An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1207


Filed: 15 July 2003


v .                         New Hanover County
                            No. 01 CRS 50136
RANDALL HAYDEN HUGHES                01 CRS 50137

    Appeal by defendant from judgment entered 19 April 2002 by Judge W. Allen Cobb, Jr. in New Hanover County Superior Court. Heard in the Court of Appeals 10 June 2003.

    Roy Cooper, Attorney General, by Edwin W. Welch, Special Deputy Attorney General, for the State.

    Staples Hughes, Appellate Defender, by Charlesena Elliott Walker, Assistant Appellate Defender, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Randall Hayden Hughes, appeals two convictions of first-degree murder. He asserts three assignments of error. For the reasons discussed herein, we find no error.
    The State's evidence tended to show that defendant lived in Carolina Beach with four roommates, Colleen Wilder, Ronald Mitchell, Daniel Nalley and Joan Hubbard. Wilder and Mitchell shared one upstairs bedroom. Defendant had the other upstairs bedroom. Hubbard slept on the downstairs couch. Nalley slept onthe floor downstairs.
    On 1 January 2001, Hubbard came home at about 6:00 a.m. She saw Nalley lying on the floor next to the couch and Mitchell lying on the loveseat. There was a mess in the living room and kitchen; the phone was smashed, there was glass in front of the entertainment center, and a silver tray normally on the kitchen counter was knocked off. Hubbard assumed it was the result of a New Year's celebration and that Nalley and Mitchell in their prone positions were now sleeping off the effects of alcohol consumed the night before. She cleaned up, noticing a small bullet casing near a bar stool. She then fell asleep on the floor.
    Wilder returned home at about 9:00 a.m. on 1 January 2001 and went directly upstairs to bed. Later that morning, Nalley's boss called the house and Wilder answered the phone. The boss wanted Nalley to come to work. Wilder went downstairs to give him the message. She realized that he and Mitchell were dead. Wilder and Hubbard called the police. The police found the victims in the living room. Mitchell was in a loveseat. Nalley was on the floor. Bullet holes were found in the loveseat and the floor. There was no indication that either victim had fired a weapon.
    A few hours later, Detective Jon Knoll interviewed defendant, who told Knoll that he had been out at bars all night, and that he used to own a gun but that he had sold it. At the time of theinterview, defendant did not seem to be drunk or hung over. Defendant was then interviewed by Police Chief William Still. Defendant told Still that he had no idea who had killed Mitchell and Nalley.
    After the interview, Still and defendant returned to the apartment to do a walk-through. Still did not observe any cuts or abrasions on defendant which would indicate that he had been in a fight. Still and defendant were unable to locate the murder weapon anywhere in the apartment.
    Upon later examination, Mitchell and Nalley each were found to have six bullet wounds. Each of them had at least one bullet directly through the heart. The police recovered one bullet casing upstairs in defendant's bedroom, and located the projectile from this casing downstairs in one of the kitchen cabinets.
    Chief Still noted that the living room couch had bullets in it, and he testified that it appeared the shooter was moving as he discharged the firearm, because the bullets entered the couch at different angles.
    On 4 January 2001, defendant came to the police station voluntarily and was read his Miranda rights. During his interview, he said that he and the victims had issues with money and he admitted that he had shot both Mitchell and Nalley.
    Defendant's evidence tended to show that he had moved to NorthCarolina from New York in February 2000. When he moved, he was just getting through a divorce, and acknowledged that he had a drinking problem. He met Mitchell in June or July 2000 and Nalley in November 2000. Defendant and Mitchell were trying to start a construction business. Nalley occasionally worked with them.
    On 31 December 2000, defendant and Mitchell worked together all day. After work, defendant came home and got cleaned up, and then headed out around 6:30 p.m. First he ran some errands and then he went to see his girlfriend, Trish Hernandez, at the Silver Dollar, a bar where she worked. Defendant then visited several bars but eventually returned to the Silver Dollar. Once there, he kept falling asleep at the bar. Hernandez finally asked him to leave.
