Opinion
COA23-150
11-07-2023
STATE OF NORTH CAROLINA v. JASHAWN DE'ANDRE BROWN
Attorney General Joshua H. Stein, by Assistant Attorney General Jeremy D. Lindsley, for the State. William D. Spence for defendant-appellant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Heard in the Court of Appeals 3 October 2023.
Appeal by defendant from judgments entered 13 April 2022 by Judge L. Lamont Wiggins in Bertie County Nos. 19-CRS-349; 19-CRS-50008 Superior Court.
Attorney General Joshua H. Stein, by Assistant Attorney General Jeremy D. Lindsley, for the State.
William D. Spence for defendant-appellant.
THOMPSON, Judge.
In this appeal from the judgment entered upon his convictions on one count of first-degree murder and one count of possession of firearm by a felon, defendant Jashawn De'Andre Brown presents arguments that the trial court erred in three ways: (1) in denying his motion to dismiss the murder charges for insufficiency of the evidence; (2) in refusing to instruct the jury on the lesser-included offense of voluntary manslaughter; and (3) in failing to intervene and give a curative instruction when the prosecutor, without objection by defendant, characterized defendant as a "coward," and made comments on matters outside of the record in the case and about defendant's decision not to testify on his own behalf. For the reasons discussed below, we are not persuaded by defendant's contentions, and accordingly, we find no error.
I. Factual Background and Procedural History
This case arises from the murder of Rashon Carter on 5 January 2019 during a combination engagement and birthday party held for the victim's longtime girlfriend Shondra Rascoe at the Merry Hill Community Center. Among the approximately thirty attendees were Rascoe's best friend, Tamiek Warren, and brother, Jamar "Hammer" Rascoe, along with defendant-an old friend of Rascoe's- and defendant's friends Tywon Outlaw and Adrian Jones. At some point during the event, Jamar became intoxicated, and Rascoe asked him to leave. Jamar went outside onto the porch of the community center and got into an argument with another party guest which ultimately led to Jamar being punched in the face by defendant's friend, Outlaw. That initial altercation soon turned into a "big brawl" with many if not most of the party attendees, including Carter and Rascoe involved. Eventually only Jones and Carter were fighting, as much of the rest of the crowd watched. Once Jones and Carter ceased their fight, Carter and party guest Talisha Baily were walking towards Carter's vehicle when Carter cursed, told Baily to duck, and pushed Baily to the ground, from which position Baily saw defendant holding a gun pointed at Carter. Defendant said, "N*****, I told you"; shot Carter three times in the back; and then fled the scene in a white car. Defendant was apprehended in Greensboro about six weeks later and was subsequently indicted on charges of first-degree murder and possession of firearm by a felon.
The record reflects that defendant was convicted of robbery with a dangerous weapon, a Class D felony, in 2007.
At trial, the State presented evidence in conformance with the summary presented above, and defendant elected not to present evidence. Defendant's case was submitted to the jury on charges of first-degree murder, second-degree murder, and possession of firearm by a felon. On 13 April 2022, the jury returned verdicts finding defendant guilty of first-degree murder and possession of firearm by a felon. The trial court sentenced defendant to life in prison without parole on his conviction of first-degree murder and imposed a consecutive sentence of 19 to 32 months of imprisonment on the firearm conviction. Defendant gave oral notice of appeal in open court.
Additional details about the evidence presented at trial, the closing argument of the State, and the trial court's charge to the jury are discussed below as they are relevant to our analysis of defendant's appellate arguments.
II. Analysis
Defendant argues that he is entitled to a new trial because the trial court erred in denying his motion to dismiss the murder charges for insufficiency of the evidence, refusing to instruct the jury on voluntary manslaughter as an alternative verdict to first-degree murder, and failing to ensure that the State's closing argument complied with precedent in several specific manners. We reject each of defendant's contentions.
A. Motion to dismiss for insufficiency of the evidence
Defendant first contends that the trial court erred when it denied his motion to dismiss the first-degree murder charge for insufficiency of the evidence of premeditation and deliberation in the killing of Carter. Specifically, defendant urges this Court to conclude that the heat of passion doctrine applies here such that the charge of first-degree murder should not have been given to the jury for its consideration. We are not persuaded.
