Opinion
No. 05-58.
Filed 15 November 2005.
Gaston County No. 02 CRS 6513; 02 CRS 6524.
Appeal by defendant from judgment entered 24 May 2004 by Judge Timothy L. Patti in Gaston County Superior Court. Heard in the Court of Appeals 17 October 2005.
Attorney General Roy Cooper, by Special Deputy Attorney General Robert J. Blum, for the State. Leslie C. Rawls, for defendant-appellant.
Defendant was fifteen years old when his father, Randy High, (father or victim) was shot to death on 10 February 2002. On that day, defendant's twelve year old brother (brother) had left in the morning to work on his bicycle at a friend's house. Defendant had been grounded by his father, and was forbidden from seeing his girlfriend (girlfriend). Defendant's brother returned to the house between 11:30 and noon that day, and found defendant and his girlfriend in defendant's brother's room. He then spoke with his father in his father's room before again leaving for his friend's house. Approximately two hours later, defendant's brother and his friend returned to the victim's house. Upon entering, they observed an empty tin, which the victim used to hide cash, onbrother's bed. Defendant and his girlfriend were no longer in the house. As they were heading into the father's bedroom, they observed him lying motionless on the floor, with blood surrounding his head. They ran from the house, and the friend's father called 911.
It was determined that the victim had been shot by two different weapons, a .380 caliber pistol and a .22 caliber rifle. The police questioned defendant, his brother, his girlfriend, and others. Defendant's brother stated his belief that defendant had killed the victim, partly based on the fact that the bolt to the .22 rifle, which was necessary for firing the weapon, had been hidden in his father's room, and only defendant knew where it was hidden. It was also determined that the victim's cell phone, and several hundred dollars in cash, had been taken. Defendant, who police described as unusually calm, at first admitted no guilt. While defendant was sitting in a police car, his uncle spoke with him and advised him to tell the police whatever he might know about the shooting. Shortly thereafter, an officer asked defendant if he had killed his father, and defendant admitted that he had, but claimed the shooting was accidental.
Defendant was taken to the police department and read his juvenile rights. He then made another statement denying knowledge of his father's murder, which he soon followed up with yet another statement admitting shooting his father with two different weapons, but insisting that his first shot was an accident, and the following shots were in self-defense. Finally, six months after the murder, defendant made a fourth statement which implicated both his girlfriend and himself. According to this statement, his girlfriend first shot his father with the .380 pistol (which she had brought with her) but did not kill him, and he then shot his father twice in the head with a .22 rifle belonging to the victim that normally hung on the wall of his brother's room.
Defendant was tried by a jury commencing 18 May 2004 on charges of first-degree murder, under theories of premeditation and deliberation and felony murder, and robbery with a dangerous weapon. The jury found defendant guilty of robbery with a dangerous weapon, and guilty of first-degree murder under the theory of premeditation and deliberation, but not guilty of first-degree murder under the theory of felony murder. Defendant was sentenced to life imprisonment without parole for first-degree murder, and to a concurrent active sentence of 64 to 86 months imprisonment for robbery with a dangerous weapon. From these judgments defendant appeals.
In his first argument, defendant contends that the trial court committed plain error by admitting certain statements by defendant taken in violation of his constitutional rights and N.C. Gen. Stat. § 7B-2101. We disagree.
Defendant made three different statements to police admitting a role in his father's killing. Defendant argues the admission of two of those statements amounts to plain error.
The plain error rule applies only in truly exceptional cases. Before deciding that an error by the trial court amounts to "plain error," the appellate court must be convinced that absent the error the jury probably would have reached a different verdict. In other words, the appellate court must determine that the error in question "tilted the scales" and caused the jury to reach its verdict convicting the defendant. Therefore, the test for "plain error" places a much heavier burden upon the defendant than [the burden] imposed by N.C.G.S. § 15A-1443 upon defendants who have preserved their rights by timely objection. This is so in part at least because the defendant could have prevented any error by making a timely objection.
