I.
By his first assignment of error, defendant argues that the
trial court violated his constitutional right to counsel by
disqualifying his retained counsel. We disagree.
The Sixth Amendment to the United States Constitution,
applicable to the States through the Fourteenth Amendment and §§ 19
and 23 of the North Carolina Constitution guarantees a defendant's
right to counsel in a criminal prosecution.
State v. Shores, 102N.C. App. 473, 402 S.E.2d 162 (1991). This right includes the
right to retain an attorney of the defendant's choice.
State v.
Yelton, 87 N.C. App. 554, 361 S.E.2d 753 (1987). However, this
right is not absolute. “The essential aim of the Sixth Amendment
is to guarantee an effective advocate for each criminal defendant
rather than to insure that a defendant will inexorably be
represented by the lawyer whom he prefers.”
Wheat v. United
States, 486 U.S. 153, 159, 100 L. Ed. 2d 140 (1987). As noted by
this Court in
State v. Shores, 102 N.C. App. at 475, 402 S.E.2d at
163 (quoting
Id. at 160, 100 L. Ed.2d 140), “courts have an
independent interest in ensuring that criminal trials are conducted
within the ethical standards. . . .” In this regard, the right of
a defendant to have an attorney of his own choosing must be
balanced against the court's interest of conducting a fair and
unbiased legal proceeding.
State v. Bruton, 344 N.C. 381, 474
S.E.2d 336 (1996).
When a party challenges an attorney's representation
contending that a conflict of interest exists, “a hearing should be
conducted, 'to determine whether there exists such a conflict of
interest that the defendant will be prevented from receiving advice
and assistance sufficient to afford him the quality of
representation guaranteed by the sixth amendment.'”
State v.
James, 111 N.C. App. 785, 791, 433 S.E.2d S.E.2d 755, 758 (1993)
(quoting
U.S. v. Cataldo, 625 F. Supp. 1255, 1257 (S.D.N.Y.
1985)(citation omitted)). If it is shown that “an actual conflict
or the potential for conflict exists, the presumption in favor ofan accused's counsel of choice will be overcome.”
Shores, 102 N.C.
App. at 475, 402 S.E.2d at 163.
It is well settled that “[t]he trial court must be given
substantial latitude in granting or denying a motion for attorney
disqualification.”
Id. To that end, the findings of the trial
court are binding upon appeal if they are supported by any
competent evidence, and the court's ruling may be disturbed only
where there is a manifest abuse of discretion or if it is based on
an error of law.
State v. Hardison, 143 N.C. App. 114, 545 S.E.2d
233 (2001).
In the case
sub judice, hearings were conducted on the State's
motion that Walen be disqualified due to conflict of interest.
After extensive discussion with and questioning of counsel for
defendant and the State, as well as briefing the issue by both
parties, the trial court made the following pertinent findings:
4. Dorothy Taylor, [the victim], retained
James M. Walen as her attorney for a domestic
action against her husband, Jeffrey Taylor
[Taylor]. Pursuant to that representation,
Mr. Walen filed a Complaint for divorce in 97
CVD 5481 on July 25, 1997. According to
Donald Taylor, [defendant], he and the victim
were involved in a relationship and had been
living together for about one year as of the
date of the shooting, July 15, 1998.
5. Mr. Walen filed a Motion for Summary
Judgment on September 8, 1997. On September
16, 1997, Mr. Walen filed an Amended Complaint
for divorce and sought to have a separation
agreement incorporated into the divorce
judgment. On September 29, 1997, Mr. Walen
obtained a Judgment of Divorce by Order of
Summary Judgment in which the court
incorporated the separation agreement into the
judgment.
6. On October 14, 1997, Mr. Walen filed a
Motion in the Cause for the court to determine
why Taylor should not be held in contempt for
failing to comply with the terms of the
Judgment of Divorce. The matter was heard on
November 20, 1997, and the court granted the
victim relief by Order filed on December 4,
1997.