As recently summarized by the Supreme Court, on appeal we are to review
a trial court's denial of a motion to dismiss de novo. In ruling on a motion to dismiss, the trial court need determine only whether there is substantial evidence of each essential element of the crime and that the defendant is the perpetrator. Substantial evidence only requires more than a scintilla of evidence, or the amount necessary to persuade a rational juror to accept a conclusion. In evaluating the sufficiency of the evidence to support a criminal conviction, the evidence must be considered in the light most favorable to the State; the State is entitled to every reasonable intendment and every reasonable inference to be drawn therefrom. Moreover, any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered. Courts considering a motion to dismiss for insufficiency of the evidence should not be concerned with the weight of the evidence.
The test of the sufficiency of the evidence to withstand the motion to dismiss is the same whether the evidence is direct, circumstantial, or both. Circumstantial evidence is proof of a chain of facts and circumstances indicating the guilt or innocence of a defendant. There is no logical reason why an inference which naturally arises from a fact proven by circumstantial evidence may not be made. Therefore, it is appropriate for a jury to make inferences on inferences when determining whether the facts constitute the elements of the crime. Thus, circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.State v. Dover, 381 N.C. 535, 547, 873 S.E.2d 267, 274-75 (2022) (internal brackets, citations, and quotation marks omitted).
"First-degree murder is the unlawful killing of a human being with malice, premeditation, and deliberation." State v. Truesdale, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995) (citing State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991)). An act is premeditated when it is done after a person forms the specific intent to kill "for some length of time however short" before acting on that intent. Id. at 234, 456 S.E.2d at 302 (internal quotation marks omitted) (citing State v. Joyner, 329 N.C. 211, 215, 404 S.E.2d 653, 655 (1951)." 'Deliberation' means that the defendant formed the intent to kill in a cool state of blood and not as a result of a violent passion due to sufficient provocation." Id. (citing State v. Stager, 329 N.C. 278, 323, 406 S.E.2d 876, 902 (1991)).
"Premeditation and deliberation usually are not proved by direct evidence but 'by actions and circumstances surrounding the killing.'" State v. Forrest, 321 N.C. 186, 193, 362 S.E.2d 252, 256 (1987) (quoting Joyner, 329 N.C. at 215, 404 S.E.2d at 655). The circumstances that may assist a court in determining that a killing was committed with premeditation and deliberation include, but are not limited to: (1) a lack of provocation on the part of the victim; (2) the defendant's conduct and statements before and after the killing; (3) the defendant's use of lethal force after the victim has been rendered helpless; and (4) the number and nature of the victim's wounds. State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837, 843 (1984) (first citing State v. Williams, 308 N.C. 47, 301 S.E.2d 335, cert. denied, 464 U.S. 865 (1983) and then citing State v. Brown, 306, N.C. 151, 293 S.E.2d 569, cert. denied, 459 U.S. 1080 (1982)). In contrast, the heat of passion doctrine "is meant to reduce murder to manslaughter when a defendant kills without premeditation and malice, but rather under the influence of the heat of passion suddenly aroused which renders the mind temporarily incapable of cool reflection." Forrest, 321 N.C. at 193, 362 S.E.2d at 256 (citing State v. Jones, 299 N.C. 103, 261 S.E.2d 1 (1980)).
In arguing that the evidence showed that he acted under the heat of passion in killing Carter and thus that the trial court erred in submitting the charge of first-degree murder to the jury, defendant relies upon his comparison of the facts presented in this matter to those presented in two cases decided by our Supreme Court. Defendant first seeks to distinguish the evidence in State v. Misenheimer, 304 N.C. 108, 282 S.E.2d 791 (1981), from that before the jury in his own case. Specifically, defendant notes that the defendant in Misenheimer traveled to his father's home, retrieved an old gun from a shed on the father's property, hid the gun under a jacket, and then searched for his father, id. at 113, 282 S.E.2d at 795, while in contrast, defendant attended "the party on good terms, peacefully, unarmed and not preparing for a fight or to shoot anyone."
