STATE OF NORTH CAROLINA
v
.
Scotland County
No. 99 CRS 6271
APRYL DENISE SMITH
Attorney General Roy Cooper, by Assistant Attorney General
Thomas G. Meacham, Jr., for the State.
Bruce T. Cunningham, Jr. for defendant-appellant.
McGEE, Judge.
Apryl Denise Smith (defendant) was convicted of first degree
murder in a non-capital trial and was sentenced to life
imprisonment without parole on 7 May 2002. Defendant appeals.
Evidence presented at trial tended to show that Yolanda McNeill
(known as "Elaine") took Tabitha Smith (Tabitha) to Horne's store
(the store) in Laurinburg, North Carolina on 9 August 1999. When
they arrived at the store, they saw Tabitha's brother, John Smith
(John), talking with defendant. John said to defendant, "I will get
my sister to kick your ---." Defendant replied, "I will kick your
--- and your sister's ---." Tabitha asked defendant, "Who you
talking to?" Tabitha and Elaine then entered the store. When they
later left the store, Tabitha told defendant, "[y]ou had better beglad that my girl told me to leave you alone." Tabitha and Elaine
left the store's parking lot.
At trial, John testified that he was at the store that morning
talking with defendant and they were initially engaged in a
congenial conversation. John said he jokingly told defendant that
he was going to slap her and defendant replied that she would slap
him back. He responded, "I ain't worried about you slapping me
because my sister [Tabitha] is in the store." According to John,
defendant then "clicked," and said, "I don't like your sister
anyway." Tabitha said, "what did that ----- say?" After Tabitha
left the store's parking lot, defendant told John, "[t]hat ----- is
going to die tonight."
Annie Clark (Annie) testified that on 9 August 1999 she was in
her home when a neighbor informed her that there were girls outside
planning to "jump" Tabitha. Annie went outside and saw Tabitha
standing on the porch. Defendant, Anita Campbell (Anita), and
Cadelia Dawn McNeill (Dawn) were approaching the yard. From the
road, Anita said, "send the ----- to the road," to which Annie
responded, "[s]he's not a ----- and she's not coming in the road."
Tabitha said to defendant, "[w]ell, ----- since your sister
won't fight me, I'll fight you," and Tabitha slapped defendant
across the shoulder. Defendant struck Tabitha in the face with a
closed fist. Annie stepped between Tabitha and defendant and told
Tabitha to go into the house. Tabitha took four or five steps
towards the house and then returned, standing just behind Annie.
Dawn approached defendant and handed defendant something. Reachingover Annie, defendant stabbed Tabitha in the chest. Dawn said,
"[k]ill the -----, kill the -----." As Tabitha turned and ran to
the house, defendant stabbed her again. Dawn said, "[w]e got that
-----." Defendant left the scene. Tabitha collapsed inside the
house and died.
Later that evening, defendant turned herself into the
Laurinburg Police Department. Detectives Timothy Monroe and Charles
Sessoms later retrieved the murder weapon, a knife, from behind a
picture in defendant's bedroom. In a written statement, defendant
admitted she stabbed Tabitha.
The State Bureau of Investigation determined that the blood on
the knife found in defendant's bedroom was Tabitha's blood. The
State's chief medical examiner, Dr. John Butts, testified that
Tabitha's cause of death was a stab wound to the chest which
impacted both her heart and lungs.
Defendant testified on her own behalf and claimed she "blanked"
at the time of the stabbing.
In her first assignment of error, defendant argues that the
trial court committed plain error by failing to declare a mistrial
ex mero moto, when prior to jury selection, the State said to the
trial court that "this case was declared non-capital." This remark,
defendant contends, resulted in substantial prejudice to defendant
because the State essentially told the jury that defendant had
already received a charge reduction from the State.
Defendant asserts that a reasonable juror would assume that
the State would not make such a statement announcing that the casehad been "declared" non-capital if defendant had not been either
charged or eligible for trial on charges of capital murder. Thus,
defendant contends that the suggestion was made to the jury that the
State possessed a basis for trying defendant on a more serious
charge but was foregoing that option. However, the inference argued
by defendant that the State had reduced the charge against defendant
cannot be deduced from this statement. Even if an inference had
been raised that defendant had received a charge reduction, the
State still bore the burden of proving each element of the offense
charged and that defendant was the perpetrator of the offense. We
conclude defendant has failed to show how she was prejudiced by the
State's comment to the trial court that her case was declared non-
capital at a prior hearing. The trial court committed no error.
Furthermore, we find that the plain error doctrine is
inapplicable under the circumstances cited by defendant.
In criminal cases, a question which was not
preserved by objection noted at trial and which
is not deemed preserved by rule or law without
any such action, nevertheless may be made the
basis of an assignment of error where the
judicial action questioned is specifically and
distinctly contended to amount to plain error.
N.C.R. App. P. 10(c)(4). Our Supreme Court has explained that
"plain error analysis applies only to instructions to the jury and
evidentiary matters." State v. Greene, 351 N.C. 562, 566, 528
S.E.2d 575, 578, cert. denied, 531 U.S. 1041, 148 L. Ed. 2d 543
(2000). In State v. Cummings, the plain error doctrine was held
inapplicable to situations where a party failed to object to
statements of the opposing party made during jury voir dire. Cummings, 352 N.C. 600, 613, 536 S.E.2d 36, 47 (2000), cert. denied,
532 U.S. 997, 149 L. Ed. 2d 641 (2001). Based upon our Supreme
Court's prior determinations, we hold the plain error doctrine is
not an appropriate ground for objection to remarks of the State
directed at the trial judge and made just prior to jury selection.
