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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.
STATE OF NORTH CAROLINA v. PERCELL WATKINS, JR., Defendant
Filed: 6 February 2007
1. Homicide_attempted murder_indictment--sufficiency
An indictment for attempted murder without allegations of specific intent,
premeditation, or deliberation was not defective.
2. Search and Seizure_search of shop within curtilage_permission from woman living
The trial court did not err by concluding that a search of a shop outside of defendant's
house was constitutional where the court's findings, supported by the evidence, were that the
woman who gave permission for the search had lived with defendant for 13 years, officers
seeking her permission had known of her status as a resident of the house for about three or four
years and had no reason to suspect that she lacked control over the premises, and her consent was
voluntary and without hesitation.
3. Evidence_defendant's drunkenness and state of mind_no plain error
There was no plain error in an attempted murder and assault prosecution in admitting
statements by the woman who lived with defendant concerning his drunkenness, state of mind,
condition, and actions on the Thanksgiving Day on which the shooting occurred. Although the
statements may have been admissible as corroborative of her earlier testimony, their absence
would not have changed the jury's verdict.
4. Constitutional Law_right to remain silent_exercise by defendant--officer's
testimony_not plain error
There was no plain error in a prosecution for attempted murder and assault in the
admission of testimony from the arresting officer about defendant's exercise of his right to
remain silent. The testimony was incidental to the officer's overall testimony and it is doubtful
that the jury assigned it heavy weight.
5. Evidence_witness to shooting_defendant heard, not seen_testimony rationally
related to perception of event
There was no error in allowing the victim of an assault and attempted murder to testify
that he was shot by defendant, even though he did not see defendant shoot him. The victim,
defendant's uncle, heard defendant's voice during the shooting and had sufficient personal
knowledge to identify him.
6. Homicide_attempted murder_defendant as perpetrator_evidence sufficient
There was sufficient evidence, in the light most favorable to the State, that defendant was
the perpetrator of a shooting, and the court did not err by denying defendant's motion to dismiss
a charge of attempted murder.
7. Homicide_attempted murder_premeditation and deliberation_evidence sufficient
The evidence was sufficient to establish premeditation and deliberation in a prosecution
for attempted murder, taken in the light most favorable to the State.
On remand by order of the Supreme Court of North Carolina
filed 3 November 2005 to reconsider the unanimous decision of the
Court of Appeals, State v. Watkins
, 169 N.C. App. 518, 610 S.E.2d
746 (2005), in light of the decision of the North Carolina Supreme
Court in State v. Jones
, 359 N.C. 832, 616 S.E.2d 496 (2005).
Appeal by defendant from judgment entered 29 August 2003 by Judge
W. Osmond Smith, III, in Caswell County Superior Court. Originally
heard in the Court of Appeals 16 November 2004. Heard on remand 1
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate
Defender Daniel R. Pollitt, for defendant-appellant.
This appeal arises out of defendant's convictions of attempted
murder and assault with a deadly weapon with intent to kill
inflicting serious injury. The North Carolina Supreme Court has
remanded this case for reconsideration in light of State v. Jones,
359 N.C. 832, 616 S.E.2d 496 (2005). This opinion supersedes our
earlier opinion reported at State v. Watkins, 169 N.C. App. 518,
610 S.E.2d 746 (2005). Upon reconsideration, we find no error in
Defendant was indicted on 9 April 2002 for attempted murder
and on 13 May 2003 for assault with a deadly weapon with intent tokill inflicting serious injury. Following several days of trial,
on 29 August 2003 a jury found defendant guilty of both crimes.
The events giving rise to these convictions occurred on 22
November 2001, which was Thanksgiving Day. Defendant was living in
a house located on a large family farm in rural Caswell County.
Other members of defendant's family lived in separate houses on the
farm, including the victim, Walter Bigelow (Bigelow), who was
defendant's uncle. On Thanksgiving morning, defendant, Bigelow,
and two other friends met at Bigelow's house and began drinking
gin, beer, and other liquor. After drinking for several hours, the
men went to the home of a friend to see his new puppies. Defendant
was bitten by the mother dog after he took off his shirt and
attacked the dog.
