STATE OF NORTH CAROLINA,
Plaintiff
v
.
Alamance County
No. 02 CRS 55447
SHEILA DIANA ANDERSON,
Defendant
Attorney General Roy Cooper, by Special Deputy Attorney
General Teresa H. Pell, for the State.
Teeter Law Firm, by Kelly Scott Lee, for defendant-appellant.
CALABRIA, Judge.
Sheila Diana Anderson (“defendant”) appeals from judgment
entered on a jury verdict finding her guilty of second-degree
murder. We find no error.
Prior to 13 June 2002, defendant and Harold Trollinger (the
“victim”) had known each other for approximately four years.
During that time, defendant and the victim became intimate, and the
victim asked defendant to move into his home. Thereafter, Nicole
Ector (“Ector”), the daughter of the victim, also moved into the
home. On the evening of 12 June 2002 all three residents were at
home: the victim had gone to bed; defendant remained awake,
watching television and drinking; and Ector was using the telephoneupstairs in her bedroom. Defendant informed Ector she needed to
use the telephone. When Ector brought it downstairs, defendant
discovered the telephone's battery was low, and it could not be
used. An argument between defendant and Ector ensued, ending only
after Ector returned upstairs to her room.
At some point around 2 a.m., defendant decided to go to bed
and went into the bedroom she and the victim shared. Defendant
asked the victim to talk to Ector about her actions. During the
ensuing argument, the victim demanded that defendant leave, but
defendant refused, insisting it was her bedroom as well as his. At
that point, the victim got out of bed and said, “Well, we'll see
about that.” Defendant testified she became scared, that a vision
of a handgun came into her mind, she went to the basement and
procured a gun, and went outside to her car to leave. When
defendant discovered she had forgotten her keys, she re-entered the
home to retrieve them. Defendant testified she intended to return
the gun, but the victim grabbed the gun and pointed it at her.
Defendant testified that while she and the victim were “shuffling
back and forth . . . the gun went off.” During cross-examination,
the State questioned defendant about certain inconsistencies
between her testimony at trial and her statement to the police
immediately after the shooting occurred.
Ector testified that, after she gave defendant the phone, she
went upstairs until her friend Jonathan Jackson (“Jackson”)
arrived, at which point she went outside and sat in his car.
Thereafter, defendant came outside and asked what was wrong withthe phone, and Ector informed her she had not had any problems with
it. Defendant then went back inside, and Ector could hear
defendant cursing and beating the phone inside the house for about
fifteen minutes. Jackson similarly testified that he could hear
defendant cursing and slamming cabinet doors, and when he left
around 1:20 a.m., defendant was “on a melt down.” Ector returned
inside, and defendant began questioning her about why there was
static on the television screen. Although defendant continued
yelling, Ector went up to her room. Ector later came downstairs
and observed defendant was still angry about the telephone and the
television. The victim asked Ector what was happening, but Ector
replied that she “didn't know” and “didn't want to have anything to
do with it,” and she returned to her room. Thereafter, Ector heard
the gunshot.
The Grand Jury of Alamance County indicted defendant on the
charge of first-degree murder on 1 July 2002. The case went to
trial on 19 May 2003. The trial court denied defendant's motions
to dismiss, made both at the close of the State's evidence and at
the close of all the evidence. The jury found defendant guilty of
second-degree murder, and the trial court sentenced defendant as a
prior record level II offender in the presumptive range to 170 to
213 months' in the North Carolina Department of Correction.
Defendant appeals.
I. Motion to Dismiss
Defendant assigns as error the trial court's denial of her
motion to dismiss both at the close of the State's evidence and atthe close of all of the evidence. Specifically, defendant contends
the State did not present sufficient evidence of malice. We
disagree.
We only consider defendant's argument that the trial court
erred in denying defendant's motion to dismiss at the close of all
the evidence because, by presenting evidence, defendant waived her
right to appeal the denial of her motion to dismiss at the close of
the State's evidence. See State v. Laws, 345 N.C. 585, 592, 481
S.E.2d 641, 644 (1997). “In reviewing the trial court's denial of
defendant's motion to dismiss, this Court must look to see whether
'the trial court . . . consider[ed] the evidence in the light most
favorable to the State, [having] giv[en] the State the benefit of
every reasonable inference which may be drawn.'” State v. Brooks,
138 N.C. App. 185, 188, 530 S.E.2d 849, 852 (2000) (quoting State
v. Jarrell, 133 N.C. App. 264, 267, 515 S.E.2d 247, 250 (1999)).
