Opinion
No. COA02-938
Filed 5 August 2003
1. Homicide — first-degree murder — motion to dismiss — failure to renew motion at close of all evidence — waiver
Although defendant contends the trial court erred by denying his motion to dismiss the charge of first-degree murder made at the close of the State's evidence, defendant waived this assignment of error because defendant failed to renew his motion at the close of all the evidence.
2. Evidence — exclusion of victim's uncommunicated threats — substantially same evidence presented
The trial court did not err in a first-degree murder case by excluding the victim's uncommunicated threats to defendant from the jury, because: (1) the evidence of uncommunicated threats was not admissible at the time of the proffer since defendant had not testified at that time and had not offered evidence of self-defense; (2) defendant was not prohibited from and failed to recall the pertinent witness after defendant had testified and had laid a proper foundation for admissibility of the testimony; and (3) defendant testified to substantially the same evidence.
3. Homicide — first-degree murder-proximate cause-expanded instruction
The trial court did not err by giving an expanded instruction on proximate cause in a first-degree murder prosecution that "defendant's act need not have been the last cause or the nearest cause. It is sufficient if concurred where some other cause acting at the same time which in combination with it proximately caused the death of the victim" where the State's evidence showed that defendant shot the victim in the head and shoulder from a range of two feet; defendant shot the victim a second time after the victim fell to the ground; defendant threw the gun down and fled; a friend of defendant retrieved the gun and shot the victim again; the friend then drove the victim's body from the scene and burned it; and the cause of death was two gunshot wounds to the victim's neck and face area. The issue of the omission of an additional instruction on reasonable forseeability was not before the appellate court where defendant failed to request such an instruction or to assign its omission as plain error.
4. Homicide — first-degree murder — short-form indictment — constitutionality
A short-form indictment is constitutionally sufficient to allege first-degree murder based on premeditation and deliberation.
Judge WYNN dissenting.
Appeal by defendant from judgment entered 29 October 2001 by Judge Ernest B. Fullwood in Pender County Superior Court. Heard in the Court of Appeals 15 April 2003.
Attorney General Roy Cooper, by Assistant Attorney General Daniel P. O'Brien, for the State. Rudolph, Maher, Widenhouse Fialko, by M. Gordon Widenhouse, Jr., for the defendant-appellant.
Ivory Lamont Messick ("defendant") appeals from his jury conviction and sentence for the first-degree murder of Reginald Carr ("Carr"). We find no error.
I. Background
Carr died from gunshot wounds to his head and neck. His body was discovered, burned beyond recognition. On 17 November 2000, Carr rode with Chauncy Robinson and Will Pigford to the home of defendant's uncle. Carr walked with Robinson into the yard next to defendant's home, where three other men were talking near a parked car. Sometime later, defendant and another man returned from buying beer for two men, who were cutting hair inside defendant's house. Before defendant entered his home, Carr asked defendant if he had "any words" for him. Defendant replied that he did not.
A few minutes later, defendant returned outside and sat on a car while talking. Apparently, defendant turned his attention to Carr and Robinson and asked them to leave. According to the State's evidence, Carr was walking away towards his car with his back toward defendant when Robinson yelled "watch out". Carr turned in response and raised his hands. Defendant shot Carr in the face or shoulder area. After Carr fell, defendant shot him again. Defendant dropped the gun and fled the scene.
After defendant left, Jack Brown placed Carr's body in a car, drove the car to another location and burned the vehicle with Carr's body inside. Other evidence was presented to show that Jack Brown shot Carr twice before placing Carr's body in the vehicle.
Defendant offered evidence to show that Carr walked to the car in a sideways motion with his face turned toward defendant at all times and made statements from which one could infer Carr was "going to get defendant later." Someone yelled "watch out he's got a gun" and defendant looked and saw something shiny in Carr's hand. Defendant pulled his gun from his waistband, shot once, dropped the gun, and ran away.
Defendant appeals his conviction of first-degree murder based upon premeditation and deliberation, and his sentence to life imprisonment without possibility of parole.
II. Issues
Defendant contends the trial court erred in (1) denying defendant's motion to dismiss for insufficient evidence, (2)excluding the victim's uncommunicated threats to defendant from the jury, (3) its instruction on proximate cause, and (4) failing to dismiss a defective indictment.
