An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA04-448


Filed: 5 April 2005


         v.                        Robeson County
                                No. 99 CRS 853

    Appeal by defendant from judgment entered 26 July 2000 by Judge Robert F. Floyd, Jr. in Robeson County Superior Court. Heard in the Court of Appeals 17 January 2005.
    Attorney General Roy Cooper, by Assistant Attorney General Thomas G. Meacham, Jr., for the State.

    Richard E. Jester for defendant-appellant.

    GEER, Judge.

    This Court granted defendant Raven Ransom's petition for writ of certiorari to allow a belated appeal of his conviction for second degree murder. On appeal, defendant argues primarily (1) that his trial counsel provided ineffective assistance of counsel in failing to timely notice appeal with the result that photographs admitted at trial were destroyed; and (2) that the trial court erred in denying defendant's motion to dismiss. We hold that defendant has failed to demonstrate any prejudice from the failure to notice appeal since this Court has allowed the petition for writ of certiorari and since defendant cannot demonstrate that he would have likely prevailed on appeal with respect to the admissibility of the photographs. We further hold that the State offered sufficient evidence to defeat defendant's motion to dismiss.

    The evidence admitted at trial tended to show the following. Patricia Jacobs, also known as Patty Bell, invited defendant to her home in the early morning hours of 12 January 1999 after seeing him at a house where she had gone looking for "dope." Defendant arrived at Jacobs' residence with a second man whom Jacobs did not know. Defendant was drinking from "a beer bottle with some liquor in it." Ronald Dean Locklear, who was involved in a relationship with Jacobs' daughter and had lived with Jacobs for a year, was asleep in a back bedroom while defendant was in Jacobs' residence.
    Defendant stayed for 10 to 15 minutes and then left to drive the unidentified male home. He left his bottle of liquor in the living room, but told Jacobs that he would be back. "Because [defendant] was gone so long," Jacobs went to bed. Some time later, Locklear came into her room and told her that someone had come to the door and tried to get in, but that Locklear had pushed the man down the steps and would not let him in. Locklear later woke Jacobs a second time, falling across her bed and telling her that he had been shot. A forensic pathologist testified that Locklear died from a shotgun wound to his abdomen.
    On the morning of 12 January 1999, defendant called the Robeson County Sheriff's Department, admitted to having been involved in the shooting, and expressed a desire to turn himself in to the authorities. Detective Randall Patterson spoke with defendant about the shooting soon after 9:00 a.m. on 12 January 1999. After waiving his Miranda rights, defendant gave thefollowing statement to Patterson:
        I went back to Patty's trailer and knocked on the door. An Indian male came to the door and I told him that I needed to get my liquor . . . . The Indian male told me that I didn't have any liquor there and I told him that I did. And I started in the trailer and he closed the door, would not let me in. I told him that would be all right and I got in my car and went home and got my shotgun. . . . I took my shotgun and went back to Patty Bell's trailer and got out and went back to the door. I was holding my shotgun down beside my legs. I knocked on the door again and the Indian male came back to the door and told me that I had better leave or he would shoot me. I told him all I wanted was my liquor. The Indian male opened the door and I thought he had something and I took my shotgun and shot him one time. After I shot him I reloaded my shotgun. When I shot him he fell back and I saw that he did not have anything. I got in my car and went to the woods near my mother's house. . . . I ran into the woods besides my mother's house and dropped the shotgun somewhere in the woods next to Mother's house. I don't remember where in the woods I dropped it. In a little while my sister, April, came out there and got me and I took the car and drove home.

