Appeal by defendant from judgment dated 23 January 2001 by
Judge A. Leon Stanback, Jr. in Chatham County Superior Court.
Heard in the Court of Appeals 23 April 2002.
Attorney General Roy Cooper, by Assistant Attorney General
Buren R. Shields, III, for the State.
Russell J. Hollers, III, for defendant-appellant.
GREENE, Judge.
Frankie Burnett Roundtree (Defendant) appeals a judgment dated
23 January 2001 entered consistent with a jury verdict finding him
guilty of second-degree murder.
On 5 June 2000, Defendant was charged with first-degree murder
pursuant to a short-form indictment. At trial, Juanita Williams
(Williams) testified she and Defendant had been in a relationship
from October 1995 until August 1999. Thereafter, Williams began
seeing DeMarcus Rone (Rone). On the evening of 7 December 1999,
Rone was with Williams at her residence. Defendant telephoned
Williams repeatedly that evening, but Williams, who could recognize
Defendant's home telephone number on her caller identification
device, refused to pick up the telephone. The last time Defendantplaced a telephone call to Williams' residence was at 4:45 a.m. on
8 December 1999. At that time, Defendant was calling from his car
telephone.
Williams, who found herself unable to sleep any longer, got
out of bed shortly after Defendant's last telephone call. Rone had
spent the night at Williams' place and awoke around 6:10 a.m. At
6:20 a.m., Williams and Rone left Williams' residence to go to
work. Because their vehicles were covered with ice, Williams got
de-icer from her vehicle while Rone searched for an ice scraper in
the back seat of his vehicle. After Williams had used the de-icer
on both vehicles, she looked up and saw Defendant standing next to
the driver's side light of her vehicle. According to Williams,
Defendant had never come to her residence this early in the
morning.
Rone only became aware of Defendant's presence when Williams
called out to him. At that point, Defendant “walked [up] to [Rone]
and stabbed him in the middle of his chest” with a pocketknife.
Williams saw blood on Rone's shirt as he wrestled with Defendant
who continued stabbing him. Williams ran to her landlady to tell
her to telephone 911. She then grabbed a garden hoe and hit
Defendant on the side of his head three times. After the third
blow, Defendant stepped away from Rone. Williams helped Rone sit
in a chair outside and went into her residence to get bandages for
his wounds. When Williams came back outside, she saw Defendant
pick up the garden hoe. Rone told Williams to go back into the
house. When Williams refused, saying she was not afraid ofDefendant, Rone attempted to rise from his seat. At this moment,
Defendant struck Rone once on his arm and once on his forehead with
the garden hoe. The impact of the second blow broke the garden hoe
in half and caused Rone to collapse on the driveway. Defendant
then went to his vehicle, which he had parked out of sight, and
drove past Williams' residence as he left the area. Williams
testified at trial that, during previous visits to her residence,
Defendant had always parked in her driveway.
When the authorities arrived at Williams' residence between
6:47 a.m. and 6:52 a.m., Rone was still alive but unable to respond
verbally. He died shortly thereafter. The medical examiner
testified at trial that of the several wounds Rone had suffered,
“the only one that was of true medical significance was the one
[stab wound] present in the central chest area.” When Defendant
inflicted this wound, the knife passed into the right ventricle of
Rone's heart. While the wound was not immediately fatal, it was
“relatively rapidly fatal.”
Jennifer Garner (Garner), a school bus driver, testified she
had seen Defendant at 6:05 a.m. on 8 December 1999 in a parked
vehicle approximately 200 yards from Williams' residence.
At the conclusion of the State's evidence, the trial court
sent the jury to the jury room in order for the trial court to hear
Defendant's motion to dismiss the first-degree murder charge for
insufficiency of the evidence. After arguments on the motion were
concluded and the motion denied, the following exchange occurred:
[DEFENDANT]: Judge, in addition, there is an
item of evidence that has been introduced andpassed to the jury that I think they still
have in their possession. I don't think it's
appropriate for them to have it . . . .
THE COURT: Excuse me?
[DEFENDANT]: I think they still have the
exhibit, the stipulations to the jury.
THE COURT: Okay. We will get that back. I
didn't realize. Did they take it to the jury
room with them?
[DEFENDANT]: I think they did. At least I saw
[it] as they were walking out.
The trial court collected the exhibit of stipulations from the jury
without giving instructions on the erroneous removal of the
evidence from the courtroom, and Defendant offered no objection and
made no motion for a mistrial. At the close of all the evidence,
Defendant renewed his motion to dismiss the first-degree murder
charge, which the trial court again denied.
(See footnote 1)
The jury found Defendant guilty of second-degree murder.
During sentencing, the trial court found as aggravating factors
that: (1) Defendant committed an offense that “was especially
heinous, atrocious or cruel” and (2) “Defendant lay[] in wait for
[the] victim.” After finding that the aggravating factors
outweighed the mitigating factors, the trial court sentenced
Defendant to a minimum of 200 and a maximum of 249 months.
_________________________
The issues are whether: (I) the short-form indictment wassufficient to charge Defendant with first-degree murder; (II) the
trial court erred in failing to declare a mistrial after learning
the jury had taken evidence into the jury room prior to
deliberations; and (III) the trial court erred in finding as
aggravating factors that Defendant committed an offense that “was
especially heinous, atrocious or cruel” and “lay[] in wait for
[the] victim.”