    Sometime between midnight and 1:30 a.m., defendant went home, having consumed between five and fifteen beers, as well as four or five shots of liquor. As defendant approached the house, he heard Mitchell and Nalley arguing loudly. When he walked in, they were pushing each other. Defendant tried to separate them. Mitchell and Nalley turned on defendant. Nalley shoved him into the entertainment center, shattering the glass, and Mitchell punched him in the chin, which caused him to hit a chair. The collision with the chair aggravated a pre-existing back injury which defendant had sustained at work a few months before.    Defendant became afraid of Mitchell, and ran upstairs to his bedroom to try and get away from him. Mitchell, a larger, stronger man than defendant, followed. Defendant went straight to his closet to get his gun, and by the time he turned around Mitchell was so close that they were almost touching. Defendant did not plan to shoot Mitchell, but he thought that the sight of the gun would cause him to back off. Defendant did not remember pulling the trigger, but somehow the gun went off and shot through the floor. Mitchell ran downstairs.    
    Defendant decided to take his gun and get out of the house, so he went back downstairs. When he reached the living room, Mitchell stood up from the loveseat and started across the room, threatening him. Defendant fired the gun at him several times. Mitchell fell back across the loveseat. Then, Nalley advanced on defendant from his left side. Defendant fired at him, and kept shooting until the gun was empty.         
    Defendant did not stop to check if Mitchell and Nalley were alive. Instead, he went outside, threw the gun into the lake behind the apartment, and went back to the Silver Dollar. While there, he helped Hernandez and the bar's owner, Jetty Gray, move some boxes. Gray testified that defendant did not seem drunk at the time.
    Defendant and Hernandez went to the store and then went toHernandez's house for breakfast. At some point the next morning, he called home to see if the shooting had all been a bad dream.
    In his first assignment of error, defendant argues the trial court committed prejudicial error by sustaining the State's objection to evidence regarding his reputation for honesty and being a law-abiding citizen. We disagree.
    A criminal defendant is always permitted to offer character evidence as substantive evidence of his guilt or innocence. State v. Williams, 299 N.C. 652, 263 S.E.2d 774 (1980). The most common method of proving character is by general reputation in the community. State v. Floyd, 56 N.C. App. 459, 289 S.E.2d 139 (1982).
    In the instant case, defendant's girlfriend, Trisha Hernandez, was asked “Do you know what [defendant's] reputation was in the community of Carolina Beach for honesty and being a law abiding citizen at that time?” The prosecution objected to this question. Although no basis for the objection was given at trial, the State argues that the question was objectionable because it was a compound question and because the defense had not laid a proper foundation for the admission of reputation evidence.
    Compound questions are objectionable because they are ambiguous. State v. Pearson, 59 N.C. App. 87, 295 S.E.2d 499 (1982), rev. denied, 307 N.C. 472, 299 S.E.2d 227 (1983); State v.Robinson, 336 N.C. 78, 443 S.E.2d 306 (1994), cert. denied, 513 U.S. 1089, 130 L. Ed. 2d 650 (1995), superseded by statute on other grounds by State v. Price, 337 N.C. 756, 448 S.E.2d 827 (1994), cert. denied, 514 U.S. 1021, 131 L. Ed. 2d 224 (1995).
    Reputation is “eminently a matter of hearsay based upon what the witness has heard or learned, not as to any particular acts, but as to the general opinion or standing in the community.” Brandis, North Carolina Evidence § 86 (5th ed. 2001) (citing State v. Kiziah, 217 N.C. 399, 8 S.E.2d 474 (1940)). “[B]efore a witness may testify as to another witness's reputation, a foundation must be laid showing that the testifying witness has sufficient contact with the community to enable him to be qualified as knowing the general reputation of the person in question.” State v. Morrison, 84 N.C. App. 41, 47-48, 351 S.E.2d 810, 814, cert. denied, 319 N.C. 408, 354 S.E.2d 724 (1987).
    In the instant case, the only foundation laid by defendant was that Hernandez had known defendant “pretty well” for approximately one year. There was no showing that Hernandez was familiar with an appreciable group of people in Carolina Beach who had an adequate basis upon which to form opinions of defendant's reputation.
