Opinion
No. COA11–1555.
2012-07-17
STATE of North Carolina v. Gary Lamont PEMBERTON.
Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant.
Appeal by Defendant from judgments entered 3 June 2011 by Judge R. Stuart Albright in Superior Court, Guilford County. Heard in the Court of Appeals 24 April 2012. Attorney General Roy Cooper, by Special Deputy Attorney General Francis W. Crawley, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender David W. Andrews, for Defendant.
McGEE, Judge.
Gary Lamont Pemberton (Defendant) was convicted of first-degree murder and possession of a firearm by a felon on 3 June 2011. The State's evidence tended to show that Defendant was driving his Lincoln Town Car (the Lincoln) in High Point on the afternoon of 7 August 2005 when he saw his cousin, Candace Lucas (Lucas), walking along the roadway. Defendant picked up Lucas and they eventually went to the home of Defendant's girlfriend, Angel Hayes (Hayes). After spending some time at Hayes's home, Defendant, Hayes, and Lucas left Hayes's home and got into the Lincoln. Hayes sat in the driver's seat, Defendant sat in the front passenger seat, and Lucas sat in the rear seat. They then drove to the Daniel Brook Apartments.
John Sellers (Sellers) was visiting Ashley McCoy (McCoy) at the Daniel Brook Apartments on the afternoon of 7 August 2005. After visiting with McCoy, Sellers got into his truck (the truck) and sat inside, with the driver's door open, for about five minutes. The Lincoln pulled into the parking lot of the Daniel Brook Apartments, and Defendant saw Sellers in the truck. Defendant had Hayes stop the Lincoln, and he got out and walked over to the truck. Defendant and Sellers talked for a few minutes, apparently without conflict. McCoy saw Defendant pull a handgun from under his shirt, chamber a round, shoot Sellers, and then “jog” back to the Lincoln. Lucas saw Defendant pull a gun from under his shirt and aim it at Sellers. She then ducked down in the back of the Lincoln and did not actually see Defendant fire the first shots, but she heard them. However, before Lucas heard the shots, she heard Sellers say: “Ain't shit changed because you got your little piece[,]” and Lucas then saw Defendant return to the Lincoln and shoot at Sellers one more time from over the hood of the Lincoln. Defendant got in the Lincoln and Hayes drove away. Lucas subsequently came to the police and told them what she knew about the shooting.
Lilly Jackson (Jackson), a resident of the Daniel Brooks Apartments, saw Defendant reach over the hood of the Lincoln and shoot Sellers as Sellers stood in the open door of the truck. There was no evidence that Sellers had a weapon with him at the time he was shot. Sellers died as a result of the shooting.
Police searched for Defendant for a few weeks without success and then contacted the United States Marshal's Office for assistance. Defendant was apprehended in Florida on 4 September 2005. He was extradited to High Point on 8 February 2006, where he was arrested.
Defendant was indicted for first-degree murder on 5 June 2006, and was indicted for possession of a firearm by a felon on 9 August 2010. Defendant was found guilty of first-degree murder, based upon the theories of premeditation and deliberation and felony murder, on 3 June 2011. Defendant was also found guilty of possession of a firearm by a felon on that same date. The trial court sentenced Defendant to life imprisonment without the possibility of parole for first-degree murder, and a concurrent sentence of sixteen to twenty months for possession of a firearm by a convicted felon. Defendant appeals.
I.
In Defendant's first argument, he contends the trial judge erred by refusing to recuse himself “because he was the elected district attorney when the State initiated the case against [Defendant].” We disagree.
Judge Albright was the Guilford County District Attorney at the time the crimes were committed and at the time extradition proceedings were instituted against Defendant. However, at the time Defendant was extradited from Florida and arrested in High Point, Judge Albright had already become a Superior Court judge. Defendant argues that Judge Albright should have recused himself because of his prior position as Guilford County District Attorney when extradition proceedings were initiated against Defendant.
N.C. Gen.Stat. § 15A–1223 covers recusals for judges in criminal proceedings:
(a) A judge on his own motion may disqualify himself from presiding over a criminal trial or other criminal proceeding.
(b) A judge, on motion of the State or the defendant, must disqualify himself from presiding over a criminal trial or other criminal proceeding if he is:
(1) Prejudiced against the moving party or in favor of the adverse party; or
....
(4) For any other reason unable to perform the duties required of him in an impartial manner.
(c) A motion to disqualify must be in writing and must be accompanied by one or more affidavits setting forth facts relied upon to show the grounds for disqualification.
(d) A motion to disqualify a judge must be filed no less than five days before the time the case is called for trial unless good cause is shown for failure to file within that time. Good cause includes the discovery of facts constituting grounds for disqualification less than five days before the case is called for trial.
