Opinion
No. COA11–1317.
2012-07-3
STATE of North Carolina v. Christopher Patrick JONES.
Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State. Kathryn L. VandenBerg for Defendant.
Appeal by Defendant from judgments entered 13 July 2011 by Judge F. Lane Williamson in Superior Court, Mecklenburg County. Heard in the Court of Appeals 6 March 2012. Attorney General Roy Cooper, by Assistant Attorney General K.D. Sturgis, for the State. Kathryn L. VandenBerg for Defendant.
McGEE, Judge.
Christopher Patrick Jones (Defendant) was convicted of first-degree murder on the basis of felony murder and of possession of a firearm by a felon. Defendant was sentenced to life imprisonment without parole for first-degree murder, and to sixteen to twenty months for possession of a firearm by a felon, to run at the expiration of the life sentence. Defendant appeals.
The evidence at trial tended to show that, on the afternoon of 12 October 2009, Defendant and three young men drove through the Hidden Valley neighborhood in Charlotte, North Carolina. They parked at the Rolling Hills apartment complex (the apartment complex), where Defendant's sister, Jessyca Rhodes (Ms. Rhodes), resided. Benizer Graham, Jr. (Mr. Graham) also resided in the apartment complex with his mother and his sister, Shekietha Graham (Ms. Graham).
Ms. Graham was outside the apartment complex talking on the phone. Defendant got out of the car he had been riding in and asked Ms. Graham for her telephone number. Ms. Graham told Defendant she had a boyfriend and declined to give him her telephone number. Defendant then went next door to Ms. Rhodes' apartment. Ms. Rhodes testified that she told Defendant that a person called “Nuk Nuk” was accusing him of stealing a television and that “Nuk Nuk” and “his people” were going to kill Defendant. Hadarii Cooper (Mr. Cooper), one of the occupants in the car with Defendant, testified that he had heard from “the street” that Mr. Graham wanted to kill Defendant. Ms. Graham testified that, after Defendant had spoken to her, she stepped into her apartment to speak to her mother. When Ms. Graham came back out of her apartment, she saw Ms. Rhodes and Mr. Graham standing at the car. Ms. Graham testified that she then saw Ms. Rhodes run away from the car and, at about the same time, Ms. Graham heard Mr. Graham twice say, “No, Bro, no.” Mr. Graham then ran away from the car and into a nearby apartment that was occupied by Curta Denise Massey (the Massey apartment). As Mr. Graham was running away from the car, Defendant was getting out of the car. Defendant had a black and silver .40 caliber Smith and Wesson handgun in his left hand and fired once at Mr. Graham. Defendant then pursued Mr. Graham to the Massey apartment and fired the gun through the front screen door, shattering the glass in the door. According to Ms. Graham's testimony, Defendant was approximately a foot away from the screen door. Ms. Graham testified she ran into her apartment, which was adjacent to the Massey apartment where Mr. Graham had fled. Ms. Graham heard two additional gunshots.
Defendant got in the car and left the apartment complex. Ms. Graham went to the Massey apartment to help Mr. Graham, who was on the floor in the living room beside the back door. Mr. Graham died at the scene as a result of three gunshot wounds. Spent shell casings were recovered from the shrubbery in front of the Massey apartment and inside the front foyer. Both spent casings matched the make and model of the gun used by Defendant.
During the charge conference, the State requested jury instructions for first-degree murder based on premeditation and deliberation, as well as first-degree murder under the felony-murder rule. Defendant requested a jury instruction on second-degree murder and objected to the jury instructions for felony murder. Ultimately, the trial court instructed the jury on first-degree murder under the felony-murder rule and on first-degree murder on the basis of malice, premeditation, and deliberation. The jury found Defendant guilty of first-degree murder under the felony-murder rule but not guilty of first-degree murder on the basis of malice, premeditation, and deliberation on 13 July 2011.
I. Issues on Appeal
Defendant raises the following issues on appeal: (1) whether the trial court erred by failing to instruct the jury on second-degree murder; and (2) whether the trial court erred in instructing the jury on felony murder where the underlying felony was discharging a firearm into an occupied dwelling.