7. On April 23, 1998, Mr. Walen filed another
Motion in the Cause to again determine why
Taylor should not be held in contempt for
failing to comply with the terms of the
Judgment of Divorce. The matter was heard on
June 29, 1998, and the court granted the
victim relief by Order filed on July 13, 1998.
8. On July 15, 1998, the State's evidence
tends to show that the Defendant shot the
victim in the neck resulting initially with
high cervical quadriplegia but ultimately
resulting in her death on February 2, 1999.
9. The victim made statements regarding the
events of the shooting. The State has given
Notice of its intent to use certain statements
in the trial of this matter under the residual
hearsay exception to the hearsay rule.
Further, on July 15, 1998, Detectives Ed
Brincefield and Jo Autry spoke with the victim
as she was in the initial stages of treatment
at Cape Fear Valley Medical Center. This was
the victim's first known statement following
the shooting. According to one of the
victim's treating physicians, Dr. Mark
Hnilica, her injury was certainly life
threatening. She communicated to Detectives
Brincefield and Autry that she had not shot
herself but rather her husband, the man at the
house had shot her. She has made other
statements, some of which indicate that the
defendant did not shoot her, some of which
indicate that he did, and some of which reveal
that she could not remember what had happened.
She has consistently stated, however, that she
did not shoot herself. Only two people were
present at the time of the shooting, the
victim and the defendant.
10. The defendant was arrested on August 8,
1998. On or about August 18, 1998, as the
victim lay immobile in her hospital bed, Mr.Walen prepared a Power of Attorney for the
victim to give power of attorney to the
defendant. A member of Mr. Walen's staff
proceeded to the hospital whereupon the victim
executed the document. Mr. Walen has given
Notice to the State that he intends to use at
trial certain hearsay statements of the
victim. His Notice includes the August 18,
1998 Power of Attorney given to the Defendant
by the victim. This evidence is relevant to
show that the Defendant did not shoot the
victim for if he had, the victim would not
have given her power of attorney to him.
According to a statement made by the victim to
her sister on August 19, 1998, however, she
(the victim) was “so drugged up” when the
document was executed that she did not know
what she had done. This information was
provided to Detective O'Briant on August 25,
1998.
11. On September 9, 1998, Mr. Walen filed a
Motion to Withdraw as the victim's attorney in
97 CVD 5481. On October 9, 1998, the court
allowed Mr. Walen's motion to withdraw. The
domestic case continued as Taylor through
counsel filed a Motion and Amended Motion to
set aside the divorce judgment and for a
preliminary injunction on the grounds that he
and the victim were never married.
. . . .
13. There is a substantial likelihood that the
following will occur at the trial of this
case: The State [] will introduce into
evidence statements made by the victim which
implicate the Defendant as the perpetrator of
the charged offense. The Defendant must
attempt to impeach the victim's statements.
The Defendant will also attempt to use
statements made by the victim which tend to
exculpate the Defendant. The Defendant will
also attempt to use the above-described power
of attorney in his defense. The State will
then attempt to negate the meaning of the
power of attorney with subsequent statements
of the victim concerning the execution of the
document, which in turn bolsters the victim's
statements tending to implicate the Defendant.
This in turn tends to make Mr. Walen's contact
with the victim relevant in the case thusmaking him a potential witness for the
Defendant.
14. An actual and substantial conflict of
interest on a material issue exists in the
representation of the Defendant by Mr. Walen
and all members of his law firm.
15. Although the Defendant waived the conflict
of interest upon extensive questioning by this
court, the deceased victim is obviously unable
to waive the conflict of interest in the
Defendant's continued representation by Mr.
Walen.
Based upon its findings, the trial court concluded, “[a]n
actual and substantial conflict of interest on material issues”
existed in Walen's representation of defendant.
While defendant failed to assign error to any of the court's
findings of fact in the record, he does argue in his brief that
findings #13 and #14 are not supported by the evidence of record.
Our appellate courts have long held that an appellant's failure to
assign error to each finding of fact and to identify in his brief
which findings are challenged, will result in the presumption that
the findings are supported by competent evidence.