N.C. Gen.Stat. § 15A–1223 (2011). The North Carolina Code of Judicial Conduct, Canon 3(C) states:
Disqualification.
(1) On motion of any party, a judge should disqualify himself in a proceeding in which the judge's impartiality may reasonably be questioned, including but not limited to instances where:
(a) The judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceedings;
(b) The judge served as lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it[.]
Code of Judicial Conduct Canon 3(C).
Therefore, if a defendant desires to have a judge recuse himself or herself, the defendant must first file a motion pursuant to N.C.G .S. § 15A–1223. That is, the motion must be filed “no less than five days before the time the case is called for trial” and it “must be in writing and must be accompanied by one or more affidavits setting forth facts relied upon to show the grounds for disqualification.” Id.; see also In re Key, 182 N.C.App. 714, 719, 643 S.E.2d 452, 456 (2007) (“While [Canon 3(C) ] certainly encourages a judge to recuse himself or herself in cases where his or her ‘impartiality may reasonably be questioned’ upon their own motion, they are not required to do so in the absence of a motion by a party.”); State v. Love, 177 N.C.App. 614, 627–28, 630 S.E.2d 234 (2006).
Before trial, Defendant was informed by the trial court that Judge Albright had been the elected district attorney at the time the crime occurred. T 5–7 Defendant did not file any motion asking Judge Albright to recuse himself and, in fact, Defendant's attorney told Judge Albright before trial that Defendant did not have any objection to Judge Albright hearing the matter. T 7 Judge Albright took it upon himself to ask Defendant, on the record, if Defendant objected to Judge Albright hearing the case. Absent any motion from Defendant, Judge Albright could have disqualified himself pursuant to N.C.G.S. § 15A–1223(a) if he believed he could not perform his duties in an impartial manner. Judge Albright decided there was no reason for recusal, stating:
I don't find any recusal warranted in this case. I know nothing about your case other than what I just learned. First time I ever looked at your file is today.... I know I did ask your attorney to bring this to your attention so you knew about it before today. Your attorney indicated you didn't have any objection to me being the Judge, but I'm just putting that on the record now so it's very clear.
....
I have no personal relationship [with the assistant district attorneys.] [They are] not related by blood, [neither was ever] one of my assistant [DAs].... They were employed after I left the DA's Office. I didn't hire either one of them.... There's no relationship. We don't hang out. I don't hang out with any one of them socially. I see them in a professional basis only.
Though Defendant stated on the record that he objected because Judge Albright had been the elected district attorney, Defendant's attorney stated for the record that he did not have any objection to Judge Albright hearing the case. T 11 Judge Albright told Defendant that he had been the district attorney for about five years, but before then, he had been a defense attorney for about five years and had represented clients in murder cases.
Judge Albright decided that he did not have a conflict and stated that he had spoken briefly to both Defendant's counsel and counsel for the State about the case, but only for scheduling matters, and that he had not received any information about the case until he looked at the file that very day, and that there was no basis for him to recuse himself.
Because Defendant filed no motion for recusal, there is no basis to challenge Judge Albright's refusal to recuse himself pursuant to N.C.G.S. § 15A–1223 or the North Carolina Code of Judicial Conduct, Canon 3(C). Defendant argues that Judge Albright was disqualified as a matter of law because he was the elected district attorney at the time the crime occurred, when the investigation commenced, and because “prosecutors likely handled extradition proceedings while [Judge Albright] served as the District Attorney.” Our Supreme Court has stated:
This Court has previously held that “ ‘the burden is upon the party moving for disqualification to demonstrate objectively that grounds for disqualification actually exist. Such a showing must consist of substantial evidence that there exists such a personal bias, prejudice or interest on the part of the judge that he would be unable to rule impartially.’ “ Thus, the standard is whether “grounds for disqualification actually exist.”
Lange v. Lange, 357 N.C. 645, 649, 588 S.E.2d 877, 880 (2003) (citations omitted). We are not prepared to hold that having served as a district attorney automatically disqualifies a judge from hearing any case that might have had some remote connection to the office of the district attorney at the time the judge was serving as district attorney. A defendant still has the burden of presenting substantial evidence that actual bias, prejudice or interest on the part of the judge exists, and that the judge would be unable to rule impartially. Id.
We are aware that in some instances a motion for recusal may be supported by substantial evidence that a judge's “ ‘impartiality [could] reasonably be questioned.’ Code of Judicial Conduct Canon 3C(1), 2004 N.C. R. Ct. 308.” In re Braswell, 358 N.C. 721, 724, 600 S.E.2d 849, 851 (2004). In the present case, Defendant did not properly move for recusal as required by N.C.G.S. § 15A–1223. Defendant also failed to present substantial evidence raising reasonable questions concerning Judge Albright's impartiality. We hold that, on the facts before us, Judge Albright did not err by refusing to recuse himself.
