Opinion
No. COA10-938
Filed 7 June 2011 This case not for publication
Appeal by defendant from judgments entered 13 November 2009 by Judge Stuart Albright in Guilford County Superior Court. Heard in the Court of Appeals 26 January 2011.
Attorney General Roy Cooper, by Special Deputy Attorney General Buren R. Shields, III, for the State. M. Alexander Charns, for defendant-appellant.
Guilford County Nos. 09 CRS 24677, 08 CRS 24677, 08 CRS 80410, 08 CRS 24708.
The trial court did not err by allowing Z.K. to sit on her uncle's lap while she testified in court. The trial court did not commit plain error by allowing Z.K. to identify defendant as the perpetrator of her mother's murder in open court or by allowing Z.K.'s grandmother to testify that she told Z.K. that defendant had been arrested and could not kill Z.K. Where neither the State nor defense counsel could locate a potential witness, Zimmerman, before trial and defense counsel was given an opportunity to interview her and investigate her criminal background, the trial court did not err in granting the State's motion to supplement its witness list and allowing the State to call Zimmerman as a witness. The trial court did not abuse its discretion in denying defendant's motions for a mistrial or a continuance. Where the State presented overwhelming evidence of defendant's premeditation and deliberation in the murder of Knight, the trial court did not commit plain error by failing to instruct the jury on the lesser-included offense of second-degree murder.
I. Factual and Procedural Background
Tiffany Knight (Knight) and Christon Tucker (defendant) met through an escort service on Craigslist and had a sexual relationship for one month. Several text messages sent on 11 and 12 February 2008 showed that Knight and defendant's relationship had become contentious. Knight threatened that she was going to "get some people to jump on" defendant. Defendant responded, "You f — with the bulls, you get horns."
On the morning of 12 February 2008, Knight was found shot to death in her apartment. Knight's four-year-old daughter, Z.K., was present in the residence when the murder took place. At approximately 7:40 a.m., Z.K. knocked on a neighbor's door, and informed them that her mother was dead and that she needed to live with them. The neighbors called 911. The crime scene investigators found Knight's body in the master bedroom. Knight had been shot four times in the head, neck, and left shoulder.
On 22 February 2008, Detective Hinson of the Greensboro Police Department obtained a warrant for defendant's arrest on the charge of first-degree murder. That same day, defendant turned himself in, but denied being involved in Knight's murder. Defendant asserted that he was at Catrina Zimmerman's (Zimmerman) residence in High Point smoking marijuana and drinking all night. On 18 August 2008, defendant was indicted for first-degree murder, two counts of possession of a firearm by a felon, and attaining the status of an habitual felon.
At trial, Knight's daughter recounted events that transpired on the night of the murder. Z.K. was in her bedroom watching television when defendant came over to visit Knight. Defendant and Knight were sitting in the living room and were watching a movie. Z.K. could not fall asleep so she went into her mother's room. Z.K. was awakened by a loud noise from the movie. Z.K. then heard Knight break up with defendant. Defendant left, but returned a short time later. Z.K. heard one "loud boom." Knight ran into her room and locked the door. Knight was bleeding from her head. Defendant slammed the front door, but did not leave the apartment. Knight subsequently opened her bedroom door. Defendant was standing in the doorway and shot Knight three more times. Defendant threatened that he was coming for Z.K. next. The next morning, Z.K. went to the neighbor's apartment.
Zimmerman, defendant's alleged alibi witness, testified that defendant was at her residence, celebrating her birthday. Defendant left for approximately four hours and returned around 11:00 p.m. or 12:00 midnight. Zimmerman was unable to recall the exact time he returned because she had been drinking. Upon defendant's return, he began to cry and told Zimmerman that he had just killed someone. Defendant stated that "he had got [sic] mad, so he went over there and knocked on her door. She answered. And when she answered and let him in, he shot her."
On 13 November 2009, the jury found defendant guilty of all charges. Defendant was sentenced to life imprisonment without parole for first-degree murder. Defendant was sentenced to two consecutive terms of 116 to 149 months imprisonment for two convictions for possession of a firearm by a felon as an habitual felon.
Defendant appeals.
