Opinion
No. COA09-903
Filed 4 May 2010 This case not for publication
Appeal by Defendant from judgment entered 12 July 2008 by Judge Henry W. Hight, Jr. in Wake County Superior Court. Heard in the Court of Appeals 9 December 2009.
Attorney General Roy Cooper, by Assistant Attorney General L. Michael Dodd, for the State. Mark Montgomery for Defendant.
Wake County No. 07 CRS 11060.
I. Procedural History
Defendant Jakiem Lance Wilson was indicted for first-degree murder on 6 March 2007. The case was tried at the 27 May 2008 Criminal Session of Wake County Superior Court. The jury found Defendant guilty of first-degree murder based upon a theory of lying in wait. The trial court sentenced Defendant to life imprisonment without parole. Defendant gave notice of appeal in open court.
II. Evidence
At trial, the State's evidence tended to show the following: At 6:08 a.m. on 13 February 2007, Defendant called 911 to report that he had just found his wife Nneka Sutton Wilson ("Nneka") dead in his home. The 911 operator dispatched officers from the Wake County Sheriff's Department to Defendant's house.
Officer Lee Chamblee testified that when he arrived at Defendant's house, he found the victim lying nude on the kitchen floor. Chamblee observed writing in blood on the kitchen floor, the alarm clock in a bedroom was going off, and the shower in the master bedroom was running. It appeared that the back door to the kitchen had been forced open. Chamblee called his dispatcher to report that there had been a homicide.
Deputy Shawn Curtis, another officer dispatched to the scene, spoke with Defendant at the scene. Defendant told him that he had gone to Selma the night before and had stayed there overnight with his friend Jamie Holder ("Jamie"). When Defendant came home in the morning, he found Nneka dead in the kitchen. Curtis further testified that when Defendant's parents came to take care of Defendant's two children who were still in the house, Defendant said to them, "[T]hey killed her. They killed her."
Deputy Kenny Blackwell testified that he interrogated Defendant at the scene. Defendant told Blackwell that he had driven Jamie to Selma the night before. After the two started drinking, Defendant spent the night in Selma and drove home the following morning. When he got home around 6:00 a.m., he found his wife dead in the kitchen. Defendant stated to Blackwell that he thought the killing was gang-related. Defendant said that the killers were members of the Bloods gang and that Defendant was a member of the Folk gang. Defendant also told several other officers at the scene that he thought the killing was gang-related.
At trial, Jamie testified for the State. Jamie testified that he had spoken to Defendant on the telephone on the night of the murder. At that time, Defendant told Jamie that his wife was getting on his nerves and that he was thinking of stabbing her when she was getting out of the shower.
Jamie further testified that Defendant picked up Jamie and their friend Roderick Howell ("Roderick") on 12 February 2007 at around 10:56 p.m. and took them to his home to show them the murder scene. Defendant told them that he killed Nneka because "[s]he nagged. She bitch too much. She want to put me on child support and I work too hard for my money." As Jamie and Roderick walked in the house, they saw the victim dead on the kitchen floor in a pool of blood.
Jamie testified that Defendant explained to them that he had killed his wife in the following manner: Nneka had just finished taking a shower and entered the bedroom she shared with Defendant wrapped in a towel. Defendant was lying on their bed with a knife concealed under his body. Defendant asked his wife for a kiss but she refused. Defendant got up and stabbed her in the chest. She was bleeding profusely and fell between the dresser and the wall. Defendant stabbed her again multiple times and tried to cut her throat. Defendant dragged his wife to the kitchen "to finish her off[.]"
Jamie testified that while he and Roderick were at the house with Defendant, Defendant soaked up the blood on the floor with rags and handed the rags to Jamie and Roderick. Defendant told them to "mess the place up" to make it look like someone had broken in and killed Nneka. Roderick went in the back room while Jamie wrote a message on the floor in the kitchen. Defendant stood over Jamie and told him to write, "[Y]our bitch dead, you're next, Fu[.]" Jamie and Roderick went into the master bedroom under Defendant's direction and pulled out the drawers.
