An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1494


Filed: 17 February 2004


v .                         Scotland County
                            No. 99 CRS 6271

    Appeal by defendant from judgment dated 7 May 2002 by Judge Gregory A. Weeks in Superior Court, Scotland County. Heard in the Court of Appeals 11 September 2003.

    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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