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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NORTH CAROLINA COURT OF APPEALS
Filed: 19 July 2005
STATE OF NORTH CAROLINA
No. 01 CRS 98524
DARREN WILLIAM DENNISON,
Appeal by defendant from judgment entered 20 May 2002 by Judge
A. Moses Massey in Guilford County Superior Court. Heard in the
Court of Appeals 10 September 2003.
Attorney General Roy Cooper, by Special Deputy Attorney
General Steven M. Arbogast, for the State.
Daniel Shatz for defendant-appellant.
Darren William Dennison (defendant) appeals from a judgment
entered 20 May 2002 consistent with a jury verdict finding him
guilty of the first-degree murder of Chad Everette Spaul (Mr.
Spaul). The trial court sentenced defendant to life imprisonment
without parole and, after extensive appellate review, we find that
defendant received a fair trial, free from prejudicial error.
This Court has previously examined defendant's trial and
conviction for first-degree murder. On 6 April 2004, we filed
State v. Dennison, 163 N.C. App. 375, 594 S.E.2d 82 (2004), rev'd
per curiam, 359 N.C. 312, 608 S.E.2d 756 (2005), in which we
determined that defendant was entitled to a new trial based uponthe prejudicial error of admitting evidence regarding defendant's
prior violent acts against a former girlfriend. The State appealed
to our Supreme Court, which held that defendant failed to properly
preserve that error for appellate review. State v. Dennison, 359
N.C. 312, 312, 608 S.E.2d 756, 757 (2005). Accordingly, our
Supreme Court remanded the case back to this Court so that we may
review defendant's other preserved errors. Id. at 313, 608 S.E.2d
at 757. As such, we will address the trial court's denial of
defendant's motion to dismiss and its instructions to the jury on
self-defense. And although the facts of this case were adequately
laid out in our previous opinion, since this opinion will supercede
the former, we will recite them again.
The evidence presented at trial tended to show that on the
evening of 21 September 2001, defendant, defendant's girlfriend
Melanie Gammons, and Charlene Waller traveled together to the
Challenger Sports Bar in High Point, North Carolina. Among those
also present at the crowded bar that evening were Delores Vail and
her sister Diane Lovern; Lovern's daughter Tracy Boone and Boone's
boyfriend, Jeff Peele; and Mr. Spaul and Mr. Spaul's co-worker,
Waller testified that after she, defendant, and Gammons played
two games of a NASCAR-themed board game popular with the bar's
patrons, they stepped outside along with Vail, and that Moore, whom
she did not know, then approached the group and got in [her]
face. Waller briefly went back inside the bar with Vail, only tore-emerge after Moore followed them inside. Waller testified that
when she and Vail exited the bar the second time, they went around
to the side of the building, where they encountered Michael Crane,
and that they were soon joined there by defendant, Gammons, and
Moore. Several witnesses testified that Moore had been trying
unsuccessfully throughout the evening to speak with Vail, with whom
he had been romantically involved several years earlier, and Waller
testified that Moore was continuing to do so at this point.
According to the testimony of various witnesses, Mr. Spaul
then came outside the bar and approached the group, just as a
visibly upset Moore was walking away, and Mr. Spaul and Moore spoke
briefly outside the hearing of the others before Moore re-entered
the bar. Lovern, who had by this time stepped outside the bar,
testified that Mr. Spaul then began arguing and carrying on with
. . . mostly [Gammons] and [Waller] . . . but he was trying to
start with [defendant]. Waller and Lovern each testified that Mr.
Spaul then began calling defendant faggot, fag, and queer.
At that point, defendant, Gammons, Waller, and Crane walked back
around to the front of the building in an attempt to get away from
Mr. Spaul, who followed the group and continued to call defendant
names. The group moved three or four times to various locations
around the building in an effort to defuse the situation, but Mr.