II. Testimony of Child in Court
In his first argument, defendant contends that the trial court erred by allowing (1) Z.K. to testify while sitting on her uncle's lap; (2) Z.K. to identify defendant in court as the perpetrator of the murder; and (3) Z.K.'s grandmother to testify that she told Z.K. that defendant had been arrested for first-degree murder and therefore could not kill Z.K. We disagree.
A. Child Testifying from her Uncle's Lap
Defendant contends that allowing Z.K. to testify while sitting on her uncle's lap "reinforced the notion that [defendant] was guilty not only of killing [Z.K.'s] mother, but of threatening to kill [Z.K.]" Our Supreme Court addressed this exact issue in State v. Reeves, 337 N.C. 700, 448 S.E.2d 802 (1994), cert. denied, 514 U.S. 1114, 131 L. Ed. 2d 860 (1995). In Reeves, the Supreme Court held:
Implicit in the allowance of the motion to let Lisa sit in her stepmother's lap while testifying was the court's finding that the child would be more at ease and be able to testify better if it was done. Although a court should be cautious in allowing this procedure, we cannot say it was error in this case to allow it. The court had observed the witness and we cannot say the court was wrong in allowing a procedure which it felt would promote the ability of this witness to testify truthfully.
Id. at 727, 448 S.E.2d at 814.
In the instant case, the trial court made the following findings concerning this issue: (1) Z.K. was four years old when the murder occurred and was six years old at the time of trial; (2) the court understood the graphic nature of her testimony; (3) Z.K. was the only child in the courtroom; (4) to allow her to testify without her uncle would subject her to a very intimidating and overwhelming experience; (5) Z.K. would be "more at ease and able to testify and relate what happened in this case more effectively if allowed to sit in her uncle's lap during the course of the testimony[;]" and (6) Z.K. would be more relaxed, comfortable, and secure if allowed to sit in her uncle's lap. Based upon the holding in Reeves, the trial court did not err by allowing Z.K. to sit on her uncle's lap as she testified.
This argument is without merit.
B. Identification of Defendant
Defendant also contends that the trial court committed plain error by allowing Z.K. to identify defendant as the perpetrator of the murder in open court because Z.K.'s grandmother showed her a television news report that showed a picture of defendant's face and stated he had been charged for first-degree murder. We disagree.
1. Standard of Review
At the outset, we note that defendant failed to object to Z.K.'s in-court identification of defendant or the balance of her testimony regarding the events that transpired on the evening her mother was murdered. We further note that defendant failed to make any argument on appeal as to Z.K.'s competency to testify at trial. As such, defendant's argument is reviewed only for plain error. N.C.R. App. P. 10(a)(4) (2010). To prevail under plain error analysis, the defendant must show that "the claimed error is a ` fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done[.]'" State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983) (quotation omitted).
2. Analysis
"The rules relating to the admissibility of in-court identification testimony are well-settled. Generally, a witness may make an in-court identification of a defendant and any uncertainty in that identification goes to the weight and not the admissibility of the testimony." State v. Miller, 69 N.C. App. 392, 396, 317 S.E.2d 84, 87-88 (1984) (citation omitted); see also State v. Green, 296 N.C. 183, 188, 250 S.E.2d 197, 200-01 (1978) ("The credibility of a witness's identification testimony is a matter for the jury's determination, and only in rare instances will credibility be a matter for the court's determination." (internal citations omitted)). However, "[i]dentification evidence must be excluded as violating a defendant's right to due process where the facts reveal a pretrial identification procedure so impermissibly suggestive that there is a very substantial likelihood of irreparable misidentification." State v. Harris, 308 N.C. 159, 162, 301 S.E.2d 91, 94 (1983) (citations omitted).
Defendant focuses his argument upon the fact that on the morning of the shooting, Z.K. told a child therapist that she did not see who fired the gun shots and that she heard a male's voice, but did not recognize the voice. After defendant was arrested, Z.K.'s grandmother showed her a television news report that showed defendant's face and stated that he was being charged with first-degree murder. Defendant asserts that only after watching the news report did Z.K. become convinced that defendant had shot her mother. Defendant argues that "what happened to [Z.K.] is not unlike what happens due to hypnotic suggestion." Defendant's argument is misplaced.