Defendant cleaned up the area using Nneka's brush. Defendant told Jamie, "[D]ead bitch not going to need her brush." Defendant, Jamie, and Roderick took household items from Defendant's house and dumped them in some nearby woods to make it look like a burglary had taken place. Defendant took Roderick home. Then Defendant drove Jamie home to Selma and Defendant slept at Jamie's house for three or four hours. Defendant told Jamie that he was going to use him as an alibi.
Roderick also testified for the State at trial as follows: On 12 February 2007, Defendant called him five times. In the first call, Defendant told Roderick that he and his wife were arguing and that he needed Roderick to kill her. In the second call, Defendant said, "[I]t's done, it's done." During the third call, Defendant told Roderick, "[L]isten to this." Roderick could hear the victim gasping for breath. The fourth call was to alert Roderick that Defendant was on his way over to pick Roderick up. Defendant called a fifth time to tell Roderick to meet him at the nearby Poole's Garage. Roderick's testimony regarding what Defendant told him about how he murdered Nneka and what Roderick saw and did at Defendant's home after the murder was similar to Jamie's testimony.
John "Reco" Lee testified for the State. He testified that he was in a gang with Defendant, Jamie, and Roderick. Defendant was "above" Reco in the gang hierarchy. Defendant picked Reco up from jail on 10 February 2007 and the two went to Defendant's house. As Nneka was leaving the house, Defendant drew his hand across his throat, a sign Reco understood to mean that Defendant was going to kill his wife. Defendant then ordered Reco to kill Nneka. Reco told Defendant he would do it "as soon as possible" because he felt like "if I didn't say that, then he talking about killing his wife, he definitely kill me or whatever." Reco left Defendant's house about 30 minutes later. Reco did not speak with Defendant on 12 February 2007 and heard about Nneka's death from a friend. Although he also received a collect phone call from Defendant in jail after the murder, Reco did not accept the call.
Chief Medical Examiner Dr. John Butts testified that Nneka died as a result of three stab wounds: one wound was to her jugular vein, one wound pierced her heart, and one wound pierced her lung. There were six to eight cuts under her neck as well. Nneka had multiple defensive wounds on her left hand, indicating that she had attempted to ward off Defendant's attack, but no defensive wounds on her right hand, indicating that she may have been holding something in her right hand when she was attacked. There were no wounds on her back.
Defendant did not testify at trial but called 12 witnesses who testified regarding Defendant's family life and upbringing, schooling, juvenile problems, recent employment, and psychiatric problems. In his opening statement, Defendant admitted that he had committed the acts that caused Nneka's death but denied premeditation and deliberation. In his closing argument, Defendant argued that he should be convicted of second-degree murder, not first-degree murder, for killing his wife.
III. Discussion
By Defendant's first argument, he contends that the trial court erred in not instructing the jury on voluntary manslaughter as a lesser included offense of first-degree murder. We disagree.
"Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation." State v. Fleming, 296 N.C. 559, 562, 251 S.E.2d 430, 432 (1979); see N.C. Gen. Stat. § 14-17 (2007). "Voluntary manslaughter is the unlawful killing of a human being without malice and without premeditation and deliberation." Id. "Voluntary manslaughter often occurs when the defendant acts in a heat of passion produced by legal provocation." State v. Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13 (1994). "A killing in the `heat of passion' on sudden and adequate provocation means a killing without premeditation under the influence of a sudden passion which renders the mind incapable of cool reflection." State v. Forrest, 321 N.C. 186, 192, 362 S.E.2d 252, 256 (1987) (citations omitted). "`In the definition of manslaughter as homicide committed without premeditation but under the influence of sudden "passion," this term means any of the emotions of the mind known as rage, anger, hatred, furious resentment, or terror, rendering the mind incapable of cool reflection.'" State v. Jennings, 276 N.C. 157, 161, 171 S.E.2d 447, 449-50 (1970) (quoting Black's Law Dictionary, p. 1281 (4th ed. 1951)). Legal provocation exists when the victim's actions against the defendant rise to the level of an assault or threatened assault. State v. Rogers, 323 N.C. 658, 667, 374 S.E.2d 852, 858 (1989); State v. Montague, 298 N.C. 752, 757, 259 S.E.2d 899, 903 (1979).
