Opinion
No. COA08-1420.
Filed June 2, 2009.
Robeson County No. 06CRS54452.
Appeal by Defendant from judgment entered 2 April 2008 by Judge Gary L. Locklear in Superior Court, Robeson County. Heard in the Court of Appeals 9 April 2009.
Attorney General Roy Cooper, by Assistant Attorney General LaToya B. Powell, for the State. Winifred H. Dillon for Defendant.
A jury found Defendant guilty of first-degree murder on 2 April 2008. Defendant was sentenced to a term of life imprisonment without parole. At trial, the evidence tended to show the following:
Defendant and his girlfriend, Alberta Abron ("Ms. Abron"), lived together in Ms. Abron's home in Robeson County, North Carolina. Ms. Abron's daughter, her daughter's husband, and their two children lived in Ms. Abron's home as well. On 22 July 2006, Ms. Abron's daughter and her family left Ms. Abron's home to visit relatives in Greenville. At this time, Defendant was seventy years old and suffered from diabetes and prostate cancer. Ms. Abron was sixty-four years old.
The transcript of the jury trial does not indicate in which state the "Greenville" Ms. Abron's daughter was visiting was located.
On 22 July 2006 at 10:24 p.m., Ms. Abron called 911 because of a domestic dispute with Defendant. Ms. Abron told the 911 operator that her boyfriend had threatened her and she wanted him out of the house.
Deputy James Obershea ("Obershea") of the Robeson County Sheriff's Office responded to the call of a "domestic in progress" at Ms. Abron's home, arriving approximately nine minutes after receiving the call. He knocked on the front door and listened to see if he could hear anyone inside, but did not hear anything. When no one answered the front door, Obershea walked around to the right side of the house and saw Defendant coming out the side door. Defendant had exited the house through the bedroom he shared with Ms. Abron. Defendant said to Obershea, "Just put me in the car; just go ahead and put me in the car." Obershea asked Defendant, "[W]hat's going on," to which Defendant replied, "I had enough. She's in there on the floor." Obershea then walked into the house and saw Ms. Abron lying on the floor in a pool of blood. Obershea walked back outside, placed Defendant in the patrol car, and called for backup and emergency services.
Detective David Meares ("Meares") of the Robeson County Sheriff's Office arrived on the scene at approximately 11:00 p.m. Meares entered the house through the side door to Defendant's and Ms. Abron's bedroom, and described the bedroom as "cluttered with clothing and other material." Meares saw Ms. Abron's body lying face down on the other side of the bedroom at the foot of a doorway that connected to the kitchen. Ms. Abron's hands were underneath her body. Blood droppings were found a few feet from the bed, leading into the kitchen.
Defendant consented to a search of the house. Meares found a box beside the bed in Defendant's and Ms. Abron's bedroom on top of which was a pistol holster. Inside the box was a .357 Taurus revolver containing two spent shell casings and one live round. Meares found one bullet that had been fired from the revolver, which had apparently struck the brick wall in the bedroom and landed "on top of [a] plastic tote in the bedroom."
Dr. Thomas Clark ("Clark"), a forensic pathologist in the Office of the Chief Medical Examiner located at the University of North Carolina at Chapel Hill, determined that Ms. Abron died as the result of a single gunshot wound to her chest. The bullet entered the left side of her upper chest, traveled through her heart and left lung, and then exited through her back. Stippling, which "is injury that is produced by powder particles when a gun is fired at close range[,]" was present across Ms. Abron's neck. The stippling indicated the gun was fired within two feet of Ms. Abron's upper chest and arm.
Peter Ware ("Ware"), special agent in charge of the firearm and tool mark section at the SBI crime lab, testified that the bullet and the two fired shell casings were fired from the revolver found in Defendant's bedroom. The revolver could be fired in either a single action or double action mode. Ware and Agent NeilMoren determined that four to five pounds of pressure would be required to pull the revolver's trigger in single action mode, while the double action mode would require ten to eleven pounds of pressure.
