1. Homicide--first-degree murder--sufficiency of evidence of
corpus delicti
The trial court correctly denied defendant's motion to
dismiss a charge of first-degree murder where there was enough
evidence from which any rational trier of fact could find that
the victim's death was not an accident and was caused by
defendant.
2. Homicide--first-degree murder--premeditation and
deliberation--sufficiency of evidence
The trial court properly denied defendant's motion to
dismiss a charge of first-degree murder where defendant alleged
insufficient evidence of premeditation and deliberation but the
victim was killed with defendant's 30.06 rifle, which was seen
leaning against a couch on which defendant was seated just prior
to the killing and which was normally kept in a bedroom closet;
defendant made extensive efforts to conceal and dispose of the
victim's body, including cleaning the apartment after the
shooting; and the victim was shot in the face at close range with
a 30.06 rifle.
3. Homicide--first-degree murder--instruction on second-degree
murder denied--error
The trial court erred in a first-degree murder prosecution
by not giving an instruction on second-degree murder where
conflicting inferences can be drawn from the evidence on
premeditation and deliberation.
Judge LEWIS dissenting. Appeal by defendant from judgment filed 8 October 1997 by
Judge Jerry Cash Martin in Guilford County Superior Court. Heard
in the Court of Appeals 23 February 1999.
Attorney General Michael F. Easley, by Assistant Attorney
General Joan Herre Erwin, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant
Appellate Defender Charlesena Elliott Walker, for defendant-
appellant.
GREENE, Judge.
Charles Carlo Cintron (Defendant) appeals from his jury
conviction for the first-degree murder of Joel Anderson (Joel).
(See footnote 1)
The State's evidence at trial tended to show the following:
On 5 February 1994, Defendant lived in Greensboro, North Carolina
with his wife Niurka Cintron (Nikki) and their two children.
Defendant was employed as a mechanic, and recently had obtained a
1983 Dodge Omni automobile. At approximately 12:30 a.m. on the
morning of 5 February 1994, Defendant returned to his home with a
white man he referred to as "Joel." The two men had been
drinking, and continued drinking at Defendant's apartment. Nikki
testified that she heard the two men arguing, but "couldn't hear
what they were saying." She further testified that Joel stated
that he "wanted to die." When Nikki went into the kitchen, she
observed the men sitting in the living room; Defendant was
sitting on a couch, and Joel was sitting in a lounge chair in the
corner of the room. Nikki also observed that Defendant's 30.06
rifle was leaning against the couch and between the two men. Therifle normally was kept in the bedroom closet. Nikki then left
the apartment to feed her cat, and while outside, heard a
gunshot. She immediately returned to the apartment and saw
Defendant standing in front of Joel with the rifle in Defendant's
hand, and smelled the odor of gun smoke and burned flesh. Joel
was still seated in the lounge chair in the corner of the room
and had been shot in his right eye. Nikki testified that she
wanted to call the police, but Defendant refused and informed her
that she would "go down with him if [she] said anything."
Defendant then had Nikki help him to hide the body in a shed
behind their apartment, and to clean the apartment. She further
testified, when shown a photograph of Joel Anderson, that he was
the person in her apartment on the morning of 5 February 1994.
About two weeks later, Defendant decided to move his family
to Denton, Maryland to stay with a friend. Due to the cold
weather, Joel's body became frozen, and did not emit an odor.
Defendant packed the dead body in the hatchback area of the Dodge
Omni, in the spare tire well, and attached the entire car to the
back of a U-Haul truck. Upon arriving in Maryland, both
Defendant and Nikki continued driving the Dodge Omni with the
dead body in the hatchback. Once the weather warmed, the dead
body started to emit odoriferous fumes, and Defendant received
several complaints from neighbors.
In June of 1994, Nikki decided to leave Defendant and take
the children to Miami, her home. Defendant then moved in with a
friend, Ben Crosden (Crosden), who owned a farm in Cordova,
Maryland. The Crosden farm was cluttered with animals, farmequipment, stranded automobiles, and woods. In November of 1994,
Defendant moved into his own apartment in Easton, Maryland, but
left the Dodge Omni parked at the Crosden farm.