State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 60-61 (2000). The plain error standard applies even though the error constituted a violation of the United States Constitution. See State v. Walker, 316 N.C. 33, 340 S.E.2d 80 (1986). "In meeting the heavy burden of plain error analysis, a defendant must convince this Court, with support from the record, that the claimed error is so fundamental, so basic, so prejudicial, or so lacking in its elements that absent the error the jury probably would have reached a different verdict." Cummings, 352 N.C. at 636, 536 S.E.2d at 61. Although defendant argues that the admission of the two statements rises to the level of plain error, his entire argument in support of that contention is as follows: "[defendant's] conviction rests largely upon the admission of the two statements." He "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." Id. "The right and requirement to specifically and distinctly contend an error amounts to plain error does not obviate the requirement that aparty provide argument supporting the contention that the trial court's [error] amounted to plain error. . . ." Id.
Defendant's empty assertion of plain error, without supporting argument or analysis of prejudicial impact, does not meet the spirit or intent of the plain error rule. By simply relying on the use of the words "plain error" as the extent of his argument in support of plain error, defendant has effectively failed to argue plain error and has thereby waived appellate review.
Id. at 637, 536 S.E.2d at 61 . Defendant has not preserved his plain error argument for appellate review.
Even assuming arguendo that defendant has not waived appellate review, and that the two statements were admitted in error, he is unable to prove that the error rises to the level of plain error. On 6 August 2002 defendant contacted Detective Jeff Costner of the Gaston County Police Department to make a statement. Detective Costner went to the Gaston Regional Detention Center and took a statement from defendant. Defendant does not argue on appeal that the admission of this statement at trial constitutes error.
The statement defendant gave is as follows: The Saturday before the shooting, he and his father got into an argument over defendant's girlfriend; his father called her a "bitch" and pushed defendant into some stereo speakers. That night, defendant talked with his girlfriend about killing himself, and also stated to her that he wished his father was dead. His girlfriend came by the following morning, and brought with her a .380 caliber handgun. After defendant dressed, his girlfriend asked him if he loved her, and said "Nate, if it's between you and your dad I'm not losingyou." Defendant told her he loved her, and she walked over and opened the door to the victim's bedroom. Defendant heard a gunshot, and something falling to the floor. He ran into his father's room and another shot rang out. Defendant found his father, shot, on his knees. His father screamed "You son of a bitch. You shot me." "I felt the only way to solve this is to run into [my brother's] room and get the .22 rifle. I didn't load it. It was already loaded. I took it in there and my dad was at the foot of the bed. I shot him twice. I am not sure where but I think it was in the head. I ran out of the room. . . ." "I ran to the van behind the house." "I threw the gun up in the bed of the van and walked back. The cell phone I already had. The money tin was in my room. I had over $200.00 in birthday money. The other money I did take from the tin can but it was in my room."
Prior to this statement, defendant made two other statements to police implicating himself in his father's murder. In the first statement to which defendant objects, he told the police, while sitting in a police car, that he shot his father, but that it was an accident. In the second statement to which he objects, defendant told the police that he and his father got into an argument in which his father was physically abusive to him. During the course of the altercation, defendant picked up a handgun that his father had placed on the living room couch, and it went off accidentally when his father pushed him. His father kept coming at him in a threatening manner, and defendant shot at him several more times, not knowing how many of the shots found their target. His father fell beside his bed, but somehow managed to wrest the handgun away from defendant. Defendant ran to his brother's room and got the .22 rifle, returned to his father's room, and shot him twice more when his father aimed the handgun at him. He stated that he took some money out of the tin can, which was in the den, to buy his girlfriend something for Valentine's day.
Considering the plenary uncontested evidence of defendant's guilt admitted at trial, there is no probability that a different result would have been reached at trial had the two contested statements been excluded. In the first contested statement, defendant argues that the shooting was accidental. In the second, he contends that the first shot was accidental, and the rest were done in self-defense. These statements are considerably less prejudicial to defendant than the unchallenged third inculpatory statement, in which defendant admits leaving his father incapacitated and on his knees to go and retrieve the .22 rifle, return, and shoot the kneeling unarmed man twice in the head.