At trial, Z.K.'s grandmother testified that she told Z.K. she had something to show her:
And I had [the news clip] on pause, and I brought her into my rec room upstairs. And before I got her up to the couch, she turned around and she said, " Grandma, that's the man that killed my mommy. What's he doing on the TV?" And at that point, I put her in my lap, and I said, "Well, I just wanted to show you this. He cannot come here and hurt you. He's not going to shoot you. He's in jail now. They have him, and he can't come get you."
(Emphasis added.)
Z.K. identified defendant before her grandmother said anything about defendant. Further, Z.K. identified defendant in open court despite his hair color not being the same as depicted in the television news report and gave a full account of what transpired on the night of the murder. Defense counsel had a full opportunity to attack and contradict Z.K.'s identification of defendant at trial. Any issues concerning the credibility of Z.K.'s identification of defendant were to be resolved by the jury.
We hold that allowing Z.K. to identify defendant in open court as the perpetrator of the murder was not error, much less plain error. This argument is without merit.
C. Grandmother's Testimony
Defendant makes the sweeping assertion that "[a]llowing the deceased's mother to testify that [defendant] was arrested for first-degree murder and therefore wouldn't come and kill her granddaughter was plain error that denied the accused a fair trial." However, defendant "provides no explanation, analysis or specific contention in his brief supporting the bare assertion that the claimed error is so fundamental that justice could not have been done." State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 61 (2000), cert. denied, 532 U.S. 997, 149 L. Ed. 2d 641 (2001). Further, in light of the overwhelming evidence presented at trial that defendant murdered Knight with premeditation and deliberation as discussed infra, defendant cannot demonstrate that any testimony from Z.K.'s grandmother was prejudicial.
This argument is without merit.
III. Zimmerman's Testimony
In his second argument, defendant contends that the trial court erred by allowing Zimmerman to testify because she was not on the prosecutor's witness list at the beginning of the trial, and by denying defendant's motion for a mistrial and request for a recess. We disagree.
A. Calling of Witness
N.C. Gen. Stat. § 15A-903 provides, in part:
If there are witnesses that the State did not reasonably expect to call at the time of the provision of the witness list, and as a result are not listed, the court upon a good faith showing shall allow the witnesses to be called. Additionally, in the interest of justice, the court may in its discretion permit any undisclosed witness to testify.
N.C. Gen. Stat. § 15A-903(a)(3) (2009).
In the instant case, the State had attempted to locate Zimmerman, as defendant had asserted that she would provide him with an alibi, but was unable to locate her because defendant only gave detectives her nickname, "Butt," and a general physical description. Defense counsel had also failed to locate Zimmerman. During the course of the trial, defense counsel and the prosecution were notified that Zimmerman had information about the case and desired to testify. Both the State and defense counsel interviewed Zimmerman to determine what information she had concerning the case. The trial court subsequently granted the State's motion to supplement its witness list and allow Zimmerman to testify.
This Court addressed a similar situation in State v. Harden, 42 N.C. App. 677, 257 S.E.2d 635 (1979). In Harden, an eyewitness came forward while the trial was in progress. Id. at 679, 257 S.E.2d at 637. The trial court allowed the witness to testify that he saw the defendant's truck parked at the warehouse on the morning of the break-in at approximately 2:30 a.m. Id. On appeal, the defendant argued that it was error for the trial court to allow the State to call a surprise witness. Id. at 683, 257 S.E.2d at 639. In holding that the argument had no merit, this Court stated:
The witness who came forward in the middle of the trial was apparently no more of a surprise to defendant than he was to the State. The prosecutor did not act in bad faith. Defendant was given advance warning and a chance to interview the witness before he was called.
Id.
The analysis in Harden is applicable to the instant case. Neither the State nor defense counsel knew of Zimmerman's identity until after the trial was in progress. When Zimmerman finally came forward, defense counsel was afforded the opportunity to interview Zimmerman and to investigate her criminal background before she testified. "N.C.G.S. § 15A-903(a)(3) empowers the trial court `upon a good faith showing' to allow the State to call a witness whom the State `did not reasonably expect to call at the time of the provision of the witness list.'" State v. Brown, 177 N.C. App. 177, 185, 628 S.E.2d 787, 792 (2006). The trial court did not abuse its discretion by granting the State's motion to supplement its witness list and allowing Zimmerman to testify.