Detective Dru Martin ("Martin"), the major crimes detective with the Robeson County Sheriff's Office, drove Defendant to the Sheriff's office from the crime scene. Martin testified to the following at trial:
[Defendant] made a few comments [during the ride to the Sheriff's Office]. He made comment [sic] several times that he had just had enough of it. He also — he did make the comment while we were in the car on the way to the Sheriff's Department that he had put everything into that house and trying to help that woman and she wasn't going to put him out.
When Martin and Defendant arrived at the Sheriff's Department, and after being advised of and waiving his Miranda rights, Defendant provided a voluntary statement. In his statement, Defendant stated that he and Ms. Abron had been arguing about money and that she threatened to call the police to have Defendant removed from the house. Defendant also said:
["]We got to scuffling and fighting, and then she shoved me down. I fell down on the floor, and after that I really don't know what happened.
[]The next thing I knew, I saw some lights outside. Then I heard someone knocking on the front door. I had a pistol in the bedroom next to the bed, and I don't know if I used it or not. I was the only one in the house, and when the knocking started, I remember seeing Alberta lying on the floor. If she was shot, I did it, but right now I can't remember.["]
Martin testified that Defendant appeared a little confused when they left Ms. Abron's house. Martin did not detect any alcohol on Defendant's breath, and Defendant stated that he had not had any alcohol that evening. Defendant never indicated that Ms. Abron had a weapon, but he did state that she had shoved him down.
Defendant did not present any evidence at trial. At the conclusion of the State's evidence, Defendant made a motion to dismiss the charge of first-degree murder, alleging the State had failed to offer substantial evidence of the essential elements of the charge to warrant submitting it to the jury. Defendant's motion was denied. Judgment was entered on 2 April 2008 in accordance with the jury's verdict of guilty of first-degree murder. From this judgment, Defendant appeals.
I. Sufficiency of the Evidence
Defendant argues the trial court erred in denying his motion to dismiss because the State failed to present sufficient evidence of the elements of premeditation and deliberation to submit the charge of first-degree murder to the jury. We disagree.
"In order to survive a motion to dismiss based upon the sufficiency of the evidence, the State must present substantial evidence of each essential element of the charged offense and of defendant's being the perpetrator." State v. Allen, ___ N.C. App. ___, ___, 667 S.E.2d 295, 297 (2008) (citing State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (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) (citations omitted). "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. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998) (citation omitted). "Any contradictions or discrepancies arising from the evidence are properly left for the jury to resolve and do not warrant dismissal." State v. King, 343 N.C. 29, 36, 468 S.E.2d 232, 237 (1996) (citation omitted).
"Murder in the first degree is 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) (citing N.C. Gen. Stat. § 14-17; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188 (1950)).
"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. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, 693, cert. denied, 479 U.S. 871, 93 L. Ed. 2d 166 (1986). Deliberation is an intent to kill carried out in a "cool state of blood" without the influence of a violent passion or a sufficient legal provocation. State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
State v. Harden, 344 N.C. 542, 554, 476 S.E.2d 658, 663 (1996). "In this context, the term `cool state of blood' does not mean the perpetrator was devoid of passion or emotion." Olson, 330 N.C. at 564, 411 S.E.2d at 595-96 (citation omitted). "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) (citation omitted).
"Premeditation and deliberation are mental processes. Generally, they are not subject to proof by direct evidence but must be proved, if at all, by circumstantial evidence." State v. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994). Some of the circumstances from which premeditation and deliberation may be inferred are:
(1) want 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 course of 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; and (6) evidence that the killing was done in a brutal manner. We have also held that the nature and number of the victim's wounds are circumstances from which premeditation and deliberation can be inferred.
