Opinion
No. 07-1575.
Filed 5 August 2008.
Robeson County No. 00 CRS 18103, 14052, 14054-14057.
Appeal by defendant from judgments entered 28 March 2007 by Judge William C. Gore, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 21 May 2008.
Attorney General Roy Cooper, III, by Special Deputy Attorney General Tiare B. Smiley, for the State. Reita P. Pendry, for the defendant-appellant.
The State presented evidence sufficient to establish the elements of burglary and to withstand defendant's motion to dismiss the burglary charge and the charge of first-degree murder based upon the felony murder rule. The State's evidence was sufficient to withstand defendant's motion to dismiss the charge of first-degree murder based upon premeditation and deliberation. The trial court did not err in instructing the jury on flight. The trial court's instructions to the jury on diminished capacity did not shift the burden of proof from the State to the defendant.
I. Factual and Procedural Background
On 20 June and 22 June 2000, Travis Jermayne Williams (defendant) broke into the home of Janet O'Steen, an 81-year-oldwoman who lived alone. On the first occasion, Ms. O'Steen was not home. Defendant broke into the house through the back door and took a silver lighter from the living room and a watch from the bedroom. Two days later, defendant returned to the house. Ms. O'Steen was at home. Defendant severely beat Ms. O'Steen, leaving her bruised and bloodied in her living room. He stole her television and her car.
When Ms. O'Steen failed to answer her phone the next day, her daughter investigated. When the daughter entered Ms. O'Steen's house, she immediately noticed that the rooms were in disarray. There was blood on the living room floor and wall and the back of her mother's chair was covered with blood. She found her mother lying on the dining room floor. A bent cane was lying on the floor. When rescue workers arrived, Ms. O'Steen was unresponsive, but the medics were able to detect vital signs. Ms. O'Steen suffered lacerations to her extremities, puncture wounds to her abdomen, abrasions and bruises to her face and arms, and a large open wound to her head. She was hospitalized for 55 days before dying of the injuries sustained in the 22 June beating. The medical examiner testified that the cause of death was blunt force head trauma.
Defendant was taken into custody on 25 June 2000 and gave a detailed voluntary statement to investigators. In his statement, defendant confessed to the 20 June 2000 break-in of the O'Steen residence. He also confessed to striking Ms. O'Steen with her cane and twice in the head with a brick on the night of 22 June 2000. He then stole and subsequently pawned her television set. With the proceeds, he redeemed his recently-pawned stereo set. Following his statement, defendant was arrested.
Defendant was tried capitally for first-degree murder. He was also tried for the offenses of attempted burning of personal property, first-degree burglary, larceny of a motor vehicle, felony larceny, and felonious breaking and entering and larceny. Defendant asserted a diminished capacity defense. On 23 March 2007, the jury returned a verdict of guilty of first-degree murder based upon both submitted theories: malice, premeditation, and deliberation; and felony murder. The jury also found defendant guilty of each of the other felonies. On 28 March 2007, the jury unanimously recommended a sentence of life imprisonment without parole on the first-degree murder conviction. The trial court entered judgment on each verdict and sentenced defendant to life imprisonment without parole on the first-degree murder charge, with consecutive sentences totaling 169 to 216 months on the remaining felony charges. Defendant appeals.
II. Felony Convictions
In his first four arguments, defendant contends that the trial court erred in denying his motions to dismiss the murder and burglary charges.
A. Standard of Review
On a defendant's motion for dismissal on the ground of insufficiency of the evidence, the trial court must determine only whether there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense. What constitutes substantial evidence is a question of law for the court. . . . If there is substantial evidence _ whether direct, circumstantial, or both _ to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.
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 that can be drawn therefrom.
. . .
Contradictions and discrepancies do not warrant dismissal of the case _ they are for the jury to resolve. The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged.
State v. Montgomery, 341 N.C. 553, 560-61, 461 S.E.2d 732, 735-36 (1995) (internal quotations, citations, and alterations omitted). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Id. at 561, 461 S.E.2d at 735.
B. Premeditation and Deliberation
In his first two arguments, defendant contends that the trial court erred in denying his motions to dismiss the first-degree murder charge on the theory of malice, premeditation, and deliberation, and in instructing the jury on premeditation and deliberation, because the evidence showed that his emotions overcame his reason and the killing was not done in a "cool state of mind." We disagree. At trial, the State introduced evidence of defendant's statement to investigators, photographs of the scene and the victim, and the cane and the brick used in the attack. The cane was bent in two places, and the brick was recovered from its hiding place based upon information provided in defendant's voluntary statement. The State's witnesses testified to a bloody and violent scene, to the nature and degree of the victim's injuries, and to the disfigurement and pain that the victim suffered as a result of the attack. In his confession to investigators, defendant admitted that he knew that Ms. O'Steen wasn't dead when he left the house yet he refused her pleas for help.