State v. Cheek,
351 N.C. 48, 63, 520 S.E.2d 545, 554 (1999);
see also Concrete
Service Corp. v. Investors Group, Inc., 79 N.C. App. 678, 684, 340
S.E.2d 755, 759-60 (finding that the failure of appellant to
“except and assign error separately to each finding or conclusion
that he or she contends is not supported by the evidence . . . will
result in waiver of the right to challenge the sufficiency of the
evidence to support particular findings of fact”),
cert. denied,
317 N.C. 333, 346 S.E.2d 137 (1986). Since defendant presents arguments in his brief as to the
sufficiency of the evidence to support the trial court's Findings
of Fact 13 and 14, we will review the propriety of those findings
alone. The trial court's remaining findings are presumed correct,
and are binding on this Court.
Defendant argues that there is no evidence in the record to
support the scenario outlined by the court in Finding of Fact 13.
We disagree.
The record demonstrates that both the State and Walen, as
defense counsel, gave notice of their intent to use various
statements of the victim, and that a number of the statements were
conflicting. Further, Walen gave notice of his intent to use the
power of attorney signed by him for the benefit of defendant. The
following exchange occurred between the court and Walen at the
disqualification hearing:
THE COURT: Do you intend to offer that power
of attorney as evidence?
MR. WALEN: I don't know yet. I don't know if
it's admissible. I don't -- First of all, I
contend that the dying declarations or not
dying declarations are not admissible. And if
in fact it is, there's two dying declarations.
THE COURT: Well --
MR. WALEN: Not one.
THE COURT: Mr. Walen, would you follow me
here as I walk -- MR. WALEN: Okay.
THE COURT: -- briefly, gradually through this
case. I'm representing a defendant charged
with murder.
MR. WALEN: Okay.
THE COURT: I've got some inkling of
evidentiary matters that I can offer that the
victim said my guy didn't do it.
MR. WALEN: Okay.
THE COURT: Okay. Are you telling me that I
wouldn't offer that evidence?
MR. WALEN: Well, of course I would.
THE COURT: All right.
MR. WALEN: But there's --
THE COURT: And --
MR. WALEN: Okay.
THE COURT: Consistent with that contention
that I have that the victim said my guy didn't
do it --
MR. WALEN: Um-hum.
THE COURT: I've got evidence that after the
shooting, before death, the victim gave my
client a power of attorney, which tends to
support the position the victim said my guy
didn't do it. You tell me I wouldn't attempt
to get that power of attorney in? MR. WALEN: Of course you would. And I would.
But that's not a conflict. How can that be a
conflict, unless she said --
THE COURT: All right. Once you do offer that
--
MR. WALEN: Okay.
THE COURT: -- are you telling me they can't
rebut that?
MR. WALEN: Absolutely, they can rebut that.
But I'm not going to go into how or why that
won't work. Because that's trial strategy.
If we want to address that in camera, I'll be
happy to address that.
THE COURT: Okay.
MR. WALEN: But I'm not going to sit here and
tell Mr. Hicks how we're going to try this
case, if we ever get to court.
THE COURT: Well, I suspect if I deny -- if I
rule at this point that the trial goes forward
with you as counsel of record, I'll be honest
with you, folks, it's impossible to tell how a
case is going to come out, but I will not be
surprised if in the middle of the trial I will
hear one or both lawyers stand up and say,
oops, I now see it. We've got a conflict.
We've got a mistrial. MR. HICKS: I see it now. I mean, I don't
expect --
We believe that there was a substantial likelihood that the
scenario outlined in Finding of Fact 13 would occur as found by the
court; thus, we conclude that the finding is supported by competent
evidence in the record, as well as, reasonable inferences to be
drawn from that evidence, and is therefore binding on appeal.
Next defendant argues that there is no evidence to support
Finding of Fact 14 in which the trial court concludes that “an
actual and substantial conflict of interest on a material issue
exist in the representation of defendant by Walen.”
We first observe that the court labels its conclusion as both
a finding of fact and conclusion of law; however, because it states
no factual basis, it is in fact a conclusion of law and should be
reviewed as such.