Spaul continued to follow the group and continued to behave
belligerently towards defendant. Lovern, Moore, and the bar's
owner each tried, to no avail, to get Mr. Spaul to desist. According to Waller, Mr. Spaul then briefly re-entered the
bar, but shortly thereafter he emerged with a bottle of beer and
resumed calling defendant a faggot. Mr. Spaul exchanged words
with Waller and Gammons and then stated that he was going to hit
Crane, who was standing next to defendant. According to the
testimony of Waller, Lovern, and Peele, each of whom witnessed this
portion of the fatal confrontation between defendant and Mr. Spaul,
Mr. Spaul first struck Crane, and then defendant, in rapid
succession with his fist, causing Crane to fall to the ground and
defendant to be knocked down and against a post. Waller testified
that after Mr. Spaul hit Crane and defendant, she ran into the bar
to get help. Lovern testified that when [defendant] got up, he
went to swinging at Mr. Spaul, at which point she was pushed out
of the way, and that's all [she] saw until she turned back around
and saw Mr. Spaul on the ground and a lot of blood. Lovern's
testimony was generally corroborated by that of Peele. Defendant
was six feet two inches tall and weighed approximately 215 pounds
at the time, while Mr. Spaul was five feet, eleven inches tall and
weighed approximately 165 pounds. Both defendant and Mr. Spaul had
been drinking before the altercation.
Dr. Thomas Clark, the forensic pathologist who performed Mr.
Spaul's autopsy, testified that Mr. Spaul suffered eight sharp-
force injuries inflicted with a knife. The most significant wound
went across the middle of the body and the right side of the neck
. . . [and] cut both of the carotid arteries, which, in Dr.
Clark's opinion, caused Mr. Spaul to bleed to death. None of theother seven wounds were as significant, and several were described
as superficial by Dr. Clark. In Dr. Clark's opinion, all of Mr.
Spaul's injuries could not have been inflicted by a single swing of
a knife, although some of the wounds were on a linear track.
Defendant testified at trial and admitted cutting Mr. Spaul
with a knife he regularly carried, but only after Mr. Spaul
repeatedly called defendant names, followed defendant around
outside the bar when defendant tried to avoid confrontation, and
eventually struck defendant in the head. Defendant testified he
believe[d he] was hit with a beer bottle, but neither defendant
nor any other witness testified that they actually saw Mr. Spaul
wield a beer bottle when he struck defendant. Defendant testified
that as Mr. Spaul was attempting to strike him a second time,
defendant pulled his knife out of his pocket and pushed upward with
the knife, cutting Mr. Spaul. Defendant testified that he did not
mean to kill [Mr. Spaul], but rather that he meant . . . to cut
[Mr. Spaul] to get him off of me.
Defendant, Gammons, and Waller then got in Waller's car and
left the scene. Defendant testified that he left because he was
scared of Moore, who upon seeing Mr. Spaul prone and bleeding
profusely threatened to kill defendant, and beat on Waller's car as
the car pulled out of the parking lot. Defendant, Gammons, and
Waller proceeded to Waller's home, where defendant showered and
changed his clothes, which were stained with Mr. Spaul's blood.
Defendant testified that because he feared the police would find
him at Waller's house, the group was then driven to a motel by athird person, at which point defendant telephoned the bar and was
informed that Mr. Spaul was dead. After contacting the High Point
police department, defendant turned himself in at 5:00 p.m. the
Defendant moved to dismiss the charges against him at the
close of the State's evidence and again at the close of all
evidence; each motion was denied. Prior to the jury charge,
defendant moved for a mistrial based on the improper admission of
evidence concerning defendant's character, which motion was also
denied. The jury subsequently returned a verdict finding defendant
guilty of first-degree murder, and the trial court sentenced
defendant to life imprisonment.
Defendant contends that the State has presented insufficient
evidence of his premeditation and deliberation, a necessary element
of first-degree murder. When a defendant moves for dismissal, the
trial court is to determine only 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.
Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 61 (1991). Substantial
evidence is that evidence which 'a reasonable mind might accept as
adequate to support a conclusion.' Id. (quoting State v. Smith,
300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)). In determining
whether the State's evidence is substantial, the trial court must
examine the evidence in the light most favorable to the State, and
the State is entitled to every reasonable intendment and everyreasonable inference to be drawn therefrom. Id. at 237, 400
S.E.2d at 61 (quoting State v. Powell, 299 N.C. 95, 99, 261 S.E.2d
114, 117 (1980)).
Our appellate courts have held that [p]remeditation is
present where the defendant formed a specific intent to kill the
victim some period of time, no matter how short, prior to
perpetrating the actual act. . . . Deliberation is acting in a
cool state of blood and not under the influence of a violent
passion. State v. Andrews, 154 N.C. App. 553, 561, 572 S.E.2d
798, 804 (2002) (citations omitted), cert. denied, 358 N.C. 156,
592 S.E.2d 696 (2004). But still, [o]ne may deliberate, may
premeditate, and may intend to kill after premeditation and
deliberation, although prompted and to a large extent controlled by
passion at the time. Vause, 328 N.C. at 238, 400 S.E.2d at 62.
Premeditation and deliberation are usually proven by
circumstantial evidence because they are mental processes that are
not readily susceptible to proof by direct evidence. State v.
Sierra, 335 N.C. 753, 758, 440 S.E.2d 791, 794 (1994). Among the
circumstances from which premeditation and deliberation may
properly be inferred in a prosecution for first-degree murder 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
Vause, 328 N.C. at 238, 400 S.E.2d at 62.
Taken in the light most favorable to the State, there is
substantial evidence of premeditation and deliberation. Relative
to the sixth and seventh factors, Dr. Clark testified to the
brutality of the wounds and in his opinion the multiple slashes
were caused by repeated blows from defendant's knife. Evidence was
also presented, relative to the second factor, that suggested Mr.
Spaul was harassing defendant and after the stabbing defendant left
the scene. These points may not be significant by themselves, but
taken together are evidence of premeditation and deliberation that
a juror could find adequate. Moreover, with close or borderline
cases on the issue of insufficient evidence, there is a clear
preference for submitting the issue to the jury. State v.
Hamilton, 77 N.C. App. 506, 512, 335 S.E.2d 506, 510 (1985), disc.
review denied, 315 N.C. 593, 341 S.E.2d 33 (1986).
Defendant claims that State v. Corn, 303 N.C. 293, 278 S.E.2d
221 (1981), is controlling on the lack of evidence regarding
premeditation and deliberation. However, we find the facts in Corn
different from defendant's situation. The defendant in Corn shot
at one of two men_both bigger than him and one with a history of
violence_who were charging at him while he was on the couch in his
home. Here, defendant stabbed a man_who was smaller than
defendant_eight times in a public place, and the victim was the
only person potentially threatening him at the time.
Defendant also assigns error to the trial court's instruction
that defendant would lose the benefit of self-defense if he was the
initial aggressor or the jury determined defendant used more force
than necessary under the circumstances. Defendant asserts we
should conduct plain error review of the instructions on these
Yet, our Supreme Court has already held that defendant failed
to properly assert plain error concerning the admission of
defendant's violent acts. Dennison
, 359 N.C. at 312-13, 608 S.E.2d
at 757. We are admittedly at a loss to distinguish defendant's
assertions of plain error regarding the trial court's instructions,
in which he states [d]efendant asserts plain error, from those
that the North Carolina Supreme Court determined did not
specifically and distinctly assert plain error. Id
. One of
those assignments stated, [t]o the extent that this issue is not
preserved for appellate review, the defendant asserts plain error,
and we are not able to discern what more defendant could have said
to preserve this issue for plain error review.
However, although we are bound by our Supreme Court's opinion
dismissing plain error review in this case, after reviewing the
entire record and the instructions as a whole, we see no merit in
defendant's contentions that the instructions in this case misled
or confused the jury.
Judges TIMMONS-GOODSON and HUDSON concur.
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