On 22 March 1996, Crosden was looking for a barrel to use in
feeding his farm animals and discovered one approximately 500
yards from his house emitting a terrible odor. He placed the
barrel on its side, but waited until the next day to explore its
contents. The next day, he began emptying the barrel and
discovered the remains of a human body. At first, Crosden
thought the remains were those of Link Bornos, a man reported
missing in the area and known by the Crosdens. Crosden then
called the authorities, who seized the barrel and the remains and
delivered them to the medical examiner's office. The police
later searched the Crosden farm again, and recovered a note from
the Dodge Omni written by Nikki to Defendant asking if "it" was
still in the car. The police then spoke with Nikki, who
eventually confessed to what she witnessed and the subsequent
events.
The medical examiner collected the remains and determined
the body was that of an approximately thirty-year-old Caucasian
male. The examiner also determined the cause of death to be
"blunt force head injuries . . . like somebody had pulverized the
skull, with multiple blows, or . . . a car had run over the
skull, or . . . a shotgun . . . rifle . . . or high-powered
pistol wound to the head." Although there was "massive head
trauma," the examiner noted that the "teeth were in fairly good
shape." The medical examiner then requested and received Joel'sdental records. These records were received from Joel's family,
and bore Joel's name, address, date of birth, telephone number,
and signature. Additionally, Joel's mother confirmed that her
son had certain teeth extracted, and testified she had "[n]o
doubt" the handwriting in the dental records was Joel's. The
records labeled and sent as Joel's dental records, however, did
not match the teeth of the remains because the records indicated
that Joel had certain teeth extracted that were present in the
reconstructed skull. Faced with this discrepancy, the examiner
requested photographs of Joel and determined, from those
photographs, that the body was Joel's, and that the dental
records were "in error." The trial court overruled Defendant's
objection to the examiner's opinion, offered at trial, that the
dental records were "in error." The medical examiner further
testified that it was unlikely that a victim could manipulate a
30.06 rifle as to place the weapon at his eye, and that most
suicides caused by rifles occur "under [the] chin or in the
middle of [the] forehead." The examiner added that the injuries
observed from the remains were inconsistent with suicide becausethe injuries "would be a near contact wound, and . . . the whole
eye would be disintegrated." It was conceded, however, that
suicide by shooting yourself in the right eye with a 30.06 rifle
"is possible, but highly unlikely." The evidence also revealed
that two trinkets, which had been given to Joel by his niece and
grandniece, were found with the skeletal remains.
At the conclusion of the State's evidence, Defendant moved
to dismiss the case arguing there was insufficient evidence to
prove he committed first-degree murder "because there was no
evidence of premeditation [or] deliberation." Defendant
commented, "all they have proven is second-degree murder at
most." The court denied Defendant's motion to dismiss,
determining "there [was] substantial evidence of each and every
element of the offense of first-degree murder." Defendant did
not present evidence in this case, and renewed his motion to
dismiss at the close of all the evidence. This renewed motion
also was denied.
At the charge conference, the trial court proposed only to
submit the question and instruct the jury on whether Defendant
was "guilty of the first-degree murder of Joel Anderson, or not
guilty." Defendant objected to the court's proposed instructions
on first-degree murder and "request[ed] instruction on second-
degree murder and lesser-included offenses." Defendant also
requested other instructions, including a special instruction on
suicide. In response to Defendant's request for the submission
of lesser-included offenses of first-degree murder, the trial
court noted, "In reviewing this evidence, the Court is of theview that the evidence is positive as to each element of the
offense of first-degree murder, there is no conflicting evidence.
And the Court does continue to deny the request for an
instruction on the lesser-included offense."
The court submitted only first-degree murder to the jury,
and it returned a verdict of guilty. Defendant was sentenced to
life imprisonment.
The dispositive issues are: (I) whether there was
substantial evidence of first-degree murder; and if so, (II)
whether there was conflicting evidence regarding the
premeditation and deliberation elements of first-degree murder,
thus entitling Defendant to a jury instruction on second-degree
murder.
"First degree murder is the unlawful killing of a human
being with malice, premeditation and deliberation." State v.
Misenheimer, 304 N.C. 108, 113, 282 S.E.2d 791, 795 (1981).
"Malice," which can be express or implied, is not necessarily
"hatred or ill will," but rather "is an intentional taking of the
life of another without just cause, excuse or justification."