Detective Patterson was subsequently unable to locate the shotgun in the area where defendant claimed to have dropped it.
    At the conclusion of the State's evidence, defendant made a motion to dismiss, arguing that the prosecution failed to disprove that he shot Locklear in self-defense. The court denied the motion. Defendant made a second motion to "reduce the charges at this time to nothing any greater than second degree murder," which was also denied.
    Defendant then testified that he met Jacobs at his uncle's house at approximately 1:00 a.m. Defendant had smoked a rock ofcrack cocaine and was drinking from a 12-ounce beer bottle full of "[w]hite liquor." Jacobs invited him to her residence and asked him to bring "a piece of dope." Defendant arrived at Jacobs' trailer at about 1:30 a.m. with a male acquaintance and testified he stayed for an hour. When defendant left to drive the acquaintance home, he told Jacobs he was leaving the bottle of liquor and would come back for it. Defendant claimed that he returned to Jacobs' residence minutes later and knocked on the front door. When a man came to the door, defendant identified himself and told the man that Jacobs knew he was coming back for his liquor. According to defendant, the man replied, "You ain't got no liquor here" and threatened to kill defendant if he did not leave.
    Defendant testified that he drove home and retrieved his shotgun from his bedroom closet and three shells from his dresser drawer. He returned to Jacobs' residence with the shotgun and ammunition. He parked his car about 18 feet from Jacobs' residence, cut off the engine, but left the car's lights on. After loading his gun and cocking the gun's hammer, defendant walked toward Jacobs' door. Defendant knocked on the door and heard footsteps coming from Jacobs' bedroom. The man again answered the door. Defendant repeated that all he wanted was his bottle of liquor. Defendant testified that the man replied, "You ain't got no dam[n] liquor here" and reminded defendant, "I told you I was going to kill you." Hearing the man unlatch the door, defendant backed toward his car with his gun at his side. The man pushedopen the screen door with his left hand and "throwed [sic] his right hand out." Defendant claimed he saw a gun in the man's hand and believed the man was "fixing to kill" him, so defendant fired the shotgun.
    When the man fell backwards, defendant got in his car and drove to his mother's house where he ran into the neighboring woods. Defendant claimed he accidentally dropped the gun in the woods and could not find it. He remained in the woods until his sister came out and called his name. After telling his sister he had killed someone, defendant drove home.
    Later that morning, he called 911 and waited for the police to arrive. After showing officers the area of woods where he had gone after the shooting, defendant was taken to jail and gave his statement. Defendant denied telling police that the man at Jacobs' trailer did not actually have a gun or that he reloaded his own gun after shooting the man. He also insisted that the man had threatened to kill him, rather than just shoot him, during their first exchange.
    Defendant renewed his motion to dismiss at the conclusion of all the evidence. The trial court denied the motion and instructed the jury on first degree murder, second degree murder, and voluntary manslaughter, as well as the doctrines of perfect and imperfect self-defense. The jury found him guilty of second degree murder and the trial court sentenced him to 189 to 236 months imprisonment. On 8 October 2003, we issued a writ of certiorari for the purpose of reviewing the judgment.
     Defendant's initial two arguments on appeal address the trial court's admission into evidence of State's Exhibits 3 and 4, two autopsy photographs of Locklear. Defendant first claims the trial court erred in admitting the photographs, which he characterizes as "cumulative" and as serving no purpose other than "to inflame the jury." In his second and related claim, defendant argues that his trial counsel rendered constitutionally ineffective assistance by failing to give timely notice of appeal and, as a result, the photographs were destroyed by the trial court, thereby denying him appellate review on this issue. Defendant asserts a right to a new trial because his counsel's error precludes any assessment of the prejudicial impact of the autopsy photographs.