    Moreover, after the objection, the defense did not make an offer of proof to the trial court. “Absent such an offer of proof, coupled with the failure to lay a proper foundation for theintroduction of the [evidence], there was no showing of relevance. Evidence not relevant is not admissible. N.C.G.S. § 8C-1, Rule 402 [(2001)].” State v. Solomon, 340 N.C. 212, 217, 456 S.E.2d 778, 782, cert. denied, 516 U.S. 996, 133 L. Ed. 2d 438 (1995). Further, even if there were error, it is not prejudicial due to the amount of evidence against defendant, including his own admission. See N.C. Gen. Stat. § 15A-1443(a) (2001). This assignment of error is therefore without merit.
    In his second assignment of error, defendant argues the trial court committed prejudicial error by denying his motion to dismiss because of insufficiency of the evidence. We disagree.
    In considering a motion to dismiss, the only issue for the trial court is whether there is substantial evidence of each essential element of the charged offense and of the defendant being the perpetrator. State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995). The court must consider the evidence in the light most favorable to the State and give the State the benefit of every reasonable inference from that evidence. State v. Jaynes, 342 N.C. 249, 274, 464 S.E.2d 448, 463 (1995), cert. denied, 518 U.S. 1024, 135 L. Ed. 2d 1080 (1996). Contradictions and discrepancies in the evidenceare resolved in favor of the State. State v. Gibson, 342 N.C. 142, 150, 463 S.E.2d 193, 199 (1995).
    The elements of first-degree murder are: (1) the unlawful killing of another human being; (2) with malice; and (3) with premeditation and deliberation. State v. Haynesworth, 146 N.C. App. 523, 553 S.E.2d 103 (2001). As to the first element, defendant confessed that he shot and killed Mitchell and Nalley. Defendant contends there was insufficient evidence to prove the remaining two elements.
    Malice is defined as the condition of mind that prompts a person to take the life of another without just cause, excuse or justification. State v. Hamilton, 77 N.C. App. 506, 335 S.E.2d 506 (1985), rev. denied, 315 N.C. 593, 341 S.E.2d 33 (1986). However, malice may be presumed from the use of a deadly weapon. State v. Hedgepeth, 330 N.C. 38, 409 S.E.2d 309 (1991); cert. denied, 529 U.S. 1006, 146 L. Ed. 2d 223 (2000). A gun is a deadly weapon. State v. McCoy, 303 N.C. 1, 277 S.E.2d 515 (1981). Therefore, malice is presumed in this case.
    Premeditation means that the act was thought out beforehand for some length of time, no matter how short. State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991). Deliberation is an intent to kill, which is carried out in a cool state of blood without legal provocation and in furtherance of a fixed design. State v.Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981). Circumstances from which premeditation and deliberation may be inferred include: (1) lack of provocation on the part of the deceased; (2) the conduct and statements 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. Keel, 337 N.C. 469, 489, 447 S.E.2d 748, 759 (1994), cert. denied, 513 U.S. 1198, 131 L. Ed. 2d 147 (1995).
    In the instant case, the evidence showed that: (a) defendant followed one of the victims downstairs; (b) defendant fired his gun once upstairs and then an additional twelve times into the victims' bodies downstairs; (c) defendant left the scene without calling for assistance; (d) the victims possessed no weapons at the time of the shooting; (e) defendant suffered no visible injury prior to the shootings; (f) defendant shot each victim six times into vital areas of their bodies; and (g) neither victim had injuries to their hands, indicating that they were not involved in a fight prior to the shootings. We hold that this constitutes substantial evidence of premeditation and deliberation to survive a motion to dismiss. This assignment of error is without merit.
    In his final assignment of error, defendant argues that the trial court committed plain error in not dismissing the first- degree murder charge where the short-form murder indictment was used. Defendant acknowledges that this Court has repeatedly held that the short-form murder indictment is sufficient to indict on any theory of murder. See State v. Braxton, 352 N.C. 158, 531 S.E.2d 428 (2000), cert. denied, 531 U.S. 1130, 148 L. Ed. 2d 797 (2001). This assignment of error is therefore without merit.
    Chief Judge EAGLES and Judge TYSON concur.
    Report per Rule 30(e).

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