Defendant's first assignment of error is without merit.
In her second assignment of error, defendant argues that if the
trial court did not commit plain error, then in the alternative,
defense counsel was ineffective for failing to move for a mistrial
based on the State's statement that the case was to be tried non-
capitally. Defendant fails to present an argument in support of her
contention as to the ineffective assistance of counsel, and pursuant
to N.C.R. App. P. 28(b)(6), assignments of error which are not
supported by reason or legal argument in the party's brief are
deemed abandoned. Because defendant presents no argument to support
her second assignment of error, it is deemed abandoned.
Defendant next assigns error to the trial court's admission of
two statements which defendant argues are impermissible hearsay.
Annie testified that after the first stab wound, Dawn said, "[k]ill
the -----, kill the -----." Doris Leak (Doris) also testified that
after the stabbing, Dawn remarked, "[w]e got that -----."
"'Hearsay' is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." N.C. Gen. Stat. § 8C-1,
Rule 801(c) (2003). A statement is "'not hearsay in that it is
offered only to show that the statement was made, and not to showthe truth of matters asserted in the statement.'" State v.
Mitchell, 135 N.C. App. 617, 620, 522 S.E.2d 94, 95 (1999) (quoting
State v. Hood, 294 N.C. 30, 40-41, 239 S.E.2d 802, 808 (1978)).
The significance of the remarks at issue here is simply that
they were made and in accordance, the trial court issued a proper
limiting instruction. The probative force of such testimony is not
dependent on the matters asserted therein. These statements
illustrate the circumstances surrounding the murder of Tabitha and
"the conduct of the defendant and [her] accomplices immediately
thereafter." State v. Morston, 336 N.C. 381, 400, 445 S.E.2d 1, 11
(1994). Accordingly, the statements at issue were not hearsay and
defendant's third assignment of error is overruled.
Finally, defendant argues the trial court erred in denying
defendant's motion to dismiss the charge of first degree murder.
Defendant contends there was insufficient evidence presented by the
State of premeditation and deliberation for the offense of first
degree murder to be submitted to the jury.
In determining whether to deny the motion to dismiss for
insufficiency of the evidence, the trial court must decide "whether
there is substantial evidence (1) of each essential element of the
offense charged . . . and (2) of defendant's being the perpetrator
of the offense." State v. Mercer, 317 N.C. 87, 96, 343 S.E.2d 885,
890 (1986) (citations omitted). "'Substantial evidence is such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" State v. Vause, 328 N.C. 231, 236, 400
S.E.2d 57, 61 (1991) (quoting State v. Smith, 300 N.C. 71, 78-79,265 S.E.2d 164, 169 (1980)). Furthermore, "[w]hen ruling on a
motion to dismiss, all the evidence should be considered in the
light most favorable to the State, and the State is entitled to all
reasonable inferences which may be drawn from the evidence." State
v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998).
First degree murder is the unlawful killing of a person which
is committed with malice, premeditation and deliberation. See N.C.
Gen. Stat. § 14-17 (2003); State v. Cozart, 131 N.C. App. 199, 505
S.E.2d 906 (1998), disc. review denied, 350 N.C. 311, 534 S.E.2d 600
(1999). "'Premeditation means that the act was thought out
beforehand for some length of time, however short, but no particular
amount of time is necessary for the mental process of
premeditation.'" Cozart, 131 N.C. App. at 202, 505 S.E.2d at 909
(quoting State v. Conner, 335 N.C. 618, 635, 440 S.E.2d 826, 835-36
(1994)). "'Deliberation means 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.'" Id. The term "cool state of blood" is not
interpreted to mean an absence of all passion and emotion. Vause,
328 N.C. at 238, 400 S.E.2d at 62.
Both premeditation and deliberation are essential elements of
the offense of first degree murder and are usually proven by
circumstantial evidence. See State v. Bullard, 312 N.C. 129, 161,
322 S.E.2d 370, 388 (1984). Among the circumstances to be
considered in determining premeditation and deliberation are: (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 difficulty 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.
Vause, 328 N.C. at 238, 400 S.E.2d at 62.
At trial, the State presented substantial evidence of
premeditation and deliberation. Earlier on the day of the murder,
defendant had stated, "that ----- is going to die tonight."
Defendant, along with Anita and Dawn, then went to Tabitha's home
and demanded that Tabitha come outside. After the throwing of
initial blows by both defendant and Tabitha, Annie stepped between
the two and the dispute appeared to be over. Tabitha took several
steps towards the home but returned to stand behind Annie. At that
point, defendant affirmatively sought the murder weapon from Dawn
and then reached over Annie, stabbing Tabitha in the chest.
Defendant did not retreat at this point, but instead pursued
Tabitha, who was fleeing to the house, and stabbed her once again
in the back. Only at this point did defendant leave the area. This
evidence, taken in the light most favorable to the State, is
substantial evidence that defendant acted deliberately with
premeditation in killing Tabitha Smith. The trial court did not err
in submitting the charge of first degree murder to the jury.
Defendant failed to present an argument in support of her
remaining assignments of error and they are therefore deemedabandoned. N.C.R. App. P. 28(b)(6).
No error.
Judges HUNTER and CALABRIA concur.
Report per Rule 30(e).
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