Gladden, 315 N.C. at 430-31, 340 S.E.2d at 693 (citations omitted). Defendant cites State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981), in support of his argument. In Corn, our Supreme Court held the State failed to provide substantial evidence that the defendant killed the victim with premeditation and deliberation. Id. at 297, 278 S.E.2d at 223. The Court based its holding in part on the following: the shooting was a sudden event; the deceased had at least in part provoked the defendant; the victim entered the defendant's home in a highly intoxicated state, approached the defendant on his sofa, and insulted the defendant; the defendant immediately jumped up, grabbed the rifle he normally kept near the sofa, and shot the victim several times in the chest; the entire incident lasted only a few moments. Id. at 297-98, 278 S.E.2d at 223-24. Furthermore, the Court held "[t]here [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." Id. at 298, 278 S.E.2d at 224. The defendant did not threaten the victim before the incident or otherwise indicate that he formed any intention to kill prior to the incident, and there was no evidence that the defendant and the victim had a history of arguments or ill will. Id. Finally, the Court noted that although the defendant shot the victim several times, there was no evidence that the defendant fired any shots after the victim fell. Id. Thus, "[a]ll the evidence tend[ed] to show that defendant shot [the victim] after a quarrel, in a state of passion, without aforethought or calm consideration." Id.
Unlike Corn, there was substantial evidence in the present case of premeditation and deliberation. When considered in the light most favorable to the State, the evidence indicated that Defendant and Ms. Abron had a domestic dispute on 22 July 2006. During the dispute, Defendant threatened Ms. Abron, which prompted her to call 911 to remove Defendant from her home. Defendant was angered by Ms. Abron's 911 call, and the two began to physically fight. This fight culminated with Defendant reaching for his revolver which was nearby in the bedroom and shooting Ms. Abron. Defendant shot Ms. Abron because he had "had enough" and because "he had put everything into that house and trying to help that woman and she wasn't going to put him out." These statements suggest Defendant had felt animosity toward Ms. Abron for some time, and that his actions had a deliberate purpose of preventing her from forcing him out of her home. Thus, Defendant's statements and conduct before and after the killing, as well as his threat to Ms. Abron before she placed the 911 call, sufficiently indicate the killing was premeditated and deliberate. See Gladden, 315 N.C. at 430-31, 340 S.E.2d at 693 (holding that a defendant's conduct and statements before and after the killing as well as threats by the defendant are among the circumstances that may support an inference of premeditation and deliberation).
Additionally, there was evidence that Defendant fired multiple shots at Ms. Abron. Where a defendant fires multiple shots at the victim, premeditation and deliberation may be inferred. See State v. Chapman, 359 N.C. 328, 376, 611 S.E.2d 794, 828 (2005) (holding that evidence the defendant fired a rifle six to eight times at victim's vehicle supported an inference of premeditation and deliberation) (citations omitted); see also State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653, cert. denied, 484 U.S. 916, 98 L. Ed. 2d 224 (1987) (holding that even where a gun "is capable of being fired rapidly, some amount of time, however brief, for thought and deliberation must elapse between each pull of the trigger"). Here, the revolver used to kill Ms. Abron had two spent shell casings inside, and expert testimony confirmed that these casings were fired from this revolver. Although only one bullet was recovered at the crime scene, a jury could infer from this evidence that Defendant fired two shots at Ms. Abron. Also, the evidence showed that Defendant had to apply between four to eleven pounds of pressure to fire the gun, which is indicative of a deliberate act. Thus, these factors further support an inference of premeditation and deliberation.
Also supporting this inference is "the want of provocation on the part of the deceased." Gladden, 315 N.C. at 430, 340 S.E.2d at 693. Viewed in the light most favorable to the State, the evidence does not indicate that Ms. Abron provoked Defendant. There is no evidence that Ms. Abron had a weapon. Although Defendant and Ms. Abron were "scuffling and fighting," there is no evidence that Ms. Abron initiated the fighting. Accordingly, we conclude the State presented substantial evidence of premeditation and deliberation to support submitting the charge of first-degree murder to the jury, and we find no error in the trial court's denial of Defendant's motion to dismiss.
NO ERROR.
Judges BRYANT and GEER concur.
Report per Rule 30(e).