    Dr. Richard Dewitt Johnson, an expert in forensic pathology, performed the autopsy on Locklear and determined the cause of death to be "a shotgun wound to the abdomen." During Dr. Johnson's testimony, the State offered into evidence two photographs of Locklear taken during the autopsy. State's Exhibit 3 was a photograph of Locklear's abdomen and chest showing the "multiple entrance wounds" from the shotgun blast. State's Exhibit 4 showed Locklear's "head and chest for identification purposes." In overruling defendant's objection to the photographs, the trial court found them relevant to establish the identity of the victim and the "nature of the wound" and ruled "that the probative value of the State's Exhibits 3 and 4 outweigh[s] any prejudicial effect that they may have . . . ."    Following trial, defendant did not give notice of appeal. Rule 14 of the General Rules of Practice for the Superior and District Courts requires the offering party to remove any exhibits offered into evidence within 30 days after final judgment in the trial court if no appeal is taken, unless the court directs otherwise. In accordance with Rule 14, the Clerk's office gave notice of an intent to dispose of the trial exhibits on 12 September 2000. On 12 October 2000, the trial court issued an Order for Disposition of Physical Evidence, directing that the exhibits be delivered to the sheriff for destruction, which occurred on 10 November 2000.
    With respect to defendant's first contention regarding the admissibility of the two photographs, our Supreme Court held in State v. Milby, 302 N.C. 137, 141, 273 S.E.2d 716, 719 (1981) (emphasis added): "It is our conclusion that the admission of an exhibit cannot be held to be prejudicial error when the exhibit complained of or a description of same, does not appear of record in some fashion." Accordingly, even if exhibits are not included in the record on appeal, the issue of their admissibility may still be preserved through a "stipulation placed in the record which would serve to describe the exhibits for us" or the presence in the record of any other proper description of the exhibits sufficient to permit review. Id. Here, even though the Order for Disposition of Physical Evidence resulted in destruction of the photographs, Dr. Johnson sufficiently described the two photographs to allow review in this case of the trial court's decision to allow theiradmission.
    "Photographs of a homicide victim may be introduced even if they are gory, gruesome, horrible or revolting, so long as they are used for illustrative purposes and so long as their excessive or repetitious use is not aimed solely at arousing the passions of the jury." State v. Hennis, 323 N.C. 279, 284, 372 S.E.2d 523, 526 (1988). Even where a defendant stipulates to the cause of death, such photographs may be admitted "to illustrate testimony regarding the manner of killing so as to prove circumstantially the elements of murder in the first degree," including malice, premeditation and deliberation. Id. It is within the trial court's discretion to determine if the number of photographs offered into evidence is excessive, in light of such factors as "what the photographs depict, the level of detail, the manner of presentation, and the scope of accompanying testimony." State v. Haselden, 357 N.C. 1, 16, 577 S.E.2d 594, 604, cert. denied, 540 U.S. 988, 157 L. Ed. 2d 382, 124 S. Ct. 475 (2003).
    We conclude the trial court did not err in admitting the two autopsy photographs. The photographs here were relevant to the material issues of the victim's identity, the fact and cause of his death, and defendant's malice, premeditation, and deliberation in inflicting the fatal injury. The photographs were admissible to illustrate Dr. Johnson's account of the autopsy and to corroborate Jacobs' testimony as well as defendant's statement to the police. See State v. Hyde, 352 N.C. 37, 55, 530 S.E.2d 281, 293 (2000) ("After having reviewed the photographs and determined that theywere relevant and probative, that they corroborated defendant's confession, that they illustrated the medical examiner's testimony, and that they contributed to the finding of premeditation and deliberation, we cannot say that the trial court's decision to admit these photographs was so arbitrary that it could not have been supported by reason."), cert. denied, 531 U.S. 1114, 148 L. Ed. 2d 775, 121 S. Ct. 862 (2001). Moreover, in light of the decisions of our Supreme Court upholding the admission in a single case of dozens of photographs of a homicide victim's injuries, the trial court in this case did not abuse its discretion in admitting one photograph of Locklear's wounds and a second head-and-shoulders photograph establishing his identity. See, e.g., id. at 54-55, 530 S.E.2d at 293 (51 photographs); State v. Pierce, 346 N.C. 471, 487- 88, 488 S.E.2d 576, 585-86 (1997) (26 photographs).