"A defendant is entitled to have a lesser included offense submitted to the jury only when there is evidence to support that lesser included offense." State v. Smith, 351 N.C. 251, 267, 524 S.E.2d 28, 40, cert. denied, 531 U.S. 862, 148 L. Ed. 2d 100 (2000). Accordingly, "[i]f the State's evidence is sufficient to fully satisfy its burden of proving each element of the greater offense and there is no evidence to negate those elements other than defendant's denial that he committed the offense, defendant is not entitled to an instruction on the lesser offense." Id. at 267-68, 524 S.E.2d at 40.
Defendant argues that the following evidence was sufficient to support a finding that Defendant was acting in a heat of passion as a result of legal provocation: Psychiatrist Manish Fozdar testified for the defense. He interviewed Defendant several times and reviewed Defendant's school records, work records, and interviews with Defendant's family. Dr. Fozdar testified that although Defendant had the cognitive ability to plan his wife's death and Defendant "did commit the crime, that was by his own admission, but that was a result of a suddenly aroused angry explosive episode because of the violent passion." Dr. Fozdar based this opinion "on the arguments that broke out between [Defendant and his wife] and in the context of [Defendant's] . . . mind set and his previously [sic] history, he was more likely to explode in anger than not. And that's my opinion."
Dr. Fozdar's testimony tends to show that even if Defendant committed the crime as a result of a "suddenly aroused angry explosive episode[,]" the cause of Defendant's "angry explosive episode" was not legal provocation by the victim on the night of the murder but, instead, Defendant's propensity to "explode in anger" as a result of his past history. Accordingly, we conclude that Dr. Fozdar's testimony did not support a theory of manslaughter sufficient to require the submission of such lesser offense to the jury.
Defendant further argues that the following circumstantial evidence of a "mutual affray" on the night of Nneka's murder supports his contention that he acted in a heat of passion upon adequate provocation: 1) the lack of defense wounds on the victim's right arm suggested that she was holding something in her right hand that would shield her; 2) the victim was drunk; 3) two knives were found at the scene; 4) all of the victim's wounds were on her front; and 5) Defendant was also scratched and bruised. We are wholly unpersuaded by Defendant's argument.
This evidence does not support any inference that Defendant's mind was rendered "temporarily incapable of cool reflection[,]" Forrest, 321 N.C. at 193, 362 S.E.2d at 256, as a result of some provocation by Nneka on the night of the murder. In fact, the record is devoid of any evidence that the murder of Nneka occurred while Defendant was in a heat of passion caused by legally sufficient provocation.
To the contrary, there was an abundance of evidence that there was no provocation by Nneka on the night in question and that Defendant's mind was not "temporarily incapable of cool reflection." Id. Both Jamie and Roderick testified that Defendant, having indicated to each of them in advance that he was thinking about killing Nneka, brought them to his house and explained to them in detail how he murdered his wife. He told them that Nneka had just finished taking a shower and entered the bedroom. Defendant was lying on their bed with a knife concealed under his body. Defendant asked Nneka for a kiss but Nneka refused. Defendant got up and stabbed Nneka for no justifiable reason. Defendant stabbed her again multiple times and tried to cut her throat. Defendant called Roderick to report on his progress during his murderous assault, and Roderick heard Nneka gasping for breath. Defendant dragged Nneka to the kitchen where she died. While Nneka lay dead in the kitchen and Defendant's two young children, including an infant, slept upstairs, Defendant left the house for several hours so he could cover his tracks and form an alibi.
This evidence tends to show that Nneka was completely unaware that she was going to be attacked by Defendant with a concealed knife and that Defendant did not act "without premeditation but under the influence of sudden passion[.]" Jennings, 276 N.C. at 161, 171 S.E.2d at 449-50 (citation and quotation marks omitted). Accordingly, as the evidence does not support a jury instruction on voluntary manslaughter, Defendant's argument is overruled.
