STATE v. HUNTER, COA10-483 (N.C.App. 12-21-2010)

oluntary waiver of defendant's rights consistent with the requirements of Miranda v. Arizona, supra, as reiterated by [the] Court in State v. Connley, 297 N.C. 584, 256 S.E. 2d 234, cert. denied, 444 U.S. 954, 100 S.Ct. 433, 62 L.Ed. 327 (1979)." Id. at 70, 277 S.E.2d at 420-21.

Here, after an evidentiary hearing conducted on defendant's motion to suppress his statement, the trial court made the following unchallenged pertinent findings of fact: On 17 May 2007, at 11:40 p.m., SBI agents Blackmon and Hearne woke defendant and escorted him from his cell to a room with approximate dimensions of 10 feet by 12 feet; the agents did not have weapons; and defendant was not restrained. "The defendant was responsive to the agents' instructions and was fully advised of his Miranda rights, the defendant nodding affirmatively after each Miranda right was read to him." At 11:46 p.m., defendant signed a Miranda rights form indicating he understood his rights and waived them. When questioned as to whether he was under the influence of any alcohol or drugs, defendant "indicated that he was not under the influence of any alcohol or drugs, but that he been `on the stem,' i.e. used crack cocaine, at around 1:00 or 2:00 p.m. that same day (May 17, 2007)." When questioned about the events of 6 May 2007, "defendant indicated that he was doing drugs," "that he `blacked out,' and awakened to find his grandmother, Rose [sic] Hunter, dead with a golf club handle sticking from her neck and blood on him. . . ." Agent Blackmon indicated that defendant answered questions appropriately and that, after Agent Blackmon compiled a written summary of their conversation, defendant was given the statement to read and make changes as appropriate. Both "defendant and Blackmon signed each page of the 10-page document at approximately 2:41 a.m. on May 18, 2007." "[A]t the conclusion of the interrogation there were expressions of thanks by both Blackmon (for defendant's cooperation) and the defendant, the defendant indicating that he was glad to `get all of this off [his] chest.'" Based on these findings, the trial court concluded, and we agree, "defendant's statements were his free and voluntary acts; no promises were made to the defendant, and he was not coerced in any way. Defendant was at all times during which he was interrogated knowledgeable of his circumstances and cognizant of the meaning of his words." The trial court's findings of fact are fully supported and its conclusions legally correct. Therefore, we uphold the trial court's denial of defendant's motion to suppress his statement to law enforcement.

III

Next, defendant argues the trial court erred in denying his motion to dismiss the first-degree murder charge. Defendant argues the State failed to establish malice and failed to show that defendant was the perpetrator of the crime. We disagree.

"In reviewing [a] trial court's ruling on a defendant's motion to dismiss a charge of first-degree murder, this Court evaluates the evidence presented at trial in the light most favorable to the State." State v. Chapman, 359 N.C. 328, 374, 611 S.E.2d 794, 827 (2005) (citing State v. Walters, 275 N.C. 615, 623, 170 S.E.2d 484, 490 (1969)). "A trial court must deny a motion to dismiss where there exists `substantial evidence — whether direct, circumstantial, or both — to support a finding that the offense charged has been committed and that the defendant committed it.'" State v. Santiago, 148 N.C. App. 62, 69, 557 S.E.2d 601, 606 (2001) (citing State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 383 (1988)).

"`Circumstantial evidence may withstand a motion to dismiss and support a conviction even when the evidence does not rule out every hypothesis of innocence.'" State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 919 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). When the evidence presented amounts to circumstantial evidence, "the court must consider whether a reasonable inference of defendant's guilt may be drawn from the circumstances." Id. "Once the court decides that a reasonable inference of defendant's guilt may be drawn from the circumstances, then `"it is for the jury to decide whether the facts, taken singularly or in combination, satisfy [it] beyond a reasonable doubt that the defendant is actually guilty."'" Id. (emphasis in original).

State v. Bowman, 183 N.C. App. 631, 635, 644 S.E.2d 596, 599 (2007) (emphasis omitted).