II. Jury Instruction on Second–Degree Murder
Defendant argues that the trial court erred by denying his request for a jury instruction on second-degree murder. Defendant also contends that the jury found him not guilty of first-degree murder based on premeditation and deliberation and, therefore, the failure to instruct the jury on the lesser offense of second-degree murder violated due process of law and was prejudicial error. Specifically, Defendant contends that the trial court should have instructed the jury on second-degree murder because there was conflicting evidence presented at trial as to the elements of premeditation and deliberation. The conflicting evidence would have allowed the jury to convict Defendant of first-degree murder, or to acquit Defendant of first-degree murder and convict on second-degree murder. We disagree.
“Assignments of error challenging the trial court's decisions regarding jury instructions are reviewed de novo[.]” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009). “Under North Carolina and federal law a lesser included offense instruction is required if the evidence ‘would permit a jury rationally to find [defendant] guilty of the lesser offense and acquit him of the greater.’ “ State v. Millsaps, 356 N.C. 556, 562, 572 S.E.2d 767, 772 (2002) (citations omitted). “On the other hand, the trial court need not submit lesser included degrees of a crime to the jury ‘when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.’ “ Id. (citation and emphasis omitted). Further, “[t]he trial court should refrain from ‘indiscriminately or automatically’ instructing on lesser included offenses.” State v. Taylor, 362 N.C. 514, 530, 669 S.E.2d 239, 256 (2008).
“[T]he trial court must determine ‘whether the State's evidence is positive as to each element of [first-degree murder] and whether there is any conflicting evidence relating to any of these elements.” Id. at 531, 669 S.E.2d at 256. Our Supreme Court has stated that the standard for determining whether the trial court must instruct on second-degree murder as a lesser-included offense is as follows:
“If the State tries the case on both premeditation and deliberation and felony murder and the evidence supports not only first-degree premeditated and deliberate murder but also second-degree murder, or another lesser offense included within premeditation and deliberate murder, the trial court must submit the lesser-included offense within premeditated and deliberate murder irrespective of whether all the evidence would support felony murder.”
State v. Millsaps, 356 N.C. 556, 565, 572 S.E.2d 767, 773–4 (2002). “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 sufficient legal provocation.” Taylor, 362 N.C. at 531, 669 S.E.2d at 256 (citations omitted). In the present case, Defendant contends there was conflicting evidence as to the elements of premeditation and deliberation because there was testimony that, prior to the shooting, Defendant was “riding around talking to girls and had no plan to shoot anyone.”
In Taylor, the defendant killed the owner of a convenience store in the course of committing an armed robbery. Taylor, 362 N.C. at 532–33, 669 S.E.2d at 259. The defendant was convicted of first-degree murder on the basis of malice, premeditation, and deliberation, as well as under the felony-murder rule. Id. at 520, 669 S.E.2d at 249. On appeal, the defendant in Taylor argued that the trial court erred by denying his request for a jury instruction on second-degree murder because, “although the state produced sufficient evidence of premeditation and deliberation, [the defendant] was nevertheless entitled to an instruction on second-degree murder because he allegedly lacked a plan to kill the victim and only fired his weapon after gunfire erupted in the front of the store.” Id. at 532, 669 S.E.2d at 257.
In Taylor, our Supreme Court reviewed four types of conduct that the Court had previously concluded would support an inference of premeditation and deliberation. The Supreme Court stated:
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[.]
