An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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

NO. COA04-267


Filed: 4 October 2005


v.                        From Johnston County
                            Nos. 00 CRS 56845 - 48
KURT LEY,                            00 CRS 56851
        Defendant.                01 CRS 8383

    Appeal by defendant from judgments entered 27 February 2003 by Judge D. Jack Hooks, Jr., in Superior Court in Johnston County. Heard in the Court of Appeals 1 March 2005.
    Attorney General Roy Cooper, by Assistant Attorney General Robert M. Curran, for the State .

    McCotter, Ashton & Smith, P.A., by Rudolph A. Ashton, III, for defendant-appellant.

    HUDSON, Judge.
    In August 2000, defendant was charged with first-degree murder, attempted murder, burglary, and three counts of kidnapping. A jury convicted him on all charges in February 2003. Defendant received a sentence of life without parole for the first-degree murder and multiple consecutive sentences of varying lengths for the remaining convictions. Defendant appeals, and for the reasons below, we find no error.
    The evidence tends to show that defendant dated Nichole Ricker for about two months until she broke off the relationship on18 August 2000. On the evening on 19 August 2000, Ricker went to the home of her boss, Warren Shane Lee, to watch television. Lee's roommate, William Allen “Billy” Wright, was also present. Wright went to bed around midnight and Ricker planned to spend the night on the couch. At about 3:00 a.m., a knock on the door awakened Lee and Ricker. A voice, which Ricker recognized as defendant's, said that he had a pizza delivery. Lee and Ricker did not answer the door but went outside about fifteen minutes later and found Ricker's car vandalized. Defendant then came out from behind a nearby barn carrying a shotgun. He ordered Lee and Ricker back inside the home and called Wright out from his bedroom and told him to sit down. Defendant pointed the gun at Ricker and said, “I wish you weren't here because now I've got to kill you too.” He then shot Wright in the arm and chest. Ricker ran and hid in a bedroom. Wright recalls Lee getting up from his chair and moving towards defendant, but saw nothing further. However, Wright heard scuffling noises and glass breaking and both Wright and Ricker heard two more gunshot blasts. After defendant left, Ricker returned to the living area, where she found both Wright and Lee on the floor bleeding. Wright underwent several surgeries and lost partial use of his right hand, while Lee died at the hospital from a gunshot wound to the chest.
    Defendant first argues that the trial court erred in denyinghis motion to dismiss the short-form murder indictment, which he contends is unconstitutional. However, defendant concedes that this Court and the North Carolina Supreme Court have concluded otherwise. State v. Mitchell, 353 N.C. 309, 328-29, 543 S.E.2d 830, 842, cert. denied, 534 U.S. 1000, 151 L.Ed.2d 389 (2001); State v. Holman, 353 N.C. 174, 178, 540 S.E.2d 18, 23 (2000), cert. denied, 534 U.S. 910, 151 L.Ed.2d 181 (2001); State v. Washington, 142 N.C. App. 657, 663, 544 S.E.2d 249, 253, disc. review denied, 353 N.C. 532, 550 S.E.2d 165 (2001). Accordingly, we overrule this assignment of error.
    Defendant next contends that the trial court erred in denying his motion to dismiss the first-degree murder charge because there was insufficient evidence of premeditation and deliberation. We disagree.
    In reviewing the trial court's ruling on a defendant's motion to dismiss, this Court evaluates the evidence presented at trial in the light most favorable to the State. State v. Davis, 130 N.C. App. 675, 679, 505 S.E.2d 138, 141 (1998). The Court considers whether the State presented “substantial evidence” in support of each element of the charged offense and of defendant's identity as the perpetrator of the offense. State v. Lynch, 327 N.C. 210, 215, 393 S.E.2d 811, 814 (1990). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Franklin, 327 N.C. 162, 171, 393 S.E.2d781, 787 (1990). The ultimate question is whether a reasonable inference of the defendant's guilt may be drawn from the circumstances. State v. Lee, 348 N.C. 474, 488, 501 S.E.2d 334, 343 (1998). The court must resolve contradictions in favor of the State. Id.
    First-degree murder is the unlawful killing of another with malice and a specific intent to kill, committed after premeditation and deliberation. N.C. Gen. Stat. § 14-17 (2003). Because defendant only challenges the sufficiency of the evidence regarding premeditation and deliberation, we will discuss only these elements. “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.” 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. at 635, 440 S.E.2d at 836.
    Here, defendant's friend, Tara Moore, testified that a few weeks before the shooting, defendant asked her if she knew where Lee lived because he had a friend who wanted to confront Lee about a girl. On the night of the shooting, defendant went to Moore's houseand asked to borrow her shotgun. When defendant confronted Lee and Ricker at around 3:00 a.m., at gunpoint outside Lee's home, he told them he had been outside Lee's house since 10:00 p.m. Then, once inside, he told Ricker, “I wish you weren't here because now I've got to kill you too.” We conclude, viewing the evidence in the light most favorable to the State, that this evidence and Moore's testimony sufficiently show premeditation and deliberation and the trial court properly denied the defendant's motion to dismiss.
    Defendant also argues that the trial court erred in denying his motion to dismiss the three kidnapping charges. Defendant was charged with first-degree kidnapping of Ricker, Wright, and Lee. N.C. Gen. Stat. § 14-39 (2003) defines kidnapping, in relevant part, as:

    (a) Any person who shall unlawfully confine, restrain, or remove from one place to another, any other person 16 years of age or over without the consent of such person, or any other person under the age of 16 years without the consent of a parent or legal custodian of such person, shall be guilty of kidnapping if such confinement, restraint or removal is for the purpose of:

        * * *

        (2) Facilitating the commission of any felony or facilitating flight of any person following the commission of a felony . . .
        * * *
    (b) There shall be two degrees of kidnapping as defined by subsection (a). If the person kidnapped either wasnot released by the defendant in a safe place or had been seriously injured or sexually assaulted, the offense is kidnapping in the first degree and is punishable as a Class C felony. If the person kidnapped was released in a safe place by the defendant and had not been seriously injured or sexually assaulted, the offense is kidnapping in the second degree.
    Regarding Ms. Ricker, defendant contends that the evidence only supports second-degree kidnapping because Ricker was not injured and was left in a safe place. We disagree. The North Carolina Supreme Court has defined releasing the victim in a safe place, within the meaning of the statute, as “a conscious, willful action on the part of the defendant to assure that his victim is released in a place of safety.” State v. Jerrett, 309 N.C. 239, 262, 307 S.E.2d 339, 351 (1983). Defendant asserts that he did not injure Ricker or leave her in an unsafe place. However, we conclude that the evidence, viewed most favorably to the State, supports the conclusion that defendant did not consciously and willfully assure that Ricker was in a safe place.
    With respect to Lee and Wright, defendant argues that forcing Lee into the house at gunpoint and calling Wright out of bed and into the living room were inherent parts of the murder and attempted murder, and thus do not support separate kidnapping convictions. The removal from one place to another, required by the kidnapping statute, must be a removal separate and apart from one which is an inherent part of the commission of another felony. State v. Irwin,304 N.C. 93, 103, 282 S.E.2d 439, 446 (1981). Our Supreme Court has held that the element of restraint inherent in some felonies may not also constitute kidnapping, such as crimes that cannot be committed without some restraint, for example, forcible rape or armed robbery. State v. Fulcher, 294 N.C. 503, 523, 243 S.E.2d 338, 351 (1978). To hold otherwise would violate double jeopardy. Id. However, the Court has also made clear that two or more criminal offenses may arise from the same course of action, and a conviction for kidnapping does not violate double jeopardy where the restraint is used to facilitate the commission of another felony and the restraint is a separate and complete act, independent of the other felony. Id. at 524, 243 S.E.2d at 352. Here, the felonies were murder and attempted murder. Defendant asserts that ordering Lee back into his home at gunpoint was inherent to the murder and that calling Wright out of the bedroom and telling him to sit on the couch was inherent to the attempted murder. We disagree.
    In Irwin, relied on by defendant, the Court held that the removal of the victims to the back of the store during an armed robbery was an inherent and integral part of the crime of armed robbery. Irwin, 304 N.C. at 103, 282 S.E.2d at 446. However, in Irwin, the defendant's objective was to obtain drugs and this required that someone go to the back of the store to the prescription counter and open the safe. The Court held that thiswas “mere technical asportation,” insufficient to support a separate kidnapping offense. Id. In contrast, in State v. Walker, the Court held that:

    Asportation of a rape victim is sufficient to support a charge of kidnapping if the defendant could have perpetrated the offense when he first threatened the victim . . . . Such asportation is separate and independent of the rape . . . and is, therefore, kidnapping . . . . [D]efendant, after threatening the victim with physical harm and forcing her back into the car, drove the car to a more secluded area. . . before committing the rape. Defendant could have perpetrated the crime when he first stopped the car.

84 N.C. App. 540, 543, 353 S.E.2d 245, 247 (1987) (emphasis added).. See also, State v. Alston, 294 N.C. 577, 589, 243 S.E.2d 354 (1978) (ample evidence of kidnapping when defendant forced victim to walk fifty feet into the woods where he committed the felonious assault); State v. Coffer, 54 N.C. App. 78, 282 S.E.2d 492, 497 (1981) (removal of victim from her porch to nearby wooded area where defendant assaulted her sufficient to support separate kidnapping charge). Although Walker involved asportation of a greater distance than here, it is well-established that the actual distance of the removal or asportation is immaterial. See, e.g., State v. Ingland, 278 N.C. 42, 51, 178 S.E.2d 577, 583 (1971); State v. Little, 133 N.C. App. 601, 606, 515 S.E.2d 752, 756, disc. review denied, 351 N.C. 115, 540 S.E.2d 741(1999). We conclude that it was not necessary for defendant to force Lee and Ricker into the home sothat he could shoot Lee, nor was it necessary for him to call Wright out from his room and order him to sit down in order to shoot him. As in Walker, defendant could have perpetrated these crimes without kidnapping. Thus, we hold that the evidence sufficiently sustains separate convictions of kidnapping and murder and attempted murder.
    Defendant next argues that the trial court erred in denying his motion to dismiss the burglary charge. Burglary is a common-law offense and the elements are the breaking and entering during the nighttime of a dwelling with intent to commit a felony therein. State v. Mumford, 227 N.C. 132, 133, 41 S.E.2d 201, 202 (1947). Defendant argues that there was no breaking and entering here, but rather, only a forced entering. It is undisputed that defendant ordered Lee and Ricker into Lee's home with a shotgun pointed at them. Defendant concedes that “[a] breaking may be actual or constructive. A constructive breaking occurs where entrance is obtained in consequence of violence commenced or threatened by defendant.” State v. Jolly, 297 N.C. 121, 128, 254 S.E.2d 1, 6 (1979) (internal citations omitted). Defendant asserts that in his case there was only evidence of a forced entering and no evidence of a forced breaking. However, in accordance with Jolly, we conclude that there was sufficient evidence that defendant committed a constructive breaking and then entered the dwelling.
     Defendant also contends that the trial court erred inrefusing his requested instruction on diminished capacity. At trial, a psychologist testified that defendant suffers from biploar disorder and that this could have affected his ability to form the intent to kill. Prior to the jury charge, defendant requested a modified instruction on diminished mental capacity regarding the first-degree murder charge. Defendant argued that his diminished mental capacity affected his ability to form the specific intent to kill as well as his ability to deliberate. The judge instructed the jury pursuant to the pattern jury instruction on a lack of mental capacity, in pertinent part, as follows:

    [I]f you find that the defendant lacked mental capacity, you should consider whether this condition affected his ability to formulate thespecific intent which is required for conviction of first-degree murder. In order for you to find the defendant guilty of first-degree murder, you must find, beyond a reasonable doubt, that he killed the deceased with malice and in execution of an actual, specific intent to kill, formed after premeditation and deliberation. If as a result of lack of mental capacity the defendant did not have the specific intent to kill the deceased, formed after premeditation and deliberation, he is not guilty of first-degree murder.
Defendant asserts that this instruction only addressed a lack of mental capacity to form specific intent, but did not address diminished mental capacity also affecting deliberation, and was thus deficient. We disagree.
    “An instruction to a jury will not be viewed in isolation, but rather must be considered in the context of the entire charge.Instructions that as a whole present the law fairly and accurately to the jury will be upheld.” State v. Roache, 358 N.C. 243, 303, 595 S.E.2d 381, 419 (2004) (internal citations and quotations omitted). The trial court is not required to instruct the jury using the exact language counsel requests, but may exercise its discretion in choosing the exact words. State v. Lewis, 346 N.C. 141, 146, 484 S.E.2d 379, 381 (1997). Furthermore, in State v. Holder, the Court rejected “defendant's argument . . . that intent is an element independent of premeditation or deliberation and that he was entitled to have a separate diminished capacity instruction with regard to each.” 331 N.C. 462, 474, 418 S.E.2d 197, 203 (1992). Similarly, the Court has held that “specific intent to kill, premeditation and deliberation are interdependent, rather than independent, elements and must be considered collectively rather than in isolation.” State v. Hamilton, 338 N.C. 193, 210, 449 S.E.2d 402, 412 (1994). Accordingly, we conclude that the trial court properly instructed the jury regarding diminished capacity.
    Next, defendant argues that the trial court erred in refusing to conduct an in-camera review of a juror's note stating that she had not be able to express her opinion during deliberations, and in denying his motions for a mistrial, for appropriate relief, and to re-poll the jurors. The guilt phase of defendant's trial concluded on Friday afternoon, at which time the jury was polled, and thecourt recessed for the weekend. On Monday morning, the jury reconvened for the sentencing phase and a juror gave the judge a handwritten note complaining about what she perceived to be juror misconduct, specifically, that she and others had been “interrupted loudly and rudely” and “shut down.” The judge advised counsel of this and allowed counsel to review the note and be heard. Defense counsel made a motion for a mistrial, which was denied. Counsel then requested an in-camera inquiry with the juror, which the court also denied. Counsel then asked that the jurors be re-polled, which was also denied. Defense counsel's motion for appropriate relief was also denied.
    “The judge must declare a mistrial upon the defendant's motion if there occurs during the trial an error or legal defect in the proceedings, or conduct inside or outside the courtroom, resulting in substantial and irreparable prejudice to the defendant's case.” N.C. Gen. Stat. § 15A-1061 (2003). “Whether to grant a motion for mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed on appeal unless it is so clearly erroneous as to amount to a manifest abuse of discretion.” State v. McCarver, 341 N.C. 364, 383, 462 S.E.2d 25, 36 (1995), cert. denied, 517 U.S. 1110, 134 L. Ed. 2d 482 (1996). For the reasons discussed below, we conclude that the trial court here did not abuse its discretion in denying defendant's motion fora mistrial.
    N.C. Gen. Stat. § 15A-1238 grants a defendant the right to have the jury polled before the jury has dispersed. Whether the jury has dispersed is a question of law, which we review de novo. See State v. Black, 328 N.C. 191, 400 S.E.2d 398 (1991); State v. Martin, 315 N.C. 667, 340 S.E.2d 326 (1986); State v. Ballew, 113 N.C. App. 674, 440 S.E.2d 565 (1994), aff'd 339 N.C. 733, 453 S.E.2d 865 (1995). In State v. Black, the North Carolina Supreme Court held that when the court gave the jury a thirty-minute break, during which the jury was free to leave the courthouse, that the jury had been “dispersed” within the meaning of N.C. Gen. Stat. § 15A-1238. 328 N.C. at 198, 400 S.E.2d at 402-03. Thus, the Court held that defendant's motion to poll the jury after it was reconvened came too late, that the defendant waived the right to poll the jury. Id. The Court explained:

    The purpose of polling the jury is to ensure that the jurors unanimously agree with and consent to the verdict at the time it is rendered. If the jury is unanimous at the time the verdict is returned, the fact that some of them change their minds at any time thereafter is of no consequence; the verdict rendered remains valid and must be upheld. The rationale behind requiring that any polling of the jury be before dispersal is to ensure that nothing extraneous to the jury's deliberations can cause any of the jurors to change their minds. Once a juror leaves the courtroom after the verdict is returned and goes into the streets, despite her best efforts to shield herself, she still can be affected by improper outside influences. . . . In other words, once the jury isdispersed after rendering its verdict and later called back, it is not the same jury that rendered the verdict.
Id. (emphasis added, internal citations and quotations omitted).
Similarly, in State v. Martin, the Court held that the defendant's request for a repolling of the jury during the sentencing phase of the trial when the foreperson said she changed her mind, was correctly denied, as this was an attempt to impeach the verdict of the jury after it had been rendered. 315 N.C. at 685, 340 S.E.2d at 336. As the jury here concluded the guilt phase on Friday and was polled then, and defendant's request for re-polling came on Monday morning after the jury recessed for the weekend, we conclude that the jury had already been dispersed and thus the trial court properly denied this request. Accordingly, this assignment of error is overruled.
    Defendant also requested an in-camera review of the juror's note pursuant to N.C. Gen. Stat. § 15A-1240 (2003). N.C. Gen. Stat. § 15A-1240  addresses impeachment of the verdict, in pertinent part, as follows:

    (a) Upon an inquiry into the validity of a verdict, no evidence may be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror or concerning the mental processes by which the verdict was determined.

    * * *
    (c) After the jury has dispersed, the testimony of ajuror may be received to impeach the verdict of the jury on which he served, subject to the limitations in subsection (a), only when it concerns:

        (1) Matters not in evidence which came to the attention of one or more jurors under circumstances which would violate the defendant's constitutional right to confront the witnesses against him; or
        (2) Bribery, intimidation, or attempted bribery or intimidation of a juror.
“G. S. 15A-1240 allows the trial judge to admit testimony for the purpose of impeaching the verdict of a jury . . . . The determination of the existence and effect of jury misconduct is primarily for the trial court whose decision will be given great weight on appeal.” State v. Gilbert, 47 N.C. App. 316, 319, 267 S.E.2d 378, 379 (1980) (internal citation omitted). “The circumstances must be such as not merely to put suspicion on the verdict . . . but that there was in fact misconduct. When there is merely matter of suspicion, it is purely a matter in the discretion of the presiding judge.” State v. Bailey, 307 N.C. 110, 112, 296 S.E.2d 287, 288 (1982) (internal citation and quotations omitted). Here, the juror's note alleged that she and others were “interrupted loudly and rudely” and “shut down,” but did not allege any of the grounds for impeachment under N.C. Gen. Stat. § 15A-1240. We conclude that the trial court did not err in refusing to conduct further inquiry into this matter.     As defendant's motion for a mistrial and for appropriate relief were based on the preceding arguments and we find these to be without merit, we also conclude that the trial court did not err in denying defendant's motions for mistrial and for appropriate relief.
    Defendant's final arguments rest on this Court accepting his earlier argument that he was improperly convicted of first-degree murder. The judge instructed the jury that defendant could be found guilty on either a theory of first-degree murder or of felony murder. Defendant contends that if he was improperly convicted of first-degree murder, then he could only have been validly convicted under felony murder and that the trial court thus erred in sentencing him on both the murder and the underlying felonies of kidnapping and burglary. Because we overruled defendant's arguments regarding the sufficiency of the evidence for the first-degree murder conviction, we overrule these arguments as well.
    No error.
    Judges WYNN and STEELMAN concur.
    Report per Rule 30(e).

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