Opinion
No. COA10-980
Filed 3 May 2011 This case not for publication
Appeal by defendant from judgment entered 17 November 2008 by Judge J. Marlene Hyatt in Buncombe County Superior Court. Heard in the Court of Appeals 24 January 2011.
Roy Cooper, Attorney General, by Norma S. Harrell, Special Deputy Attorney General, for the State. Glover Petersen, P.A., by Ann B. Petersen, for defendant-appellant.
Buncombe County No. 07 CRS 052983.
Defendant Debra Madeo Clark appeals from a judgment entered upon a jury verdict finding her guilty of the second-degree murder of her estranged husband Stephen Thomas Clark. We find no error.
The evidence tended to show that defendant and Mr. Clark were married in October 1996. Defendant has a daughter, Alex, from a previous relationship and, at the time defendant and Mr. Clark were married, Alex was five years old. In July 2002, defendant's second daughter, Bailey, was born to the marriage. Due to problems that arose during the course of the marriage, defendant and her daughters lived separately from Mr. Clark on several occasions. There was evidence presented that Mr. Clark's alcohol consumption increased during the marriage to the point of becoming excessive and that, over time, Mr. Clark became increasingly physically and verbally abusive to defendant and verbally abusive to Alex. There was also evidence presented that defendant initiated an extramarital affair with her work supervisor, Jeff Byas, and that Mr. Byas provided some financial support to defendant while she maintained a separate residence from Mr. Clark.
In November or December 2006, defendant moved out of the house she owned with Mr. Clark on Locust Court and moved into a small house on Graceland Place in Arden, North Carolina. Around that time, defendant and Mr. Byas had ended their affair, although they remained friends. In fact, because defendant's then-fifteen-year-old daughter Alex and Mr. Clark "just didn't get along," rather than live at the Graceland Place residence with her mother and sister Bailey, Alex began living with Mr. Byas, who had "treated [her] like [she] was his daughter." Alex would only visit the Graceland Place residence on "some" weekends, since "every time [she] went over there[, Mr. Clark] would [also] be there" and, according to Alex, "the only reason" Mr. Clark would spend time with defendant or stay overnight at Graceland Place was "so that he could look out — so that he could have a watch on [her] and [defendant] and as many people."
At around 4:00 p.m. on 13 March 2007, defendant was home with her daughter Bailey. Defendant left her house to take Bailey shopping and then visited Alex around 6:30 p.m. When defendant returned home with Bailey at around 8:00 p.m., she found Mr. Clark in her residence, "already drunk," sitting on the couch watching television. Bailey fell asleep on the couch and defendant prepared dinner for Mr. Clark. Defendant brought Mr. Clark his food on a tray in the living room and carried Bailey upstairs and put her to bed. According to defendant's testimony, Mr. Clark left the residence and returned a few minutes later. Mr. Clark then said he had to go upstairs to check on something. After he was gone for what seemed like a long time, defendant went upstairs and found Mr. Clark sitting on her bed scrolling through her cell phone. Mr. Clark told defendant that he wanted to see who she talked to that day, and they got into a heated argument. Defendant then went out on the front porch to smoke a cigarette and she and Mr. Clark again began talking, which soon escalated into another argument.
Defendant told Mr. Clark that he should spend the night at the Locust Court residence and went inside to the closet located at the top of the stairs to gather some clothes for Mr. Clark to take with him. Defendant then testified that, while she was upstairs, she heard Mr. Clark making his way up the stairs while screaming, "The only way I'm leaving here tonight is in handcuffs. I'll stay here." Defendant then reached under some folded jeans on the top shelf of the closet and retrieved her gun, which Mr. Byas had purchased for her at a time when she was living apart from Mr. Clark and felt she "needed protection." Defendant put the weapon in the back of her jeans because she "figured [she] would scare him. If he saw it, he would leave."
