Opinion
No. 07-782.
Filed March 18, 2008.
Cabarrus County No. 00CRS019019.
Appeal by defendant from judgment entered 16 November 2006 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 16 January 2008.
Attorney General Roy A. Cooper, III, by Assistant Attorney General Steven F. Bryant, for the State. Reita Pendry for defendant-appellant.
Michael Lane McHone ("defendant") appeals from a judgment entered on 16 November 2006 pursuant to a jury verdict of guilty to charges of first degree murder on the basis of premeditation and deliberation and felony murder. After careful review, we find no error.
I.
In March 2004, defendant was convicted by a jury of first degree murder and armed robbery. On appeal, this Court held that improper jury instructions as to the first degree murder charge amounted to plain error; as such, that conviction was reversed, and the case was remanded for a new trial on that issue only. State v. McHone, 174 N.C. App. 289, 299-300, 620 S.E.2d 903, 910 (2005), disc. review denied, ___ N.C. ___, 628 S.E.2d 9 (2006). The conviction for armed robbery stood. Id. The basic facts of the murder, which were again presented at this second trial, are as follows:
On the morning of 14 November 2000, Tammy Cush ["the victim"] was discovered dead in her apartment. Her husband returned home and found his wife's naked body lying in their bedroom. She had two stab wounds to the neck which, according to expert testimony, caused her death. A jar of coins was spilled on the living room floor. Silver coins from this jar were missing, as were the Play Station and VCR. Mrs. Cush's purse had been emptied of the money inside, and food was strewn on the kitchen floor. A trail of vegetables led towards defendant's apartment. The victim's VCR and Play Station were found in defendant's apartment.
In response to police questioning the next day, defendant admitted having entered the victim's home on the evening of 13 November 2000. He stated he had seen Mrs. Cush lying naked in the bedroom with a hole in her neck trying to breathe. Defendant contended that he slipped in a pool of warm blood, vomited in the toilet, took the VCR and Play Station, and returned to his apartment.
McHone, 174 N.C. App. at 290, 620 S.E.2d at 905. Further relevant facts presented at the second trial are included below.
II. A.
Defendant first argues that he was put in jeopardy twice because he was prosecuted for felony murder in his second trial using as the predicate felony an offense — robbery — for which he had already been convicted and sentenced. This argument is without merit. The verdict sheet from the second trial in the record reflects that the jury answered yes to both of the following options: "The defendant is guilty of 1st degree murder with malice, premeditation and deliberation"; "[t]he defendant is guilty of 1st degree murder under the Felony Murder Rule with the underlying felony of Robbery with a Dangerous or Deadly Weapon." The charge of robbery on which the latter option is based refers to defendant's conviction in his previous trial for robbery of the victim's apartment. As mentioned, that conviction from the earlier trial was not overturned on appeal. Defendant argues that using an earlier conviction for which he had already been sentenced to produce a felony murder charge is a violation of his right to avoid being twice placed in jeopardy for the same crime, and thus his felony murder conviction should be vacated. See U.S. Const. amend. VI ; N.C. Const., art. I, § 19. This argument is without merit.
The sheet contained four total options; in addition to the two above, there was an option to find defendant guilty of felony murder with rape, rather than robbery, as the underlying felony and an option to find him not guilty.
"As we have held on numerous occasions, `where defendant is convicted of first-degree murder based upon both premeditation and deliberation and felony murder, the underlying felony does not merge with the murder conviction and the trial court is free to impose a sentence thereon.'" State v. Robinson, 342 N.C. 74, 82-83, 463 S.E.2d 218, 223 (1995) (citation omitted), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793 (1996). There is no logical or legal reason to distinguish this case because the underlying felony conviction took place in a previous version of the same trial. The underlying felony conviction did not occur in an unrelated trial; it was obtained when defendant was on trial for the same charges he faced in the later trial. Our reversal of the original murder conviction on the basis of improper jury instructions does not cut off the State's right to incorporate that charge in its theory of the case. In addition, since defendant was convicted of first degree murder by premeditation and deliberation, defendant's conviction for felony murder is irrelevant. As such, this assignment of error is overruled.
B.
Defendant next argues that the trial court erred in refusing to instruct the jury on the lesser-included charge of second degree murder.
This argument is without merit.
