Opinion
No. COA10-355
Filed 1 March 2011 This case not for publication
Appeal by Defendant from judgments entered 22 September 2009 by Judge Jack W. Jenkins in Onslow County Superior Court. Heard in the Court of Appeals 12 October 2010.
Attorney General Roy Cooper, by Assistant Attorney General Leonard G. Green, for the State. David L. Neal for Defendant-appellant.
Onslow County Nos. 08 CRS 51890, 08 CRS 55423.
Defendant argues he is entitled to a new trial because the trial court erred in failing to instruct the jury on imperfect self-defense and in denying Defendant's motion to dismiss the charge of robbery with a dangerous weapon. Defendant also argues the trial court erred in ordering him to pay $7900 in restitution. We find no error in the guilt-innocence phase of Defendant's trial, but vacate the $7900 restitution order.
I. Factual and Procedural Background
On 10 March 2009, an Onslow County grand jury indicted Lawrence Wallace Dowsing, III ("Defendant") for first-degree murder, robbery with a dangerous weapon, and possession of a firearm by a convicted felon. He entered a plea of not guilty on 30 March 2009. The prosecutor filed a motion and order for joinder of all three indictments. Defendant's trial began on 14 September 2009.
The evidence at trial tended to show the following. William Palmer was an electrician for TBA Construction, headquartered in Union, South Carolina. Palmer, along with coworkers John Fleming and Ronnie Groves, had been sent to Jacksonville, North Carolina in February of 2008 to do plumbing and electrical work on a new hotel. On the evening of 29 February 2008, Palmer, Fleming, and Groves had a cookout with two women. After the cookout, Palmer, Fleming, and Groves rode around in the TBA work truck. On the way back to the house at which they were staying, around 9:00 p.m., Palmer stopped to ask a man walking on the side of the road about buying drugs. Palmer handed the man his business card containing his cell phone number, and then the three TBA employees drove back to the house.
Once back at the house, Palmer, Fleming, and Groves sat around drinking beer. Palmer received a phone call around 12:00 a.m. and told the other two men to call him if he had not returned in forty-five minutes. Verizon Wireless employee Kristen Beck testified Palmer's cell phone records showed that at 12:07 a.m. on 1 March 2008, Palmer received a call from a phone number registered to Defendant. After receiving the call, Palmer took $50, his cell phone, and his car keys, and left the house. When Palmer did not return after forty-five minutes, Fleming called his cell phone repeatedly, but Palmer did not answer. Fleming called the sheriff's department in the morning to see if the police had seen Palmer. Meanwhile, the two women who had stayed for the cookout came back to the house to inform Fleming and Groves they had seen the TBA truck parked on a dead end street. Fleming, Groves, and the two women went back to where the TBA truck was parked. Upon reaching the truck, Fleming noticed Palmer lying on the floor of the truck and tried to wake him. Fleming noticed blood between Palmer's eyes and saw Palmer's revolver laying on the seat, at which point Fleming called the police. Police arrived on the scene and confirmed Palmer was dead.
Michelle Kirton, Defendant's girlfriend at the time of the shooting, provided the most direct evidence of what happened that night. Kirton testified that Defendant told her a white man had approached Defendant about buying drugs on 29 February 2008. Defendant got in touch with his friend Latrail Munn to get the drugs. Defendant called Palmer to arrange a meeting for the drug deal. After calling Palmer, Defendant and Munn went to meet Palmer. Defendant got in the front seat of Palmer's truck, and Munn was seated in a chair positioned in the middle behind the front seats. Defendant told Kirton that "something didn't feel right" about the drug deal and that Palmer pulled a gun and pointed it at Defendant. Defendant and Palmer struggled for the gun, at which point Defendant said to Munn, "[W]hat are you waiting for?" Munn then shot Palmer in the chest from close range, which was ultimately the cause of Palmer's death. Kirton testified that Defendant told her Palmer "didn't die right away," but that "afterward he . . . took the car keys, a cell phone and $50." Kirton's written statement differed from her trial testimony in that her written statement suggested Defendant took Palmer's belongings and left the scene before Palmer died, stating, "The guy didn't die instantly, but they left him there."
Defendant's cell mate, David Stover, also provided a statement. According to the statement, there were three people in the truck: Defendant, "his boy" (Defendant's "boy"), and "the other guy," who was a "Mexican." The statement indicated that Dowsing told Stover the "other guy" was shot during the incident, but Defendant did not tell Stover who fired the gun.