Following defendant and Bigelow's return to Bigelow's house,
defendant wanted to continue drinking and entered the house against
Bigelow's wishes. While he was inside, defendant stumbled into
Bigelow's television and broke the screen. During the scuffle that
followed, defendant pulled out a knife. Bigelow kicked the knife
out of defendant's hand and threatened to call the police.
Defendant then walked out into Bigelow's yard and eventually left
in his truck after backing into Bigelow's fence.
At about 2:30 p.m. the same day, Bigelow and his brother,
Huston Bigelow (Huston), were walking near their mother's house
when Bigelow was struck in the shoulder by two gunshots. As he
fell to the ground, he heard defendant yell, I got one of theSOBs. Huston testified that after additional shots were fired, he
heard defendant yell, I got one now and I got one more to go.
Officer Clayton Myers of the Caswell County Sheriff's
Department arrived shortly after the shooting and interviewed
Donita Riley (Riley), defendant's girlfriend. Officer Myers
testified that during their conversation, Riley said defendant had
left his home earlier with a scoped rifle to go hunting. As part
of his investigation, Officer Myers called in a bloodhound to
search the area where the shots had likely been fired. The
bloodhound led the officers to a piece of camouflage cloth hanging
from a barbed wire fence. From there, the bloodhound followed a
trail to defendant's house.
During the investigation, officers asked Riley, who lived in
defendant's house, for permission to enter a shop building located
near the house. Riley initially refused, but she gave officers a
key to the shed after they told her they would get a warrant and
tear down the door. At that time, Riley also signed a form stating
that she consented to the search. Inside the building, officers
found a vehicle that defendant was working on, along with a .22
rifle and bullets on the floorboard. In addition, when officers
asked Riley for defendant's camouflage pants, she provided a pair
with a missing swatch of cloth. Officers determined that the
swatch of cloth recovered from the barbed wire fence perfectly
matched the hole in defendant's pants.
 In his first assignment of error, defendant contends that
the indictment for attempted murder is defective since it lacks
allegations that defendant acted with the specific intent to kill,
premeditation, or deliberation. In light of our Supreme Court's
decision in Jones, which held that the indictment in the instant
case comports with both statutory and constitutional requirements,
this assignment of error is without merit. 359 N.C. at 839, 616
S.E.2d at 500.
 Defendant next argues that the search of the shop outside
of his house was unconstitutional, and the evidence obtained
therein should have been suppressed. Specifically, defendant
argues that Riley did not have the apparent authority to authorize
the search and did not provide valid consent for the search. When
reviewing a trial court's ruling on a motion to suppress, the trial
court's findings of fact are conclusive on appeal if supported by
competent evidence, even if the evidence is conflicting. State v.
Brewington, 352 N.C. 489, 498, 532 S.E.2d 496, 501 (2000) (internal
quotations omitted), cert. denied, 531 U.S. 1165, 148 L. Ed. 2d 992
(2001); see also State v. Barnett, 307 N.C. 608, 613, 300 S.E.2d
340, 343 (1983).
Resolving any conflict within the evidence, the trial court
found that Riley had been defendant's girlfriend for 13 years and
had resided in defendant's home for the entire time. Further, the
trial court found that the officers seeking permission had known
for approximately three to four years of Riley's status as aresident of the home, and that officers had no reason to suspect
she did not have control over the premises, including the shop that
was determined to be located within the curtilage of the home.
Notably, the trial court found that Riley's consent was voluntary
and without hesitation. Despite some evidence to the contrary, we
see no reason to determine that these findings were not supported
by the evidence.
Once this Court concludes that the trial court's findings of
fact are supported by the evidence, then this Court's next task 'is
to determine whether the trial court's conclusion[s] of law [are]
supported by the findings.' Brewington, 352 N.C. at 498-99, 532
S.E.2d at 502 (quoting State v. Hyde, 352 N.C. 37, 45, 530 S.E.2d
281, 288 (2000)). This Court has previously determined that
officers may rely on the consent of third parties who have apparent
control over the area requested to be searched. See State v.