III. Motion to Dismiss
Defendant argues that the trial court erred by refusing to grant his motion to dismiss made at the close of the State's evidence based on insufficiency of the evidence. Defendant failed to renew his motion at the close of all the evidence. N.C.R. App. P. 10(c)(3) (2002) ("If a defendant makes such a motion after the State has presented all its evidence and has rested its case and that motion is denied and the defendant then introduces evidence, his motion for dismissal or judgment in case of nonsuit made at the close of State's evidence is waived. Such a waiver precludes the defendant from urging the denial of such motion as a ground for appeal.") Defendant has waived this assignment of error.
IV. Uncommunicated Threats
Defendant argues the trial court erred in excluding the victim's uncommunicated threats to defendant into evidence because it was relevant to the issue of self-defense. We disagree.
At trial, Will Pigford, a witness for defendant, testified on voir dire that three months prior to the incident he heard Carr say that he was going to rob defendant and kill defendant and his family if defendant did not give Carr money. This statement was not communicated by Carr or Pigford to defendant prior to the shooting. This evidence was proffered prior to defendant's testimony. The trial court sustained the State's objection to this testimony.
"Generally speaking, uncommunicated threats are not admissible in homicide cases." State v. Minton, 228 N.C. 15, 17, 44 S.E.2d 346, 348 (1947). However, under Rule 803(3) of the North Carolina Rules of Evidence, statements of a victim's state of mind are admissible if the victim's state of mind is relevant to the case. Where a defendant relies on the theory of self-defense and presented sufficient evidence, the uncommunicated threat is admissible under Rule 803(3) to show the state of mind of the victim and that the victim was the aggressor. State v. Ransome, 342 N.C. 847, 467 S.E.2d 404 (1996).
The State concedes that the testimony was admissible hearsay, but contends that the evidence was properly excluded because defendant had not presented any evidence of self-defense at the time of Pigford's testimony.
In State v. Jones, 83 N.C. App. 593, 599, 351 S.E.2d 122, 126 (1986), disc. rev. denied, 319 N.C. 461, 356 S.E.2d 9 (1987), this Court held that in order for evidence of uncommunicated threats to be admissible, the "defendant must do more than claim self-defense; he must put on evidence of self-defense[.]" (Emphasis in original).
Self-defense is shown when: (1) it appeared to the defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; (2) the defendant's belief was reasonable in that the circumstances as they appeared to him at that time were sufficient to create such a belief in the mind of a person of ordinary firmness; (3) the defendant did not aggressively and willingly enter into the fight without legal excuse or provocation; and, (4) the defendant did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm. State v. McAvoy, 331 N.C. 583, 595, 417 S.E.2d 489, 497 (1992).
Defendant had not testified at the time Pigford's testimony was proffered and had not offered evidence of self-defense. At the time of the proffer, the evidence of uncommunicated threats was not admissible. The trial court properly sustained the State's objection. Defendant was not prohibited from and failed to recall Pigford after defendant had testified and had laid a proper foundation for admissibility of the testimony.
Also, defendant testified to substantially the same evidence. The jury heard from defendant: (1) Carr had planned to rob him; (2) Carr had a reputation for violence; (3) Carr was a drug dealer; and (4) prior confrontations had occurred between defendant and Carr. Section 15A-1443(a) provides that:
A defendant is prejudiced by errors relating to rights arising other than under the Constitution of the United States when there is a reasonable possibility that, had the error in question not been committed, a different result would have been reached at the trial out of which the appeal arises. The burden of showing such prejudice under this subsection is upon the defendant. Prejudice also exists in any instance in which it is deemed to exist as a matter of law or error is deemed reversible per se.
N.C. Gen. Stat. § 15A-1443(a) (2001). "[N]o prejudice arises from the erroneous exclusion of evidence when the same or substantially the same testimony is subsequently admitted into evidence." State v. Hageman, 307 N.C. 1, 24, 296 S.E.2d 433, 446 (1982) . See also State v. Walden, 311 N.C. 667, 319 S.E.2d 577 (1984). The jury was aware of virtually the same evidence contained in Pigford's proffer through defendant's testimony. This assignment of error is overruled.
V. Jury Instructions
Defendant argues that the trial court misstated the law and unconstitutionally reduced the State's burden of proof by its instruction on proximate cause. The trial court instructed:
Second, the state must prove that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause, a cause without which the victim's death would not have occurred. The defendant's act need not have been the last cause or the nearest cause. It is sufficient if it concurred where some other cause acting at the same time which in combination with it proximately caused the death of the victim.