Willie Anderson, a police informant, testified Defendant and Munn had approached Anderson the day before the crime offering to sell Anderson a gun. Anderson did not purchase the gun. Later on the day of the shooting, 1 March 2008, Defendant went to Anderson's house and told Anderson, "I know who did the murder, but I'm not saying any names." Anderson asked if Defendant still had the gun Defendant tried to sell to Anderson, but Defendant said he sold it. Later that same day, Anderson spoke separately to Munn, and Munn told Anderson he still had the gun. Munn showed a gun to Anderson suggesting that it was the same one Munn and Defendant had offered to sell Anderson earlier. Anderson testified that the gun Munn showed him on 1 March 2008 appeared to be the same gun Defendant and Munn had tried to sell to him the day before the crime. Anderson was shown a picture of a .44 caliber revolver at trial, and he stated the picture appeared to be the same gun Defendant and Munn had on 29 February 2008 and the gun Munn had on 1 March 2008.
On 4 March 2008, Detective John Ervin, who manages police informants, asked Anderson to try and purchase the gun from Munn. Detective Ervin gave Anderson enough money to buy the gun. Both Anderson and Detective Ervin testified that when Anderson went to purchase the gun, Munn no longer had it. Instead of giving Anderson the gun, Munn gave Anderson a .44 caliber bullet (presumably a bullet from the gun used to kill Palmer), which Anderson promptly turned over to police. The police found Palmer's .22 caliber five-shot revolver on the front seat of the truck. Further police investigation revealed Palmer's gun had five live bullets in the revolver and no empty shell casings in the revolver, which meant the gun had not been fired. Police recovered a bullet projectile with traces of blood from a large caliber bullet hole in the driver's side door. State Bureau of Investigation (SBI) Agent Adam Tanner testified the projectile from the door was a .44 caliber bullet, consistent with the .44 Super Remington cartridge Latrail Munn had given to Willie Anderson. The SBI analyzed DNA recovered from a fingerprint smear on the exterior door of the TBA truck. Forensic DNA expert Agent Karen Winningham testified that a DNA analysis of the fingerprint smudge revealed a partial match to Defendant. Winningham calculated that the chances of the DNA coming from someone other than Defendant were "extremely remote." Specifically, Winningham stated it was "242 million times more likely to be observed if it came from [Defendant] than if it came from another unrelated individual in the North Carolina white population," "36.2 million" in the black population, "64.5 million" in the Lumbee Indian population, and "155 million times more likely to be observed if it came from [Defendant] than if it came from another unrelated individual in the North Carolina Hispanic population." Winningham also tested the DNA from the bullet projectile recovered from the door, which matched the DNA profile of Palmer. The police never found Palmer's truck keys, cell phone, cash, or controlled substances. The trial court did not give a self-defense or voluntary manslaughter instruction. At the charge conference, the following exchange occurred:
THE COURT: [W]hy don't we also, at this time, briefly talk about whether this would be an appropriate case for the issue of self-defense or not. And as I understand it, there was not a request made at the outset of the case, and the defendant did not give notice of any affirmative defense such as self-defense and, based on the evidence present, I'm not sure that there is sufficient evidence for that but, nevertheless, I do want to give both sides a chance to be heard on that issue.
Mr. Popkin, I'll give you a chance to be heard first, since it would be a defense that you would raise.
MR. POPKIN [Defense Counsel]: Judge, we're not requesting that.
THE COURT: Okay. Mr. Maultsby, do you wish to be heard on that?
MR. MAULTSBY: Judge, in view of the fact the defendant is specifically not requesting that and no notice has been given of it, the state would contend that it's not appropriate.
THE COURT: Okay. And based on the evidence presented, based on the defendant's desire not to have self-defense given as an instruction, and also the decision not to provide advanced notice as an affirmative defense of that, but also based on the evidence presented, and based on all matters properly before the court, the court, in its discretion, is not going to give an instruction on self-defense.
The trial court instructed the jury that Defendant could be convicted of the murder and robbery charges by acting in concert with another individual. Defendant was convicted of second-degree murder, robbery with a dangerous weapon, and possession of a firearm by a convicted felon. The trial court sentenced Defendant to consecutive terms of 220 to 273 months for second-degree murder, 103 to 133 months for robbery with a dangerous weapon, and 15 to 18 months for possession of a firearm by a felon. Judge Jenkins ordered Defendant to pay a total of $8100 in restitution. Defendant gave oral notice of appeal at the conclusion of his sentencing.