"Malice is a condition of mind that prompts one to take the life of another intentionally, without just cause, excuse, or justification." State v. Perdue, 320 N.C. 51, 58, 357 S.E.2d 345, 349-50 (1987) (quoting State v. Robbins, 309 N.C. 771, 309 S.E. 2d 188 (1983)). The intentional use of a deadly weapon which proximately results in death gives rise to the presumption the killing was done with malice. State v. Shuford, 337 N.C. 641, 650, 447 S.E.2d 742, 748 (1994) (citing State v. Weeks, 322 N.C. 152, 173, 367 S.E.2d 895, 907-08 (1988)). Applying these principles to the facts, we hold that the State presented sufficient evidence of malice. Dr. James Sullivan, who performed an autopsy on the body of the victim, testified for the State as an expert witness in the area of forensic pathology. The victim's body sustained injury from being stabbed in the torso with a golf club shaft, which entered the victim's body from the back near the base of her neck downward and forward toward the center of her chest to a depth of eight inches, where it perforated her aorta just above her heart, and from being stabbed with a knife to a depth of three inches. The victim's face sustained blunt force trauma consistent with being struck with a clothes iron. There was also evidence the victim was strangled. Dr. Sullivan testified that the perforation of Ms. Hunter's aorta by the golf club shaft was fatal. We hold the evidence presented is sufficient to support the element of malice necessary for second-degree murder. See id.

Defendant also contends the State failed to show that he was the perpetrator of the crime. We disagree.

Defendant testified that, on the evening of 6 May 2007, his grandmother talked to him about getting a job, keeping a job, and "hanging around the people I was hanging around . . . [and] that she was just disappointed in me or whatever. So I got up and I went in the bathroom and I took the Ecstacy pill and smoked a few pieces of crack." Later, defendant "went back in the bathroom to smoke some more crack." Defendant testified that he "got kind of light headed," "disoriented," and "that's the last thing I remember before I came to."

When I came to, I was sitting on the kitchen floor up against the refrigerator. I had blood all over me, blood all over the floor and my grandmother was laying there on the floor. . . . Well, I shook her to see if I could get a response and about that time I noticed the golf club in her back. And I — I — I knew she was dead. . . . I took her car keys and the money and left.

Defendant sustained cuts on his hands that were still visible when SBI agents interviewed him more than ten days after Ms. Hunter was killed. SBI Special Agent Karen Winningham, a forensic biologist, testified that neither the DNA of defendant nor Rosia Hunter could be excluded from the DNA sample taken from the power cord attached to the iron. Further, DNA taken from blood stains on defendant's jeans matched Rosia Hunter's DNA. The SBI analyzed twenty-two shoe prints found in blood spatter in Ms. Hunter's residence. Of the twenty-two impressions analyzed, eight impressions were consistent with the pattern on the bottom of defendant's right shoe and fourteen were consistent with the pattern on the bottom of defendant's left shoe. Defendant's jeans and shoes were discovered in the place he stayed while in Lancaster. There was no evidence presented that anyone other than defendant was in Ms. Hunter's residence at the time she was killed. Therefore, we hold this evidence sufficient for a jury to conclude that defendant was the perpetrator of the crime. Defendant's arguments are overruled.

IV

Defendant next contends that the trial court erred in instructing the jury on the aggravating factor that the offense committed was especially heinous, atrocious, or cruel because the evidence at trial was insufficient to support such an instruction. We disagree.

"The State bears the burden of proving, by a preponderance of the evidence, that an aggravating factor exists." State v. Harrison, 164 N.C. App. 693, 696, 596 S.E.2d 834, 837 (2004) (citing State v. Radford, 156 N.C. App. 161, 164, 576 S.E.2d 134, 136 (2003)).

"In determining whether the evidence is sufficient to support the trial court's submission of the especially heinous, atrocious, or cruel aggravator, we must consider the evidence `in the light most favorable to the State, and the State is entitled to every reasonable inference to be drawn therefrom.'" State v. Flippen, 349 N.C. 264, 270, 506 S.E.2d 702, 706 (1998) (quoting [ State v. Lloyd, 321 N.C. 301, 319, 364 S.E.2d 316, 328, sentence vacated on other grounds, 488 U.S. 807 102 L. Ed. 2d 18 (1988)]), cert. denied, [ 526 U.S. 1135, 143 L. Ed. 2d 1015] (1999). "Contradictions and discrepancies are for the jury to resolve; and all evidence admitted that is favorable to the State is to be considered." [ State v. Robinson, 342 N.C. 74, 86, 463 S.E.2d 218, 225 (1995), cert. denied, 517 U.S. 1197, 134 L. Ed. 2d 793, 116 S. Ct. 1693 (1996)].

State v. Brewington, 352 N.C. 489, 525, 532 S.E.2d 496, 517 (2000) (quoting State v. McNeil, 350 N.C. 657, 693, 518 S.E.2d 486, 508 (1999)).