Wilder v. Wilder, 146 N.C. App. 574, 553 S.E.2d
425 (2001);
State v. Rogers, 52 N.C. App. 676, 681-82, 279 S.E.2d
881, 885 (1981) (“[f]indings of fact that are essentially
conclusions of law will be treated as such upon review,” and will
be “upheld where there are other findings upon which they are
based.”) Thus, we will review the court's conclusion
de novo;
irrespective of the label applied.
Carpenter v. Brooks, 139 N.C.
App. 745, 752, 534 S.E.2d 641, 646,
disc. review denied, 353 N.C.
261, 546 S.E.2d 91 (2000) (conclusion of law, even if erroneously
labeled as findings of fact, are reviewable
de novo on appeal;
court “not bound by the label used by the trial court.”) Defendant argues that there are no findings to support the
conclusion of law that an actual and substantial conflict of
interest existed which would prohibit . . . Walen from representing
. . . [him]” in this case. Defendant makes much of the fact that
neither the statements made by the victim inculpating defendant as
her attacker, nor the power of attorney prepared by Walen giving
defendant power of attorney over the victim's interests while Walen
was counsel of record for the victim in a domestic case, were
actually introduced into evidence at trial, thereby necessitating
any compromise in Walen's level of representation. However, the
failure of these situations to materialize in defendant's trial are
not dispositive.
In this case, at an unusually early stage in the proceedings,
the trial court was called upon to balance defendant's right to be
represented by retained counsel of choice against standards of the
profession, and the court's interest in assuring that a defendant
have a fair trial.
See State v. Yelton, 87 N.C. App. at 556, 361
S.E.2d at 755 (noting that issues of potential problems with
representation are usually presented in post-conviction motions
alleging ineffective assistance of counsel).
The United States Supreme Court has recognized the unique
challenge of the trial court when a party presents the issue of a
possible conflict of interest prior to trial. In
Wheat, the
Supreme Court stated,
Unfortunately for all concerned, a district
court must pass on the issue whether or not to
allow a waiver of a conflict of interest by a
criminal defendant not with the wisdom ofhindsight after the trial has taken place, but
in the murkier pre-trial context when
relationships between parties are seen through
a glass, darkly. The likelihood and
dimensions of nascent conflicts of interest
are notoriously hard to predict, even for
those thoroughly familiar with criminal
trials. It is a rare attorney who will be
fortunate enough to learn the entire truth
from his own client, much less be fully
apprised before trial of what each of the
Government's witnesses will say on the stand.
A few bits of unforeseen testimony or a single
previously unknown or unnoticed document may
significantly shift the relationship between
multiple defendants. These imponderables are
difficult enough for a lawyer to assess, and
even more difficult to convey by way of
explanation to a criminal defendant untutored
in the niceties of legal ethics. Nor is it
amiss to observe that the willingness of an
attorney to obtain such waivers from his
clients may bear an inverse relation to the
care with which he conveys all the necessary
information to them.
486 U.S. at 162, 100 L. Ed. 2d at 151. In light of this “the
district court must be allowed substantial latitude in refusing
waivers of conflicts of interest not only in those rare cases where
an actual conflict may be demonstrated before trial, but in the
more common cases where a potential for conflict exists which may
or may not burgeon into an actual conflict as the trial
progresses.”
Id.;
see also Shores, 102 N.C. App. at 475, 402
S.E.2d at 163 (“The trial court must be given substantial latitude
in granting or denying a motion for attorney disqualification”).
In the instant case, the trial court considered, in addition
to the relevant case law, Rules 1.6, 1.7, and 3.7 of the Revised
Rules of Professional Conduct of the North Carolina State Bar in
making its determination of whether an actual conflict of interestexisted. Revised Rule 1.6(c) prohibits an attorney from (1)
revealing confidential information of a client; (2) using
confidential information of a client to the disadvantage of the
client, or (3) using confidential information of a client for the
advantage of the lawyer or a third person, unless the client
consents after consultation. The rule defines “confidential[ity]
of information” as: "information gained in the professional
relationship that the client has requested be held inviolate or the
disclosure of which would be embarrassing or would be likely to be
detrimental to the client." R.P.C. 1.6(a). Revised Rule 1.6(a)
specifically provides that “'client' refers to present and former
clients.”