II. Jurisdiction
Defendant entered a plea of not guilty as to all charges and gave timely notice of appeal; therefore, we have jurisdiction over his appeal of right. See N.C. Gen. Stat. § 7A-27(e) (2009) ("From any . . . order or judgment of the superior court [not otherwise described in section 7A-27] from which an appeal is authorized by statute, appeal lies of right directly to the Court of Appeals."); N.C. Gen. Stat. § 15A-1444(a) (2009) ("A defendant who has entered a plea of not guilty to a criminal charge, and who has been found guilty of a crime, is entitled to appeal as a matter of right when final judgment has been entered.").
III. Analysis
A. Voluntary Manslaughter Jury Instruction
Defendant contends the trial court committed plain error by failing to instruct the jury on voluntary manslaughter based on imperfect self-defense. Defendant did not request an instruction on voluntary manslaughter and did not object to the jury instructions. When the trial court asked whether he wanted an instruction on self-defense, Defendant's counsel explicitly declined the instruction.
"A defendant is not prejudiced by the granting of relief which he has sought or by error resulting from his own conduct." N.C. Gen. Stat. § 15A-1443© (2009). Defendant invited the alleged error by declining the self-defense instruction. Therefore, he has waived appellate review of this issue. See State v. Goodwin, 190 N.C. App. 570, 575, 661 S.E.2d 46, 50 (2008) ("[D]efendant waived his right to appellate review as his attorney specifically stated he did not want jury instructions regarding self-defense. . . ."); State v. Barber, 147 N.C. App. 69, 74, 554 S.E.2d 413, 416 (2001) ("[A] defendant who invites error has waived his right to all appellate review concerning the invited error, including plain error review."). We therefore dismiss this argument as waived.
B. Motion to Dismiss Robbery with a Dangerous Weapon Charge
Defendant next argues the trial court erred in denying his motion to dismiss the armed robbery charge at the close of all evidence. We disagree.
A trial court's denial of a motion to dismiss on the basis of insufficient evidence is reviewed de novo. State v. Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). A trial court properly denies a motion to dismiss when "there is substantial evidence of each essential element of the offense charged and of the defendant being the perpetrator of the offense." State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992).
What constitutes substantial evidence is a question of law for the court. To be "substantial," evidence must be existing and real, not just "seeming or imaginary." Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. In ruling on a motion to dismiss, the trial court must examine the evidence in the light most favorable to the State, and the State is entitled to every reasonable inference and intendment that can be drawn therefrom. Any contradictions or discrepancies in the evidence are for the jury to resolve and do not warrant dismissal.
Id. (citations omitted).
A person is guilty of robbery with a dangerous weapon if he (1) "unlawfully takes or attempts to take personal property from another" (2) while "having in [his] possession or with the use or threatened use of any firearms or other dangerous weapons," (3) "whereby the life of a person is endangered or threatened." N.C. Gen. Stat. § 14-87(a) (2009). Our Supreme Court has further established that "[w]hen . . . the death and the taking are so connected as to form a continuous chain of events, a taking from the body of the dead victim is a taking `from the person.'" State v. Fields, 315 N.C. 191, 202, 337 S.E.2d 518, 525 (1985) (citation omitted).
The State's evidence tended to show that after the victim had been shot, Defendant took the victim's "car keys, a cell phone, and $50." There was conflicting testimony as to whether the victim was dead when the items were taken, or whether the victim was still alive when the items were taken and died shortly thereafter. Michelle Kirton testified that Defendant told her the victim "didn't die right away, [b]ut, afterward" Defendant took the items. In her written statement, Kirton claimed Defendant told her the victim "didn't die instantly, but [we] left him there." The former testimony suggests Defendant waited until the victim died, and then took the items. The latter suggests Defendant took the items from the victim while he was still alive.
We conclude there was substantial evidence of each element of robbery with a dangerous weapon. First, based on Kirton's testimony of what Defendant told her and the fact that the police never found Palmer's cell phone, keys, or money, the evidence was sufficient to prove Defendant took personal property from Palmer. Second, the evidence sufficiently established Defendant and Munn had a gun in their possession, threatened to use, and ultimately did use, the gun to commit the robbery. Even though Kirton's testimony tended to prove Munn shot Palmer, the second element is still established because Defendant and Munn were acting in concert. Third, Defendant not only endangered Palmer's life, but the use of the deadly weapon resulted in Palmer's death.