From the evidence presented a reasonable juror could determine that defendant's fatal assault upon his seventy-two year old grandmother whom he stabbed with a knife, struck in the head with a clothes iron, strangled with a power cord from the iron and impaled with a golf club shaft eight inches into her back and chest was especially heinous, atrocious and cruel.

Following the jury's determination of guilt, the trial court instructed as follows:

If you find from the evidence beyond a reasonable doubt that the offense was especially heinous, atrocious or cruel, the victim was very old, the defendant took advantage of a position of trust or confidence, which includes a domestic relationship, to commit the offense then you will write yes in the space after the aggravating factor on the verdict sheet.

Viewed in the light most favorable to the State and granting every reasonable inference to be drawn therefrom, we hold there was sufficient evidence presented to support the trial court's submission of the heinous, atrocious, or cruel aggravating factor.

V

Last, defendant argues that the trial court erred in failing to declare a mistrial or failing to instruct the jury to disregard the prosecutor's comments during the prosecutor's closing argument. We disagree.

Our Supreme Court "has firmly established that `trial counsel are granted wide latitude in the scope of jury argument, and control of closing arguments is in the discretion of the trial court.'" State v. Thomas, 350 N.C. 315, 360, 514 S.E.2d 486, 513 (1999) (quoting State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487 (1992)).

"[F]or an inappropriate prosecutorial comment to justify a new trial, it `must be sufficiently grave that it is prejudicial [error].'" State v. Soyars, 332 N.C. 47, 60, 418 S.E.2d 480, 487-88 (1992) (quoting State v. Britt, 291 N.C. 528, 537, 231 S.E.2d 644, 651 (1977) (alteration in original)). "In order to reach the level of `prejudicial error' in this regard, it now is well established that the prosecutor's comments must have `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Green, 336 N.C. 142, 186, 443 S.E.2d 14, 40 (quoting Darden v. Wainwright, 477 U.S. 168, 181, (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974))), cert. denied, 513 U.S. 1046 (1994). However, [our Supreme] Court has held that when the trial court instructs the jury to disregard improper arguments and instructs counsel to confine his arguments to those matters contained in evidence, such an instruction renders the error caused by the improper arguments cured. See State v. Sanders, 303 N.C. 608, 618, 281 S.E.2d 7, 13, cert. denied, 454 U.S. 973 (1981).

State v. Peterson, 361 N.C. 587, 607, 652 S.E.2d 216, 229-30 (2007). Moreover, "a trial court does not commit reversible error when it fails to give a curative jury instruction absent a request by defendant." State v. Williams, 350 N.C. 1, 24, 510 S.E.2d 626, 641 (1999) (citing State v. Norwood, 344 N.C. 511, 537, 476 S.E.2d 349, 361 (1996); State v. Rowsey, 343 N.C. 603, 628, 472 S.E.2d 903, 916 (1996)).

Here, defendant challenges several of the prosecutor's statements made during closing arguments. In describing the moment when defendant was first arrested, the prosecutor stated that when police officers from the Lancaster, South Carolina found Rosia Hunter's vehicle, "they started looking for the defendant, they started asking around. And they found him. Only when they found him the defendant said his name was Jason, the first of many lies offered by the defendant." Defendant objected, and the trial court cautioned the prosecutor to "stay within the bounds of the evidence presented." The prosecutor went on to state to the jury

there was a reason that I was feverishly taking notes while the defendant was up on the stand, or any other witness, and that was because I wanted to capture for you as accurately as possible what was said and to remind you of what was said. The defendant lied.

Again, defendant objected. The trial court sustained the objection and admonished the prosecutor: "[d]on't characterize the evidence in that manner." Later, the following exchange occurred:

Prosecutor: Motive is not an element of the crime, it is not something that we are required to prove to you, yet I want to talk about it for a second because human nature wants to know why. . . . [H]e said that he took the money, at least a hundred dollars, which he promptly went out and spent. On what? Crack. Drugs, more money for the drugs, anger, frustration that she has threatened to kick him out.

Now, remember that I talked about the lies that have been told.

Defendant: Objection to the lies, Your Honor.

The Court: All right. I am going to sustain it as to that characterization.

. . .

I caution counsel again, don't use that term.

The prosecutor's characterization of defendant's comments as falsehoods, while clearly improper, do not appear to have reached the level of prejudicial error which "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Peterson, 361 N.C. at 607, 652 S.E.2d at 230. Further, the trial court's admonition to the prosecutor in effect neutralized the improper statements. Accordingly, defendant's argument is overruled.

Affirmed as to the motions to suppress.

No error as to the trial.

Judges STEELMAN and ERVIN concur.