Opinion
No. COA14–394.
2014-12-16
STATE of North Carolina v. Andre Earl HAMPTON, Defendant.
Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Babb, for the State.Michael E. Casterline for defendant-appellant.
Appeal by defendant from judgment entered 15 March 2013 by Judge Forrest D. Bridges in Mecklenburg County Superior Court. Heard in the Court of Appeals 22 October 2014. Attorney General Roy Cooper, by Assistant Attorney General Mary Carla Babb, for the State. Michael E. Casterline for defendant-appellant.
BRYANT, Judge.
Where defendant's proffered evidence was not relevant to the offense of felony murder by torture, we affirm the trial court's exclusion of such evidence. Where the evidence indicated that defendant had admitted to a course of conduct which constituted the offense charged, a pattern jury instruction about confessions was proper. Where the evidence did not support a jury instruction concerning second-degree murder, the trial court did not err in refusing to instruct the jury about the issue of defendant's guilt of this lesser-included offense.
On 1 December 2008, defendant Andre Earl Hampton was indicted by a Mecklenburg County grand jury on two counts of felony child abuse and one count of murder in the death of defendant's son Evan. The charges came on for trial during the 11 February 2013 criminal session of the Mecklenburg County Superior Court, the Honorable Forrest D. Bridges, Judge presiding. At trial, the evidence tended to show the following.
Pseudonyms are used to protect the identities of the minor children, both living and deceased.
At the time of Evan's death, defendant was living in a rent-by-the-week hotel with Evan, Evan's mother and defendant's girlfriend Lashinna Burger, and Burger's daughter, Lori. Evan was twenty-three months old, and Lori was six years old.
On the evening of 10 November 2008, defendant made soup for dinner for the two children. After Evan refused to eat his soup, defendant spanked Evan on his bottom with the back side of a wooden hairbrush hard enough to break the skin. After being spanked, Evan began to eat more of his soup, but soon refused to eat further. Defendant said that he then began to “pop” Evan on the knuckles of both hands with a toothbrush to make the child eat. Defendant stated that he stopped hitting Evan on the knuckles after he noticed the knuckles were becoming raw and blistered.
The following morning, defendant tried to get Evan to finish his soup from the previous evening, but Evan would eat only a few bites before refusing to finish it. Defendant said that he made Evan remain seated at the table in an attempt to make the child eat, and that he continued to “pop” Evan on the knuckles and feet periodically as punishment for not eating. After several hours of sitting at the table and being periodically beaten, Evan was allowed by defendant to stand at the foot of the bed and watch television.
Defendant stated that around 5:30–6:00 p.m., he once again reheated the soup and tried to make Evan eat. Evan refused to eat and instead “kept dozing off” at the table, at which point defendant would hit the table with the toothbrush to wake the child up. After Evan pushed the bowl away and refused to finish his soup, defendant picked the child up by the shoulder and threw him onto the bed. Defendant then took one of his girlfriend's belts and began to hit Evan on his backside and bottom. Defendant said that because Evan attempted to roll away from him, the belt also struck Evan on his arms, legs, torso, and face. Defendant stated that at one point Evan rolled off of the bed entirely, and at another point hit his head on the side of the bed; in both instances defendant picked Evan up, put him back onto the bed, and continued beating him with the belt. Defendant further stated that he covered Evan's mouth with a pillow so the neighbors would not hear the child wailing.
Defendant said that when he noticed that Evan was no longer reacting to being beaten, he stopped hitting the child and put him into the bath tub to soothe his injuries. While lying in the bath tub, Evan tried to drink some of the water but defendant stopped him from doing so. After Evan appeared to “doze off” in the bath tub, defendant took Evan out of the tub and noticed that the child's breathing was very slow and his body seemed to be stiff. Defendant placed Evan on the bed for about ten minutes, and after Evan stopped breathing, defendant ordered Lori to call 911. The 911 dispatcher instructed defendant about how to perform CPR on Evan until emergency personnel arrived.
Charlotte Fire Department firefighter/medic Cindy Zimmerman was one of the first responders at the scene. She testified that when she saw Evan, the child was lying on the floor wearing only a diaper. Zimmerman stated that Evan was “pretty beat up” with bruises all over his body and had no pulse. Zimmerman also noted that Lori was hiding under a table in the room.
