STATE OF NORTH CAROLINA
v
.
Gaston County
No. 02 CRS 6513
NATHANAEL AUGUSTUS HIGH, 02 CRS 6524
Defendant.
Attorney General Roy Cooper, by Special Deputy Attorney
General Robert J. Blum, for the State.
Leslie C. Rawls, for defendant-appellant.
STEELMAN, Judge.
Defendant was fifteen years old when his father, Randy High,
(father or victim) was shot to death on 10 February 2002. On that
day, defendant's twelve year old brother (brother) had left in the
morning to work on his bicycle at a friend's house. Defendant had
been grounded by his father, and was forbidden from seeing his
girlfriend (girlfriend). Defendant's brother returned to the house
between 11:30 and noon that day, and found defendant and his
girlfriend in defendant's brother's room. He then spoke with his
father in his father's room before again leaving for his friend's
house. Approximately two hours later, defendant's brother and his
friend returned to the victim's house. Upon entering, they
observed an empty tin, which the victim used to hide cash, onbrother's bed. Defendant and his girlfriend were no longer in the
house. As they were heading into the father's bedroom, they
observed him lying motionless on the floor, with blood surrounding
his head. They ran from the house, and the friend's father called
911.
It was determined that the victim had been shot by two
different weapons, a .380 caliber pistol and a .22 caliber rifle.
The police questioned defendant, his brother, his girlfriend, and
others. Defendant's brother stated his belief that defendant had
killed the victim, partly based on the fact that the bolt to the
.22 rifle, which was necessary for firing the weapon, had been
hidden in his father's room, and only defendant knew where it was
hidden. It was also determined that the victim's cell phone, and
several hundred dollars in cash, had been taken. Defendant, who
police described as unusually calm, at first admitted no guilt.
While defendant was sitting in a police car, his uncle spoke with
him and advised him to tell the police whatever he might know about
the shooting. Shortly thereafter, an officer asked defendant if he
had killed his father, and defendant admitted that he had, but
claimed the shooting was accidental.
Defendant was taken to the police department and read his
juvenile rights. He then made another statement denying knowledge
of his father's murder, which he soon followed up with yet another
statement admitting shooting his father with two different weapons,
but insisting that his first shot was an accident, and the
following shots were in self-defense. Finally, six months afterthe murder, defendant made a fourth statement which implicated both
his girlfriend and himself. According to this statement, his
girlfriend first shot his father with the .380 pistol (which she
had brought with her) but did not kill him, and he then shot his
father twice in the head with a .22 rifle belonging to the victim
that normally hung on the wall of his brother's room.
Defendant was tried by a jury commencing 18 May 2004 on
charges of first-degree murder, under theories of premeditation and
deliberation and felony murder, and robbery with a dangerous
weapon. The jury found defendant guilty of robbery with a
dangerous weapon, and guilty of first-degree murder under the
theory of premeditation and deliberation, but not guilty of first-
degree murder under the theory of felony murder. Defendant was
sentenced to life imprisonment without parole for first-degree
murder, and to a concurrent active sentence of 64 to 86 months
imprisonment for robbery with a dangerous weapon. From these
judgments defendant appeals.
In his first argument, defendant contends that the trial court
committed plain error by admitting certain statements by defendant
taken in violation of his constitutional rights and N.C. Gen. Stat.
§ 7B-2101. We disagree.
Defendant made three different statements to police admitting
a role in his father's killing. Defendant argues the admission of
two of those statements amounts to plain error.
The plain error rule applies only in truly
exceptional cases. Before deciding that an
error by the trial court amounts to “plain
error,” the appellate court must be convincedthat absent the error the jury probably would
have reached a different verdict. In other
words, the appellate court must determine that
the error in question “tilted the scales” and
caused the jury to reach its verdict
convicting the defendant. Therefore, the test
for “plain error” places a much heavier burden
upon the defendant than [the burden] imposed
by N.C.G.S. § 15A-1443 upon defendants who
have preserved their rights by timely
objection. This is so in part at least because
the defendant could have prevented any error
by making a timely objection.
State v. Cummings, 352 N.C. 600, 636, 536 S.E.2d 36, 60-61 (2000).
The plain error standard applies even though the error constituted
a violation of the United States Constitution. See State v. Walker,
316 N.C. 33, 340 S.E.2d 80 (1986).
“In meeting the heavy burden of
plain error analysis, a defendant must convince this Court, with
support from the record, that the claimed error is so fundamental,
so basic, so prejudicial, or so lacking in its elements that absent
the error the jury probably would have reached a different
verdict.”
