Opinion
No. 07-328.
Filed February 5, 2008.
Guilford County, No. 05 CRS 74756.
Appeal by defendant from judgment entered 22 September 2006 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 17 October 2007.
Attorney General Roy Cooper, by Special Deputy Attorney General Norma S. Harrell, for the State. Law Office of Glenn Gerding, by Glenn Gerding, for defendant-appellant.
Tracey Lamour Siler ("defendant") appeals from a judgment entered upon a jury verdict finding him guilty of first-degree murder. We find no error.
On 19 September 2006, in Guilford County Superior Court, the State presented evidence that Guilford County Emergency Medical Services ("EMS") responded to a call on 9 April 2005 that a resident of the Suburban Lodge in Greensboro, North Carolina was unconscious. EMS paramedic Timothy McNeal ("McNeal") and paramedic-in-training Jennifer Vernon ("Vernon") knocked on the door to room 233 of the Suburban Lodge. Defendant opened the door. McNeal and Vernon found defendant's girlfriend, Jessica Crews ("the victim"), lying motionless on the bed in her underwear. McNeal and Vernon detected a strong odor of bleach in the room. McNeal observed that the victim was in cardiac arrest, she had no heartbeat, no pulse and was not breathing, but her heart was "fibrillating." Defendant told McNeal and Vernon the victim was cleaning with Clorox and Ajax cleaners and was overcome by the chemicals. McNeal and Vernon moved the victim from the bed to the floor in order to perform cardiopulmonary resuscitation ("CPR"), because the bed was too soft to perform CPR on the victim. McNeal testified he and Vernon cleared white frothy fluids from the victim's air passage. McNeal and Vernon tried to shock the victim's heart but could not get a heartbeat. The victim was taken to the emergency room at Moses Cone Hospital in Greensboro.
The victim was pronounced dead at the hospital. Emergency Medical Technician Charlie Grant ("Grant"), who examined the victim upon arrival at the hospital, testified that an odor of bleach emanated from the victim. Grant also testified the victim had a bluish mark on her upper lip below the nose, sustained scratch marks on her face and on her arm, as well as a bruise to the back. Dr. Thomas Clark ("Dr. Clark"), the medical examiner who performed an autopsy on the victim, testified he found human bite marks on the victim's left deltoid region and her vagina was bruised and torn. A dental impression of the defendant's teeth matched photographs of the bite marks on the victim's body. Dr. Ernest Burkes, Jr. ("Dr. Burkes"), an oral pathologist, testified that there was a strong possibility the bite marks were made by the defendant. The scratch marks on the victim's face were "diagnostic of fingernail marks." Dr. Clark testified that the bluish mark on her upper lip was a bruise "produced when the lip was pushed into the tooth behind it." Dr. Clark testified the victim's death was caused by asphyxiation and the fingernail marks on the victim's face and neck indicated someone placed a hand over her mouth and neck.
Detective Michael Conwell of the Greensboro Police Department ("Detective Conwell") interviewed the defendant at the hospital. Defendant told Detective Conwell the victim became overcome by fumes while cleaning the bathroom.
Two witnesses testified to an assault between the defendant and the victim in January 2003, when the defendant lunged at the victim and was restrained to prevent him from hitting the victim.
The victim was employed as a server at TGI Fridays. Tammy Ann Gill ("Gill"), one of the victim's co-workers at TGI Fridays, testified that three or four weeks before her death the victim told Gill she was in an emotionally abusive relationship and asked Gill if she could move in with her. Gill also testified that during the same time period, the defendant arrived at TGI Fridays at the end of the victim's shift, grabbed her by the arm and pulled her out of the restaurant. Lisa Rowe ("Rowe"), a Suburban Lodge employee, testified that two or three weeks before the victim's death, she went to the victim's room in response to a complaint and heard the victim crying. The victim asked Rowe to go away because she was making the situation worse. Clyde Dungee, Jr. ("Dungee"), the Suburban Lodge security officer, testified that two weeks prior to the victim's death, he heard loud shouting between the victim and the defendant in the laundry room of the Suburban Lodge. Dungee testified the defendant's voice was a "voice of anger" and "very berating, very belittling."