"Second-degree murder is defined as `the unlawful killing of a human being with malice but without premeditation and deliberation.'" State v. Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13 (1994) (citation omitted).
Whether the trial court must instruct on second-degree murder when defendant is tried for the greater felony of first-degree murder on the theory of premeditation and deliberation is to be determined by a review of all of the evidence presented at trial. . . . [D]efendant must present some affirmative evidence to support a verdict of second-degree murder before the trial court is required to instruct the jury on that lesser included offense.
Robinson, 342 N.C. at 80, 463 S.E.2d at 222. Thus, to obtain an instruction on second degree murder, defendant must have presented evidence to negate the element of premeditation and deliberation.
"Premeditation and deliberation ordinarily are not susceptible to proof by direct evidence and must usually be proved circumstantially." State v. Pittman, 332 N.C. 244, 255, 420 S.E.2d 437, 443 (1992).
Circumstances from which premeditation and deliberation may be inferred include:
"(1) lack of provocation on the part of the deceased, (2) the conduct and statements of the defendant before and after the killing, (3) threats and declarations of the defendant before and during the occurrence giving rise to the death of the deceased, (4) ill-will or previous difficulties between the parties, (5) the dealing of lethal blows after the deceased has been felled and rendered helpless, (6) evidence that the killing was done in a brutal manner, and (7) the nature and number of the victim's wounds."
State v. Robinson, 355 N.C. 320, 337, 561 S.E.2d 245, 256 (citation omitted) (emphasis added), cert. denied, 537 U.S. 1006, 154 L. Ed. 2d 404 (2002). Here, there was enough circumstantial evidence for the jury to conclude that defendant acted with premeditation and deliberation.
Undisputed evidence was presented as to two of the factors listed above — defendant's conduct after the killing and the nature and number of the victim's wounds. As to the first, according to his own admission, defendant entered the apartment after the victim had been assaulted and stole her VCR, PlayStation, and other valuables. He then left the apartment without calling for medical help. As to the second, the medical examiner testified at trial that more than a dozen injuries were found to have been inflicted on the victim's body shortly before her death: In addition to two major injuries — a stab wound under the chin that damaged two major blood vessels and a stab wound on the left side of the neck — the medical examiner found a cut on the bridge of the nose, abrasions on the lower lip and right cheek, puncture wounds at the base of the neck and on the cheek, bruises on the right shoulder and left thigh, scrapes on the left knee and left arm, scratches on the right hand, a skin injury on the left hand, and torn skin and puncture wounds in the pubic area, which may have been inflicted after death. The medical examiner also testified that two different weapons may have been used to inflict the wounds.
The nature and number of the wounds inflicted, along with defendant's stealing of property from an apartment covered in the victim's blood, presents sufficient evidence of two factors from which to infer premeditation and deliberation. See State v. Laws, 345 N.C. 585, 594, 481 S.E.2d 641, 645 (1997) (approximately eighteen stab wounds from two different weapons supported finding of premeditation and deliberation); State v. Barnes, 333 N.C. 666, 679, 430 S.E.2d 223, 230 (1993) (twenty-three stab wounds, including one very deep wound, supported finding of premeditation and deliberation); State v. Young, 324 N.C. 489, 497, 380 S.E.2d 94, 99 (1989) (defendant's shooting victim once and then leaving without determining whether she was dead or summoning medical help supported finding of premeditation and deliberation). Thus, the court was not in error in not instructing the jury on second degree murder.
C.
Defendant next argues that certain evidence was admitted by the trial court in violation of three rules of evidence. This argument is without merit.
We review the admission of evidence by the trial court for abuse of discretion. State v. Underwood, 134 N.C. App. 533, 538, 518 S.E.2d 231, 237 (1999), cert. dismissed per curiam, 352 N.C. 669, 535 S.E.2d 33 (2000). We consider the challenged pieces of evidence below, grouped by the rule of evidence defendant argues was violated.
1.
Defendant first argues that testimony from a former neighbor that defendant had made inappropriate sexual comments to her, including that he wanted to have sex with her, and testimony from a former girlfriend that defendant was controlling, exhibited stalking behaviors, and acted in a threatening manner after she ended the relationship was admitted to show defendant had a propensity to commit the crime with which he was charged in violation of Rule 404(b). N.C. Gen. Stat. § 8C-1, Rule 404(b) (2007). This argument is without merit. While Rule 404(b) does make inadmissible evidence of other crimes, wrongs, or acts by the defendant in certain circumstances, our Supreme Court has described this rule as
a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged.