    With respect to defendant's claim of ineffective assistance of counsel arising from trial counsel's failure to give timely notice of appeal, this Court recently addressed this issue in State v. Phifer, 165 N.C. App. 123, 598 S.E.2d 172 (2004). As in this case, the defendant in Phifer argued that the failure to notice appeal constituted ineffective assistance of counsel because the deficient performance resulted in the destruction of exhibits. Id. at __, 598 S.E.2d at 178. This Court held that the defendant could not demonstrate prejudice from the failure to notice appeal when the Court reinstated the appeal by granting a petition for writ of certiorari. In response to the defendant's assertion that the destruction of exhibits required the remedy of a new trial, theCourt wrote: "We find no authority to support this contention, and for the reasons discussed below, we fail to see how defendant was injured by the destruction of the exhibits." Id.
    In this case, by providing defendant with a belated appeal by writ of certiorari, this Court effectively cured any per se ineffective assistance by his trial attorney. Further, as discussed above, defendant was not prejudiced by the destruction of the photographic exhibits since, based on the description of those exhibits in the record, this Court was able to determine that the trial court acted within its discretion in admitting them into evidence. Absent a showing that defendant likely would have prevailed on appeal but for the destruction of the two autopsy photographs, defendant cannot establish a violation of his constitutional right to counsel. See generally State v. Braswell, 312 N.C. 553, 562, 324 S.E.2d 241, 248 (1985) (citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693 (1984)).
    In his third and final argument, defendant challenges the trial court's denial of his motion to dismiss. By presenting evidence, defendant waived his right to appeal the denial of his motion to dismiss at the close of the State's evidence. State v. Bruton, 344 N.C. 381, 387, 474 S.E.2d 336, 341 (1996). Accordingly, we review defendant's assignment of error only with respect to the trial court's ruling denying his motion to dismiss at the close of all the evidence. Id.
    In considering a motion to dismiss, the trial court mustdetermine whether there is substantial evidence of each essential element of the crime charged. State v. Scott, 356 N.C. 591, 595, 573 S.E.2d 866, 868 (2002). Substantial evidence is that amount of relevant evidence necessary to persuade a rational juror to accept a conclusion. Id. at 597, 573 S.E.2d at 869. In reviewing the trial court's ruling, this Court views the evidence in the light most favorable to the State, giving the State the benefit of all reasonable inferences. Id. at 596, 573 S.E.2d at 869.
    As defendant notes, however, "[w]hen the State introduces in evidence exculpatory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements." State v. Johnson, 261 N.C. 727, 730, 136 S.E.2d 84, 86 (1964). On the other hand, "the State is not bound by the exculpatory portions of a confession which it introduces if there is other evidence which tends to throw a different light on the homicide." State v. Wallace, 36 N.C. App. 149, 151, 242 S.E.2d 894, 895 (1978).
    Defendant argues that the State was bound by his written statement offered into evidence during the State's case and that, based on this statement, the State failed to disprove that he acted in self-defense. When the evidence in a homicide case raises the issue of self-defense, the State bears the burden of proving that the defendant did not act in self-defense. State v. Blackwell, 163 N.C. App. 12, 17, 592 S.E.2d 701, 705, cert. denied, 358 N.C. 378, 597 S.E.2d 768 (2004). "The test on a motion to dismiss is therefore whether the State has presented substantial evidencewhich, when taken in the light most favorable to the State, would be sufficient to convince a reasonable juror that the defendant did not act in self-defense." Id.
    In his statement, defendant acknowledged intentionally shooting Locklear with a shotgun. An intentional killing with a deadly weapon is deemed a lawful act of perfect self-defense if:
    (1) it appeared to defendant and he believed it to be necessary to kill the deceased in order to save himself from death or great bodily harm; and