Defendant started down the stairs with the weapon still tucked in the waistband of her jeans and started dialing 911 on her cell phone. Mr. Clark met defendant about halfway up the stairs and "slapped the phone out of her hand." A struggle ensued. According to defendant's statement to the police on the night of the shooting, she pulled the weapon from her waistband and pointed it at Mr. Clark. Mr. Clark then lunged at defendant and "at that point[,] the gun went off." Mr. Clark then grabbed defendant and they both fell down the stairs, with Mr. Clark landing on top of defendant, and both landing on top of a glass-topped desk at the bottom of the stairs. In her statement, defendant also said that the weapon "may have gone off at that point" and that Mr. Clark "may have gotten up and ran outside," where she found him lying in the front yard of the house. In her testimony at trial, defendant said that, after she regained her balance from the fall down the stairs, Mr. Clark "kept coming at [her] and [she] kept backing away." Then, Mr. Clark ran into the living room, hit the dinner tray, and ran out the front door, while defendant "kept shooting" saying, "Leave, Steve; just leave." Both accounts assert that, once Mr. Clark made his way through the front door of the house, defendant found her cell phone and called 911.
Upon arriving at defendant's house, the police secured the weapon and the scene. When the paramedics arrived at the Graceland Place residence, they found Mr. Clark "face down, his arms up and under him like he was going to try to get up." The paramedics did not find a pulse, so they rolled Mr. Clark over to begin lifesaving techniques. Mr. Clark was bleeding from the nose and mouth, and the front of his shirt was "saturated with blood." Because they determined Mr. Clark's wounds to be "mortal," the paramedics discontinued any attempt to resuscitate him.
One of the paramedics was then asked to check on defendant, who was "hysterical." Defendant's vital signs were stable, and, after examining her for wounds, the paramedic found only "an abrasion, laceration on one of her arms," which he determined "had been there awhile, maybe had the scab torn off of it. It sort of had a blackish tint to it, maybe a little scar tissue — or scab tissue attached." About nine hours later, when defendant was examined again at the Buncombe County detention facility, defendant still had no visible injuries and showed no signs of bruising.
Board certified forensic pathologist Dr. Ellen Riemer conducted an autopsy on Mr. Clark. At the time of his death, Mr. Clark weighed 220 pounds and was six feet, one inch tall. His blood alcohol level tested at the equivalent of about 0.04. Dr. Riemer determined that there were eight wounds caused by six bullets. This finding is consistent with the testimony of two neighbors that, after 9:15 p.m., the neighbors heard a total of six shots; first, two consecutive popping sounds and then, about a minute or two later, another four consecutive popping sounds.
Dr. Riemer concluded that only one of the six bullets fired upon Mr. Clark could have been fired from the frontal position, i.e., with Mr. Clark facing his shooter. The other five bullets entered Mr. Clark's body either from the back or from the side. He sustained injuries to his right forearm, ribs, lungs, diaphragm, liver, stomach, abdomen, scrotum, left thigh, hip bone, and colon. One of the bullets entered from the back of Mr. Clark's body on the right side and went through his small intestine, travelled up his body through his stomach, liver, and pericardium, which surrounds the heart, and then exited through his chest at his right nipple after puncturing the arch of his aorta. Dr. Riemer determined that this shot was fired from behind Mr. Clark and was the most serious of his wounds. She concluded that this wound "would have caused the most rapid death of any of the[] shots," and would have caused Mr. Clark to lose consciousness after no more than thirty seconds. Dr. Riemer also stated that she found no soot or gunpowder stippling on any of the gunshot wounds, which indicated that the shots were not fired at close range. According to her testimony, the absence of soot or gunpowder stippling indicated that "there's no evidence of any contact range, a very, very close range discharge of the gun. Okay? There's no evidence of it." Additionally, because "there's no evidence of any of that close-range fire," Dr. Riemer stated that the distance from which the shots were fired was "indeterminate."
During her interrogation at the Buncombe County Sheriff's Office beginning after midnight on 14 March 2007, defendant did not waiver from her account of the events. However, Detective David Shroat, who interrogated defendant for about six hours that evening and received reports about the physical evidence found by the investigators who were at the scene, testified that he was of the opinion that the evidence at the scene did not support defendant's version of the events. According to Detective Shroat, the evidence indicated "[a] very clear pattern of the defendant following the victim around the living room and the gun being discharged, because of where the shells were." Further, because defendant, who was five feet, two inches or five feet, three inches tall and weighed about 115 pounds, asserted that she landed on the glass-topped desk at the bottom of the stairs with Mr. Clark, who was six feet, one inch tall and weighed about 220 pounds, landing on top of her, the detective testified that " if [Mr. Clark] had landed on top of her on the table, there are going to be some cuts somewhere on her body. There wasn't any." (Emphasis added.)