State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188, 190 (1983).
"Premeditation" occurs when the defendant forms the specific
intent to kill some period of time, however short, before the
actual killing. State v. Weathers, 339 N.C. 441, 451, 451 S.E.2d
266, 271-72 (1994). "Deliberation" is when the intent to kill isformed while the defendant is in a cool state of blood rather
than under the influence of a violent passion suddenly aroused by
sufficient provocation. Id.
Defendant contends his motion to dismiss should have been
granted because there was not substantial evidence to show (A)
that Defendant killed Joel, or if so, (B) that he did so with
premeditation and deliberation. We disagree.
(See footnote 2)
"Substantial evidence is evidence from which any rational
trier of fact could find the fact to be proved beyond a
reasonable doubt." State v. Sumpter, 318 N.C. 102, 108, 347
S.E.2d 396, 399 (1986).
[1]In a criminal homicide case, the State has the burden of
proving corpus delicti, or the body of the transgression, with
competent evidence. State v. Cade, 215 N.C. 393, 395, 2 S.E.2d
7, 9 (1939). To establish corpus delicti, (1) there must be a
corpse, or circumstantial evidence so strong and cogent that
there can be no doubt of the death; and (2) criminal agency must
be shown. State v. Dawson, 278 N.C. 351, 358, 180 S.E.2d 140,
145 (1971). "The independent evidence must tend to point to some
reason for the loss of life other than natural causes, suicide or
accident." Id.
In this case, there is substantial evidence that the body
found on the farm in Maryland was Joel's body, and that he wasthe person killed on 5 February 1994 in Defendant's apartment.
The medical examiner testified, after examining photographs of
Joel, that the body belonged to Joel because the teeth of the
body matched the teeth of the person shown in the photograph, and
that severe head injuries were the cause of death. Additionally,
several trinkets were found with the body which matched those
previously given to Joel by his relatives. Furthermore, Nikki
testified, using the same photographs analyzed by the examiner,
that Joel was the man who was killed in Defendant's apartment and
that the cause of death was a shot to the head.
Even assuming the corpse found on the Maryland farm did not
belong to Joel, there is circumstantial evidence so strong and
cogent that there can be no doubt of the death of Joel. The man
named Joel, who was killed in the Defendant's apartment, was
identified later by Nikki as Joel Anderson, from a photograph of
Joel Anderson.
Furthermore, there is substantial evidence that Joel's death
came at the hands of Defendant and was not a result of "natural
causes, suicide or accident," thus satisfying the criminal agency
prong of the corpus delicti test. The testimony of Nikki
confirms Joel was killed, and did not die from natural causes.
Not only did she smell the gun smoke, but she also saw that Joel
was shot through his right eye. Additionally, her testimony
reveals that Defendant was standing over Joel directly after the
shooting holding his rifle. Joel had not moved from the position
in which Nikki last saw him. This is enough evidence from which
any rational trier of fact could find Joel's death was not anaccident
(See footnote 3)
and was caused by Defendant. Finally, the testimony of
the medical examiner regarding the "highly unlikely" possibility
that Joel's death was a suicide was enough substantial evidence
to satisfy this prong of the corpus delicti test. The trial
court therefore correctly denied Defendant's motion to dismiss on
this basis.
[2]Because premeditation and deliberation ordinarily are
not susceptible of proof by direct evidence, they generally must
be established by circumstantial evidence. Weathers, 339 N.C. at
451, 451 S.E.2d at 271. Several factors are proper to consider
in determining whether the killing was done with premeditation
and deliberation, including: the killing was particularly cruel
or brutal; preparations were made before the homicide for
concealment of the crime; the position of the murder weapon prior
to the killing; the nature and number of the victim's wounds; and
the lack of provocation. See 2 Charles E. Torcia, Wharton's
Criminal Law § 142 (15th ed. 1994); State v. Mlo, 335 N.C. 353,
369, 440 S.E.2d 98, 106, cert. denied, 512 U.S. 1224, 129 L. Ed.
2d 841 (1994); see also State v. Thomas, 332 N.C. 544, 556, 423
S.E.2d 75, 82 (1992), disapproved of on other grounds by State v.
Richmond, 347 N.C. 412, 495 S.E.2d 677 (1998); 41 C.J.S. Homicide
§ 183, at 25-26 (1991).