Officer Stephen Arnold of the Charlotte Mecklenburg Police Department arrived on the scene shortly after Zimmerman. Officer Arnold said that as he walked into the hotel room, he saw a firefighter quickly carry a small child out of the room for medical attention. Officer Arnold described the child as stiff and covered in half-dollar-sized bruises. Officer Arnold also noted that defendant appeared to be completely calm and relaxed, despite Evan's obviously serious condition.
After helping to secure the scene, Officer Arnold transported defendant to the Charlotte Mecklenburg Police Department to be interviewed by Detective William Ward. Defendant told Detective Ward that he had beaten Evan because the child would not eat his soup, and that he had spanked Evan because that is what defendant's parents would do to defendant to scare him into behaving properly when he was a child. Detective Ward noted that defendant did not seem emotional during the interview, and that defendant showed no reaction when told that Evan had died.
Evan was declared dead at the hospital. An autopsy revealed that the child had sustained multiple blunt force trauma injuries to his body, including bruises on his chest, back, sides, arms, legs, feet, palms, fingers, toes, head, forehead, face, chin, ears, neck, gums, and the inside of his lips. Medical Examiner Thomas Owens noted that many of the bruises were in either linear or looped patterns which could have been caused by an object such as a belt, and that while the child had been hit more than forty times, the injuries were simply too numerous to count. Dr. Owens further noted that the injuries to Evan's hands and feet included multiple broken fingernails and toenails, and severely abraded skin on the knuckles. An x-ray of Evan's body showed that the child's left collarbone had been broken, and Dr. Owens opined that this type of fracture was caused by a direct impact to the bone. Dr. Owens concluded that Evan had died from a cerebral edema and an acute subarachnoid hemorrhage caused by the cumulative effect of multiple blunt force injuries to Evan's body and head.
On 6 March, a jury convicted defendant of two counts of felony child abuse based on defendant's beatings of Evan on 10 and 11 November 2008. Defendant was also convicted of first-degree murder on the basis of murder by torture and the felony murder rule. After a capital sentencing proceeding, the jury recommended defendant be sentenced to life imprisonment without parole. On 19 March, the trial court sentenced defendant to life imprisonment without parole for first-degree murder. The trial court arrested judgment with respect to one of the felony child abuse convictions and sentenced defendant to a consecutive term of twenty-five to thirty-nine months for the other felony child abuse conviction. Defendant appeals.
Petition for Writ of Certiorari
During the preparation of defendant's appeal, defense counsel noticed the transcript was silent as to whether defendant had entered an oral notice of appeal and that defendant had not given a formal written notice of appeal. Defendant, therefore, now petitions this Court for the issuance of a writ of certiorari.
Pursuant to our Rules of Appellate Procedure, this Court may issue a writ of certiorari to review judgments by the trial court when the appellant has failed to timely give notice of appeal. N.C. R.App. P. 21(a)(1) (2014).
Here, the record indicates that when the trial court entered judgment against defendant, the trial court checked the box under “Order of Commitment/Appeal Entries” indicating that “[t]he defendant gives notice of appeal from the judgment of the trial court to the appellate division.” As such, defendant has properly preserved his appeal to this Court, and defendant's petition for writ of certiorari is, therefore, denied.
On appeal, defendant raises three issues as to whether the trial court (I) erred by excluding evidence offered by defendant; (II) erred by giving a pattern jury instruction about confessions; and (III) committed plain error by failing to instruct the jury concerning second-degree murder.
I.
Defendant argues that the trial court erred by excluding evidence. We disagree.
“Pursuant to North Carolina Rule of Evidence 401, ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” State v. Grant, 178 N.C.App. 565, 573, 632 S.E.2d 258, 265 (2006) (citing N.C. Gen.Stat. § 8C–1, Rule 401 (20 [13] )) (quotation and bracket omitted). “Although a trial court's rulings on relevancy are not discretionary and we do not review them for an abuse of discretion, we give them great deference on appeal.” Id . (citing State v. Streckfuss, 171 N.C.App. 81, 88, 614 S.E.2d 323, 328 (2005)).
