STATE OF NORTH CAROLINA
v. Cumberland County
No. 00 CRS 57976
DEIDRA CHAVELLE DOSWELL,
Defendant.
Attorney General Roy Cooper, by Assistant Attorney General
Thomas G. Meacham, Jr., for the State.
Miles & Montgomery, by Lisa Miles, for defendant-appellant.
HUDSON, Judge.
Defendant Deidra Doswell was charged with first-degree murder
of her fiancé Milton McLean. The State's evidence tended to show
that on the evening of 28 March 2000, Officers Steven Briggs and
Calvin Evilsizer of the Fayetteville Police Department responded to
a call about a shooting at a house on Teachers Drive. Defendant's
thirteen-year-old daughter let the officers into the house when
they arrived. In the bedroom at the end of the hall, Officer
Briggs observed the victim lying on the floor on his back, face up,
and defendant lying face down, across the top of the victim.
Defendant was wearing a white wedding gown. She was moaning and
moving her hands and arms across the victim's face. When defendantrolled over, police discovered a revolver next to the victim's
face. The victim, who had blood coming out of a hole in his shirt,
had no vital signs. The front of defendant's wedding dress had a
black powder burn and blood on it. Defendant appeared to be
bleeding from a gun shot wound to her lower left breast area and
was transported to the hospital. Police did not find signs of
forced entry into the residence.
At the scene, police observed a gunshot hole through the
headboard of the bed, a gunshot hole in the closet, and a spent
projectile laying flush against the headboard and baseboard of the
floor. Police collected a brown wig, a wedding veil, beads, a
revolver, four spent shell casings, and two live rounds from the
bedroom. Agent Eugene Bishop of the State Bureau of Investigation
testified that the bullet retrieved from the victim's abdomen
during the autopsy, the bullet found at the scene, and the four
shell casings retrieved from the scene all came from the revolver
found at the scene of the shooting. Agent Charles McClelland, also
of the State Bureau of Investigation, testified that the findings
of the gunshot residue analysis on the victim's hands were “not
consistent with the firing of a weapon.” Police determined that
defendant was a specialist in the Army Reserve and a security
guard. Dr. John Butts, Chief Medical Examiner for the State of
North Carolina, testified that the victim died as the result of a
gun shot wound that struck the aorta. He further testified that
the lack of gunshot residue around the victim's gunshot wound
indicated that he was shot from several feet away. On top of the bedroom dresser, a note read: “His soul was
tired so I gave him a rest and I loved him so much I went with him.
Love, D.” In a dresser drawer, police found an unsigned marriage
certificate dated 23 November 1998. Detective Carolyn Pollard
found a calendar with the following entries: “My wedding day, 9:00
a.m.” on 15 August 1998; “My wedding day” on 15 November 1998; and
“My babe's, husband's 60th birthday” on 18 November 1998.
Detective Pollard testified that the victim's birthday was 18
November 1938.
The victim's daughter, Sharon Blackshear, testified that her
father was engaged to defendant and that defendant's nickname was
“D.” Defendant and the victim had been living together in the
victim's home along with defendant's three children for about a
year and a half. Ms. Blackshear testified that defendant and the
victim had set wedding dates in the past and that the next
tentative date was in August 2000. She also testified that
defendant was in the process of buying the wedding dress from Ms.
Blackshear's sister.
Defendant did not present any evidence. A jury found
defendant guilty as charged. The trial court sentenced defendant
to life imprisonment. Defendant appeals.
Defendant contends that the trial court erred by denying her
request to instruct the jury on second-degree murder and
manslaughter as lesser included offenses of first-degree murder.
Defendant essentially asserts that the “uncertainties surrounding
the shootings” would have given the jury a reasonable basis fordeciding that the State did not prove premeditation or deliberation
beyond a reasonable doubt. We disagree.
A lesser included offense instruction must be given if the
evidence "'would permit a jury rationally to find [the defendant]
guilty of the lesser offense and acquit him of the greater.'"