B. Evidence of Prior Assaults
Defendant next argues that the trial court erred in excluding evidence of a volatile relationship between Defendant and Nneka and prior assaults on Defendant by Nneka. We disagree.
Generally, "[a]ll relevant evidence is admissible. . . ." N.C. Gen. Stat. § 8C-1, Rule 402 (2007). Evidence which is not relevant is not admissible. Id. "`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." N.C. Gen. Stat. § 8C-1, Rule 401 (2007). "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." State v. Grant, 178 N.C. App. 565, 573, 632 S.E.2d 258, 265 (2006), disc. review denied, 361 N.C. 223, 642 S.E.2d 712 (2007).
Defendant's theory of defense at trial was that, although he killed Nneka, he did so in a suddenly aroused passion upon legal provocation. In order to show "legal provocation," Defendant attempted to introduce evidence tending to show that Defendant and his wife had a volatile relationship in the past and that Nneka had assaulted Defendant in the past. Defendant argues that the excluded evidence "was relevant in the guilt phase of the trial as part of the circumstances of the stabbing and should have been admitted." We disagree.
Evidence of a prior stormy relationship between Defendant and Nneka or a past assault on Defendant by Nneka is not evidence that Defendant was the victim of an assault or threatened assault by Nneka on the night Defendant killed Nneka. Furthermore, although Defendant suggests that the evidence should have come in to help the jury "understand what was going through [Defendant's] mind on the night in question," as there was no evidence that Nneka assaulted Defendant on the night in question, evidence regarding Defendant's state of mind was irrelevant. Moreover, both Jamie and Roderick testified to the events that occurred on the night of Nneka's murder, as described to them by Defendant. This testimony indicated a total absence of evidence of an assault or threatened assault of Defendant by Nneka on the night she was killed. Given the detail with which Defendant described and demonstrated the killing of his wife to his friends Jamie and Roderick, it is likely he also would have told them if Nneka had done anything that night to constitute legal provocation for Defendant's actions. Accordingly, the challenged evidence was not admissible to show legal provocation and the trial court did not err in excluding the evidence. Defendant's argument is overruled.
C. Short-form Indictment
Defendant next argues that the trial court erred in denying Defendant's motion for the State to disclose the theory of first-degree murder on which it intended to rely at trial and in submitting to the jury the theory of lying in wait. Specifically, Defendant argues that the use of the short-form indictment, combined with the State's refusal to otherwise put Defendant on notice that he would have to defend himself against the theory of lying in wait for the victim, denied him of his state and federal constitutional rights to present a defense and to due process of law.
1. Use of the Short-form Indictment
The short-form indictment for homicide is authorized by N.C. Gen Stat. § 15-144. State v. Wallace, 351 N.C. 481, 504, 528 S.E.2d 326, 341, cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000). The North Carolina Supreme Court has consistently held that indictments for murder based on the short-form indictment statute are in compliance with both the State and Federal Constitutions. Id. at 504-05, 528 S.E.2d at 341; see State v. Hunt, 357 N.C. 257, 258, 582 S.E.2d 593, 595 (the process of indictment by grand jury pursuant to N.C. Gen. Stat. § 15-144 adequately safeguards a defendant's rights under the Federal and North Carolina Constitutions), cert. denied, 539 U.S. 985, 156 L. Ed. 2d 702 (2003). More specifically, our Supreme Court "has consistently held that murder indictments that comply with [N.C. Gen. Stat.] § 15-144 are sufficient to charge first-degree murder on the basis of any theory set forth in [N.C. Gen. Stat.] § 14-17." State v. Garcia, 358 N.C. 382, 388, 597 S.E.2d 724, 731 (2004), cert. denied, 543 U.S. 1156, 161 L. Ed. 2d 122 (2005).
Defendant acknowledges that "as a matter of current state law, the short[-] form indictment . . . [is] proper," but nonetheless urges this Court to consider the matter anew. This we cannot do. We are bound by the precedent set by the North Carolina Supreme Court, and, thus, we conclude that the short-form indictment in this case did not violate Defendant's constitutional rights.