Id. In its 1998 Ethics Opinion 20, the State Bar noted,
“Although this definition may appear on its face to limit
confidential information to information either received from the
client or received during the course of the representation, the
comment to the rule clarifies that '[t]he confidentiality rule
applies not merely to matters communicated in confidence by the
client but also to all information relating to the representation,
whatever its source.'” 1998 N.C. Eth. Op. 20 (quoting Rule 1.6,
cmt. 5). Revised Rule of Professional Conduct 1.7, which is the
“General Rule” regarding a conflict of interest provides:
A lawyer shall not represent a client if the
representation of that client will be, or is
likely to be, directly adverse to another
client, unless:
(1) the lawyer reasonably believes the
representation will not adversely affect the
interest of the other client; and
(2) each client consents after consultation
which shall include explanation of the
implications of the common representation and
the advantages and risks involved.
R.P.C. 1.7(a);
see also Comment 3 to R.P.C. 1.7 (“As a general
proposition, loyalty to a client prohibits undertaking
representation directly adverse to that client without the client's
consent. . . . Thus, a lawyer ordinarily may not act as advocate
against a person the lawyer represents in some other matter, even
if it is wholly unrelated). Finally, Revised Rule of Conduct 3.7
provides, pertinently:
(a) A lawyer shall not act as advocate at a
trial in which the lawyer is likely to be a
necessary witness except where:
(1) the testimony relates to an uncontested
issue;
(2) the testimony relates to the nature and
value of legal services rendered in the case;
(3) disqualification of the lawyer would work
substantial hardship on the client.
R.P.C. 3.7(a).
In
State v. James, 111 N.C. App. 785, 790, 433 S.E.2d 755, 758
(1993), this Court examined the issue of a conflict of interest
where the same attorney represented both the defendant and a
prosecution witness, but in unrelated matters.
Id. The Court noted
that such a situation “creates several avenues of possible conflict
for an attorney.”
Id. at 790, 433 S.E.2d at 758. The Court
explained,
We believe representation of the defendant . .
. as well as the prosecution witness (albeit
in another matter) creates several avenues of
possible conflict for an attorney.
Confidential communications from either or
both of a revealing nature which might
otherwise prove to be quite helpful in thepreparation of a case might be suppressed.
Extensive cross-examination, particularly of
an impeaching nature, may be held in check.
Duties of loyalty and care might be
compromised if the attorney tries to perform a
balancing act between two adverse interests.
Id. The Court, therefore, held that an actual conflict of interest
existed, which adversely affected counsel's representation of
defendant.
Id.
In the case
sub judice, Walen was first employed to represent
the victim in a domestic matter in July 1997 and continued to
represent her in the matter until 9 October 1998, when counsel was
allowed by order of the district court to withdraw as counsel of
record for the victim. Defendant was arrested on charges that he
feloniously assaulted the victim on 8 August 1998, and retained
Walen to represent him also. Ten days later, Walen prepared a
power of attorney giving defendant power of attorney over the
victim's affairs while she lay immobile in the hospital. Prior to
trial, Walen gave notice that he would present the evidence of the
victim's execution of the power of attorney in defendant's favor to
refute evidence that defendant shot the victim. In addition, both
the State and Walen gave notice that they would be using
conflicting statements made by the victim that defendant did or did
not shoot her.
Walen's representation of defendant would inescapably be
adverse to the victim, within the meaning of Revised Rule of
Professional Conduct 1.7, since defendant was on trial for her
murder, and Walen, in defense of defendant for that murder, could
have been called upon to impeach statements made by the victimduring his dual representation. In addition, although Walen was
representing defendant in a matter unrelated to his representation
of the victim, Walen had a duty of loyalty and care to the victim
which could have been compromised by this dual representation.