Further, defendant's younger brother testified that he briefly returned home from working on bicycles with his friend at approximately 11:30 to noon on the day in question to find defendant and defendant's girlfriend in defendant's brother's room. This surprised him, because he knew that defendant had been grounded by his father, and was not supposed to be seeing his girlfriend. Both defendant and his girlfriend told him to keep quiet about her presence in the house. He left the house, with his father, defendant and defendant's girlfriend still inside. Hereturned to the house about two hours later with his friend, to find the empty money tin on his bed, and his father dead on the floor. He testified that his father kept the bolts necessary to fire the .22 rifle hidden in his dresser drawer, and that his father also kept a tin in his room where he sometimes put his cash. When police questioned him the day of the murder, he told them that he knew defendant had committed the crime because he was the only one (excluding himself and their father) who knew where the bolts to the .22 rifle were hidden. Police tested the hands of defendant and his girlfriend that day for gunpowder residue, and the tests came back positive, indicating that they had recently discharged firearms. Police found the .22 rifle that was missing from the defendant's house in the back of an old van behind the house, corroborating part of defendant's uncontested confession. Ballistic tests were inconclusive due to the fragmentary nature of the recovered bullets, but could not rule out that rifle as one of the murder weapons. $280 cash was recovered from defendant's girlfriend's book bag, and the victim's cell phone was recovered from a box in defendant's room.
In light of this evidence, assuming arguendo that the statements were admitted in error, defendant fails in his burden of proving plain error. This argument is without merit.
In his second argument, defendant contends that the trial court erred in denying his motion to dismiss all charges. We disagree. Defendant was convicted of both first-degree murder based on the theory of premeditation and deliberation, and robbery with a dangerous weapon. "Upon defendant's motion for dismissal, the question for the [trial] court 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." State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980) (citations omitted). Substantial evidence is relevant evidence that a reasonable person would find sufficient to support a conclusion. State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352, 355 (1987) (citation omitted). When reviewing a motion to dismiss based on insufficiency of the evidence, this Court must
view the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Contradictions and discrepancies do not warrant dismissal of the case but are for the jury to resolve. . . . Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then "`it is for the jury to decide whether the facts, taken singly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty.'"
State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19 (1993) (citations omitted) (emphasis removed). "In addition, the defendant's evidence should be disregarded unless it is favorable to the State or does not conflict with the State's evidence." State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 456 (2000) (citation omitted), cert. denied, Fritsch v. North Carolina, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). First-degree murder as alleged in the instant case is defined as "the unlawful killing of a human being with malice, premeditation, and deliberation." State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980). Defendant specifically argues that the evidence does not support finding the required elements of premeditation and deliberation.
Premeditation means thought over beforehand for some length of time, however short, but no particular time is required for the mental process of premeditation. Deliberation does not require brooding or reflection for any appreciable length of time, but imports the execution of an intent to kill in a cool state of blood without legal provocation, and in furtherance of a fixed design. The requirement of "cool state of blood" does not mean that defendant must be calm or tranquil. An unlawful killing is deliberate and premeditated if done pursuant to a fixed design to kill, notwithstanding that defendant was angry or in an emotional state at the time, unless such anger or emotion was such as to disturb the faculties and reason.
Id. at 677, 263 S.E.2d at 772-73.
Defendant argues that there is insufficient evidence of premeditation and deliberation. We hold that the defendant's unchallenged statement that he left his father, who had just been shot twice and was on his knees, in order to collect a rifle from another room, return, and shoot his unarmed father twice in the head constituted sufficient evidence of premeditation and deliberation to survive the motion to dismiss.
Robbery with a dangerous weapon is defined as: "(1) the unlawful taking or an attempt to take personal property from the person or in the presence of another (2) by use or threatened use of a firearm or other dangerous weapon (3) whereby the life of a person is endangered or threatened." State v. Barden, 356 N.C. 316, 352, 572 S.E.2d 108, 131-32 (2002). Defendant's unchallenged statement again provides sufficient evidence to survive a motion to dismiss on this charge. According to defendant, he shot his father twice in the head and then took money out of his father's tin. Defendant claimed that $200.00 of that money belonged to him, but admitted the remainder did not. This argument is without merit.
Because defendant has not argued his other assignments of error in his brief, they are deemed abandoned. N.C.R. App. P. Rule 28(b)(6) (2003).
NO ERROR.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).