Appeal by defendant from judgment entered 24 January 2002 by
Judge William C. Gore, Jr. in Cumberland County Superior Court.
Heard in the Court of Appeals 11 March 2003.
Attorney General Roy A. Cooper, III, by Special Deputy
Attorney General Alexander McC. Peters, for the State.
Kurtz and Blum, P.L.L.C., by Howard A. Kurtz for defendant-
appellant.
HUNTER, Judge.
Kewarn Mack (“defendant”) appeals from a first degree murder
conviction. Defendant was sentenced to a term of life imprisonment
without the possibility of parole. For the reasons stated herein,
we find no error.
The State's evidence tended to show that on 19 December 1999,
a few days after an argument had taken place between Kizer Gables
(“Gables”) and Sherrod Herring (“Herring”), defendant, who was a
good friend of Gables, shot and killed Herring, a member of a gang
called “the Moore Street boys.” A few nights prior to the
shooting, defendant, Gables, and Gables' cousin, Jermel Neal
(“Neal”) went to BT's, a local shop and hangout spot that sold
beer. While at BT's, Gables became upset when Herring looked intohis car and stated: “'You're not the f------ police. What are you
looking in my car for?'” Neal and Herring, who had been friends
for several years, walked away together, and Neal said to Herring,
“'I can't let you do that to my . . . family,'” or something to
that effect. Defendant, visibly upset from hearing this statement,
attempted to find out from Neal why Herring had made comments about
Neal's family but Neal did not respond to defendant's inquiries.
Two nights later, Gables dropped defendant and Neal off at
BT's. When Gables returned about fifteen or twenty minutes later,
he parked by the side of a building in the parking lot across the
street from BT's. Later that night, defendant moved Gables' car to
the front of the building in the parking lot across the street from
BT's. At one point during the evening, Herring walked towards
Gables, which concerned Neal, because Neal knew that Herring had a
bad temper, that he was capable of violence, and that he did not
take being disrespected lightly. Neal proceeded across the street
and spoke with Herring, and Neal testified that Herring agreed to
let the whole matter go because Gables was Neal's cousin.
Immediately after moving Gables' car, defendant walked up to
Neal and Herring and told Neal, “'I need you to go with me
somewhere.'” Neal refused and defendant asked him two more times
to leave. Suddenly defendant pulled Neal to the side and said,
“'[f]--- it[,] I live this[,]'” and then shot Herring. Neal
testified that “'I live this . . .'” are lyrics to a song they had
been listening to. At the time of the shooting, Gables was sitting
in his car with the engine running. Upon hearing the gunfire,members of “the Moore Street boys,” ran towards BT's. Defendant
and Neal hurriedly jumped into Gables' car and told him to drive
off. Gables testified that prior to the shooting, defendant had
told him to get into the car and start the engine while he went to
speak to Neal and Herring. Upon being asked by Neal why he had
shot Herring, defendant repeated “'[d]amn'” a couple of times. To
Neal, defendant appeared “amped up,” or “hyped” as they drove away
from the scene. To Gables, defendant appeared “normal” and just
repeatedly said to drive away. Defendant would not talk to Gables
about what had happened.
Neal was dropped off a couple of blocks away from the scene of
the shooting because he was afraid “the Moore Street boys” might be
looking for him and did not want to return immediately to his home.
When Neal returned home around 5:00 or 6:00 a.m., Gables and
defendant were there, asleep. Shortly thereafter, defendant and
Gables packed their bags and headed to New York for Neal's aunt's
funeral. Neal did not go with them because he wanted to find out
the status of his friend, Herring. The next day Neal found out
that Herring was dead, and Neal went to New York for the funeral.
The first time that Neal saw Gables in New York, Neal told Gables
that he needed to turn defendant in, and that if he did not, Neal
would turn Gables in. While in New York, defendant told Gables
that North Carolina did not have a case against him, and that they
should place the blame on Neal. Further, sometime before trial,
Neal saw defendant in North Carolina, and defendant told Neal,
“'[w]hen the trial come, just don't show up. Go somewhere.'” A pathologist testified that Herring died from exsanguination
(bleeding to death) from a gunshot wound to the lower abdomen. The
bullet removed from the victim appeared to be a hollow tipped
bullet, which is a projectile specifically designed to maximize
damage to the victim. In addition, Erica Baldwin (“Baldwin”), who
had met defendant a few months prior to the shooting, testified
that when she asked defendant what happened, “[h]e basically said
that if he didn't think [Herring] wasn't a coward, he wouldn't have
never shot him.” Defendant did not present any evidence at trial.
I.
The sole issue before us on appeal is whether the trial court
erred by denying his request to instruct the jury on second degree
murder as a lesser included offense of first degree murder.
Defendant asserts that he was preemptively defending his friend,
Neal, in the heat of passion, and that his right to due process was
denied when the trial court refused to give the jury an instruction
on second degree murder.
The applicable test for determining whether the trial court
should have instructed the jury on second degree murder is set
forth as follows:
The determinative factor is what the State's
evidence tends to prove. If the evidence is
sufficient to fully satisfy the State's burden
of proving each and every element of the
offense of murder in the first degree,
including premeditation and deliberation, and
there is
no evidence to negate these elements
other than defendant's denial that he
committed the offense, the trial judge should
properly exclude from jury consideration the
possibility of a conviction of second degree
murder.