Jones, 161 N.C. App. 615, 620, 589 S.E.2d 374, 377 (2003) (One who
shares a house or room or auto with another understands that the
partner, may invite strangers[, and that his] privacy is not
absolute, but contingent in large measure on the decisions of
another. Decisions of either person define the extent of the
privacy involved . . .); see also State v. Garner, 340 N.C. 573,
592, 459 S.E.2d 718, 728 (1995) (A third party may give permission
to search where the third party possesses common authority over or
other sufficient relationship to the premises or effects sought to
be inspected.) (internal quotations omitted). Based on its
findings, the trial court did not err in determining that thesearch and subsequent seizure of property did not offend the
Defendant's next three assignments of error all deal with the
alleged erroneous admission of evidence. Since defendant did not
object to any of these admissions, we review them for plain error.
Under this standard of review, a defendant has the burden of
showing: (i) that a different result probably would have been
reached but for the error; or (ii) that the error was so
fundamental as to result in a miscarriage of justice or denial of
a fair trial. State v. Jones, 358 N.C. 330, 346, 595 S.E.2d 124,
135 (2004) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d
769, 779 (1997)).
 Defendant first contends that the trial court erred by
admitting statements by Riley through the testimony of Officer
Myers and Officer Eugene Riddick, another officer with the Caswell
County Sheriff's Office investigating the shooting. The officers
testified that Riley told them on 22 November 2001 that defendant
came home to get a long gun with a scope, telling her that he was
going hunting. Reporting from their notes, they further testified
that she told them defendant was drunk, irate, bleeding from the
face, and that he fell out the door. The officers also noted that
Riley had told them that defendant and Bigelow did not get along
and that defendant was becoming more uncontrollable.
The State argues that Riley's statements were corroborative of
her earlier testimony where she described for the jury asubstantially similar course of events. While we may be inclined
to find that Riley's statements were corroborative of her earlier
testimony, and thus admissible, we are convinced that the absence
of these statements would not have changed the jury's verdict. See
State v. Howard, 320 N.C. 718, 724, 360 S.E.2d 790, 793-94 (1987)
(discussing corroborative testimony). The jury heard evidence of
an earlier fight between defendant and Bigelow; positive voice
identification of defendant as the shooter by two people who had
known him his whole life; the fact that police had tracked
defendant from the scene of the shooting and were able to connect
the pants he was wearing to cloth found at the scene; and that
defendant had a long rifle in his truck. Thus, this assignment of
error is overruled.
 Next, defendant contends that the trial court erred in
admitting testimony that at various times he declined to make a
statement to investigators. We disagree. At trial, Officer Myers
testified about his interaction with defendant during defendant's
arrest. He said that defendant had been drinking, was found
hiding in a shower, and charged at an officer once he was
discovered. The State then asked Officer Myers questions regarding
defendant's demeanor following his arrest. It was while answering
these questions that Officer Myers described instances in which
defendant refused to make a statement.
A defendant has the right to remain silent, and the State
cannot use his exercise of that right as evidence that he is
guilty. State v. Ladd , 308 N.C. 272, 283, 302 S.E.2d 164, 171(1983) (We have consistently held that the State may not introduce
evidence that a defendant exercised his Fifth Amendment right to
remain silent.). Nonetheless, when reviewed for plain error, a
witness's incidental testimony that a defendant exercised his right
to silence may be a de minimis violation and not prejudicial. See
State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997).
Under these circumstances, Officer Myers's testimony regarding
defendant's exercise of his right to silence was incidental to
Myers's testimony in its entirety. It is doubtful that the jury
assigned heavy weight to defendant's exercise of his right to
silence in light of the evidence against him. Accordingly, we find
that no error occurred at trial.
 Concluding our plain error review, defendant states that
the trial court erred by admitting Bigelow's testimony that it was
defendant who shot him. We disagree. Rule 602 of the North
Carolina Rules of Evidence does provide that a witness may not
testify to a matter unless evidence is introduced sufficient to
support a finding that he has personal knowledge of the matter.