Defendant was arrested and indicted for first-degree murder. The case was tried before a jury in Buncombe County Superior Court. Defendant's motions to dismiss the charge at the close of the State's evidence and at the close of all of the evidence were denied. Without objection from defendant, during the charge conference, the trial court stated that it would instruct the jury on the offenses of first-degree murder, second-degree murder, voluntary manslaughter, and involuntary manslaughter, and indicated that it would also instruct on self-defense. The jury found defendant guilty of second-degree murder. On 17 November 2008, the court sentenced defendant to a minimum of 125 months and a maximum of 159 months imprisonment. On 1 December 2008, defendant filed a motion for appropriate relief pursuant to N.C.G.S. § 15A-1414 requesting a new trial or other "appropriate" relief, which the trial court denied on 23 October 2009. On 2 November 2009, defendant filed a notice of appeal from the trial court's 17 November 2008 judgment entered upon the jury's verdict.
Defendant contends the trial court erred by denying her motion to dismiss because the State presented insufficient evidence to establish that defendant killed Mr. Clark "with malice." We disagree.
"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. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "The evidence is to 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; contradictions and discrepancies are for the jury to resolve and do not warrant dismissal. . . ." Id. at 99, 261 S.E.2d at 117. "The defendant's evidence, unless favorable to the State, is not to be taken into consideration. However, when not in conflict with the State's evidence, it may be used to explain or clarify the evidence offered by the State." State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982) (citation omitted).
"Murder in the second degree is the unlawful killing of a human being with malice, but without premeditation and deliberation. Malice [i] s an essential characteristic of the crime of murder in the second degree. . . ." State v. Foust, 258 N.C. 453, 458, 128 S.E.2d 889, 892-93 (1963) (citations omitted). "[I]n our law of homicide[,] there are at least three kinds of malice. One connotes a positive concept of express hatred, ill-will or spite, sometimes called actual, express, or particular malice." State v. Reynolds, 307 N.C. 184, 191, 297 S.E.2d 532, 536 (1982). "Another kind of malice arises when an act which is inherently dangerous to human life is done so recklessly and wantonly as to manifest a mind utterly without regard for human life and social duty and deliberately bent on mischief." Id. "Both these kinds of malice would support a conviction of murder in the second degree." Id. "There is, however, a third kind of malice which is defined as nothing more than that condition of mind which prompts a person to take the life of another intentionally without just cause, excuse, or justification." Id. (internal quotation marks omitted). "It is this third kind of malice which is proved as a matter of law when the [S]tate proves the intentional infliction of a wound with a deadly weapon which results in death and there is no evidence of mitigation, justification or excuse." Id.
Thus, "[t]he intentional use of a deadly weapon proximately causing death gives rise to the presumption that (1) the killing was unlawful, and (2) the killing was done with malice." State v. Myers, 299 N.C. 671, 677, 263 S.E.2d 768, 772 (1980) (internal quotation marks omitted); see also Reynolds, 307 N.C. at 191, 297 S.E.2d at 536 ("[I]n the absence of evidence of mitigating or justifying factors [,] all killings accomplished through the intentional use of a deadly weapon are deemed to be malicious and unlawful." (internal quotation marks omitted)). "`The effect of the presumption is to impose upon the defendant the burden of going forward with or producing some evidence of a lawful reason for the killing or an absence of malice'"; i.e., "`that the killing was done in self-defense or in the heat of passion upon sudden provocation.'" Reynolds, 307 N.C. at 190, 297 S.E.2d at 536 (quoting State v. Simpson, 303 N.C. 439, 451, 279 S.E.2d 542, 550 (1981)). In other words, "defendant has no burden to produce evidence sufficient to raise a reasonable doubt as to the existence of malice or unlawfulness." State v. Patterson, 297 N.C. 247, 255, 254 S.E.2d 604, 610 (1979), appeal after remand, 50 N.C. App. 280, 272 S.E.2d 924 (1981). Instead, "[h]is burden is simply to produce some evidence from which a jury could find the nonexistence of these elements, i.e., to produce some evidence of a killing in the heat of passion or some evidence of self-defense from which a jury could find the existence of these things." Id. at 255-56, 254 S.E.2d at 610. Similarly, "`[t]he [S]tate is not required to prove malice and