“When a defendant moves to dismiss a charge against him on the
ground of insufficiency of the evidence, the trial court must
determine whether there is substantial evidence of each essential
element of the offense charged and of the defendant being the
perpetrator of the offense.” State v. Garcia, 358 N.C. 382, 412,
597 S.E.2d 724, 746 (2004) (citation and internal quotation marks
omitted). “'Substantial evidence' is relevant evidence that a
reasonable person might accept as adequate, or would consider
necessary to support a particular conclusion[.]” Id. (citations
omitted). “Murder in the second degree is the unlawful killing of a
human being with malice but without premeditation and
deliberation.” State v. Gainey, 355 N.C. 73, 91, 558 S.E.2d 463,
475-76 (2002).
Malice means not only hatred, ill will, or
spite, as it is ordinarily understood . . .
but [it also means that condition of mind
which prompts a person to take the life of
another intentionally or to intentionally
inflict serious bodily harm which proximately
results in his death, without just cause,
excuse or justification] [malice also arises
when an act which is inherently dangerous to
human life is intentionally done so recklessly
and wantonly as to manifest a mind utterly
without regard for human life and social duty
and deliberately bent on mischief].
State v. Bostic, 121 N.C. App. 90, 99, 465 S.E.2d 20, 25 (1995)
(citation omitted) (alterations in original). Additionally,
“malice may be inferred from the intentional use of a deadly
weapon.” State v. Camacho, 337 N.C. 224, 233, 446 S.E.2d 8, 13
(1994).
The theories of what occurred on the night of the shooting
differ strikingly between that of the State and defendant.
Defendant asserts she was upset, but not angry, with Nicole; and
that when she mentioned Nicole to the victim, he got angry and
scared her. She thought of and retrieved a gun from the basement
and left the house. Upon reaching her car, she discovered she did
not have the keys, so she returned to the house and, looking into
the kitchen, saw the victim and informed him she did not know why
she retrieved the gun but she was going to put it away and only
wanted to get her keys so she could leave. Thereafter, at somepoint, the victim grabbed the gun with his hands and, during the
ensuing struggle, the gun went off and caused the fatal wound.
The State's evidence, however, tends to show that the
defendant had been drinking and was angry about the phone battery
being dead, the television producing a picture with static, and her
perceived belief that the victim felt that Ector could do no wrong
despite the fact that she blamed Ector for both malfunctions. The
victim and defendant had a verbal argument about Ector, and when
the victim intimated he was going to force defendant to leave,
defendant told the victim that she “ain't fixin' to go no damn
where.” She also told the victim, “[D]on't think you threatening
me 'cause he thought he had the gun hid . . . I know where it was
. . . .” Defendant further told the victim, “[D]on't think I'm
that stupid . . . you think I just walk around here in a damn daze
or something[?]” Moreover, while defendant testified she left the
house only to return for her keys, her statement to the police
directly after the shooting does not indicate she ever left the
house to go to her car or that she had to return because she did
not have her keys. Finally, with regards to whether there was a
struggle for the gun after defendant retrieved it from the
basement, the State presented evidence from Tim Luper, a special
agent with the State Bureau of Investigation in the trace evidence
section specializing in the area of gunshot residue, that there was
no gunshot residue on the victim's right palm, right back, or left
back portions of his hand, but there was residue on his left palm,
which would be consistent with placing his hand over the wound. Moreover, he affirmed that he would expect to find gunshot residue
on the back of the hand from a close range shot and explained that,
generally, when a gun is fired, “the gunshot residue plume is
centered around the firearm. . . . The gunshot residue will emanate
from just about the weapon in general; and since the backs of the
hands are exposed to that GSR plume, that's where we expect the
[heaviest] concentrations . . . .” Expert testimony also revealed
that the gun was functioning properly and would not fire without
the trigger being pulled. This evidence is sufficient to
contradict defendant's assertions that (1) a struggle for the gun
occurred and (2) the struggle caused the gun to discharge
accidently and is sufficient to support the conclusion that
defendant acted with malice. Accordingly, the trial court properly
denied defendant's motion to dismiss, and this assignment of error
is overruled.