Premeditation means [that the act was] thought out beforehand for some length of time, however short, but no particular time is required for the mental process of premeditation. Deliberation means an intent to kill executed by the defendant 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. The term `cool state of blood' does not mean that the defendant must be calm or tranquil or display the absence of emotion; rather, the defendant's anger or emotion must not have been such as to overcome the defendant's faculties and reason.
. . .
Among the circumstances to be considered in determining whether a killing was with premeditation and deliberation 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.
State v. Williams, 308 N.C. 47, 68-69, 301 S.E.2d 335, 348-49 (1983). Because premeditation and deliberation are states of mind, they are not readily and ordinarily susceptible to proof by direct evidence, but are more often proved by circumstantial evidence. Id., 301 S.E.2d at 349.
In the instant case, the evidence was uncontroverted that lethal blows were struck by defendant upon an elderly woman sitting in a chair, and that the killing was done in a brutal fashion. The evidence was clear that Ms. O'Steen did nothing to provoke the attack, excepting defendant's assertion that her kindness provoked a post-traumatic stress response. Defendant asserts that, because he presented evidence that he lacked capacity to form specific intent and that the attack resulted from a post-traumatic stress response, the State's evidence was insufficient as a matter of law. When the evidence is viewed in the light most favorable to the State, this argument is unpersuasive.
In his statement to police, defendant stated:
We probably talked for 20 minutes. The TV was on with a war movie on. I walked into the kitchen and came back and grabbed her with my arm around her chest. She grabbed her cane that was next to the chair. I took it and had it in my hands and went forward with it. It pushed into her with the end that you hold, not the end you put on the floor. I put the cane in the dining room. We talked some more. I went out the front door and got a brick from beside the door. . . . We had been talking about me being scared because she could tell who I was. She said she wouldn't, but I was still afraid she would. I came back inside and hit her in the head with the brick twice. . . . I know she wasn't dead when I left because she reached her hand out and said, `Help me, baby. Help me.'
By defendant's own admission, he struck an 81-year-old woman in the abdomen with sufficient force to bend her cane. He "put the cane in the dining room." Afraid that Ms. O'Steen would tell someone what he had done, he left the living room and picked up a brick that he had seen on his way into the house. He then returned to the living room and hit Ms. O'Steen in the head with sufficient force to fracture her skull. These circumstances show that defendant acted with premeditation and deliberation to go and get the brick and then to assault Ms. O'Steen again to prevent his identification to the police. We hold that defendant's own statement is substantial evidence from which a jury could conclude that the killing was done with premeditation and deliberation. Montgomery, 341 N.C. at 561, 461 S.E.2d at 735; Williams, 308 N.C. at 68-69, 301 S.E.2d at 348-49. Whether or not his emotions overcame his reason is a matter to be resolved by the jury. Montgomery, 341 N.C. at 561, 461 S.E.2d at 736. Consequently, the trial court did not err in denying defendant's motion to dismiss the murder charge or in instructing the jury on premeditation and deliberation.
Leaving the victim to die on the floor is additional evidence from which a jury could infer premeditation and deliberation. State v. Beck, 346 N.C. 750, 755, 487 S.E.2d 751, 755 (1997).
These arguments are without merit.
C. Burglary and Felony Murder
In his next two arguments, defendant contends that the trial court erred in denying his motions to dismiss the felony murder and burglary charges because the State's evidence was insufficient as a matter of law to prove that there was a breaking or that he had the requisite intent to steal. We disagree.
In his statement to police, defendant stated that Ms. O'Steen admitted him into her home on the evening of the attack:
. . . I knocked on the front door and saw the lady's legs on a foot stool through the crack in the door. She came to the front door. She asked what I wanted. I told her I needed to use the phone. I walked to the kitchen where she said the phone was, but I turned around. I didn't use the phone. I went back in the living room. . . .
. . .
I had almost gone in the bedroom window that night. I had got it open and put a stick in it but, decided I would go to the front door. I took the stick out and put it on the bed before I left. I put the window down. . . .
Conflicts in the evidence and witness credibility are both matters for the jury. Montgomery, 341 N.C. at 561, 461 S.E.2d at 736. The State presented circumstantial evidence related to the window that defendant mentioned in his statement: an open bedroom window, a screen laying on the ground outside the house, and a stick found inside the house, in the bedroom. The State also introduced defendant's admission that he broke into the house two days before the attack and his reference to the propped-open window. Defendant's fingerprints were found on the outside of the bedroom window and its storm window. Finally, defendant admitted stealing the television set and Ms. O'Steen's car, which also bore his thumbprint. Viewing the evidence in the light most favorable to the State, we hold that there was substantial circumstantial evidence from which a jury could conclude that defendant broke into the house on the night in question with the intent to steal property, id., 461 S.E.2d at 735-36; State v. Gray, 322 N.C. 457, 461, 368 S.E.2d 627, 629 (1988)("evidence of what a defendant does after he breaks and enters a house is evidence of his intent at the time of the breaking and entering"), and the evidence was sufficient to withstand defendant's motion to dismiss the burglary charge.