B. Motion for a Mistrial
Defendant further asserts that the trial court erred by denying his motion for a mistrial based upon his assertion that, in light of Zimmerman's testimony, counsel needed more time to advise defendant on whether to testify or introduce evidence on his own behalf.
It is well settled that "[w]hether or not to declare a mistrial is a matter within the sound discretion of the trial court, and its ruling will not be disturbed on appeal absent a gross abuse of such discretion." State v. Bidgood, 144 N.C. App. 267, 273, 550 S.E.2d 198, 202 (citation omitted), cert. denied, 354 N.C. 222, 554 S.E.2d 647 (2001). "A mistrial should be granted only when there are improprieties in the trial so serious that they substantially and irreparably prejudice the defendant's case and make it impossible for the defendant to receive a fair and impartial verdict." State v. Warren, 327 N.C. 364, 376, 395 S.E.2d 116, 123 (1990) (quotation omitted); see also N.C. Gen. Stat. § 15A-1061 (2009).
The trial court made the following finding as to defendant's motion for a mistrial:
the Court would find that the defendant's decision to testify doesn't have to be made at this time. That at such time, at the close of the State's evidence, hadn't occurred yet, and that the defendant would be given sufficient time to make decisions that would bear on his decisions to either take the stand and testify on his own behalf and/or offer evidence on his own behalf.
The State did not rest its case until the following day. Defendant requested a short recess, which was granted. Defendant subsequently informed the trial court that he did not intend to testify or otherwise introduce evidence. Defendant acknowledged to the trial court that his counsel had advised him, to his satisfaction, of the advantages and disadvantages of testifying or presenting evidence on his behalf. We discern no abuse of discretion in the trial court's ruling on defendant's motion for a mistrial.
C. Request for a Recess
On 9 November 2009 at approximately 12:00 p.m., after the trial court's ruling on defendant's motion for a mistrial, defendant requested a recess until "a little later in the week" so that defense counsel could have additional time to investigate pending charges against Zimmerman and possibly discover her motive for testifying. The trial court took defendant's motion under advisement. The trial court recessed until 2:00 p.m. and ordered the State to produce Zimmerman's criminal record. The State confirmed that there was no plea deal with Zimmerman as they had just learned of her identity and complied with the trial court's order. At 2:03 p.m., the court reconvened. Defense counsel did not renew his motion for a continuance or obtain a ruling on his previous motion. Defense counsel stated that he had nothing further to put on the record regarding Zimmerman and that he was ready to proceed.
Rule 10 of the North Carolina Rules of Appellate Procedure provides, in part:
In order to preserve an issue for appellate review, a party must have presented to the trial court a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context. It is also necessary for the complaining party to obtain a ruling upon the party's request, objection, or motion.
N.C.R. App. 10(a)(1) (2010). This Court has held that where a party does not obtain a ruling on their request or motion before the trial court, the party has failed to preserve the issue for appellate review. Gilreath v. N.C. Dep't of Health Human Servs., 177 N.C. App. 499, 501, 629 S.E.2d 293, 294, aff'd per curiam, 361 N.C. 109, 637 S.E.2d 537 (2006); Finley Forest Condo. Ass'n v. Perry, 163 N.C. App. 735, 738, 594 S.E.2d 227, 230 (2004).
Even assuming arguendo that defendant properly preserved this issue for review, the trial court did not err in failing to continue the case "until a little later in the week" because defense counsel was given the chance to interview Zimmerman and the State provided defense counsel with Zimmerman's criminal record so that counsel could investigate her background before proceeding with her testimony.
This argument is without merit.
IV. Jury Instructions
In his third argument, defendant contends that the trial court committed plain error by failing to instruct the jury on second-degree murder because Z.K. described Knight as having a gun and struggling with defendant. We disagree.
The frequently quoted standard for deciding whether the trial court must instruct on and submit second-degree murder as a lesser-included offense of first-degree murder is as follows:
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. Millsaps, 356 N.C. 556, 560, 572 S.E.2d 767, 771 (2002) (quotation omitted).