Second, defendant cites State v. Corn, 303 N.C. 293, 278 S.E.2d 221 (1981), the facts of which he contends are analogous to the circumstances surrounding his killing of Carter. In Corn, the victim entered the defendant's home, found the defendant lying on his sofa, and instigated an argument with the defendant, who then leapt up, grabbed a rifle from between the sofa cushions, and shot the victim multiple times, killing him. 303 N.C. at 297-98, 278 S.E.2d at 223-24. Noting that "[t]he entire incident lasted only a few moments," the Supreme Court considered each of the factors cited in Hamlet and concluded that "[a]ll the evidence tend[ed] to show that [the] defendant shot [the victim] after a quarrel, in a state of passion, without aforethought or calm consideration." Id. at 298, 278 S.E.2d at 224 (stating that the "[d]efendant did not threaten [the victim] before the incident or exhibit any conduct which would indicate that he formed any intention to kill him prior to the incident in question. There was no significant history of arguments or ill will between the parties. Although defendant shot deceased several times, there is no evidence that any shots were fired after he fell or that defendant dealt any blows to the body once the shooting ended").
Defendant likens his situation at the birthday/engagement party to that of the defendant in Corn, characterizing the evidence as showing that his killing of Carter "occurred as a result of the massive, free-for-all brawl and the inflamed tempers and passions produced by all the fighting." This position reflects defendant's misperception of the applicable standard when a court considers whether a motion to dismiss for insufficiency of the evidence should be allowed. Defendant's argument boils down to an assertion that evidence was before the jury which could have permitted the jury to determine that he acted without premeditation and deliberation, while the trial court's task-and ours-is to assess whether the evidence, taken in the light most favorable to the State and giving the State the benefit of every permissible inference, would permit the jury to find that defendant did act with premeditation and deliberation. See Dover, 381 N.C. at 547, 873 S.E.2d at 274-75.
Here, the evidence introduced at trial, viewed under the motion-to-dismiss standard, easily satisfies each of the factors suggested by the Supreme Court in Hamlet and is plainly distinguishable from the facts in Corn, to wit: (1) Carter did not provoke, threaten, or fight with defendant before the shooting; (2) defendant was able to quickly access and use a loaded gun during the incident at the party, permitting a reasonable inference that he anticipated and was prepared for a violent encounter and thus either brought the gun to the party or knew where to obtain the weapon on short notice, see State v. Fields, 315 N.C. 191, 200, 337 S.E.2d 518, 524 (1985); (3) after shooting Carter once, said, "N*****, I told you" as he fired two additional shots, with a total of three bullets entering Carter's back, evidence from which a jury could infer that defendant was acting with intent, given that each shot required conscious thought, see, e.g., State v. Austin, 320 N.C. 276, 295, 357 S.E.2d 641, 653 (1987); and (4) defendant fired four shots, the first of which missed Carter, but the next three of which struck Carter in the back as he was walking away from the site of the affray, which itself had ended. Thus, the trial court did not err in sending the charge of first-degree murder to the jury for it to weigh the evidence and judge the credibility of the State's case.
B. Jury instruction on lesser-included offense
Defendant next argues that, in the event that we do not accept his argument of error in the denial of his motion to dismiss the first-degree murder charge, we should hold that the trial court erred in refusing to instruct the jury on the lesser-included offense of voluntary manslaughter. Again, we disagree.
We review arguments of alleged error in jury instructions de novo. State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009).