State v. Strickland, 307 N.C. 274, 286, 298 S.E.2d 645, 654 (1983)
(quoting Beck v. Alabama, 447 U.S. 625, 635, 65 L. Ed. 2d 392, 401
(1980)), overruled in part on other grounds by State v. Johnson,
317 N.C. 193, 344 S.E.2d 775 (1986). Second-degree murder and
manslaughter are lesser included offenses of first-degree murder.
See State v. James, 342 N.C. 589, 594, 466 S.E.2d 710, 713 (1996)
(citing State v. Yelverton, 334 N.C. 532, 544, 434 S.E.2d 183, 190
(1993)). The test in every case involving the propriety of an
instruction on a lesser grade of an offense is not whether the jury
could convict the defendant of the lesser crime, but whether the
State's evidence is positive as to each element of the crime
charged and whether there is any conflicting evidence relating to
any of these elements. State v. Skipper, 337 N.C. 1, 26, 446
S.E.2d 252, 265 (1994), cert. denied, 513 U.S. 1134, 130 L. Ed. 2d
895 (1995). First-degree murder is the intentional and unlawful
killing of a human being with malice and with premeditation and
deliberation. State v. Graves, 343 N.C. 274, 278, 470 S.E.2d 12,
15 (1996).
In the present case, the evidence presented by the State is
positive and uncontradicted as to each element of first-degree
murder. First, "malice is presumed where the defendantintentionally assaults another with a deadly weapon, thereby
causing the other's death." State v. McNeill, 346 N.C. 233, 238,
485 S.E.2d 284, 287 (1997), cert. denied, 522 U.S. 1053, 139 L. Ed.
2d 647 (1998). Malice may be presumed from the use of a deadly
weapon. Id. At trial, the state introduced positive evidence of
malice by showing that defendant shot the victim in the chest with
a pistol. The shot punctured the victim's aorta, causing his
death.
The evidence is similarly positive and uncontradicted as to
premeditation and deliberation. "Premeditation means that the
defendant thought out the act beforehand for some length of time,
however short." State v. Holt, 342 N.C. 395, 397, 464 S.E.2d 672,
673 (1995). Deliberation means that the fatal act was "executed
with a fixed design to kill notwithstanding defendant was angry or
in an emotional state at the time." State v. Ruof, 296 N.C. 623,
636, 252 S.E.2d 720, 728 (1979). Circumstances that are
illustrative of the existence of premeditation and deliberation
include (1) absence of provocation on the part of the deceased, (2)
the statements and conduct of the defendant before and after the
killing, (3) threats and declarations of the defendant before and
during the occurrence giving rise to the death of the deceased, (4)
ill will or previous difficulties between the parties, (5) the
dealing of lethal blows after the deceased has been felled and
rendered helpless, (6) evidence that the killing was done in a
brutal manner, and (7) the nature and number of the victim's
wounds. State v. Olson, 330 N.C. 557, 565, 411 S.E.2d 592, 596(1992).
Here, the State's evidence showed that defendant shot at the
victim three times before shooting herself; defendant was dressed
in her wedding gown when she shot defendant although her wedding
day had been postponed for the third time until August 2000;
either before or after the killing, defendant wrote the note on the
dresser indicating her role in defendant's death; and the results
of the gunshot residue tests were not consistent with the victim
firing the revolver. Moreover, there was no evidence of
provocation on defendant's part. The State's evidence established
each and every element of first-degree murder, including
premeditation and deliberation, without equivocation. Accordingly,
the trial court correctly refused to submit the issue of
defendant's guilt of second-degree murder, voluntary manslaughter,
and involuntary manslaughter as lesser included offenses, and
defendant's assignment of error to the contrary is overruled.
No error.
Chief Judge EAGLES and Judge MCCULLOUGH concur.
Report per Rule 30(e).
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