N.C. Gen. Stat. § 8C-1, Rule 602 (2003). Yet, the Rule's official
commentary states that [p]ersonal knowledge is not an absolute but
may consist of what the witness thinks he knows from personal
perception. N.C. Gen. Stat. § 8C-1, Rule 602 (2003); see also
State v. Poag, 159 N.C. App. 312, 323, 583 S.E.2d 661, 669 (2003).
Although Bigelow did not see defendant shoot him, his testimony was
based on what he perceived as the shooting occurred. In
particular, Bigelow testified that he heard defendant shout, I gotone of the SOBs while he was falling. Bigelow, as defendant's
uncle, was certain it was defendant's voice because he heard
defendant's voice all the time. As confirmation of Bigelow's
testimony, Huston, Bigelow's brother, testified that he also heard
defendant's voice shortly after the shooting and that he had known
defendant since the day he was born. As a result, we conclude
that Walter Bigelow had sufficient personal knowledge to identify
defendant and that his opinion was rationally based on his
perception of the shooting. See N.C. Gen. Stat. § 8C-1, Rule 701
(2003) (opinion testimony is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness and (b) helpful to a clear understanding of his testimony
or the determination of a fact in issue.).
In defendant's final two assignments of error, he asserts that
the State presented insufficient evidence to (1) identify him as
the shooter, and (2) establish premeditation and deliberation.
When a defendant moves for dismissal, the trial court [must]
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 theevidence in the light most favorable to the State, and the State is
entitled to every reasonable inference and intendment that can be
drawn therefrom. Id. (citing State v. Powell, 299 N.C. 95, 99, 261
S.E.2d 114, 117 (1980)).
 In the light most favorable to the State, we conclude that
there was ample evidence for the jury to determine that defendant
was the one that shot Walter Bigelow. In particular, the evidence
showed that defendant and Bigelow fought with each other before the
shooting and that defendant pulled a knife on Bigelow. The State
also showed that after the fight, defendant sat in his truck and
pointed a gun toward Bigelow's house. Both Bigelow and Huston
identified defendant's voice as the voice they heard when the
shooting occurred. In addition, Riley testified that she saw
defendant leave shortly after 2:00 p.m. in his truck. Finally,
when officers searched defendant's shop building, they found a .22
rifle and bullets. Based on this evidence, we conclude that the
trial court did not err in denying defendant's motion to dismiss.
 Defendant also argues that the evidence was insufficient
to establish premeditation or deliberation. Our Supreme Court has
stated that premeditation means that the act is 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. Jones, 342 N.C. 628, 630, 467 S.E.2d 233,
234 (1996). The Court has also defined deliberation as an
intention to kill, executed by the defendant in a cool state of the
blood, in furtherance of a fixed design to gratify a feeling ofrevenge, or to accomplish some unlawful purpose . . . State v.
Wise, 225 N.C. 746, 749, 36 S.E.2d 230, 232 (1945) (internal
To determine whether evidence shows premeditation and
deliberation, a court should consider the following factors: (1)
lack of provocation by the deceased; (2) conduct and statements of
the defendant before and after the killing; and (3) 'ill-will or
previous difficulty between the parties.' State v. Hood, 332 N.C.
611, 622, 422 S.E.2d 679, 685 (1992) (quoting State v. Williams,
308 N.C. 47, 69, 301 S.E.2d 335, 349 (1983)).
Taken in the light most favorable to the State, evidence at
trial tended to show that defendant entered Bigelow's house without
his permission, a fight resulted when defendant broke Bigelow's
television, and defendant pulled a knife on Bigelow. Riley
testified that ill will had developed between defendant and
Bigelow. Defendant left his house with a gun in his truck and
after shooting Bigelow in the shoulder yelled out, I got one now
and I got one more to go. There is more than ample evidence that
a jury could determine deliberation and premeditation beyond a
reasonable doubt. Thus, defendant's final assignment of error is
For the foregoing reasons, we conclude that there was no error
regarding defendant's trial.
Judges WYNN and HUDSON concur.
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