With respect to the first-degree murder charge, the jury was instructed on the theory of felony murder based upon the burglary as the underlying felony. Having established that the State presented sufficient evidence to withstand defendant's motion to dismiss the burglary charge, we further hold that the same evidence is sufficient to support the murder charge based upon the felony murder rule. The trial court did not err in denying defendant's motions to dismiss either the burglary or the first-degree murder charge based upon the felony murder rule.
These arguments are without merit.
III. Flight Instruction
In his fifth argument, defendant contends that the trial court erred in charging the jury on flight because the evidence showed that he "remained in the area" after leaving Ms. O'Steen's home on the night of the attack. We disagree. In State v. Lloyd, 354 N.C. 76, 552 S.E.2d 596 (2001), our Supreme Court stated:
A trial court may properly instruct on flight where there is some evidence in the record reasonably supporting the theory that the defendant fled after the commission of the crime charged. However, mere evidence that defendant left the scene of the crime is not enough to support an instruction on flight. There must also be some evidence that defendant took steps to avoid apprehension.Id. at 119, 552 S.E.2d at 625 (internal quotations and citations omitted). Defendant contends that his statement demonstrates that he did not flee. Defendant told police that he sat on a bench in a local park all night before conducting personal business the following day, and that he returned to Ms. O'Steen's neighborhood on 25 June and was taken into custody. This argument presents the evidence in the light most favorable to defendant, which is not the proper standard of review.
When viewed in the light most favorable to the State, defendant did more than merely leave the scene of the crime. Lloyd, 354 N.C. at 119, 552 S.E.2d at 625. As required by Lloyd, there was some evidence supporting the State's theory of flight and that defendant took affirmative steps to avoid apprehension. The State's evidence showed that defendant used back roads to return to Lumberton after a night in Fayetteville. He abandoned Ms. O'Steen's car in a heavily wooded area, where it was found partially down an embankment, with a partially-burned sock hanging from the window and a strong odor of gasoline or other accelerant in its interior. The car's license plate was eight yards away, from which a jury could conclude that defendant sought to hide any trace of the car's identification. We hold that the State's evidence was sufficient to meet the standard set forth in Lloyd, 354 N.C. at 119, 552 S.E.2d at 625, and the trial court did not err in instructing the jury on flight.
This argument is without merit.
IV. Jury Instruction on Diminished Capacity
In his final argument, defendant contends that the trial court committed plain error in instructing the jury on diminished capacity. We disagree.
At trial, defendant asserted a diminished capacity defense as to the murder and burglary charges, presenting expert testimony that he lacked capacity to form the specific intent necessary to support convictions for those crimes. Defense witnesses testified to a history of abuse that supported the defense theory that defendant suffered a psychotic break. The jury was instructed on how it should consider the expert testimony and also on diminished capacity.
"In criminal cases, a question which was not preserved by objection noted at trial and which is not deemed preserved by rule of law without any such action may still be the basis of an assignment of error where the judicial action questioned is specifically and distinctly contended to amount to plain error." State v. Cummings, 361 N.C. 438, 469, 648 S.E.2d 788, 807 (2007) (citing N.C. R. App. P. 10(c)(4)), cert. denied, __ U.S. __, 170 L. Ed. 2d 760, 128 S. Ct. 1888 (2008). "However, before engaging in plain error analysis it is necessary to determine whether the instruction complained of constitutes error." Id. at 470 (citation omitted).
The trial court instructed the jury on diminished capacity, utilizing the pattern jury instruction, N.C.P.I. Crim. 305.11, which has been upheld by our Supreme Court as an accurate statement of the law. State v. Roache, 358 N.C. 243, 304, 595 S.E.2d 381, 420 (2004) (holding that the trial court did not err in using the pattern jury instruction on diminished capacity rather than wording requested by defendant); State v. Carroll, 356 N.C. 526, 538-40, 573 S.E.2d 899, 907-09 (2002) (finding no plain error where the trial court gave pattern jury instructions on diminished capacity), cert. denied, 539 U.S. 949, 156 L. Ed. 2d 640 (2003). This Court reviews the jury instructions as a whole, not in segments as defendant desires. E.g. State v. Rich, 351 N.C. 386, 393-394, 527 S.E.2d 299, 303 (2000) (quoting from State v. Wilson, 176 N.C. 751, [754-55,] 97 S.E. 496[, 497] (1918) for the premise that "The charge of the court must be read as a whole . . ., in the same connected way that the judge is supposed to have intended it and the jury to have considered it. . . .") (alterations in original).