I
Defendant contends the short-form indictment used in this case
was invalid because it failed to state the elements of first-degree
murder. The record, however, indicates Defendant never moved the
trial court to dismiss the indictment on this basis.
See N.C.R.
App. P. 10(b)(1) (“[i]n order to preserve a question for appellate
review, a party must have presented to the trial court a timely
request, objection or motion”). Furthermore, the use of the short-
form murder indictment has already been upheld by our Supreme
Court,
see State v. Wallace, 351 N.C. 481, 508, 528 S.E.2d 326,
343,
cert. denied, 531 U.S. 1018, 148 L. Ed. 2d 498 (2000);
State
v. Kilpatrick, 343 N.C. 466, 472, 471 S.E.2d 624, 628 (1996);
State
v. Randolph, 312 N.C. 198, 210, 321 S.E.2d 864, 872 (1984), and
Defendant has presented no argument on the issue not already
presented in previous cases. Accordingly, this assignment of error
is overruled.
II
Defendant further argues the trial court erred in not
declaring a mistrial after the jury took evidence into the juryroom prior to deliberations. Defendant, however, has not properly
preserved this issue for appeal as he failed to object or move for
a mistrial once the error was discovered.
See N.C.R. App. P.
10(b)(1). In any event, Defendant failed to demonstrate any
prejudicial error that arose from the jury having taken the exhibit
of stipulations into the jury room prior to deliberations.
See
State v. Bonney, 329 N.C. 61, 73, 405 S.E.2d 145, 152 (1991) (“'a
mistrial should be granted only when there are improprieties in the
trial so serious that they substantially and irreparably prejudice
the defendant's case and make it impossible . . . to receive a fair
and impartial verdict'”). Thus, this assignment of error is also
overruled.
III
Finally, Defendant asserts the trial court erred in finding
aggravating factors that were not supported by the evidence. We
disagree.
The trial court found as an aggravating factor that Defendant
had committed an offense that “was especially heinous, atrocious or
cruel.” In
State v. Blackwelder, our Supreme Court held that “the
focus [in analyzing this factor] should be on whether the facts of
the case disclose excessive brutality, or physical pain,
psychological suffering, or dehumanizing aspects not normally
present in that offense.”
State v. Blackwelder, 309 N.C. 410, 414,
306 S.E.2d 783, 786 (1983) (emphasis omitted)
. Further
considerations include whether the victim suffered multiple
injuries, the manner in which the wounds were inflicted, andwhether death was not immediate.
Id. at 412-13, 306 S.E.2d at 785-
86. “[E]vidence of bruises and cuts, if inflicted prior to death
by the defendant, . . . support a conclusion that there was
physical and psychological pain or torture not normally present in
a murder.”
Id. at 414, 306 S.E.2d at 786.
In this case, the first stab wound into Rone's chest was
responsible for his ultimate death. Defendant and Rone
subsequently wrestled as Defendant continued to stab Rone.
Defendant did not pause in his attack until Williams had struck him
on the head with a garden hoe three times. After Williams helped
Rone to a chair, Rone just sat there. It was only when Williams
would not retreat to the safety of her home that Rone attempted to
stand up. At this point, Defendant attacked Rone a second time,
using the garden hoe to strike Rone with such force that it broke
in half and Rone collapsed on the driveway. This evidence
indicates not only that death was not immediate but that Rone
suffered multiple wounds, encountered excessive brutality, and
endured physical and psychological suffering subsequent to
Defendant's initial attack beyond what was necessary to establish
second-degree murder. Accordingly, the trial court did not err in
finding the offense committed by Defendant “especially heinous,
atrocious or cruel.”
Defendant further argues the evidence does not support the
trial court's finding that Defendant lay in wait for the victim on
the morning of 8 December 1999. “An assailant who watches and
waits in ambush for his victim is lying in wait.”
State v.Richardson, 346 N.C. 520, 536, 488 S.E.2d 148, 157 (1997)
(citing
State v. Allison, 298 N.C. 135, 147-48, 257 S.E.2d 417, 425
(1979)),
cert. denied, 522 U.S. 1056, 139 L. Ed. 2d. 652 (1998).
Our Supreme Court has found sufficient evidence of lying in wait
where a defendant drove into the parking lot of a store from the
side entrance so that the victim would not see him, waited fifteen
minutes for the victim to come out and close the store, ran up to
the victim, and the victim did not see him until he was right next
to her.
Id. at 536-37, 488 S.E.2d at 158. Furthermore, this Court
has upheld the use of lying in wait as an aggravating factor where
a defendant waited behind a store for the victim to come out.
State v. McIntyre, 65 N.C. App. 807, 810, 310 S.E.2d 119, 120,
appeal dismissed and disc. review denied, 311 N.C. 308, 317 S.E.2d
906 (1984).
In this case, the evidence established Defendant's last
telephone call to Williams' residence occurred at 4:45 a.m. on 8
December and, unlike his earlier telephone calls from his home, was
placed from his vehicle. At 6:05 a.m., Garner observed Defendant
in a parked vehicle approximately 200 yards from Williams'
residence. According to Williams, Defendant has always parked in
her driveway during previous visits. Shortly after 6:20 a.m.,
Defendant surprised Williams and Rone in the driveway of Williams'
residence and attacked Rone. As this evidence was sufficient under
Richardson and
McIntyre to show Defendant lay in wait for thevictim, the trial court committed no error.
(See footnote 2)
No error.
Judges TIMMONS-GOODSON and HUNTER concur.
Report per Rule 30(e).
Footnote: 1