Defendant further argues that Judge Albright should not have ruled on the recusal issue himself.
If there is sufficient force to the allegations contained in a recusal motion to proceed to find facts, or if a reasonable man knowing all of the circumstances would have doubts about the judge's ability to rule on the motion to recuse in an impartial manner, the trial judge should either recuse himself or refer the recusal motion to another judge.
In re Faircloth, 153 N.C.App. 565, 570, 571 S.E.2d 65, 69 (2002) (citations omitted). Once again, we note that Defendant filed no motion to recuse. We further hold there was not sufficient force to the “allegations” such that Judge Albright should have either recused himself or referred the recusal issue to another judge. Defendant's argument is without merit.
II.
In Defendant's second argument, he contends that the trial court erred in denying Defendant's motion to dismiss the murder charge because “the State's theory of felony murder violated the merger rule and the evidence did not support either felony murder or murder by premeditation and deliberation.” We disagree.
“This Court reviews the trial court's denial of a motion to dismiss de novo.” State v. Smith, 186 N.C.App. 57, 62, 650 S.E.2d 29, 33 (2007) (citation omitted). “ ‘Upon defendant's motion for dismissal, the question for the 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. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (2000) (citation omitted). “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). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192–93, 451 S.E.2d 211, 223 (1994) (citation omitted).
Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence. If the evidence presented is circumstantial, the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances. 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.
Fritsch, 351 N.C. at 379, 526 S.E.2d at 455 (citations and quotation marks omitted).
In order to survive Defendant's motion to dismiss with respect to the premeditation and deliberation theory of first-degree murder, the State needed to have presented sufficient evidence that Defendant committed an “unlawful killing of a human being committed with malice, premeditation, and deliberation.” State v. Bedford, ––– N.C.App. –––, –––, 702 S.E.2d 522, 526 (2010) (citation omitted). Defendant argues that there was insufficient time for him to have premeditated and deliberated before the shooting.
“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.” Because premeditation and deliberation are ordinarily not susceptible to proof by direct evidence, they are most often proved by circumstantial evidence. This Court has identified certain conduct on the part of a defendant before, during, and after a murder that supports an inference of premeditation and deliberation. Such conduct includes the following: (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[.]
State v. Taylor, 362 N.C. 514, 531, 669 S.E.2d 239, 256 (2008) (citations omitted).
In considering the existence of premeditation and deliberation, “the term ‘cool state of blood’ does not mean an absence of passion and emotion. 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.” “The fact that a defendant was angry or emotional will not negate the element of deliberation during a killing unless there was evidence the anger or emotion was strong enough to disturb [the] defendant's ability to reason.” “[A] person may be excited, intoxicated and emotionally upset, and still have the capability to formulate the necessary plan, design, or intention to commit murder in the first [-] degree.”
Bedford, ––– N.C.App. at ––––, 702 S.E.2d at 527 (citations omitted).
In the present case, there was trial testimony that Defendant exited the Lincoln carrying a handgun and approached Sellers, who was sitting in his truck. Defendant carried on a conversation with Sellers for several minutes that was not heated. Defendant pulled his handgun from under his shirt, chambered a round in the handgun, and shot at Sellers two times. Defendant then “jogged” back to the Lincoln. When Defendant got back to the Lincoln, he shot one more time at Sellers over the top of the Lincoln. Defendant then told Sellers: “Don't get out of the car.” Defendant got in the Lincoln and Hayes drove them back to her house. Defendant then drove Lucas home. Defendant called Lucas about two days later and told her that “[h]e knew that they was out to get him, so he felt like they was going to get [Lucas].”
We hold that this evidence was sufficient evidence of premeditation and deliberation to survive Defendant's motion to dismiss the first-degree murder charge based upon the theory of premeditation and deliberation. Because we find no error in Defendant's conviction of first-degree murder based upon the theory of premeditation and deliberation, we do not address Defendant's arguments related to his conviction of first-degree murder based upon the felony murder rule. State v. Brewington, 195 N.C.App. 317, 321, 672 S.E.2d 94, 97 (2009) ( “Thus, the conviction for first [-] degree murder based on malice, premeditation, and deliberation stands, and defendant's remaining arguments with regard to the first[-]degree murder conviction based on felony murder are moot.”). Defendant's argument is without merit.
No error. Judges STEPHENS and HUNTER, JR. concur.
Report per Rule 30(e).