Defendant asserts that the trial court's instruction on diminished capacity did not inform the jury that the State had the burden of proving that defendant's mental incapacities did not prevent him from forming the requisite intent to kill and to commit larceny. He contends that the "judge never charged the jury on the State's burden, leaving it free to assume that once defendant introduced evidence of diminished capacity, he had to prove that he lacked capacity and that he could not form the requisite intent[.]" Defendant's argument misstates the burden of proof insofar as it attempts to shift the legal standard of proof from the State's burden on each charge to a more specific burden on the diminished capacity defense.
The record demonstrates that the trial court included the following instruction in its general instructions to the jury:
Under our system of justice, when a defendant pleads not guilty, he is not required to prove his innocence. He is presumed to be innocent. The State of North Carolina must prove to you that the defendant is guilty of any crime beyond a reasonable doubt.
. . .
After weighing all the evidence, if you are not convinced of the guilt of the defendant as to a particular charge beyond a reasonable doubt, then you must find the defendant not guilty as to that charge.
In each individual charge and mandate, the trial court repeated that the State must prove the elements of the charge beyond a reasonable doubt. As to the murder charge, the trial court instructed the jury on diminished capacity as follows:
[I]n regard . . . to this element of intent, you may find that there is evidence which tends to show that the defendant lacked mental capacity at the time of the acts alleged in this case. If you find that the defendant lacked mental capacity, you should consider whether this condition affected his ability to formulate the specific intent which is required for conviction of first-degree murder on the basis of premeditation and deliberation.
In the very next sentence, the trial court stated: In order for you to find the defendant guilty of first-degree murder, you must find beyond a reasonable doubt that he killed the deceased with malice, and in the execution of an actual specific intent to kill formed after premeditation and deliberation. If, as a result of lack of mental capacity, the defendant did not have the specific intent to kill the deceased formed after premeditation and deliberation, he is not guilty of first-degree murder on the basis of premeditation and deliberation.
The trial court closed the murder charge with the following statement:
If you do not so find or have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty of first-degree murder on the basis of malice, premeditation and deliberation. And again, I remind you that if, upon considering the evidence with respect to the defendant's lack of mental capacity, you have a reasonable doubt as to whether the defendant formulated the specific intent required for conviction of first-degree murder, you will not return a verdict of guilty of first-degree murder on the basis of premeditation and deliberation.
Other than his assertion that the jury was free to assume that he had the burden to prove that he lacked capacity and could not form the requisite intent, defendant fails to articulate where or how the jury was left with that assumption.
The record reflects that the trial court articulated the State's burden of proof beyond a reasonable doubt no less than fifteen times and repeated seven times that the jury should return a verdict of not guilty if it had a reasonable doubt on each of the charges. The jury heard the State's burden repeated another half-dozen times when the trial court repeated the first-degree and second-degree murder charges at the jury's request. We hold that, when considered as a whole, the court's jury instructions on the murder and burglary charges were without error.
Defendant further contends that the trial court failed to provide "concrete guidance" on how to use the mental health evidence to decide the issues of premeditation and deliberation and the intent required for a burglary conviction. He contends that, where the jury's requests for re-instruction on these issues demonstrate that it was wrestling with this issue, the court's failure to issue clearer instructions entitles him to a new trial.
The jury retired for deliberations shortly after 2:00 p.m. on 22 March 2007. During the afternoon session, the jury requested reinstruction on the burglary and murder charges, as well as to see defendant's confession and the psychologist's report. At 11:13 a.m. on the morning of 23 March, it requested reinstruction on the murder charge. The jury returned its verdict shortly over an hour later. The jury never requested reinstruction on the use of expert testimony.
The trial court instructed the jury that "You should consider the opinion of an expert witness, ladies and gentlemen, but you are not bound by it. In other words, you are not required to accept an expert witness' opinion to the exclusion of the facts and circumstances disclosed by other testimony." Viewing the court's charge as a whole, there was no error in the court's instruction to the jury as to how it should consider expert testimony in this case. Rich, 351 N.C. at 393-94, 527 S.E.2d at 303.
This argument is without merit. Defendant's brief addresses only six of thirteen original assignments of error. Pursuant to N.C. R. App. P. 28(b)(6) (2007), the remaining assignments of error are deemed to be abandoned.
NO ERROR.
Judges McGEE and GEER concur.
Report per Rule 30(e).