2. Pretrial Disclosure of State's Theory
It is well established that the State is not required to elect between legal theories in a murder prosecution prior to trial. Garcia, 358 N.C. at 389, 597 S.E.2d at 732; State v. Wingard, 317 N.C. 590, 594, 346 S.E.2d 638, 641 (1986). "Where the factual basis for the prosecution is sufficiently pleaded, a defendant must be prepared to defend against any and all legal theories which these facts may support." State v. Holden, 321 N.C. 125, 135, 362 S.E.2d 513, 522 (1987), cert. denied, 486 U.S. 1061, 100 L. Ed. 2d 935 (1988).
Defendant also acknowledges that "as a matter of current state law, . . . the denial of the motion to forecast the theory of prosecution [is] proper," but again urges this Court to consider the matter anew. However, we are bound by the precedent set by the North Carolina Supreme Court.
Defendant does not now challenge the sufficiency of the factual basis for the prosecution as set forth in the indictment. Thus, we conclude that the murder indictment set out sufficient factual information to enable Defendant to understand the basis of the State's case against him. Accordingly, the trial court did not err in denying Defendant's motion.
D. Instructions on Lying in Wait
By Defendant's last argument, he asserts that the trial court erred in its instructions on lying in wait by omitting the elements of malice and intent from the instruction. We disagree.
At trial, Defendant did not object to the challenged jury instruction. The State contends that the standard of review is, therefore, plain error. See State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). Defendant argues, however, that the standard of review is de novo because the trial court had a statutory duty to instruct the jury on all elements of the crime pursuant to N.C. Gen. Stat. § 15A-1232. See State v. Ashe, 314 N.C. 28, 39, 331 S.E.2d 652, 659 (1985) (where the trial court neglects a statutory duty, the issue is preserved for appellate review as a matter of law). We need not determine which standard of review applies here, however, as we conclude that the trial court's instructions were not erroneous by any standard.
"First-degree murder has been historically defined in this State as the unlawful killing of a human being with malice and with premeditation and deliberation." State v. Johnson, 317 N.C. 193, 202, 344 S.E.2d 775, 781 (1986). "A murder perpetrated by means of lying in wait is murder in the first degree." State v. Leroux, 326 N.C. 368, 375, 390 S.E.2d 314, 320, cert. denied, 498 U.S. 871, 112 L. Ed. 2d 155 (1990). "Premeditation and deliberation are not elements of the crime of first-degree murder perpetrated by means of lying in wait, nor is a specific intent to kill. The presence or absence of these elements is irrelevant." Id.; see Johnson, 317 N.C. at 203, 344 S.E.2d at 781 (when a homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, the presence or absence of premeditation, deliberation and specific intent to kill is irrelevant). This is because "when a homicide is perpetrated by means of poison, lying in wait, imprisonment, starving, or torture, the law conclusively presumes that the murder was committed with premeditation and deliberation." Johnson, 317 N.C. at 203, 344 S.E.2d at 781.
In this case, the trial court instructed the jury as follows:
You may find the Defendant guilty of first degree murder either on the basis of malice, premeditation and deliberation or on the basis of a murder committed by lying in wait or both. . . .
First degree murder by [lying] in wait is the unlawful killing of a human being by placing oneself in a position to make a private attack upon a victim and by assailing the victim at a time when the victim is not aware of the purpose to kill them.
. . . .
I further charge that for you to find the Defendant guilty of first degree murder by lying in wait, the State must prove three things beyond a reasonable doubt.
First, that the Defendant lay in wait for the victim. That is waiting [sic] and watched for the victim in ambush for a private attack on her.
Second, that the Defendant intentionally assaulted the victim. Stabbing the victim with a knife would be an assault.
And third, that the Defendant's act was a proximate cause of the victim's death. . . .
These jury instructions track the North Carolina Pattern Jury Instruction 206.16 on murder by lying in wait and are consistent with North Carolina case law. Accordingly, the trial court did not err in its instruction on lying in wait. The assignment of error upon which this argument is based is overruled.
Defendant received a fair trial, free of error.
NO ERROR.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).