Defendant argues the taking of the items from the victim was an "afterthought" under the rationale of State v. Powell, 299 N.C. 95, 261 S.E.2d 114 (1980). In Powell, the defendant raped and murdered a woman, and after she was dead, took her car and television. Id. at 102, 261 S.E.2d at 119. The Court concluded that a deadly weapon had not been used to put the victim's life in danger during the commission of the taking, and therefore, the taking was an afterthought of the rape. Id. The evidence at trial revealed the defendant in Powell killed the woman by strangulation, rather than with a deadly weapon. Id. at 97, 261 S.E.2d at 116. Although the victim in Powell had been stabbed in the neck with a kitchen knife, the evidence proved this was done after she died of strangulation. Id. Furthermore, the Court concluded Defendant had not taken the objects from the victim with the use of a deadly weapon, and therefore, had not established one of the essential elements of robbery with a dangerous weapon. Id. at 102, 261 S.E.2d at 119. In this case, the evidence does not disclose an alternative motive for the shooting, such as sexual gratification as in Powell. Therefore, Powell does not control.
Defendant also argues the killing and the taking did not constitute a "single transaction" under State v. Fields. In Fields, the defendant shot and killed the victim and then took the victim's shotgun. 315 N.C. at 193, 337 S.E.2d at 520. The defendant argued that, because the victim was dead before he stole the gun, it could not constitute robbery. Id. at 201, 337 S.E.2d at 524. The Court in Fields rejected the defendant's argument and stated the only requirement is that "the elements of armed robbery occur under circumstances and in a time frame that can be perceived as a single transaction." Id. at 201-02, 337 S.E.2d at 524-25. The Court concluded by stating, "it makes no difference whether the intent to steal was formulated before the use of force or after it, so long as the theft and the use or threat of force can be perceived by the jury as constituting a single transaction." Id. at 203, 337 S.E.2d at 525.
In State v. Handsome, which is referenced in Fields, the defendant argued that because he took money from the victim after the victim had been shot, his actions did not constitute armed robbery. 300 N.C. 313, 318, 266 S.E.2d 670, 674 (1980). Our Supreme Court rejected the defendant's argument and held "[t]he elements of violence and taking were so joined in time and circumstances in one continuous transaction amounting to armed robbery as to be inseparable." Id. Viewing the evidence in the light most favorable to the State in the matter at bar, Kirton's written statement provided sufficient evidence to support the conclusion that Palmer was alive when Defendant took Palmer's belongings. And even if Palmer was dead at the time of the taking, the evidence suggests the shooting and the taking were a continuous transaction. We hold the State provided sufficient evidence of every element of the charge; therefore, the trial court properly denied Defendant's motion to dismiss.
C. Restitution
Finally, Defendant argues the trial court improperly ordered him to pay $7900 in restitution to Bernice Falls. Defendant contends this portion of the restitution order must be vacated because the State did not offer any evidence at trial or sentencing to support the restitution amount. We agree.
The propriety of the trial court's restitution award is preserved for appellate review despite Defendant's failure to object at trial. N.C. Gen. Stat. § 15A-1446(d)(18) (2009); cf. State v. Mumford, 364 N.C. 394, 403, 699 S.E.2d 911, 917 (2010) (rejecting an argument that section 15A-1446(d)(18) is unconstitutional). In homicide cases, the trial court must consider the funeral expenses resulting from the victim's death in assessing the amount of restitution to be ordered. N.C. Gen. Stat. § 15A-1340.35(a)(4) (2009). "[T]he amount of restitution recommended by the trial court must be supported by evidence adduced at trial or at sentencing." State v. Wilson, 340 N.C. 720, 726-727, 459 S.E.2d 192, 196 (1995). The evidence required to support the restitution amount "must be something more than a guess or conjecture." State v. Daye, 78 N.C. App. 753, 758, 338 S.E.2d 557, 561 (1986).
In the matter at bar, the only support offered for the $7900 restitution award was the restitution worksheet and the Assistant District Attorney's statement during sentencing that the State was requesting $7900 for funeral expenses. However, a prosecutor's unsworn statement as to the amount of restitution "does not constitute evidence and cannot support the amount of restitution recommended." State v. Buchanan, 108 N.C. App. 338, 341-42, 423 S.E.2d 819, 821 (1992). Therefore, we vacate the $7900 restitution award and remand to the trial court for a hearing solely to determine the amount of restitution to be paid to Falls. All other restitution awards in this case shall remain undisturbed on remand.
No error in part, vacated in part, and remanded.
Judges MCGEE and BEASLEY concur.
Report per Rule 30(e).