Cummings, 352 N.C. at 636, 536 S.E.2d at 61
. Although
defendant argues that the admission of the two statements rises to
the level of plain error, his entire argument in support of that
contention is as follows: “[defendant's] conviction rests largely
upon the admission of the two statements.” He “provides no
explanation, analysis or specific contention in his brief
supporting the bare assertion that the claimed error is so
fundamental that justice could not have been done.” Id.
“The right
and requirement to specifically and distinctly contend an error
amounts to plain error does not obviate the requirement that aparty provide argument supporting the contention that the trial
court's [error] amounted to plain error
....” Id.
Defendant's empty assertion of plain error,
without supporting argument or analysis of
prejudicial impact, does not meet the spirit
or intent of the plain error rule. By simply
relying on the use of the words “plain error”
as the extent of his argument in support of
plain error, defendant has effectively failed
to argue plain error and has thereby waived
appellate review.
Id. at 637, 536 S.E.2d at 61
. Defendant has not preserved his
plain error argument for appellate review.
Even assuming arguendo that defendant
has not waived appellate
review, and that the two statements were admitted in error, he is
unable to prove that the error rises to the level of plain error.
On 6 August 2002 defendant contacted Detective Jeff Costner of the
Gaston County Police Department to make a statement. Detective
Costner went to the Gaston Regional Detention Center and took a
statement from defendant. Defendant does not argue on appeal that
the admission of this statement at trial constitutes error.
The statement defendant gave is as follows: The Saturday
before the shooting, he and his father got into an argument over
defendant's girlfriend; his father called her a “bitch” and pushed
defendant into some stereo speakers. That night, defendant talked
with his girlfriend about killing himself, and also stated to her
that he wished his father was dead. His girlfriend came by the
following morning, and brought with her a .380 caliber handgun.
After defendant dressed, his girlfriend asked him if he loved her,
and said “Nate, if it's between you and your dad I'm not losingyou.” Defendant told her he loved her, and she walked over and
opened the door to the victim's bedroom. Defendant heard a
gunshot, and something falling to the floor. He ran into his
father's room and another shot rang out. Defendant found his
father, shot, on his knees. His father screamed “You son of a
bitch. You shot me.” “I felt the only way to solve this is to run
into [my brother's] room and get the .22 rifle. I didn't load it.
It was already loaded. I took it in there and my dad was at the
foot of the bed. I shot him twice. I am not sure where but I
think it was in the head. I ran out of the room ....” “I ran to
the van behind the house.” “I threw the gun up in the bed of the
van and walked back. The cell phone I already had. The money tin
was in my room. I had over $200.00 in birthday money. The other
money I did take from the tin can but it was in my room.”
Prior to this statement, defendant made two other statements
to police implicating himself in his father's murder. In the first
statement to which defendant objects, he told the police, while
sitting in a police car, that he shot his father, but that it was
an accident. In the second statement to which he objects,
defendant told the police that he and his father got into an
argument in which his father was physically abusive to him. During
the course of the altercation, defendant picked up a handgun that
his father had placed on the living room couch, and it went off
accidentally when his father pushed him. His father kept coming at
him in a threatening manner, and defendant shot at him several more
times, not knowing how many of the shots found their target. Hisfather fell beside his bed, but somehow managed to wrest the
handgun away from defendant. Defendant ran to his brother's room
and got the .22 rifle, returned to his father's room, and shot him
twice more when his father aimed the handgun at him. He stated
that he took some money out of the tin can, which was in the den,
to buy his girlfriend something for Valentine's day.
Considering the plenary uncontested evidence of defendant's
guilt admitted at trial, there is no probability that a different
result would have been reached at trial had the two contested
statements been excluded. In the first contested statement,
defendant argues that the shooting was accidental. In the second,
he contends that the first shot was accidental, and the rest were
done in self-defense. These statements are considerably less
prejudicial to defendant than the unchallenged third inculpatory
statement, in which defendant admits leaving his father
incapacitated and on his knees to go and retrieve the .22 rifle,
return, and shoot the kneeling unarmed man twice in the head.
Further, defendant's younger brother testified that he briefly
returned home from working on bicycles with his friend at
approximately 11:30 to noon on the day in question to find
defendant and defendant's girlfriend in defendant's brother's room.
This surprised him, because he knew that defendant had been
grounded by his father, and was not supposed to be seeing his
girlfriend. Both defendant and his girlfriend told him to keep
quiet about her presence in the house. He left the house, with his
father, defendant and defendant's girlfriend still inside. Hereturned to the house about two hours later with his friend, to
find the empty money tin on his bed, and his father dead on the
floor. He testified that his father kept the bolts necessary to
fire the .22 rifle hidden in his dresser drawer, and that his
father also kept a tin in his room where he sometimes put his cash.