Similar to the Court's concern in
James, the representation of
defendant by Walen in the criminal matter, may have been hampered
by his duty of loyalty and care to two competing interests.
See
id., 111 N.C. App. at 790, 433 S.E.2d at 758. To this end,
defendant would have been precluded “'from receiving advice and
assistance sufficient to afford him the quality of representation
guaranteed by the Sixth Amendment.'”
Id. at 791, 433 S.E.2d at 758
(quoting
Cataldo, 625 F. Supp. at 1257).
Additionally, Walen was undoubtedly privy to some information
regarding the victim's personal life and habits, her state of mind,
etc., after having represented her for some fifteen months in the
divorce proceedings. Such information would be most helpful in
defending the person accused of her murder, especially if the
defendant submits that the victim was distressed and shot herself
or if the defendant intends to attack the victim's credibility.
Such a scenario presents the potential that a defense of the
charges in this case could compromise (or could be hampered by)
Walen's duty of confidentiality under Revised Rule 1.6, as well as
the duty of loyalty and care under Revised Rule 1.7.
Finally, although Walen was not actually called as a witness
to testify, had certain other evidence been proffered by the State
or defendant at trial, the possibility certainly existed. Walen'stestimony while he represented defendant would be in clear
derogation of Revised Rule of Professional Conduct 3.7.
We conclude that the trial court properly determined that
there was an actual conflict of interest in this case. In light of
this conflict, the presumption in favor of defendant's choice of
counsel must give way.
Shores, 102 N.C. App. at 475, 402 S.E.2d at
163 (citing
Wheat, 486 U.S. at 164, 100 L. Ed. 2d at 152).
Further, in such circumstances, the United States Supreme Court has
provided that the trial court may justifiably “decline a proffer of
waiver,” and such a decision should be accorded wide latitude.
Wheat, 486 U.S. at 162, 100 L. Ed. 2d at 150. In balancing
defendant's right to retained counsel of choice against the court's
interests in the proper administration of justice, we conclude that
the trial court did not abuse its discretion in determining that an
actual conflict of interest existed here, so as to justify
disqualifying Walen and all of the members of his firm from
representing defendant in this matter.
We do find it of concern that the State did not address its
opposition about Walen's representation for nearly two years.
However, we believe that defendant did not suffer prejudice since
the newly appointed attorney had five months to prepare for trial.
Cf. State v. McFadden, 292 N.C. 609, 234 S.E.2d 742 (1977) (holding
that defendant was denied effective assistance of counsel when an
attorney withdrew from the case because of a possible conflict of
interest, the judge denied defendant's motion for a continuance,
and the court-appointed attorney had only ninety minutes to conferwith the defendant prior to the trial). This assignment of error
is, therefore, overruled.
II.
By his second assignment of error, defendant argues that the
trial court erred in denying his motion to dismiss the charge of
second degree murder. Specifically, defendant contends that there
was insufficient evidence to show that he committed the crime as
charged. We disagree.
A motion to dismiss is properly denied if the State offers
substantial evidence_ direct or circumstantial, or both _ that the
offense charged was committed, and that the defendant was the
perpetrator.
State v. Montgomery, 341 N.C. 553, 561, 461 S.E.2d
732, 735 (1995). “Substantial evidence is such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.”
State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d 781,
787 (1990). In ruling on a motion to dismiss, the evidence is to
be considered in the light most favorable to the State, and the
State is entitled to every reasonable inference to be drawn
therefrom.
State v. Fritsch, 351 N.C. 373, 378-79, 526 S.E.2d 451,
455,
cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000).
Contradictions or discrepancies in the evidence are matters for the
jury to resolve, and do not warrant dismissal of the case.
Id. at
379, 526 S.E.2d at 455.
“'Second-degree murder is the unlawful killing of a human
being, with malice, but without premeditation and deliberation.'”