In order to be granted a new trial for the trial court's failure to instruct the jury on a lesser-included offense, a criminal defendant must demonstrate that there was evidence presented at trial that, viewed in the light most favorable to the defendant, would permit a rational jury to acquit the accused of the greater charge and convict him or her of the lesser offense.State v. Brichikov, 383 N.C. 543, 553, 881 S.E.2d 103, 111 (2022). In Brichikov, the Supreme Court further emphasized:
An instruction on a lesser-included offense must be given only if the evidence would permit the jury rationally to find defendant guilty of the lesser offense and to acquit him of the greater. It is well settled that a defendant is entitled to have all lesser degrees of offenses supported by the evidence submitted to the jury as possible alternate verdicts. On the other hand, the trial court need not submit lesser 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. The determinative factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the offense and there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of the lesser-included offense.Id. at 554, 881 S.E.2d at 112 (emphases added) (citations, internal quotation marks, ellipsis, and brackets omitted).
Here, at the charge conference, defendant requested the trial court to instruct the jury on voluntary manslaughter, but this request was denied. At the close of the trial court's charge to the jury, defendant renewed his request for a manslaughter instruction, which was again denied. Defendant contends that, in the light most favorable to him, evidence introduced at trial might have sufficed to convince a rational juror that defendant's act of shooting Carter three times in the back after the melee at the party had ended was the result of an uncontrollable rage experienced by defendant upon provocation by Carter and that, as a result, the jury would have convicted defendant of voluntary manslaughter rather than first-degree or second-degree murder-the two homicide charges submitted to the jury for its consideration.
"Second-degree murder is defined as (1) the unlawful killing, (2) of another human being, (3) with malice, but (4) without premeditation and deliberation." State v. Arrington, 371 N.C. 518, 523, 819 S.E.2d 329, 332 (2018) (citation and internal quotation marks omitted). "When [a] killing with a deadly weapon is admitted . . . two presumptions arise: (1) that the killing was unlawful; (2) that it was done with malice; and an unlawful killing with malice is murder in the second degree." State v. Fisher, 318 N.C. 512, 525, 350 S.E.2d 334, 342 (1986) (quoting State v. Gordon, 241 N.C. 356, 358, 85 S.E.2d 322 (1955)).
"Malice may be shown in at least three different ways: (1) actual malice, meaning hatred, ill-will or spite; (2) an inherently dangerous act done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief; or (3) that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification." Arrington, 371 N.C. at 523, 819 S.E.2d at 332 (citations and internal quotation marks omitted).
Given that all of the evidence was that defendant used a deadly weapon to kill Carter, in order to be entitled to the requested instruction, defendant needed to demonstrate that the killing was lawful or was done without malice. See id. Accordingly, defendant would have needed to show that some evidence was before the jury that would tend to show that defendant either shot Carter in self-defense or the defense of another, see, e.g., State v. Ramseur, 226 N.C.App. 363, 373-74, 739 S.E.2d 599, 606-07 (2013), or that he shot Carter by accident, see State v. Riddick, 340 N.C. 338, 341, 457 S.E.2d 728, 730 (1995). Even in the light most favorable to defendant, the evidence at trial was that he shot Carter multiple times in the back after the multi-person fight outside the community center had ended and in the absence of any provocation or threat by the victim directed at defendant or any other person. Finally, there is "no prejudicial effect for a trial court's failure to submit instructions on voluntary manslaughter or involuntary manslaughter in cases where both first-degree murder and second-degree murder instructions are submitted to the jury, and the jury renders a verdict of first-degree murder based on premeditation and deliberation." Brichikov, 383 N.C. at 557, 881 S.E.2d at 114 (citing State v. Price, 344 N.C. 583, 590, 476 S.E.2d 317, 321 (1996). Accordingly, this argument is rejected.
C. The State's closing argument
In his final argument, defendant contends that the trial court erred by allowing the State to refer to him as a "coward" and make improper reference to his failure to testify, and by failing to provide a curative instruction following the State's reference to matters outside the record. We conclude that defendant has not established that the trial court abused its discretion or permitted any grossly improper remarks by the prosecutor.