State v. Coffey, 326 N.C. 268, 278-79, 389 S.E.2d 48, 54 (1990) (emphasis omitted and emphasis added).
Here, the trial court held that the testimony of the two other women was admissible to show "a common scheme or plan, or modus operandi[,]" as well as "to show the defendant's identity as the perpetrator of the crime." Both of these purposes are specific exceptions given by Rule 404(b). Further, this Court has held that a defendant's behavior toward previous women is admissible to show such a common scheme or identity. See, e.g., State v. Pruitt, 94 N.C. App. 261, 267, 380 S.E.2d 383, 386 (1989) (holding admissible two witnesses' testimony that the defendant exhibited the same series of behaviors towards them as he had to the victim), State v. Riddick, 316 N.C. 127, 133-34, 340 S.E.2d 422, 426-27 (1986) (holding admissible evidence of prior crimes where victims were of same general age and lived in the same neighborhood and the defendant exhibited the same behaviors in each instance). As such, the trial court did not abuse its discretion in admitting this evidence.
2.
Defendant next argues that evidence that defendant kept a knife collection and knives were seized from his home, some of which had blood on them, and that defendant had killed his pet iguana were irrelevant and aimed only at inflaming the passions of the jury in violation of Rules 401 and 403. This argument is without merit.
Rule 401 states that "relevant evidence" is "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." N.C. Gen. Stat. § 8C-1, Rule 401 (2007). Rule 403 states that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice[.]" N.C. Gen. Stat. § 8C-1, Rule 403 (2007).
Certainly, the fact that defendant had in his possession the type of weapon used to murder the victim is relevant, as is evidence that he had used the weapon in the past for violent ends. Defendant has made no argument that the evidence's probative value was substantially outweighed by unfair prejudice aside from the bald statement that such is the case. As such, we cannot say that the court abused its discretion in admitting this evidence.
3.
Defendant finally argues that testimony by the victim's husband that defendant said he could turn the power off in apartments, that he could break into apartments, and that he had been watching other women in the apartments was irrelevant per Rule 401. This argument is without merit.
Again, this rule states that "relevant evidence" is "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." N.C. Gen. Stat. § 8C-1, Rule 401. Certainly any statements or observations as to defendant's ability to tamper with other apartments and tendency to watch strangers in their homes are of consequence in a trial in which defendant is charged with invading and tampering with the apartment home of a stranger. Examples of defendant's prior statements and behavior were relevant to determining whether he exhibited such behavior in this case. The court did not abuse its discretion in allowing this evidence.
D.
Finally, defendant argues that the trial court should not have allowed the victim's husband to testify as to certain statements made by the victim to him, as they were hearsay. This argument is without merit.
Hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted" and is generally excluded. N.C. Gen. Stat. § 8C-1, Rules 801(c) and 802 (2007). As mentioned above, we review the admission of evidence by the trial court for abuse of discretion. Underwood, 134 N.C. App. at 538, 518 S.E.2d at 237. Specifically, defendant argues that three statements made by the victim should have been excluded as hearsay: That she did not like defendant, that defendant gave her "the creeps," and that she thought defendant was spying on her. All three statements are declarations of the victim's then-existing state of mind and emotions, and as such qualify as exceptions to hearsay under Rule 803(3). N.C. Gen. Stat. § 8C-1, Rule 803(3) (2007). Such statements should be admitted so long as they are relevant and not overly prejudicial. State v. Cummings, 326 N.C. 298, 313, 389 S.E.2d 66, 74 (1990). The victim's statements here as to her feelings about defendant are virtually identical to those we held admissible in Cummings, where the victim's statements to another person that she feared the defendant were held to be "relate[d] directly to the status of her relationship with defendant prior to her disappearance." Id. As such, we cannot say the trial court abused its discretion in admitting the evidence.
III.
Because defendant has not shown that he was put twice in jeopardy or that the trial court erred in its instructions to the jury or admitted any evidence in error, we find no error.
No error.
Judges BRYANT and JACKSON concur.
Report per Rule 30(e).