Id. at 531, 669 S.E.2d at 256 (citations omitted). The Taylor Court then noted the following evidence: (1) prior to the murder, the defendant entered a grocery store carrying a semiautomatic weapon; (2) the “defendant was prepared to fire his weapon in the event of a confrontation[;]” (3) the defendant pointed his gun at customers and instructed them to stay still and empty their pockets; (4) “[w]hen shots were fired in the front, [the] defendant stepped around the corner from the back of the store into the front area [;]” and (5) the defendant “then fired repeatedly towards the front of the store, hitting the victim and killing him.” Id. at 531–32, 669 S.E.2d at 256–57. Our Supreme Court also noted in Taylor that the defendant “fired at least seven times with a semiautomatic weapon, a process that required a separate trigger pull for each shot.” Id. at 532, 669 S.E.2d at 257. On those facts, the Court concluded that the “[d]efendant's actions of stepping around the corner to the front of the store, pulling the trigger of his gun seven times, and pausing at some point to lower his gun and raise it again provide ample evidence of premeditation and deliberation.” Id. The Court then addressed the defendant's argument that “although the state produced sufficient evidence of premeditation and deliberation, [defendant] was nevertheless entitled to an instruction on second-degree murder because he allegedly lacked a plan to kill the victim and only fired his weapon after gunfire erupted in the front of the store.” Id. The Court stated: “Neither absence of evidence of a plan to commit murder nor existence of evidence that one was not the first to fire in a gunfight negates premeditation and deliberation.” Id. The Court also observed that “ ‘[n]o particular amount of time is necessary to illustrate that there was premeditation’ ... [and,] [m]oreover, a defendant who initiates a situation without the requisite intent to kill may form such intent in the midst of the situation.” Id. at 532, 669 S.E.2d at 257 (citations omitted). The Court ultimately concluded that none of the defendant's explanations of events negated the State's evidence in support of premeditation and deliberation and held no error in the trial court's failure to provide an instruction on second-degree murder. Taylor, 362 N.C. at 532, 669 S.E.2d at 257.
In the present case, the State presented evidence that Defendant brought a handgun with him to the apartment complex, brandished the gun, started shooting at Mr. Graham, and pursued Mr. Graham to an occupied apartment while continuing to shoot at Mr. Graham. When Mr. Graham fled from Defendant and entered the Massey apartment, Defendant got out of the car and pursued Mr. Graham, shooting through the glass of a screen door within feet of Mr. Graham. In the present case, as in Taylor, we find that the evidence presented by the State was positive as to each element of premeditated murder, despite the fact that the jury did not convict Defendant of premeditated murder. See id. at 532, 669 S.E.2d at 257. Defendant contends that certain evidence negated the elements of premeditation and deliberation, including “testimony that [Defendant] was riding around with friends talking to girls just before the shooting, with no plan to harm anyone; testimony that [Defendant] and [Mr. Graham] had an argument at the car; and testimony that the shooting occurred suddenly.”
In the present case, evidence presented tended to show that Defendant fired once at Mr. Graham from the car. After the first shot, Defendant had an opportunity to desist with shooting at Mr. Graham but nevertheless continued. Defendant used a semiautomatic handgun, which required him to pull the trigger for each successive shot. After each repeated shot, Defendant had a moment, however brief, to refrain from intentionally discharging his handgun at Mr. Graham. In addition, each shot from the gun was at an increasingly closer proximity to Mr. Graham. Given this series of events and Defendant's conduct, the State provided sufficient evidence of premeditation and deliberation such that the trial court was not required to submit lesser-included offenses of first-degree murder. Testimony tending to show that Defendant “lacked a plan to shoot anyone[;]” that the argument started suddenly; or that Defendant was driving around and talking to girls; would not be enough to negate the evidence of premeditation and deliberation. In other words, regardless of what state of mind Defendant had prior to the conflict, there was ample positive evidence that Defendant chased Mr. Graham down while firing multiple shots at him, which would constitute grounds for a finding of premeditation and deliberation. Accordingly, we hold that Defendant presented no evidence which would have negated the State's evidence of premeditated and deliberate murder and, therefore, we conclude the trial court did not err by failing to instruct the jury on second-degree murder.
III. Jury Instruction on Felony Murder
Defendant next argues that “it was error to instruct the jury and enter judgment on felony-murder, because the primary act was the homicide, and any shooting into the apartment was encompassed by the act.” Defendant acknowledges that this Court “has previously considered the argument that shooting into an occupied dwelling or vehicle should not be a basis for felony-murder under the merger doctrine, adopted in some form by many states.” The “merger doctrine” involved in Defendant's argument in the present case was adopted in California in People v. Ireland, 70 Cal.2d 522, 450 P .2d 580 (1969).
