, 189 N.C.App. 422, 426, 658 S.E.2d 300, 304 (2008) (citations and quotations omitted). Our Court reviews the denial of a motion to dismiss for insufficient evidence de novo. State v. Louali, ––– N.C.App. ––––, ––––, 716 S.E.2d 385, 388 (2011) (citation omitted).
Voluntary manslaughter is the unlawful killing of a human being without malice, premeditation or deliberation. The State must produce evidence which is sufficient to show beyond a reasonable doubt that defendant's unlawful acts were the proximate cause of the victim's death. However, defendant's acts need not be the sole proximate cause of death. It is sufficient if defendant's unlawful acts join and concur with other causes in producing' the victim's death.
State v. Brown, 80 N.C.App. 307, 309, 342 S.E.2d 42, 43–44 (1986) (citations omitted).
Here, defendant admitted that he used a Ruger caliber 9mm semiautomatic pistol and “commenced shooting at [Sanchez]” while running back and forth laterally. Defendant testified that he shot ten to eleven rounds and then saw Sanchez fall to the ground. Defendant stated that he shot Sanchez, “the man who was laying on the ground[.]” Multiple witnesses to the incident testified to seeing defendant point a gun at Sanchez and, after shooting Sanchez, stand over his body and make comments such as “[w]ell you've been f* * * * * now, cousin” and “[t]his is your end, son of a b* * * * .”
As stated previously, Dr. Barr testified that although one gunshot wound was determined to be lethal, the combination of the five gunshot wounds was the ultimate cause of death. Of the five gunshot wounds Sanchez suffered, Dr. Barr testified that four bullets exited his body and one bullet was recovered. It was identified as State's Exhibit Number 86. Agent Adam Tanner, an expert in forensic firearms identification with the North Carolina State Bureau of Investigation, testified that State's Exhibit Number 86, a 9mm fired copper-jacketed bullet, was fired from defendant's gun.
Based on the foregoing and viewing the evidence in the light most favorable to the State, we hold that the State presented substantial evidence from which the jury could find that defendant's acts proximately caused Sanchez's death. Therefore, the trial court properly denied defendant's motion to dismiss and defendant's argument is overruled.
III
In his last argument, defendant contends the trial court erred by failing to find a non-statutory mitigating factor at sentencing.
It is well established that
[i]f a statutory mitigating factor is supported by uncontradicted, substantial and manifestly credible evidence, the sentencing judge must find the mitigating factor. [However,] [c]onsideration of nonstatutory mitigating factors requested by defendant[ ] and proven by uncontradicted, substantial and manifestly credible evidence is a matter entrusted to the sound discretion of the sentencing judge[.]
State v. Lloyd, 89 N.C.App. 630, 638, 366 S.E.2d 912, 917 (1988) (citations and quotations omitted).
At sentencing, the trial court found one aggravating factor to which defendant had stipulated: defendant committed the offense while on pretrial release on another charge. The trial court found the following five mitigating factors: defendant reasonably believed that defendant's conduct was legal; defendant voluntarily acknowledged wrongdoing in connection with the offense to a law enforcement officer at an early stage of the criminal process; defendant has been a person of good character or has had a good reputation in the community in which the defendant lives; defendant has a support system in the community; and, defendant has a positive employment history or is gainfully employed. However, defendant contends the trial court abused its discretion in failing to find an additional non-statutory mitigating factor when it was supported by manifestly credible, uncontroverted evidence: that defendant came to the rescue of a detention officer who was being assaulted by another inmate.
Defendant's evidence in support of this non-statutory mitigating factor consists solely of a memorandum dated 1 June 2009—two years before his trial—from a Captain of the Sampson County Sheriff's office stating the following:
On 05/03/2009 around 12:30 pm while supervising/feeding the detainees [Detention Officer] Elmer Draughon was assaulted by inmate Antavio Best. [Defendant] was one of the detainees that came to the rescue of [Detention Officer] Draughon, by pulling inmate Best off of .... Draughon, therefore preventing any further serious injuries. On behalf of Sampson County Detention Center we want to make you aware of the meritorious act that was performed, and please consider this as a good faith act for future information concerning his case.
Because “the trial judge has wide latitude in determining the existence of ... mitigating factors, for it is he who observes the demeanor of the witnesses and hears the testimony[,]” and because defendant failed to demonstrate an abuse of discretion, we reject defendant's argument that the trial court erred in failing to find this non-statutory mitigating factor. State v. Canty, 321 N.C. 520, 524, 364 S.E.2d 410, 413 (1988) (citation and quotations omitted). Defendant's argument is overruled.
No error. Judge HUNTER, Robert C, and STEELMAN concur.
Report per Rule 30(e).