As noted by defendant, the standard of review for assessing improper closing arguments that provoke timely objection from opposing counsel is whether the trial court abused its discretion by failing to sustain the objection, State v. Jones, 355 N.C. 117, 134, 558 S.E.2d 97, 108 (2002), while we review statements by the prosecutor that did not trigger an objection by the defendant only to determine whether the remarks were grossly improper, State v. Taylor, 362 N.C. 514, 545, 669 S.E.2d 239, 265 (2008), cert denied, 558 U.S. 851 (2009). Further, "[a]rguments of counsel must be left largely to the control and discretion of the trial judge, and trial counsel must be allowed wide latitude in their arguments which are warranted by the evidence and are not calculated to mislead or prejudice the jury." State v. Roache, 358 N.C. 243, 301, 595 S.E.2d 381, 418 (2004) (quoting State v. Rogers, 323 N.C. 658, 663, 374 S.E.2d 852, 856 (1989) (internal quotation marks omitted)).
As to defendant's first contention, at the charge conference, the prosecutor informed defendant and the trial court, "In my closing argument I intend to refer to the defendant as a coward. I recognize that this is a provocative term. I just don't want to draw an objection that has to be heard outside the presence of the jury." Defendant objected, but the trial court ruled that the State could use this term in regard to defendant, except as in reference to his flight from the scene of Carter's murder. During her closing argument, the prosecutor then twice characterized defendant as a "coward" who "hid behind a gun."
Defendant, quoting Jones, 355 N.C. at 134, 558 S.E.2d at 108, contends that the prosecutor's" 'repeated degradations' of defendant 'shifted the focus from the jury's opinion of defendant's character and acts to the prosecutor's opinion' and 'were intended to deflect the jury away from its proper role as a fact finder by appealing to its members' passions and/or prejudices.'" While we reject defendant's representation that the prosecutor "based her entire argument" on defendant's supposed cowardice, we acknowledge that this Court has held that "[a] prosecutor should refrain from making characterizations relating to a defendant which are calculated to cause prejudice before the jury 'when there is no evidence from which such characterizations may legitimately be inferred.'" State v. Thompson, 118 N.C.App. 33, 43, 454 S.E.2d 271, 277 (1995) (emphasis added) (quoting State v. Britt, 288 N.C. 699, 712, 220 S.E.2d 283, 291 (1975)).
The brief remarks of the prosecutor contested here are shorthand references for the uncontested facts that defendant shot an unarmed man multiple times in the back as the victim was walking away from the scene of a confrontation which had already concluded. Accordingly, we hold that the trial court's exercise of its discretion in allowing the challenged remarks was appropriate.
Defendant also alleges that the prosecutor impermissibly commented on defendant's failure to testify when she stated during her closing argument that "a lot of murder cases don't have eyewitnesses. This one does. Multiple eyewitnesses. And no evidence to the contrary. None. Multiple people say I saw you with a gun shoot." We disagree.
While the State may not directly or indirectly reference a defendant's failure to testify in a criminal matter, "[t]he prosecution may comment on a defendant's failure to produce witnesses or exculpatory evidence to contradict or refute evidence presented by the State." State v. Reid, 334 N.C. 551, 555, 434 S.E.2d 193, 196 (1993) (citations omitted). The portion of the State's argument challenged by defendant is a straightforward (and accurate) observation that the State had presented eyewitness testimony supporting its case which was neither contradicted nor refuted by defendant; thus, we do not find the prosecutor's remarks misleading.
Defendant also contends that the prosecutor's statement that "[a] lot of murder cases don't have eyewitnesses" itself was "patently improper," citing State v. Monk, 286 N.C. 509, 516, 212 S.E.2d 125, 131 (1975) for the proposition that a prosecutor "may not 'travel outside the record' by injecting into her argument facts of her own knowledge or other facts not included in the record." Defendant, however, fails to explain or support his apparent position that the above-quoted statement by the prosecutor was an argument of the type contemplated and addressed by the Supreme Court in Monk. Defendant having not provided this Court with any basis for his assertion that "[a] lot of murder cases don't have eyewitnesses" or regarding the prosecutor's knowledge of such information, we decline to further consider defendant's contention on this point.
III. Conclusion
As discussed above, each of defendant's arguments lacks merit, and accordingly, we find no error in defendant's trial.
NO ERROR.
Judges COLLINS and GRIFFIN concur.
Report per Rule 30(e).