In early to mid-March 2005, the victim began sleeping in the lobby of the Courtyard Marriott located near TGI Fridays. A few days before 9 April 2005, the victim stopped sleeping in the lobby of the Courtyard Marriott after the hotel manager asked her to leave. Claire Johnson ("Ms. Johnson"), the victim's co-worker, testified that on the Tuesday before the victim's death, she observed the victim and the defendant in the parking lot of TGI Fridays. The victim showed defendant her paycheck. Apparently, the victim's net pay that week amounted to zero dollars. The defendant yelled at the victim and said "you don't know what I'll do to you." Gill testified that the week of 9 April 2005, the victim again asked Gill if she could live with her. On 8 April 2005, at around 4 a.m., in the morning the day before the victim's death, Dungee heard the defendant "hollering" at the victim and calling her stupid.
The defense presented the following evidence. Defendant's former girlfriend, Valerie Fearington, who dated defendant from 1997 until 2001, testified defendant was never emotionally or physically abusive with her. Larry Johnson, Jr., a friend of the defendant's, testified he never witnessed any problems between the defendant and victim. Defendant testified that on 8 April 2005, the victim dressed in a negligee and asked to have sex with the defendant. Defendant testified that earlier that week, during sex, the victim asked him to bite her arm. On 9 April 2005, the victim was cleaning the bathroom as defendant left the room. When he returned, the victim was in the bathroom naked and he smelled a strong odor of Clorox. She told him that when she slipped and fell, the Clorox went into her eyes, her nose, and her mouth. Defendant turned on the vent to let some air in the room, and left to eat some breakfast. When defendant returned, the victim was lying on the bed. The victim was scheduled to work that afternoon but told defendant she called in sick. Defendant napped in bed with the victim and woke up around 1:30 p.m. He started to watch television, then looked over at the victim and saw she was foaming at the mouth. Defendant called the front desk and asked the hotel manager to call an ambulance. EMS called the room and instructed the defendant to perform CPR on the victim. Defendant tried to perform CPR on the victim but said it was difficult because there was Clorox in her mouth. When EMS arrived at the Suburban Lodge, they tried to resuscitate the victim. Defendant accompanied EMS to the hospital. At the hospital, defendant complained he was not feeling well and his mouth was foaming with Clorox. Defendant felt better after a few hours. Defendant denied killing the victim.
Defendant moved to dismiss the charge of first-degree murder at the close of the State's evidence. Judge Ronald E. Spivey denied the motion.
At the close of all the evidence, defendant renewed his motion to dismiss for insufficient evidence and the court denied the motion. At the charge conference, the defendant asked for an instruction on second-degree murder. The trial court denied defendant's request. The jury was instructed on the charge of first-degree murder. On 22 September 2006, the jury returned a unanimous verdict of guilty of first-degree murder. Defendant was sentenced to life imprisonment without parole in the North Carolina Department of Correction. Defendant appeals.
I. Motion to Dismiss
Defendant argues the trial court erred by denying his motion to dismiss at the close of all the evidence because the State failed to present substantial evidence of premeditation and deliberation prior to the killing and of a specific intent to kill the victim. We disagree.
The standard of review of a motion to dismiss for insufficient evidence is whether the State presented substantial evidence of each element of the offense and "defendant's being the perpetrator." State v. Nettles, 170 N.C. App. 100, 102-03, 612 S.E.2d 172, 174 (2005). Substantial evidence is relevant evidence that a reasonable person might accept as sufficient to support a conclusion. Nettles, 170 N.C. App. at 103, 612 S.E.2d at 174, (citations omitted). The court reviews the evidence in the light most favorable to the State, giving every reasonable inference arising from that evidence to the State, even if the same evidence supports reasonable inferences of the defendant's innocence. Id.; State v. Scott, 356 N.C. 591, 596, 573 S.E.2d 866, 869 (2002). Where the evidence is contradictory, all contradictions must be "resolved in favor of the State." State v. Myers, 181 N.C. App. 310, 313, 639 S.E.2d 1, 3, (2007). Whether the evidence is circumstantial or direct does not preclude a reasonable inference of defendant's guilt. Id. (citing State v. Trull, 349 N.C. 428, 447, 509 S.E.2d 178, 191 (1998)).