    (2) defendant's belief was reasonable in that the circumstances as they appeared to him at the time were sufficient to create such a belief in the mind of a person of ordinary firmness; and

    (3) defendant was not the aggressor in bringing on the affray, i.e., he did not aggressively and willingly enter into the fight without legal excuse or provocation; and

    (4) defendant did not use excessive force, i.e., did not use more force than was necessary or reasonably appeared to him to be necessary under the circumstances to protect himself from death or great bodily harm.

State v. Norris, 303 N.C. 526, 530, 279 S.E.2d 570, 572-73 (1981).
    The trial court properly denied the motion to dismiss based on perfect self-defense because the State offered substantial evidence that defendant was the aggressor and that he willingly entered into the confrontation without legal excuse or provocation. Defendant's statement established that Locklear refused to allow him into Jacobs' trailer when he knocked on the door in the early hours of the morning. In response, defendant went to his home, armed himself, returned, again defied Locklear's command that he leavethe property, and instead attempted to gain access into Jacobs' home in the middle of the night by means of a cocked and loaded shotgun. Based on this evidence, the jury could reasonably find that defendant was the aggressor and voluntarily entered into the confrontation. See Blackwell, 163 N.C. App. at 17, 592 S.E.2d at 705 ("Furthermore, as defendant left the scene and returned with a shotgun this is evidence that he entered into the confrontation willingly."); State v. Deans, 71 N.C. App. 227, 234, 321 S.E.2d 579, 583 (1984) (After the victim demanded that defendant leave the premises, "[d]efendant intentionally followed [the victim] into the trailer with a gun knowing the volatile circumstances. Under these facts defendant aggressively and willingly entered into the fight." (internal quotation marks omitted)), disc. review denied, 313 N.C. 332, 329 S.E.2d 386 (1985).
    In the alternative, defendant insists the evidence was insufficient to support a charge greater than voluntary manslaughter based on imperfect self-defense and accordingly the jury's verdict of second degree murder should be reversed. See State v. Bolin, 281 N.C. 415, 425, 189 S.E.2d 235, 242 (1972) ("Having concluded that the facts narrated in defendant's statement . . . did not establish as a matter of law that he acted in self-defense, we turn now to consider whether the State's evidence was sufficient to require submission of murder in the first degree as a permissible verdict. "). A defendant commits second degree murder if he unlawfully kills another person with malice, but without premeditation and deliberation. State v. Camacho, 337 N.C.224, 233, 446 S.E.2d 8, 13 (1994).
    "A specific intent to kill is not a necessary element of second-degree murder, and malice may be inferred from the intentional use of a deadly weapon." Id. As a result, "when a defendant admits, or when the State proves beyond a reasonable doubt that a killing is done with a deadly weapon, . . . a jury may infer that such killing was both unlawful and done with malice." State v. Haight, 66 N.C. App. 104, 106, 310 S.E.2d 795, 796 (1984).
    A defendant commits only the lesser offense of voluntary manslaughter if he engaged in imperfect self-defense. Id. at 106, 310 S.E.2d at 797. Imperfect self-defense exists when the defendant either used excessive force or was the aggressor in bringing on the affray, but the State fails to prove beyond a reasonable doubt the non-existence of the first two elements of perfect self-defense relating to defendant's belief as to the need to use deadly force and the reasonableness of that belief. State v. Richardson, 341 N.C. 585, 588, 461 S.E.2d 724, 726-27 (1995).
    It is undisputed that defendant intentionally shot Locklear with a twelve-gauge shotgun in Locklear's own residence _ evidence supporting a reasonable inference that defendant acted with malice. Haight, 66 N.C. App. at 106, 310 S.E.2d at 796. In addition, when the evidence is viewed in the light most favorable to the State, the record contains sufficient evidence to convince a reasonable juror that imperfect self-defense did not apply.
    The State presented evidence that after the victim refused to allow defendant into his residence and pushed defendant down thestairs, defendant left to arm himself with a shotgun. When defendant returned, he left his car lights on while parking close to the trailer, he loaded his shotgun, and he cocked it _ all before having any further contact with the victim. In short, a jury could decide that defendant was preparing to shoot _ both by lighting the scene and readying the gun _ long before Locklear ever came to the door. Further, defendant's statement does not assert that he saw a gun; it only states that he thought Locklear "had something" as Locklear opened the door. The State offered evidence that the victim was in fact unarmed. Finally, defendant did not attempt to obtain help for Locklear, but instead reloaded his gun, fled the house, and hid in the woods; the jury could conclude that he then disposed of the shotgun in the woods. See State v. McCoy, 303 N.C. 1, 25, 277 S.E.2d 515, 532 (1981) (evidence that defendant did nothing to assist victim and fled the house is conduct "not normally characteristic of one who has killed accidentally or in self-defense" and supported submission of second degree murder to jury).
    Based on this evidence, the jury could decide either (a) that the shooting was not the result of any belief of defendant that it was necessary to kill Locklear in order to save himself from death or great bodily harm; or (b) that the circumstances as they appeared to defendant at the time would not have created such a belief in a person of ordinary firmness. See State v. Mixion, 110 N.C. App. 138, 144-45, 429 S.E.2d 363, 366-67 (trial court properly denied motion to dismiss based on imperfect self-defense eventhough defendant testified that the victim pointed a gun at him and said she was going to kill him because "[i]t was for the jury to resolve the discrepancies between the State's evidence of malice and defendant's evidence of imperfect self-defense"), disc. review denied, 334 N.C. 437, 433 S.E.2d 183 (1993); State v. Parker, 38 N.C. App. 316, 321, 247 S.E.2d 786, 789 (trial court properly denied motion to dismiss second degree murder charge despite evidence that victim fired a gun when "the defendant was armed as were all of his friends when they went to the home of the deceased," defendant did not know how many times he fired his own gun, and victim died of contact wound), disc. review denied, 296 N.C. 108, 250 S.E.2d 35 (1978); Wallace, 36 N.C. App. at 151, 242 S.E.2d at 895 (trial court properly denied motion to dismiss second degree murder charge despite the State's reliance on the defendant's statement indicating that he stabbed the victim after the victim hit him with a stick because the State also offered evidence "that defendant left the scene of the killing promptly after the homicide," that defendant was not injured, and a search of the scene failed to reveal the presence of a stick). The trial court therefore properly denied defendant's motion to dismiss.
    The record on appeal contains additional assignments of error not addressed by defendant in his brief to this Court. Pursuant to N.C.R. App. P. 28(b)(6), these assignments of error are abandoned.

    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***