In this case, there is substantial evidence of premeditationand deliberation: (1) Joel was killed with Defendant's 30.06
rifle, which normally was kept in the bedroom closet, but was
seen leaning against the couch in which Defendant was seated just
prior to the killing; (2) Defendant made extensive efforts to
conceal and dispose of Joel's body, including the cleaning of the
apartment after the shooting; and (3) the victim was shot in the
face at close range with a 30.06 rifle. The trial court thus
properly denied Defendant's motion to dismiss based on lack of
premeditation and deliberation.
[3]Second-degree murder is the unlawful killing of a human
being with malice but without premeditation and deliberation, and
is a lesser-included offense of first-degree murder. State v.
Camacho, 337 N.C. 224, 232-33, 446 S.E.2d 8, 12-13 (1994). A
defendant is entitled to have any lesser-included offenses
submitted to the jury, as possible alternative verdicts, State v.
Palmer, 293 N.C. 633, 643-44, 239 S.E.2d 406, 413 (1977), unless
the State's evidence is positive as to each element of the crime
charged and there is no conflicting evidence or conflicting
inferences from the evidence with respect to any element of the
charged crime, State v. Phipps, 331 N.C. 427, 457-59, 418 S.E.2d
178, 194-95 (1992); State v. Perry, 209 N.C. 604, 606, 184 S.E.
545, 546 (1936); State v. Strickland, 307 N.C. 274, 283 n.1, 298
S.E.2d 645, 652 n.1 (1983), overruled on other grounds by State
v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986).
Although a defendant's efforts to dispose of a victim's bodyafter a homicide can support a finding of premeditation and
deliberation, it also can support the contrary inference. It
does not follow that every homicide followed by an effort to
dispose of the victim's body was done with premeditation and
deliberation. It is reasonable, in some cases, to infer that the
defendant panicked after the killing and then attempted to hide
or dispose of the body to prevent others from learning of a crime
committed without premeditation and deliberation. The resolution
of the conflicting inferences is for the jury.
In this case, we believe conflicting inferences can be drawn
from the evidence supporting the submission of this case to the
jury on premeditation and deliberation. Because the disposal of
the body, the shooting in the face, and the placement of the gun
beside the couch where Defendant was sitting do not mandate the
sole inference of premeditation and deliberation, it was the
prerogative of the jury to resolve the multiple inferences. See
State v. Rose, 335 N.C. 301, 319, 439 S.E.2d 518, 527-28
(disposal of body after homicide could support finding of
premeditation and deliberation but trial court also submitted
second-degree murder for jury to determine), cert. denied, 512
U.S. 1246, 129 L. Ed. 2d 883 (1994). Furthermore, the State's
own witness testified that before the shooting, the two men had
been drinking alcohol, and were arguing about something she could
not decipher. From this evidence, a jury could conclude that
Defendant was provoked by Joel, thus negating premeditation and
deliberation. Thomas, 332 N.C. at 556, 423 S.E.2d at 82 (lack of
provocation is circumstance that can show premeditation anddeliberation). Because conflicting inferences could be drawn
from the evidence with respect to premeditation and deliberation,
the trial court erred in not submitting second-degree murder to
the jury. Because the State has failed to show beyond a
reasonable doubt that the outcome would have been the same if
second-degree murder had been submitted to the jury, Defendant is
entitled to a new trial. See Camacho, 337 N.C. at 234-35, 446
S.E.2d at 14 (failure to instruct on second-degree murder when
warranted is error of constitutional dimensions, and entitles the
defendant to a new trial unless the State proves beyond a
reasonable doubt that the outcome would have been the same even
if the lesser-included offense was submitted); N.C.G.S. § 15A-
1443(b) (1997). We have considered Defendant's remaining
assignments of error carefully, and overrule them.
New trial.
Judge HORTON concurs.
Judge LEWIS dissents.
LEWIS, Judge, dissenting.
Because I do not believe sufficient evidence was presented
to warrant submission of second-degree murder to the jury, I
respectfully dissent. I note first that defendant filed a 41-
page brief with this Court, in direct contravention of N.C.R.
App. P. 28(j). Regardless of that ground for dismissing the
appeal, however, I believe there is no error in this case.