Defendant contends the trial court erred in excluding defendant's evidence because this evidence was relevant to negate the State's theory of murder by torture. Specifically, defendant argues that the exclusion of this evidence violated defendant's rights to due process and a fair trial. However, as defendant failed to raise these, or any, constitutional errors before the trial court, these arguments have not been properly preserved for appeal. See State v. Chapman, 359 N.C. 328, 366, 611 S.E.2d 794, 822 (2005) ( “[C]onstitutional error will not be considered for the first time on appeal.” (citations omitted)).
Even assuming arguendo that defendant had preserved this issue for appeal, defendant's argument lacks merit. Defendant contends that the trial court, by sustaining the State's objections during defendant's testimony, excluded evidence that negated the State's theory of murder by torture because this offense requires a jury to “make inferences about the defendant's mind[.]”
First-degree murder by torture requires the State to prove that the accused intentionally tortured the victim and that such torture was a proximate cause of the victim's death. Torture is defined as the course of conduct by one or more persons which intentionally inflicts grievous pain and suffering upon another for the purpose of punishment, persuasion, or sadistic pleasure. Course of conduct is defined as the pattern of the same or similar acts, repeated over a period of time, however short, which establishes that there existed in the mind of the defendant a plan, scheme, system or design to inflict cruel suffering upon another. The presence or absence of premeditation, deliberation and specific intent to kill is irrelevant in determining whether the evidence is sufficient for first-degree murder by torture.
State v. Lee, 348 N.C. 474, 489, 501 S.E.2d 334, 343–44 (1998) (citations, quotations, and bracket omitted) (emphasis added).
Here, the State presented overwhelming evidence that defendant beat his son repeatedly over a two-day period as punishment for the child's refusal to eat soup, and that the cumulative effect of these beatings lead to the child's death. Indeed, defendant himself admitted that he continuously hit Evan as punishment to force the child into eating. As such, there was sufficient evidence to support the charge of murder by torture. Defendant, even though acknowledging in his brief that “it is well-settled that murder by torture doesn't require any specific intent to kill,” nevertheless argues that the excluded evidence was necessary to illuminate his then-existing state of mind. This argument is without merit. See id. (again noting that felony murder by torture is not a specific-intent crime, but rather requires only a showing that the defendant intended to punish the victim and such punishment lead to the victim's death).
Further, a review of the transcript indicates that the trial court sustained objections by the State only five times during defendant's testimony. Of these five objections, three concerned the relevancy of defendant's testimony; of the remaining two, one regarded a question already asked and answered, and one concerned the need for defense counsel to rephrase a statement asking defendant to “[t]alk about the money situation” as a question. The State lodged its three objections based on relevancy regarding the testimony of defendant about the reliability of his car, the relationship between his girlfriend Lashinna Burger and his mother, and the debts defendant had incurred at the time of Evan's death. We agree with the trial court's decision to sustain the State's objections with respect to these matters, since there is nothing to indicate how these topics were relevant to whether defendant had committed the offense of murder by torture. Moreover, despite the trial court sustaining the State's objections to this testimony, defendant was not prejudiced because he was still able to testify about the financial and personal relationship stresses facing him at the time he beat his son to death. The transcript indicates that after the trial court sustained the State's objection for the third time, defense counsel engaged defendant in the following testimony:
Q. Did any of the things we talked about, [defendant], affect how you were acting on November the 11th of 2008 when [Evan] wouldn't eat?
A. Yes, sir, that and more, I should say.
Q. Would you explain that, please.
A. I say just not having money for one, being I guess a provider for my mom, my sisters and my brothers, making sure they go where they need[ed] to be, running errands, I should say, making sure [Evan] had everything, making sure [Kevin, my son by another woman] had everything, try[ing] to spend time with [Kevin], [Evan,] and Tonya Parker as a female friend I had on the side, I should say. Spending money I guess you [would] say on beer and cigarettes, weed when I could, I should say, making a lot of car repairs, spending money on gas, buying groceries, doing laundry, everything, everything that I had spent money on that I didn't have.