State v. Welch, 135 N.C. App. 499, 502-03, 521 S.E.2d 266, 268(1999)(quoting
State v. Robbins, 309 N.C. 771, 775, 309 S.E.2d 188,
190 (1983)). “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. Bullard, 312 N.C. 129, 160, 322 S.E.2d 370,
388 (1984);
see also State v. Hodges, 296 N.C. 66, 72, 249 S.E.2d
371, 374 (1978) (providing that evidence showing defendant
intentionally inflicted a wound with a deadly weapon which caused
death "raises inferences of an unlawful killing with malice which
are sufficient [to establish] murder in the second degree");
State
v. McNeill, 346 N.C. 233, 238, 485 S.E.2d 284, 287 (1997)(providing
that malice is presumed where the defendant intentionally assaults
another with a deadly weapon, thereby causing the other's death).
Such a presumption is sufficient to withstand a motion to dismiss
for insufficient evidence.
State v. Barrett, 20 N.C. App. 419,
422, 201 S.E.2d 553, 555,
cert. denied, 285 N.C. 86, 203 S.E.2d 58
(1974). 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.
In the instant case, the evidence, taken in the light most
favorable to the State, tended to show that the victim and
defendant were the only two persons in the house at the time of the
shooting; that prior to the shooting, one of the victim's friends
overheard defendant threatening to kill the victim if she ever left
him; that defendant and victim had an argument just before the
victim was shot; that victim was shot in the back of the neck from
approximately three feet away or from a distance greater thanthirty inches; that subsequent medical analysis indicated that the
victim's wound was not self-inflicted; and that the victim
subsequently died as a result of complications from the gunshot
wound to her neck.
The North Carolina Supreme Court was presented with a similar
set of facts in
State v. Childress, 321 N.C. 226, 362 S.E.2d 263
(1987). In
Childress, the Supreme Court held that the trial court
did not err in denying the defendant's motion to dismiss the charge
of second degree murder for insufficiency of the evidence where the
evidence in the light most favorable to the State showed that (1)
the defendant and the victim were the only two people in the
residence when the victim was shot to death, and (2) the physical
evidence showed that the victim was shot from behind at a distance
of at least two feet away, and therefore, could not have shot
himself.
Id. at 229-232, 362 S.E.2d at 265-67. The Supreme Court
noted that the defendant's contention that the victim's injuries
were self-inflicted was inconsistent with the State's physical
evidence, and that the evidence was therefore sufficient for the
jury to reasonably infer that the defendant shot the victim.
Id.
at 231, 362 S.E.2d at 266.
Like the Supreme Court in
Childress, we conclude here that
there was indeed substantial evidence to show that defendant shot
the victim. In light of the absence of any physical evidence to
support defendant's allegation that the victim shot herself, we
hold that the trial court did not err in submitting this matter to
the jury. This assignment of error is also overruled.
III.
By his third and final assignment of error, defendant argues
that the trial court abused its discretion in sentencing him within
the statutory presumptive range since there was evidence to support
the finding of various mitigating factors. Though defendant
concedes that under existing statutory and case law, a trial court
is not required to consider evidence of aggravation or mitigation
unless it deviates from the presumptive range,
see N.C.G.S. § 15A-
1340.16(c)(2001);
State v. Campbell, 133 N.C. App. 531, 542, 515
S.E.2d 732, 739 (1999), he invites the Court to revisit this issue.
We decline defendant's invitation.
See In the Matter of
Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37
(1989) (stating that when “panel of the Court of Appeals has
decided the same issue, albeit in a different case, a subsequent
panel of the same court is bound by that precedent, unless it has
been overturned by a higher court”). As defendant was sentenced
within the presumptive range of sentences, the trial court did not
abuse its discretion in failing to make findings in mitigation.
G.S. § 15A-1340.16(c);
Campbell, 133 N.C. App. at 542, 515 S.E.2d
at 739. This last assignment of error is, therefore, summarily
overruled.
In light of the above, we hold that defendant has failed to
demonstrate that the trial court erred in either the conviction or
sentencing and, thus, the judgment is affirmed.
No error.
Judges GREENE and HUDSON concur.
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