Defendant presented no evidence at trial. The evidence
presented by the State's witnesses tended to show that on thenight of the murder, defendant and the victim had been drinking.
Defendant's wife heard the two arguing while they were seated in
the living room. Defendant's 30.06 rifle was not in its normal
location in the bedroom closet, but rather was against the sofa
beside defendant. Defendant's wife went outside briefly to feed
her cat; while she was outside she heard a shot. When she
returned to the living room, she smelled gun powder and saw
defendant standing over the victim with the rifle pointed at the
victim. The victim had been shot once through his right eye.
Rather than call the police as his wife wanted to do, defendant
threatened his wife and convinced her to help him hide the body
and clean the living room. Defendant hid the body in a shed and
later in the family car for months; defendant related elaborate
stories to explain the stench of the rotting corpse. As the
majority opinion correctly notes, this evidence is sufficient to
support a finding of premeditated and deliberated murder. The
majority believe, however, that the jury reasonably might find
defendant lacked premeditation and deliberation when he killed
the victim. The majority opinion holds a jury might reasonably
conclude that defendant panicked and hid the body, or that
defendant was legally provoked by the victim.
Defendant presented no evidence that he hid the body in
panic after murdering the victim without premeditation and
deliberation. Such a rationale for defendant's behavior is mere
conjecture and not supported by the evidence. Furthermore, the
majority opinion asserts that testimony from defendant's wife
that the two men argued before the murder might raise theinference that defendant was provoked by the victim. "Anger and
emotion frequently coincide with murder, but a court should
instruct on murder in the second degree only when the evidence
would permit a reasonable finding that the defendant's anger and
emotion were strong enough to disturb the defendant's ability to
reason." State v. Perry, 338 N.C. 457, 463, 450 S.E.2d 471, 474
(1994). No evidence whatsoever was presented that defendant was
so enraged as to be unable to reason, premeditate, or deliberate.
Our Supreme Court explained:
[E]vidence that the defendant and the victim
argued, without more, is insufficient to show
that the defendant's anger was strong enough
to disturb his ability to reason. Without
evidence showing that the defendant was
incapable of deliberating his actions, the
evidence could not support the lesser
included offense of second-degree murder.
State v. Solomon, 340 N.C. 212, 222, 456 S.E.2d 778, 785, cert.
denied, 516 U.S. 996, 133 L. Ed. 2d 438 (1995). Defendant
presented no such evidence, and as such a verdict of second-
degree murder would not be supported by the evidence. See State
v. Rose, 339 N.C. 172, 195, 451 S.E.2d 211, 224 (1994), cert.
denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).
The evidence viewed as a whole does not support the
submission of a second-degree murder charge to the jury. The
test is not whether the jury could have convicted defendant of a
lesser included offense, but whether the State showed each
element of the crime charged with no conflicting evidence
presented. See State v. Walker, 343 N.C. 216, 221-22, 469 S.E.2d
919, 922, cert. denied, 117 S.Ct. 254, 136 L. Ed. 2d 180 (1996).
Here, there was no conflicting evidence from defendant or anyoneelse to indicate that defendant did not commit premeditated and
deliberated murder. Defendant took the rifle from its normal
place in the home, stood, pointed the gun at the victim,
inflicted a fatal wound, and enlisted help in hiding the victim's
body and other evidence of his crime. Indeed, the victim
apparently remained seated throughout most of his stay and was
not armed. As stated above, there was no evidence of provocation
by the victim, defendant's conduct after the crime was quite
incriminating, and the parties had disagreed. These facts are
evidence of premeditation and deliberation. See State v.
Williams, 308 N.C. 47, 69, 301 S.E.2d 335, 349, cert. denied, 464
U.S. 865, 78 L. Ed. 2d 177 (1983). Lesser included instructions
are not to be given indiscriminately, see State v. Strickland,
307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983), overruled in part
on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d
775 (1986), and here the evidence raised no "material question as
to the existence of premeditation [or] deliberation." State v.
Brown, 339 N.C. 426, 439, 451 S.E.2d 181, 189 (1994), cert.
denied, 516 U.S. 825, 133 L. Ed. 2d 46 (1995). Accordingly, a
second-degree murder instruction had no basis, and the jury was
properly instructed. I find no error.
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