After defendant gave this testimony, the State cross-examined defendant regarding his statements that he was stressed because of a lack of money, and that this stress led defendant to beat his son to death. As such, despite the trial court sustaining the State's objections, defendant was still able to testify about the personal and financial stresses that affected him at the time of the severe, two-day beating that led to Evan's death. Accordingly, defendant's first argument is overruled.
II.
Defendant next argues that the trial court erred by giving a pattern jury instruction about confessions. We disagree.
“[Arguments] challenging the trial court's decisions regarding jury instructions are reviewed de novo by this Court.” State v. Osorio, 196 N.C.App. 458, 466, 675 S.E.2d 144, 149 (2009) (citations omitted). “The prime purpose of a court's charge to the jury is the clarification of issues, the elimination of extraneous matters, and a declaration and an application of the law arising on the evidence.” State v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973) (citations omitted). “[A] trial judge should not give instructions to the jury which are not supported by the evidence produced at the trial.” Id. (citations omitted). “Where jury instructions are given without supporting evidence, a new trial is required.” State v. Porter, 340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995) (citation omitted).
Defendant contends the trial court erred in giving a pattern jury instruction about confessions because such an instruction was not supported by the evidence.
Confession is defined as a[v]oluntary statement made by one who is [a] defendant in [a] criminal trial at [a] time when he is not testifying in trial and by which he acknowledges certain conduct of his own constituting [a] crime for which he is on trial; a statement which, if true, discloses his guilt of that crime.
State v. Cannon, 341 N.C. 79, 89, 459 S.E.2d 238, 244–45 (1995) (citation and quotation omitted).
The pattern jury instruction concerning confessions ... should not be given in cases in which the defendant has made a statement which is only of a generally inculpatory nature. When evidence is introduced which would support a finding that the defendant in fact has made a statement admitting his guilt of the crime charged, however, the instruction is properly given.
State v. Young, 324 N.C. 489, 498, 380 S.E.2d 94, 99 (1989).
Defendant contends the trial court erred in giving a pattern jury instruction about confessions because although defendant admitted having beaten his son Evan, defendant never admitted that the beatings were the proximate cause of his son's death, nor did defendant admit he had any intent to harm his son. Defendant's argument lacks merit though, for this Court has held that “[r]egardless of defendant's characterization of the statements, ... an instruction on confession[s] is appropriate if defendant has admitted taking certain actions that, if true, would constitute a criminal offense.” State v. Shelman, 159 N.C.App. 300, 308, 584 S.E.2d 88, 94 (2003) (citation omitted).
Here, the State presented overwhelming evidence that defendant had beaten his twenty-three-month-old son over a two-day period, and that the cumulative effect of these beatings caused the child's death. Defendant himself admitted to having beaten his son repeatedly and that he thought he had killed his son when he noticed Evan breathing slowly after being removed from the bath tub. These voluntary statements were made to Detective Ward on the night of Evan's death. As discussed in Issue I, this evidence was clearly sufficient to support a charge of murder by torture, felony child abuse, and first-degree murder based on the felony murder rule. See State v. Pierce, 346 N.C. 471, 493, 488 S.E.2d 576, 589 (1997) (noting that the felony murder rule applies where a defendant commits a murder during the commission or attempted commission of a felony, and that felony murder based upon felony child abuse occurs when a parent intentionally inflicts serious physical injury upon their child). As such, despite defendant's contention that “his statements did not amount to a confession,” the trial court's confession instruction was “based upon a state of facts presented by some reasonable view of the evidence” and was, therefore, proper. Cannon, 341 N.C. at 89, 459 S.E.2d at 244 (citation omitted).
Defendant further argues that the trial court erred in giving a jury instruction about confessions because by doing so the trial court expressed its own opinion that defendant had in fact confessed to the offenses charged. Defendant cites State v. Bray, 37 N.C.App. 43, 245 S.E.2d 190 (1978), in support of his argument.
In Bray, the defendant was charged with first-degree murder in the shooting death of a robber. The defendant admitted that he had shot the robber but had done so out of fear for his own safety and to prevent his business from being robbed. Id. at 44–45, 245 S.E.2d at 191. On appeal, the defendant argued that the trial court committed prejudicial error in telling the jury that “[t]here is evidence which tends to show that the defendant confessed that he committed the crime charged in this case[,]” and that by giving such an instruction, the trial court had expressed its own opinion concerning the defendant's guilt to the jury. Id. at 45, 245 S.E.2d at 191. This Court agreed, holding that a jury instruction about confessions was not appropriate where the defendant had not given a knowing and voluntary statement acknowledging his full culpability for the offense charged. Id. at 45–46, 245 S.E.2d at 192.
