STATE OF NORTH CAROLINA
v
.
Johnston County
No. 03 CRS 1154
CHRISTOPHER LAMONT BENJAMIN 03 CRS 50760
Attorney General Roy Cooper, by Assistant Attorney General
Richard J. Votta, for the State.
Glover & Petersen, P.A., by James R. Glover, for defendant-
appellant.
STEELMAN, Judge.
Defendant, Christopher Lamont Benjamin, appeals his conviction
for attempted first degree murder, robbery with a dangerous weapon,
and assault with a dangerous weapon with intent to kill.
The evidence presented at trial tended to show that during the
early morning hours of 21 January 2003 defendant robbed the M & N
Citgo convenience store in Selma, North Carolina and shot an
employee, Manjit Singh, in the head. At trial, Singh testified he
was working the night shift when defendant entered the store and
went to the beer cooler. Defendant then brought a twenty-two ounce
bottle of Natural Lite beer to the counter. After sitting it on
the counter, defendant went behind the counter, pulled out a small
gun, pointed it at Singh, and ordered him to give him all the moneyin the register. After Singh opened the register, defendant
removed approximately $800.00 from the register. Defendant then
dragged Singh by the sleeve to the side of the counter and ordered
him to crouch in the corner. Defendant pressed the gun against the
right side of Singh's head and pulled the trigger. The bullet
grazed Singh's head, leaving fragments lodged in his scalp. After
shooting Singh defendant left the store. Singh called 911. When
the police arrived on the scene, the officer found Singh bleeding
heavily from the wound to his head.
Maurice Mills (Mills) testified that on the night of the
robbery he drove defendant, along with several other individuals,
from Smithfield to the Citgo convenience store in Selma. Mills
testified he did not know defendant or the other people riding in
his car or that they planned to rob the Citgo, but only gave them
a ride because they offered to pay him. Mills testified that on
the night of the robbery he dropped defendant off outside the
Citgo, circled around the building, and picked him up. When
defendant came out of the Citgo he was running and money was
falling out of his pocket. The other men in the car helped
defendant gather the money. Mills testified he did not know
defendant had robbed the convenience store until the next day when
he saw a report of the robbery in the news. Mills then notified
the police of his involvement and gave them a description of
defendant. Mills identified defendant from a photographic line-up,
as well as at trial. Singh viewed the same photographic line-up,
but stated he did not see his assailant among the pictures. Attrial, Singh stated he had recognized defendant in the line-up, but
did not identify him because he was afraid defendant would
retaliate against him. Singh identified defendant as his attacker
at trial.
After arriving at the Citgo, the police collected a beer
bottle from the counter and sent it to the SBI for fingerprint
analysis. The SBI determined that the finger and palm prints found
on the bottle matched those of the defendant.
On 30 October 2003, a jury found defendant guilty of attempted
first degree murder, robbery with a dangerous weapon, and assault
with a deadly weapon with intent to kill. The trial court arrested
judgment on the assault charge and sentenced defendant to an active
sentence of 282 to 348 months imprisonment for attempted first
degree murder and to an active sentence of 107 to 138 months for
robbery with a dangerous weapon, with the sentences to run
consecutively. Defendant appeals.
In defendant's first argument he contends the trial court
erred when it denied his motion to dismiss the charges of attempted
first degree murder and assault with a deadly weapon with intent to
kill because there was insufficient evidence presented at trial
from which a reasonable juror might infer an “intent to kill,” an
element common to both charges. We disagree.
In order to survive a motion to dismiss based on the
insufficiency of the evidence, the State must present substantial
evidence of (1) each essential element of the charged offense and
(2) that the defendant is the perpetrator. State v. Fritsch, 351N.C. 373, 378, 526 S.E.2d 451, 455 (2000).
“Substantial evidence
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”
State v. Lucas, 353 N.C. 568,
580-81, 548 S.E.2d 712, 721 (2001).
When considering such a
motion, the court must view the evidence in the light most
favorable to the State, giving the State the benefit of every
reasonable inference that may be drawn therefrom. Fritsch, 351
N.C. at 378-79, 526 S.E.2d at 455.
The State's evidence may be
direct, circumstantial, or both. Id. at 379, 526 S.E.2d at 455.
If the State's evidence is circumstantial, the court must determine
whether “'a reasonable inference of defendant's guilt may be drawn
from the circumstances.'” Id. (citations omitted). Once the court
decides that such an inference may be drawn, it must deny the
motion to dismiss, and submit the matter to the jury. Id. This is
so because “it is for the jury to decide whether the facts, taken
singly or in combination, satisfy [it] beyond a reasonable doubt
that the defendant is actually guilty.” Id. (citations and internal
quotation marks omitted).
