Opinion
No. 07-1000.
Filed March 18, 2008.
Forsyth County No. 03CRS60690.
Appeal by Defendant from judgment entered 15 March 2007 by Judge Ronald E. Spivey in Forsyth County Superior Court. Heard in the Court of Appeals 10 March 2008.
Attorney General Roy Cooper, by Assistant Attorney General Alvin W. Keller, Jr., for the State. M. Alexander Charns, for Defendant.
Glenn Elven Stephens (Defendant) appeals a judgment entered upon his conviction for second degree murder. We find no error.
On 7 June 2004, Defendant was indicted for first degree murder. The case was tried at the 12 March 2007 Criminal Session of Forsyth County Superior Court.
The State presented evidence at trial which tended to show the following: Demeka Johnson lived with her mother, Zonja Ijames, in a home on 236 North Cameron Avenue in Winston-Salem, North Carolina. On 26 September 2003, Ijames was having an end of summer cookout. At approximately 7 p.m., Johnson's father, Tyrone Foy, arrived at the home. Foy was bringing Johnson "Ensure" because she was pregnant. Around twenty minutes later, Defendant arrived at the home and entered the kitchen. The Defendant was Ijames' former boyfriend and had been living with Johnson and Ijames. However, Defendant was no longer living in the home, having been "put" out by Ijames a couple of days before. Defendant and Foy began having a heated exchange, and Foy punched defendant. Defendant and Foy began "tussling" while Johnson tried to break up the fight. Johnson testified that Foy was bigger and stronger than Defendant and "was getting the best of [Defendant] a little bit." Ijames eventually entered the kitchen, broke up the fight and told Foy to leave. Foy went out the side door of the kitchen and left. Johnson immediately followed him.
Johnson and Foy talked outside the home for a minute, and then Foy walked to his car to leave. As he was putting the key in the door to unlock his car, Johnson testified that "defendant came out [and] somebody said he had a knife." Foy took off running up the street and Defendant chased after him. Johnson ran after them. Johnson stated that when Defendant started running, she was able to see the knife in his hand. The two men ran for about a quarter mile. Eventually, Defendant caught up with Foy, grabbed hold of Foy and stabbed him. Foy was on the ground and put up his hands to defend himself. Defendant was kneeling over Foy, holding him down with his left hand and stabbing at him with the knife in his right hand. Johnson testified that Defendant missed Foy with his first attempt to stab him, but stabbed him with his second attempt, and then stabbed him a third time. Then, Defendant threw the knife into the woods, looked at Johnson and said to her: "That's right, I killed your daddy, bitch." Defendant then ran away. Subsequent forensic examination revealed two stab wounds to Foy, one which perforated his heart. The examination also revealed that Foy had a "defensive wound" on his left hand.
Defendant was convicted of second degree murder and sentenced to a term of 282 to 348 months imprisonment. Defendant appeals.
On appeal, Defendant first argues the trial court erred by failing to dismiss the murder charge for insufficiency of the evidence. Defendant contends that the evidence shows that Foy, who was much larger than him, had assaulted him. Defendant claims that he had not intended to fight Foy, and grabbed a "weapon of convenience." Thus, Defendant argues that he acted under provocation and in the heat of passion, rather than under a cool state of mind.
After careful review of the record, briefs and contentions of the parties, we find no error. To survive a motion to dismiss, the State must present substantial evidence of each essential element of the charged offense. State v. Cross, 345 N.C. 713, 716-17, 483 S.E.2d 432, 434 (1997). "`Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion.'" Id. at 717, 483 S.E.2d at 434 (quoting State v. Olson, 330 N.C. 557, 564, 411 S.E.2d 592, 595 (1992)). Furthermore, upon a motion to dismiss, "`[t]he trial court must resolve any contradictions in the evidence in the State's favor. The trial court does not weigh the evidence, consider evidence unfavorable to the State, or determine any witness' credibility.'" State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256 (2002) (quoting State v. Parker, 354 N.C. 268, 278, 553 S.E.2d 885, 894 (2001)) (citations omitted).
The jury found Defendant guilty of second degree murder. "The essential elements of second degree murder are an unlawful killing with malice, but without premeditation or deliberation." State v. Brower, ___ N.C. App. ___, ___, 651 S.E.2d 390, 394 (2007) (citing N.C. Gen. Stat. § 14-17 (2005) and State v. Rich, 351 N.C. 386, 395, 527 S.E.2d 299, 304 (2000)). "`The intentional use of a deadly weapon gives rise to a presumption that the killing was unlawful and that it was done with malice.'" State v. Johnson, 182 N.C. App. 63, 69, 641 S.E.2d 364, 369 (quoting State v. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370, 388 (1984)), disc. review denied, 361 N.C. 433, 649 S.E.2d 395 (2007). "Such a presumption is sufficient to withstand a motion to dismiss for insufficient evidence. The issue of whether the evidence is sufficient to rebut the presumption of malice in a homicide with a deadly weapon is then a jury question." Id. (citations omitted).
In the instant case, the evidence clearly shows that defendant used a deadly weapon, a knife, and intentionally stabbed Foy. This evidence alone was sufficient to overcome the required threshold to submit the charge of second-degree murder to the jury. See Johnson, 182 N.C. App. at 69-70, 641 S.E.2d at 369 (defendant's intentional use of a gun was sufficient to submit the charge of second degree murder to a jury); State v. Burleson, 28 N.C. App. 578, 580, 222 S.E.2d 274, 275 (1976) ("There was plenary evidence that deceased died from a wound intentionally inflicted by defendant with a pistol, thus creating the presumption that the killing was unlawful and that it was done with malice."). The issue of whether defendant was provoked and thus acted in the heat of passion was a question for the jury. Accordingly, we conclude the trial court did not err by submitting the charge of second-degree murder to the jury.
Defendant next argues that he received ineffective assistance of counsel because his attorney failed to request recordation of jury selection, bench conferences, opening statements and closing arguments. We are not persuaded.
To successfully assert an ineffective assistance of counsel claim, defendant must satisfy a two-prong test.
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (quoting Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)). Here, Defendant cites no error that occurred in the unrecorded portions of the trial. Thus, even assuming arguendo that counsel's performance was deficient for failure to request that the proceedings be recorded, defendant has failed to show any prejudice. See State v. Hardison, 326 N.C. 646, 392 S.E.2d 364 (1990) (Defendant failed to establish ineffective assistance for failure to request recordation of the jury selection and bench conferences when no specific allegations of error were made and no attempts were made to reconstruct the transcript); State v. Crawford, 163 N.C. App. 122, 128-29, 592 S.E.2d 719, 724 (2004) (trial attorney's failure to request a recording of jury voir dire did not constitute ineffective assistance of counsel). Accordingly, we find no error.
No error.
Judges McGEE and STROUD concur.
Report per Rule 30(e).