Defendant contends the charge was erroneous. He asserts that the instruction allowed the jury to convict him of first-degree murder without requiring the State to prove beyond a reasonable doubt he proximately caused the death of the decedent. Defendant argues "it is not sufficient for defendant's act to occur along with another act, for which he is not responsible and could not foresee, where the latter act causes Carr's death." Defendant requests this Court to find reversible error and award a new trial for failure of the trial court to instruct on reasonable foreseeability. Defendant argues it is not reasonably foreseeable that a third person would shoot Carr after defendant left the scene without evidence of a conspiracy or agreement. We disagree.
The trial court gave the pattern instruction found in N.C.P.I.-Criminal 206.10, with additional language found in footnote 7. Footnote 7 to N.C.P.I.-Criminal 206.10 states in part:
`The defendant's act need not have been the last cause or the nearest cause. It is sufficient if it occurred with some other cause acting at the same time, which in combination with it, proximately caused the death of (name victim).'
In State v. Lane, 115 N.C. App. 25, 29, 444 S.E.2d 233, 236, disc. rev. denied, 337 N.C. 804, 449 S.E.2d 753 (1994), this Court upheld a similar instruction and held that "[t]here can be more than one proximate cause, but criminal responsibility arises as long as the act complained of caused or directly contributed to the death." (citing State v. Cummings, 301 N.C. 374, 271 S.E.2d 277 (1980)).
The State's evidence showed that defendant held a gun in Carr's face and shot him in the head and shoulder area from an approximate range of two feet. Defendant shot Carr a second time after Carr fell to the ground. Defendant threw the gun down and fled, leaving Carr bleeding on the ground. Jack Brown, a friend of defendant's family, retrieved the gun and shot Carr again. Brown then drove Carr's body away from the scene of the crime and burned it. An autopsy revealed two bullet wounds to Carr's neck and face area. Based upon the condition of the body, the pathologist opined that the cause of death was the two gunshot wounds.
Under these facts, the trial court properly gave the expanded proximate cause instruction for the second element of first-degree murder. Defendant's act does not have to be the sole proximate cause of death. It is sufficient that the act was a proximate cause which in combination with another possible cause resulted in Carr's death. See State v. Gilreath, 118 N.C. App. 200, 454 S.E.2d 871 (1995); State v. Minton, 234 N.C. 716, 68 S.E.2d 844 (1952). The trial court did not err in its instruction to the jury on proximate cause.
The dissent would hold that the trial court erred in refusing to give an instruction on foreseeability. Neither the transcript nor the record shows that defendant requested an instruction on foreseeability. Defendant objected and excepted to the use of the instruction in Footnote 7, as set out above. However, he did not request additional instructions. Nothing further was mentioned regarding foreseeability or proximate cause. After instructing the jury, the trial court asked, "Mr. Spivey, [on] behalf of the defendant, any objections, comments, questions or corrections?" Counsel for defendant responded "None from the defendant, Your Honor."
Defendant does not specifically cite this omission of an instruction on foreseeability as an assignment of error. In the absence of such a request or an assignment of plain error, the issue of an additional instruction on foreseeability is not properly before this Court to review. N.C.R. App. P. 10.
VI. Short-form Indictment
Defendant contends the trial court erred in denying his motion to dismiss the indictment for failure to allege every element of first-degree murder. Our Courts have repeatedly and consistently held that the short-form indictment is constitutionally sufficient to allege first-degree murder based on premeditation and deliberation. See e.g., State v. Hunt, 357 N.C. 257, 274, ___ S.E.2d ___, ___ (16 July 2003); State v. Walters, 357 N.C. 68, 79, ___ S.E.2d ___, ___ (2 May 2003) ("[T]his Court has repeatedly addressed and rejected this argument. Defendant has presented no compelling reason for this Court to reconsider the issue in the present case.") (citing State v. Braxton, 352 N.C. 158, 173-75, 531 S.E.2d 428, 437-38 (2000), cert. denied, 531 U.S. 1130, 148 L.Ed.2d 797 (2001); State v. Wallace, 351 N.C. 481, 504-08, 528 S.E.2d 326, 341-43, cert. denied, 531 U.S. 1018, 148 L.Ed.2d 498 (2000)). We have reviewed over fifty additional decisions in which this issue has been raised and rejected by our Supreme Court and this Court in the last three years. These decisions consistently hold that the short form murder indictment is constitutional. This assignment of error is without merit and is overruled.
VI. Conclusion
Defendant waived his right to appeal the denial of his motion to dismiss for insufficient evidence. The trial court did not err in excluding testimony of uncommunicated threats, instructing the jury, or denying defendant's motion to dismiss for insufficiency of the indictment.
No error.
Judge STEELMAN concurs.
Judge WYNN dissents.