State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983),
overruled in part on other grounds by State v. Johnson, 317 N.C.
193, 344 S.E.2d 775 (1986).
First degree murder is defined as “the intentional and
unlawful killing of a human being with malice and with
premeditation and deliberation.”
State v. Flowers, 347 N.C. 1, 29,
489 S.E.2d 391, 407 (1997). “Premeditation means that the act was
thought out beforehand for some length of time, however short
. . . .”
State v. Bullock, 326 N.C. 253, 257, 388 S.E.2d 81, 83
(1990). Deliberation is defined as “an intent to kill, carried out
in a cool state of blood, in furtherance of a fixed design for
revenge or to accomplish an unlawful purpose and not under the
influence of a violent passion, suddenly aroused by lawful or just
cause or legal provocation.”
State v. Conner, 335 N.C. 618, 635,
440 S.E.2d 826, 836 (1994). The Supreme Court of North Carolina
has recognized that it is usually difficult to prove the elements
of premeditation and deliberation with direct evidence due to their
nature as mental processes, but rather, these elements are most
often proved through the use of circumstantial evidence.
State v.
Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994).
“The requirement of a 'cool state of blood' does not require
that the defendant be calm or tranquil. The phrase 'cool state of
blood' means that the defendant's anger or emotion must not have
been such as to overcome the defendant's reason.”
State v. Hunt,
330 N.C. 425, 427, 410 S.E.2d 478, 480 (1991) (citations omitted).
“[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.”
State v. Solomon, 340
N.C. 212, 222, 456 S.E.2d 778, 785 (1995)).
Among the circumstances to be considered in
determining whether a killing was with
premeditation and deliberation are (1)
provocation on the part of the deceased; (2)
conduct and statements of the defendant before
and after the killing; (3) threats and
declarations of the defendant before and
during the course of the occurrence giving
rise to the death of deceased; (4) ill-will or
previous difficulty between the parties; (5)
the dealing of lethal blows after the deceased
has been felled and rendered helpless; and (6)
evidence that the killing was done in a brutal
manner.
State v. Fisher, 318 N.C. 512, 517-18, 350 S.E.2d 334, 338 (1986).
Defendant argues that there were no statements or acts by him
which could serve as evidence of premeditation or deliberation. On
the contrary, Gables testified that defendant, before shooting
Herring, not only moved Gables' car to the front of the building in
the parking lot across from BT's, but instructed Gables to get in
the car and keep it running. The jury could easily have inferred
from this testimony that defendant had thought about the shooting,
aware that he would need a fast get away given the number of
Herring's friends with weapons in the area.
In the instant case, no evidence of provocation on the part of
Herring was presented. As to defendant's conduct, there is
slightly conflicting testimony about defendant's demeanor following
the shooting: Neal testified that defendant was hyped up, while
Gables testified that defendant appeared normal. Defendant's
conduct before the shooting, however, is telling in that he movedGables' car into a more readily accessible location, and instructed
Gables to get in the car and keep the engine running. Furthermore,
defendant tried to cover up the shooting on numerous occasions,
attempting to blame others and to persuade witnesses not to testify
against him. In addition, defendant told Baldwin that he would not
have shot Herring had Herring not been such a coward. Finally,
there is evidence that the killing was done in a brutal manner.
Defendant shot Herring in the stomach with what appeared to be a
hollow tipped bullet, a projectile specifically designed to
maximize damage to the victim.
While testimony at trial revealed that it could indeed have
been dangerous to have a conflict with Herring, Neal himself
testified that he was close to Herring and spoke with him
voluntarily on the night of the shooting to make sure that
everything was okay. There was no evidence presented indicating
that Neal was fearful of Herring that night, nor that Herring had
made any threatening moves towards Neal, defendant, or Gables.
Furthermore, defendant's argument for “preemptive[] defen[se]” of
his friend Neal is not recognized by law, illustrated by the fact
that defendant cited no authority supporting such a position.
Defendant also argues that heat of passion is shown in that he was
presumably upset by the fact that he could not get Neal to step
away from Herring before shooting him. On the contrary, the jury
could easily have inferred that defendant was merely trying to get
Neal out of the way so that he would not get hurt in the process.
Moreover, even if defendant became upset or nervous that Herringattempted to speak with Gables that evening, this evidence alone is
insufficient to show that defendant's emotions were strong enough
to impair his ability to reason. If anything, this is additional
circumstantial evidence to show intent, motive, deliberation, and
premeditation. Defendant's argument that he shot Herring in the
heat of passion must also fail because the dispute that appears to
have precipitated the shooting had occurred at least twenty-four
hours before, allowing defendant sufficient time to cool down.
In conclusion, the State proved each element of first degree
murder, including premeditation and deliberation, and no evidence
was presented to negate any of these elements. Therefore, the
trial court properly denied defendant's request for an instruction
on second degree murder.
No error.
Judges BRYANT and ELMORE concur.
Report per Rule 30(e).
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