II. Removal of a Juror for Cause
Defendant next argues that the trial court abused its
discretion in failing to remove Juror Hornaday (“Ms. Hornaday”) for
cause because of her relationship with the victim's son. Defendant
challenged Ms. Hornaday for cause, which the trial court denied.
At the time defendant sought to remove Ms. Hornaday, defendant had
already used all of her peremptory challenges and requested an
additional one. The trial court denied defendant's request. After
the verdict had been returned, defendant made a motion for mistrial
based on the trial court's failure to remove Ms. Hornaday, which
was also denied. The record before us does not contain a transcript of the jury
voir dire: “[a]s a rule of practice, when challenging the jury's
composition, the burden is on the defendant to provide a transcript
of the jury voir dire as well as any other relevant portions of the
record.” State v. Sanders, 95 N.C. App. 494, 499, 383 S.E.2d 409,
412 (1989). See also Jackson v. Housing Authority of High Point,
321 N.C. 584, 364 S.E.2d 416 (1988) (observing that the failure to
provide relevant portions of transcript may prevent review of
alleged impropriety in jury selection). As defendant has failed
to present that portion of the transcript setting out the process
of jury selection, we are unable to undertake any meaningful
review, and this assignment of error is overruled.
We note in passing that a review of defendant's arguments on
the merits would be unavailing as well. “The trial court has the
opportunity to see and hear a juror and has the discretion, based
on its observations and sound judgment,to determine whether a juror
can be fair and impartial.” State v. Dickens, 346 N.C. 26, 42, 484
S.E.2d 553, 561 (1997). The transcript reveals the trial judge was
“satisfied with [Ms. Hornaday's] answers that, although it's an
emotional situation, that she will be able to follow the Court's
instructions and decide this case based on the evidence presented.
. . . .” Defendant's own summary of Ms. Hornaday's questioning
shows she affirmed she could be fair and her ability to be
impartial was not impaired as a result of any connection with the
victim. Finally, defendant candidly admits in her brief on appeal
that “there is no evidence in the record to show that Mrs. Hornadayacted in a manner that was detrimental to [defendant's] case.” No
abuse of discretion is indicated.
III. Jury Instruction on Voluntary Manslaughter
Defendant next assigns as error the trial court's failure to
give a jury instruction on voluntary manslaughter. Because
defendant did not request an instruction on voluntary manslaughter
at trial, she has failed to properly preserve this assignment of
error for appellate review and is barred by N.C. R. App. P.
10(b)(2) (2004) from raising it. State v. Penland, 343 N.C. 634,
651, 472 S.E.2d 734, 743 (1996). Nonetheless, where a defendant
fails to request a jury instruction, the trial court's failure to
give the instruction may be reviewed for plain error “where the
judicial action questioned is specifically and distinctly contended
to amount to plain error.” N.C. R. App. P. 10(c)(4) (2004).
However, by failing to allege plain error, defendant has waived it,
and we do not reach the merits of this argument. See State v.
Hamilton, 338 N.C. 193, 208, 449 S.E.2d 402, 411 (1994) (holding
the same).
IV. Denial of Jury's Request to Take Written Notes
Defendant assigns as error the trial court's refusal to allow
the jury to take written notes of the proceedings. During the
trial, the jury requested that it be allowed to take notes after
fourteen State witnesses had testified. The trial judge addressed
the jury and said:
I would tell you that had the inquiry been
made at the beginning of the trial, you
probably would have been allowed to. But since
it comes at this stage, I think it would beappropriate in my discretion not to allow you
to do so. So you'll be required to remember
the evidence as we proceed through the trial
and then to your deliberations.
Defendant, citing State v. McNeil, 46 N.C. App. 533, 536, 265
S.E.2d 416, 418 (1980), correctly concedes that our Courts “ha[ve]
long recognized the authority of the trial judge to control the
action of the jury with respect to taking notes.” We hold
accordingly.
No error.
Judges ELMORE and STEELMAN concur.
Report per Rule 30(e).
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