unlawfulness unless there is some evidence of their nonexistence, but once such evidence is presented, the [S]tate must prove these elements beyond a reasonable doubt.'" Reynolds, 307 N.C. at 190, 297 S.E.2d at 536 (emphasis added) (quoting Simpson, 303 N.C. at 451, 279 S.E.2d at 550); see Patterson, 297 N.C. at 256, 254 S.E.2d at 610 ("Upon production of such evidence the burden is upon the [S]tate to prove beyond a reasonable doubt the existence of malice and the absence of self-defense."). Therefore, when a defendant presents "some evidence" from which a jury could find that defendant killed while acting in self-defense, see Patterson, 297 N.C. at 255-56, 254 S.E.2d at 610, "[t] o survive a motion to dismiss, the State must . . . present sufficient substantial evidence which, when taken in the light most favorable to the State, is sufficient to convince a rational trier of fact that defendant did not act in self-defense." State v. Hamilton, 77 N.C. App. 506, 513, 335 S.E.2d 506, 511 (1985), disc. review denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
Moreover, "[w]hether the evidence rebuts the presumption of malice in a homicide with a deadly weapon is a jury question." State v. Barrett, 20 N.C. App. 419, 423, 201 S.E.2d 553, 555, cert. denied, 285 N.C. 86, 203 S.E.2d 58 (1974). In such cases, "the defendant must satisfy the jury that [s]he used only such force as was actually necessary or apparently necessary to avoid serious bodily injury or death." Id.; see also State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981) (identifying the elements that must be satisfied for a defendant to establish either perfect self-defense or imperfect self-defense). "The reasonableness of defendant's action and of [her] belief that force was necessary presents a jury question to be resolved on the basis of the facts and circumstances surrounding the homicide." Barrett, 20 N.C. App. at 423, 201 S.E.2d at 555-56.
In the present case, the State does not dispute that defendant presented some evidence that she may have been acting in self-defense when she fired her weapon upon Mr. Clark and killed him. Additionally, defendant does not contend, nor does the record show, that the trial court failed to properly instruct the jury on the presumption of malice or on self-defense. Further, defendant appears to concede that the six bullets she fired into Mr. Clark were "more than enough" to stop Mr. Clark from allegedly assaulting her, and "might raise an issue for a jury as to whether the amount of force used was excessive." However, defendant suggests that the evidence presented, even when taken in the light most favorable to the State, supported a charge "no greater" than voluntary manslaughter, because "no evidence" was presented by the State to "contradict[] [defendant's] account of the events surrounding the shooting," and, thus, defendant asserts the State failed to meet its burden to offer evidence that defendant killed Mr. Clark with malice.
However, as we noted above, the evidence presented at trial tended to show that, although defendant claimed that Mr. Clark attacked her on the stairs, causing them to both fall, with Mr. Clark — who was about twice her body weight — landing on top of defendant and onto a glass-topped desk which shattered upon impact, defendant showed no signs of bruising, cuts, or other injuries as a result of this alleged fall, save for a loose scab on her arm. Further, despite defendant's testimony that Mr. Clark "kept coming at [her] and [she] kept backing away," or, in the alternative, that after Mr. Clark landed on top of defendant at the bottom of the stairs, the gun "may have gone off at that point," all but one of the gunshot wounds entered Mr. Clark's body from the back or side; only one bullet entered his body from the front. Additionally, there was no evidence of soot or gunpowder stippling around any of Mr. Clark's wounds, which indicated that defendant did not fire her weapon at Mr. Clark from a close range, which is inconsistent with defendant's assertions that the weapon had "gone off" after they had landed at the bottom of the stairs, one on top of the other, or that defendant fired at Mr. Clark because he "kept coming at [her.]"
"Although the State's evidence must ultimately be strong enough to prove beyond a reasonable doubt that the defendant did not act in self-defense [,] . . . the State is entitled to have th[is] question[] put before a jury if its own evidence supports [a] reasonable inference [] of malice. . . ." State v. Laws, 345 N.C. 585, 595, 481 S.E.2d 641, 646 (1997) . Because we conclude the evidence presented by the State supported an inference of malice, the trial court did not err by denying defendant's motion to dismiss and allowing the jury to consider defendant's guilt as to the offense of second-degree murder.
No error.
Judges HUNTER and THIGPEN concur.
Report per Rule 30(e).