Bray is inapplicable to the instant case. In Bray, the defendant's admission to shooting the robber was made in support of the defendant's claim of self-defense. Here, defendant gave a knowing and voluntary statement to Detective Ward in which he acknowledged having repeatedly beaten Evan over a two-day period. When shown photographs of various injuries on Evan's body by Detective Ward, defendant admitted that he caused those injuries to his son. Moreover, defendant acknowledged to Detective Ward that he thought he had killed his son when defendant removed Evan from the bathtub and saw the child was breathing slowly. Shortly thereafter, the child died. Therefore, “[d]efendant admitted that he had engaged in certain conduct which constituted the crime of felony murder. His statement amounts to a ‘confession’ to first-degree murder.” Cannon, 341 N.C. at 90, 459 S.E.2d at 245 (citation omitted). As such, the trial court's instruction to the jury about confessions was entirely appropriate.
Moreover, it is well-established that a trial court which properly gives a pattern jury instruction about confessions has not engaged in an impermissible statement of personal opinion. See State v. Duke, 360 N.C. 110, 123, 623 S.E.2d 11, 20 (2005) (“An instruction by the trial court [on the North Carolina Pattern Jury Instruction on Confessions, 1 N.C.P.I.—Crim. 104.70 (2013),] stating the evidence tends to show the existence of a confession to the crime charged is not an impermissible comment invading the province of the jury and its fact-finding function.” (citations omitted)). Defendant's argument is, therefore, overruled.
III.
Finally, defendant argues that the trial court committed plain error by failing to instruct the jury about the issue of defendant's guilt of second-degree murder. We disagree.
In criminal cases, an issue that was not preserved by objection noted at trial and that is not deemed preserved by rule or law without any such action nevertheless may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error.
N.C. R.App. P. 10(a)(4) (2014). “For error to constitute plain error, a defendant must demonstrate that a fundamental error occurred at trial.” State v. Lawrence, 365 N.C. 506, 518, 723 S .E.2d 326, 334 (2012) (citation omitted). “To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error had a probable impact on the jury's finding that the defendant was guilty.” Id. (citations and quotation omitted). “Moreover, because plain error is to be ‘applied cautiously and only in the exceptional case, ... the error will often be one that ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings[.]’' Id. (citations and quotation omitted).
Defendant contends the trial court committed plain error in failing to instruct the jury concerning the issue of defendant's guilt of second-degree murder because this charge was supported by the evidence. Second-degree murder “is defined as the unlawful killing of another with malice but without premeditation and deliberation.” State v. Lambert, 341 N.C. 36, 46, 460 S.E.2d 123, 129 (1995) (citation omitted). In deciding whether to give an instruction concerning second-degree murder,
[t]he determinative factor [for the trial court] 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 of murder in the first degree, including premeditation and deliberation, 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 a conviction of second degree murder.
State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). “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 acquit him of the greater.” State v. Gary, 348 N.C. 510, 524, 501 S.E.2d 57, 67 (1998) (citation omitted).
As discussed in Issues I and II, the evidence presented against defendant was more than sufficient to support charges for first-degree murder under the felony murder rule, murder by torture, and felony child abuse. Although defendant argues the trial court erred by not giving an instruction concerning defendant's guilt of second-degree murder because the evidence did not support a finding that defendant intended to kill his son, the State did not need to prove such a specific intent in its case against defendant. See Issue I, supra. Moreover, there is no evidence that would negate the elements of first-degree murder on the basis of torture or felony murder. Further, we are not persuaded by defendant's claim that the trial court's failure to instruct the jury concerning second-degree murder has prejudiced him, since again, we note that the evidence presented against defendant was as compelling and overwhelming as it was horrifying and, as such, there was no likelihood the jury would have reached a different result. Defendant's third argument is accordingly overruled.
No error. Judges ELMORE and ERVIN concur.
Report per Rule 30(e).