When police questioned him the day of the murder, he told them that
he knew defendant had committed the crime because he was the only
one (excluding himself and their father) who knew where the bolts
to the .22 rifle were hidden. Police tested the hands of defendant
and his girlfriend that day for gunpowder residue, and the tests
came back positive, indicating that they had recently discharged
firearms. Police found the .22 rifle that was missing from the
defendant's house in the back of an old van behind the house,
corroborating part of defendant's uncontested confession.
Ballistic tests were inconclusive due to the fragmentary nature of
the recovered bullets, but could not rule out that rifle as one of
the murder weapons. $280 cash was recovered from defendant's
girlfriend's book bag, and the victim's cell phone was recovered
from a box in defendant's room.
In light of this evidence, assuming arguendo that the
statements were admitted in error, defendant fails in his burden of
proving plain error. This argument is without merit.
In his second argument, defendant contends that the trial
court erred in denying his motion to dismiss all charges. We
disagree. Defendant was convicted of both first-degree murder based on
the theory of premeditation and deliberation, and robbery with a
dangerous weapon. “Upon defendant's motion for dismissal, the
question for the [trial] court is whether there is substantial
evidence (1) of each essential element of the offense charged, or
of a lesser offense included therein, and (2) of defendant's being
the perpetrator of such offense. If so, the motion is properly
denied.” State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117
(1980)(citations omitted). Substantial evidence is relevant
evidence that a reasonable person would find sufficient to support
a conclusion. State v. Blake, 319 N.C. 599, 604, 356 S.E.2d 352,
355 (1987)(citation omitted). When reviewing a motion to dismiss
based on insufficiency of the evidence, this Court must
view the evidence in the light most favorable
to the State, giving the State the benefit of
all reasonable inferences. Contradictions and
discrepancies do not warrant dismissal of the
case but are for the jury to resolve. . . .
Once the court decides that a reasonable
inference of defendant's guilt may be drawn
from the circumstances, then “'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.'”
State v. Barnes, 334 N.C. 67, 75-6, 430 S.E.2d 914, 918-19
(1993)(citations omitted)(emphasis removed). “In addition, the
defendant's evidence should be disregarded unless it is favorable
to the State or does not conflict with the State's evidence.” State
v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 456 (2000)(citation
omitted), cert. denied, Fritsch v. North Carolina, 531 U.S. 890,
148 L. Ed. 2d 150 (2000). First-degree murder as alleged in the instant case is defined
as “the unlawful killing of a human being with malice,
premeditation, and deliberation.” State v. Myers, 299 N.C. 671,
677, 263 S.E.2d 768, 772 (1980). Defendant specifically argues
that the evidence does not support finding the required elements of
premeditation and deliberation.
Premeditation means thought over beforehand
for some length of time, however short, but no
particular time is required for the mental
process of premeditation. Deliberation does
not require brooding or reflection for any
appreciable length of time, but imports the
execution of an intent to kill in a cool state
of blood without legal provocation, and in
furtherance of a fixed design. The requirement
of “cool state of blood” does not mean that
defendant must be calm or tranquil. An
unlawful killing is deliberate and
premeditated if done pursuant to a fixed
design to kill, notwithstanding that defendant
was angry or in an emotional state at the
time, unless such anger or emotion was such as
to disturb the faculties and reason.
Id, at 677, 263 S.E.2d at 772-73.
Defendant argues that there is insufficient evidence of
premeditation and deliberation. We hold that the defendant's
unchallenged statement that he left his father, who had just been
shot twice and was on his knees, in order to collect a rifle from
another room, return, and shoot his unarmed father twice in the
head constituted sufficient evidence of premeditation and
deliberation to survive the motion to dismiss.
Robbery with a dangerous weapon is defined as: “
(1) the
unlawful taking or an attempt to take personal property from the
person or in the presence of another (2) by use or threatened useof a firearm or other dangerous weapon (3) whereby the life of a
person is endangered or threatened.” State v. Barden, 356 N.C. 316,
352, 572 S.E.2d 108, 131-32 (2002).
Defendant's unchallenged
statement again provides sufficient evidence to survive a motion to
dismiss on this charge. According to defendant, he shot his father
twice in the head and then took money out of his father's tin.
Defendant claimed that $200.00 of that money belonged to him, but
admitted the remainder did not. This argument is without merit.
Because defendant has not argued his other assignments of
error in his brief, they are deemed abandoned. N.C. R. App. P.
Rule 28(b)(6) (2003).
NO ERROR.
Chief Judge MARTIN and Judge HUNTER concur.
Report per Rule 30(e).
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