“'An intent to kill is a mental attitude, and ordinarily it
must be proved, if proven at all, by circumstantial evidence, that
is, by proving facts from which the fact sought to be proven may be
reasonably inferred.'” State v. Grigsby, 351 N.C. 454, 457, 526
S.E.2d 460, 462 (2000) (citations omitted). An intent to kill may
be inferred from the nature of the assault, the manner in which it
was made, the weapon used, and other relevant circumstances. Id. When viewed in the light most favorable to the State, the
facts and circumstances surrounding defendant's assault of Singh
reasonably support the inference that defendant's intent was not
just to rob or to injure, but to kill. First, defendant used a gun
during the robbery and assault. Although the use of a deadly
weapon does not create an evidentiary presumption of an intent to
kill, nevertheless, the deadly character of the weapon used
constitutes some evidence from which an intent to kill may be
inferred. See State v. James, 321 N.C. 676, 688, 365 S.E.2d 579,
586 (1988); State v. Reives, 29 N.C. App. 11, 12-13, 222 S.E.2d
727, 728 (1976) (holding where the defendant pointed a gun at the
victim and pulled the trigger constituted circumstances from which
intent to kill could be inferred). Second, defendant shot the
victim in the head at point-blank range. This Court has recognized
this as a circumstance tending to establish an intent to kill. In
State v. Jones, this Court held there was sufficient evidence of
defendant's intent to kill where the defendant deliberately fired
a gun into the victim's face at point-blank range, reasoning that
“[a] person who deliberately fires a pistol into the face of his
victim at point-blank range must be held to intend the normal and
natural results of his deliberate act.” 18 N.C. App. 531, 534, 197
S.E.2d 268, 270 (l973). In the instant case, defendant's shooting
of the victim in the head at point-blank range gives rise to a
reasonable inference that defendant intended to kill the victim.
It is irrelevant that the victim did not die as a result of his
wounds. See State v. Ransom, 41 N.C. App. 583, 584-85, 255 S.E.2d237, 239 (1979); State v. Revels, 227 N.C. 34, 36, 40 S.E.2d 474,
475 (1946).
We hold that the evidence viewed in the light most favorable
to the State is sufficient to demonstrate an intent to kill and
supports the charge of attempted first degree murder, as well as
assault with a deadly weapon with intent to kill. The trial court
did not err in submitting these charges to the jury. This argument
is without merit.
In defendant's second argument he contends the trial court
erred in ordering defense counsel to defer to defendant's wishes
when questioning the investigating officer regarding an individual
he had interviewed in relation to the robbery. We disagree.
During the direct examination of Detective Norris, one of the
investigating officers, the trial court excused the jury to address
an objection by defense counsel concerning an evidentiary matter.
Following the trial court's resolution of this issue, defendant
requested permission to address the court. In response, the trial
court addressed defense counsel, stating:
Now, counsel, I don't know what the issue is,
and I'll give you a chance to be heard. But
in the final analysis, the defendant is
entitled to have his wishes concerning the
defense carried out even if they may not be
what you think is in his best interest as long
as they're within the parameters of what's
proper conduct for you as an officer of the
Court.
It appears defendant's request resulted from his confusion as to
whether Maurice Mills or Calvin Mitchell identified defendant as
the robber. The police questioned Mitchell, but later determinedhe was not involved. Apparently defendant's confusion as to who
made the statement identifying him as the robber arose when some of
the papers produced during discovery got out of order. Although it
later became clear that it was Mills who had identified defendant
in a photographic line-up as the man he dropped off at the Citgo on
the night of the robbery, defendant still wanted defense counsel to
question the investigating officers regarding their communications
with Calvin Mitchell. Defense counsel explained to the trial court
that he was “more than glad, if [defendant] wants me to, to ask
Detective Norris about what Calvin Mitchell said,” but felt it was
irrelevant. In addition, counsel agreed to discuss with his client
any further concerns which defendant might wish to raise.
Normally, the responsibility for tactical decisions, such as
the type of defense to present and the questioning of a witness, is
vested with defense counsel. State v. Ali, 329 N.C. 394, 404, 407
S.E.2d 183, 189 (1991). See also State v. Wilkinson, 344 N.C. 198,
211-12, 474 S.E.2d 375, 382 (1996). Even so, “when counsel and a
fully informed criminal defendant client reach an absolute impasse
as to such tactical decisions, the client's wishes must control;
this rule is in accord with the principal-agent nature of the
attorney-client relationship.” Ali, 329 N.C. at 404, 407 S.E.2d at
189.
Here, the trial court did not instruct counsel to do anything
or even determine defendant and his counsel were at an impasse.
Rather, he advised defense counsel that if he and his clientreached an impasse, he had to defer to his clients wishes. This is
consistent with the law as stated in Ali and Wilkinson.
Defendant also argues he was deprived of the effective
assistance of counsel as a result of the trial court's ruling
advising defense counsel that he must defer to defendant's wishes
where an impasse is reached. In order to establish a claim for
ineffective assistance of counsel, defendant must establish “'that
counsel's performance was deficient' and 'that the deficient
performance prejudiced the defense.'” State v. Grooms, 353 N.C. 50,
86, 540 S.E.2d 713, 735 (2000) (quoting Strickland v. Washington,
466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693 (1984)). Defendant
cannot meet this two-part test. First and most importantly,
defense counsel did what defendant requested. Second, defendant
never alleges defense counsel's performance was deficient.
Instead, he argues the trial court's directive “stripped away the
role of trial advocate for the defendant[.]” In addition,
defendant has failed to point to any instance in which defense
counsel's representation of him was compromised or rendered
ineffective by the trial court's statement. This argument is
without merit.
Defendant has failed to argue his remaining assignments of
error contained in the record on appeal, thus they are deemed
abandoned. N.C. R. App. P. 28(b)(6) (2004).
For the reasons discussed herein, we hold that defendant
received a fair trial, free of error.
NO ERROR.
Judges TIMMONS-GOODSON and MCCULLOUGH concur.
Report per Rule 30(e).
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