First-degree murder is committed with premeditation and deliberation. N.C. Gen. Stat. § 14-17 (2009). "Premeditation means that the act was thought over beforehand for some length of time, however short. Deliberation means an intent to kill, carried out in a cool state of blood, . . . and not under the influence of a violent passion or a sufficient legal provocation." State v. Taylor, 362 N.C. 514, 531, 669 S.E.2d 239, 256 (2008) (quotation omitted), cert. denied, ___ U.S.___, 175 L. Ed. 2d 84 (2009). In Taylor, our Supreme Court set forth several factors that support an inference of premeditation and deliberation on behalf of the defendant:
(1) entering the site of the murder with a weapon, which indicates the defendant anticipated a confrontation and was prepared to use deadly force to resolve it[;] (2) firing multiple shots, because "some amount of time, however brief, for thought and deliberation must elapse between each pull of the trigger[;]" (3) pausing between shots[;] and (4) attempting to cover up involvement in the crime[.]
Id. (internal quotation and citations omitted); see also State v. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994) (holding that other circumstances to consider, include the conduct and statements of the defendant before and after the killing, threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, ill-will or previous difficulties between the parties, evidence that the killing was done in a brutal manner, and the nature and number of the victim's wounds), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147 (1995).
In the instant case, the State presented evidence that Knight and defendant were sending threatening text messages to each other on 11 and 12 February 2008. Several of defendant's friends testified for the State as to defendant's conduct prior to the murder. Amanda Powers (Powers) testified that approximately one week before the murder, she overheard defendant state to Knight over the phone "that he didn't want to see her, that he didn't want her to come over there, that if she did come over there, that he was going to kill her." Defendant "was grabbing his gun, swinging it around. And that's when he grabbed the bullets and got real aggravated." Powers did not hear how the conversation ended because she left his residence.
Courtney Chapman-Gordon (Chapman-Gordon) testified that she met defendant approximately one week before the murder at Knight's residence. That night, defendant and Knight had a disagreement. Defendant stormed out of the apartment, but later returned. When defendant returned, he pulled out a small, black handgun to show to the people present. Two hours after Chapman-Gordon left Knight's residence, Knight called her hysterically crying and stated that defendant had put the gun in her face and threatened her life. Defendant also threatened to burn her apartment down with her daughter in it.
Z.K. testified that on the night of the murder, Knight broke up with defendant. Defendant left, but later returned to the residence. Z.K. heard one "loud boom." Knight ran into her room and locked the door. Defendant slammed the front door, but did not leave the apartment. Knight subsequently opened her bedroom door and defendant was standing in the doorway. Defendant then shot Knight three more times until she was dead.
Zimmerman testified that on 12 February 2008, defendant confessed that he had "just killed a girl." Defendant recounted to Zimmerman what had happened: "he had got [sic] mad, so he went over there and knocked on her door. She answered. And when she answered and let him in, he shot her." Defendant asked Zimmerman to tell the detectives that he had stayed at her house all night and watched movies.
Defendant argues that Z.K.'s testimony warranted a second-degree murder jury instruction. On cross-examination, defense counsel asked Z.K. whether she told Kim Madden (Madden), a child therapist, that her mother had a gun that evening. Z.K. replied, "Yes." We note that the basis of this question is unclear from the record. When asked whether Z.K. told her that Knight had a gun, Madden subsequently testified that she did not "recall that specifically, if she said that or not." Madden's notes from the interview were not admitted into the evidence at trial nor were they submitted in the record on appeal. Even if Madden had testified that Z.K. had told her that information, her testimony would have been corroborative, not substantive. We note that on re-direct, Z.K. testified that her mother did not have a gun that night.
Z.K.'s equivocal statements on whether Knight had a gun do not negate the overwhelming evidence of defendant's premeditation and deliberation in the murder of Knight. Defendant had threatened to kill Knight the week before her murder. On the night of the murder, defendant sent Knight a text message stating, "You f — with the bulls, you get horns." Defendant visited her apartment and Knight broke up with him. Defendant shot her once. Knight ran into the bedroom and locked the door. Defendant did not choose to leave the residence. Instead, defendant pretended to leave, by slamming the front door. Once Knight emerged from her bedroom, defendant shot her three more times in the head, neck, and left shoulder. See Taylor and Keel, supra. We hold that the State's 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[.]" Millsaps, 356 N.C. at 560, 572 S.E.2d at 771. The trial court did not commit plain error by failing to instruct the jury on second-degree murder.
This argument is without merit.
NO ERROR.
Judges ELMORE and ERVIN concur.
Report per Rule 30(e).