Our Supreme Court summarized Ireland in State v. Wall, 304 N.C. 609, 286 S.E.2d 68 (1982), observing:
The Ireland case held that in California “a ... felony-murder instruction may not properly be given when it is based upon a felony which is an integral part of the homicide and which the evidence produced by the prosecution shows to be an offense included in fact within the offense charged.”
Wall, 304 N.C. at 612, 286 S.E.2d at 71 (quoting Ireland, 70 Cal.2d at 539, 450 P.2d at 590 (emphasis in original)). In Wall, our Supreme Court stated that “[t]he felony of discharging a firearm into occupied property, [N.C.] G.S. [§ ] 14–34.1, appears to be such an integral part of the homicide in the instant case as to bar a felony-murder conviction under the California merger doctrine.” Wall, 304 N.C. at 612, 286 S.E.2d at 71. However, our Supreme Court noted that it had “expressly upheld convictions for first-degree felony murder based on the underlying felony of discharging a firearm into occupied property [and, therefore,] .... elect [ed] to follow [its] own valid precedents.” Id. at 612–13, 286 S.E.2d at 71 (citations omitted).
Our Supreme Court revisited that question later that year in State v. Mash, 305 N.C. 285, 287 S.E.2d 824 (1982):
By his next assignment of error, defendant argues that this Court should adopt the “merger doctrine” to bar application of the felony-murder rule to homicides committed during the perpetration of the felony of discharging a firearm into occupied property. For the reasons stated in State v. Wall, [304] N.C. [609], [286] S.E.2d [68] (1982), we decline to change the existing law.
Id. at 288, 287 S.E.2d at 826. See also State v. Thomas, 325 N.C. 583, 595, 386 S.E.2d 555, 561–62 (1989) (“Discharging a firearm into an occupied structure is a felony which will support a first degree felony murder prosecution.”). Defendant acknowledges our Supreme Court precedent, but states: “To the extent necessary, [Defendant] urges this Court to reconsider the thirty-year-old reasoning in State v. Wall under the narrow factual circumstances presented by his case.”
We first note that “[i]t is elementary that this Court is bound by holdings of the Supreme Court.” Rogerson v. Fitzpatrick, 121 N.C.App. 728, 732, 468 S.E.2d 447, 450 (1996). We are therefore unable to grant Defendant's request to “reconsider the thirty-year-old reasoning in State v. Wall[.] ” Defendant also attempts to draw factual distinctions between the present case and Wall, arguing that he was unable to find any cases “where a challenge to felony-murder under the merger doctrine has been made on facts where the defendant is shooting directly at the intended victim and no bystanders are recklessly placed in danger.” However, because the merger doctrine has been expressly rejected by our Supreme Court and we are bound by that Court's decisions, we find Defendant's arguments unpersuasive.
N.C. Gen.Stat. § 14–17 provides, in pertinent part that a homicide “which shall be committed in the perpetration or attempted perpetration of any arson, rape or sex offense, robbery, kidnapping, burglary, or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree.” N .C. Gen.Stat. § 14–17 (2011). N.C. Gen.Stat. § 14–34.1(a) provides, in pertinent part: “Any person who willfully or wantonly discharges or attempts to discharge any firearm ... into any building [or] structure ... is guilty of a Class E felony.” N.C. Gen.Stat. § 14–34.1 (2011). Our Supreme Court “has expressly upheld convictions for first-degree felony murder based on the underlying felony of discharging a firearm into occupied property.” Wall, 304 N.C. at 612–13, 286 S.E.2d at 71. “[O]ur responsibility is to follow established precedent set forth by our Supreme Court.” State v. Davis, 198 N.C.App. 443, 447, 680 S.E.2d 239, 243 (2009) (internal quotations and citations omitted). Defendant's argument is therefore without merit.
No error. Judges GEER and McCULLOUGH concur.
Report per Rule 30(e).