However, where the evidence is "sufficient only to raise a suspicion or conjecture as to either the commission of the offense or identity of the defendant as the perpetrator, the motion to dismiss must be allowed." State v. Malloy, 309 N.C. 176, 179, 305 S.E.2d 718, 720 (1983) (citation omitted). "This is true even though the suspicion aroused by the evidence is strong." Id.
"The elements of first degree murder are: (1) the unlawful killing, (2) of another human being, (3) with malice, and (4) with premeditation and deliberation." State v. Coble, 351 N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (citations omitted).
"A specific intent to kill is a necessary constituent of the elements of premeditation and deliberation. Proof of premeditation and deliberation is proof of that intent." State v. Ward, 338 N.C. 64, 95, 449 S.E.2d 709, 725 n. 1 (1994) (citation omitted). Premeditation and deliberation are shown by evidence that "a defendant thought about the act for some length of time, however short, before the actual killing; no particular amount of time is necessary to illustrate that there was premeditation." State v. Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). In addition, the court will consider if the crime was "carried out 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." Id. (quotation omitted).
The North Carolina Supreme Court set forth seven circumstances that illustrate "the existence of premeditation and deliberation." Id. Those circumstances are:
(1) absence of provocation on the part of deceased, (2) the statements and conduct of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds.
Id. (citation omitted).
Defendant contends that because he called the hotel desk to report the victim's injury and the victim's heart was "fibrillating" when EMS arrived, he did not have the specific intent to kill her. We find this argument unpersuasive.
Viewing the evidence in the light most favorable to the State, the State's evidence supports the existence of four of the seven circumstances illustrative of premeditation and deliberation. There was an absence of provocation on the part of the victim. Testimony from the victim's co-worker that defendant's statement to the victim "you don't know what I'll do to you" made a few days before the killing is considered a threat made before the occurrence giving rise to the victim's death. Testimony that the victim stated to Gill that she was in an emotionally abusive relationship coupled with how she avoided sleeping at the Suburban Lodge, and asked to stay with Gill, as well as prior altercations between the victim and defendant, are evidence of ill will or previous difficulties between the parties. The nature of the victim's wounds indicated she suffocated to death by a hand placed over her mouth and on her neck. Because the State presented substantial evidence to support the element of premeditation and deliberation, we conclude there was no error.
II. Jury Instructions
Defendant next argues that because there was evidence that negated the element of premeditation and deliberation, the trial court erred in not instructing the jury on the lesser included offense of second-degree murder. We disagree.
"[A]n instruction on murder in the second-degree is required only when there is evidence to sustain such a verdict." State v. Bullock, 326 N.C. 253, 258, 388 S.E.2d 81, 83 (1990) (citation omitted). The North Carolina Supreme Court has stated:
The test in every case involving the propriety of an instruction on a lesser grade of an offense is not whether the jury could convict defendant of the lesser crime, but whether the State's evidence is positive as to each element of the crime charged and whether there is any conflicting evidence relating to any of these elements.
State v. Larry, 345 N.C. 497, 517, 481 S.E.2d 907, 918 (1997) (quotation omitted). We conclude there was sufficient evidence of premeditation and deliberation and an "absence of evidence to support murder in the second degree." Bullock, 326 N.C. at 258, 388 S.E.2d at 84. There is evidence that defendant threatened the victim after he discovered from a paycheck that her net pay was zero. There is no evidence that the victim provoked the attack. Defendant denied causing the victim's death and asserted that Clorox caused her death. There is evidence of ill will between the parties from testimony by the victim's co-workers and acquaintances. The victim avoided sleeping at the Suburban Lodge, and tried to live with another co-worker shortly before her death. The State's evidence showed fingernail marks on her face and neck indicated a hand was placed over her mouth and the victim died as a result of suffocation. Defendant's denial of the crime does not require an instruction on second-degree murder. State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841 (1995) ("[I]f the State's evidence is sufficient to satisfy its burden of proving each element of first-degree murder, including premeditation and deliberation, and there is no evidence other than defendant's denial that he committed the crime to negate these elements, the trial court should not instruct the jury on second-degree murder."). This assignment of error is overruled.
Finally we note that defendant assigned eight errors on appeal but argued only two in his brief. Assignments of error not argued are abandoned pursuant to N.C. Rule of Appellate Procedure 28(b)(6) (2007).
No error.
Judges STEPHENS and ARROWOOD concur.
Report per Rule 30(e).