STATE OF NORTH CAROLINA
v
.
McDowell County
No. 04 CRS 618
BILLY RICHARD BINGHAM, JR.
Attorney General Roy Cooper, by Solicitor General Christoper
G. Browning, Jr., for the State.
C. Gary Triggs for defendant.
LEVINSON, Judge.
Billy Richard Bingham, Jr.(defendant) appeals judgment entered
upon his conviction for first degree murder. We find no error.
The pertinent facts may be summarized as follows: Rory Kelly
testified that during the early morning of 5 October 2003, the
deceased, Robert Rhom (Rhom), and others congregated at Rhom's
house to celebrate Nathan Frady's birthday. There, the men heard
a lawn mower approaching the house. Rhom informed his friends that
the “lawn mower man” was coming and that they needed to go inside
the house to “hide out.” The men went into the house without
turning on the lights and remained silent. Shortly thereafter,
defendant began knocking on Rhom's door and demanded to come
inside. Defendant eventually left. Kelly further testified thatapproximately fifteen (15) minutes thereafter, defendant returned
on his lawn mower, entered the Rhom residence, and began cursing at
Rhom. Rhom demanded that defendant leave. Defendant responded,
“[m]ake me get out of your house.” Although defendant eventually
exited the house, he did not leave Rhom's yard. When Rhom repeated
his demand that defendant leave, defendant pushed Rhom and the two
had a physical altercation. Kelly testified that Rhom hit
defendant “a few times.” Following the dispute, defendant left on
his lawn mower. As defendant left, he stated to Rhom that “it
wasn't over.”
Kelly also testified that, following the altercation, Rhom
realized that he had lost his cell phone. Rhom, Kelly and Frady
began looking for the cell phone in the front yard. As they were
searching, defendant and his mother drove up to Rhom's house.
Defendant's mother told Kelly that her son had also lost a cell
phone and that they had come to look for it. Within seconds, a
cell phone rang in defendant's pocket. Defendant then walked
toward Rhom. Defendant's mother attempted to intervene, stating,
“Don't do this. Don't do this.” Defendant approached Rhom,
stating, “I'm sobered up now and [it's] f[-----] up you did me that
way.” Defendant retrieved a knife from behind his back and stabbed
Rhom in the stomach. Defendant and his mother then left the Rhom
residence.
Donald Blevins of the Marion Police Department testified that
he spoke with defendant and defendant's mother on the morning of 5
October 2003. Defendant stated that he had been involved in astabbing, and that he had thrown the knife out of the car on
Rutherford Road. Charles Oliver, also of the Marion Police
Department, testified that the knife was found in a ditch on
Rutherford Road with the help of defendant's mother.
Dudley Greene of the McDowell County Sheriff's Office also
spoke with defendant on the morning of 5 October 2003. Defendant
described the fight as follows: He was attempting to leave Rhom's
property when Rhom knocked him off the lawn mower. Defendant
asserted that Rhom punched him 12-14 times when he was at Rhom's
residence the first time. Thereafter, he told his mother that “if
they jumped on him he would stop it.” He and his mother returned
to Rhom's house to retrieve a cell phone. As they drove up, he
reached out of the car and picked up the cell phone. Defendant
then got out of the car, carrying a 12 inch knife. When asked
whether the knife he used had come from his mother's kitchen,
defendant stated, “[I]f I told you I done that, it would be
premeditation.” Finally, defendant stated he stabbed Rhom after
Rhom swung at him.
Dr. Donald Jason was the forensic pathologist who performed an
autopsy upon Rhom. Jason described the stab wound to Rhom's
stomach, noting that it was eight inches deep. He further
described a “defense wound” that Rhom received to his thumb. He
opined that Rhom died of internal bleeding from the stab wound to
his stomach. Defendant was convicted of first degree murder and sentenced
to life imprisonment without the possibility of parole. Defendant
now appeals.
In defendant's first argument on appeal, he contends that the
“[t]rial [j]udge's numerous negative comments to defense counsel,
both in and out of the presence of the jury, created a negative
atmosphere . . . to the prejudice of the [d]efendant.”
Specifically, defendant argues that the trial court's: (1) denial
of certain evidentiary voir dire hearings; (2) sustaining
objections to certain questions; and (3) general demeanor and other
conduct created a “pervasive pattern that was so disrespectful and
so disruptive” as to prejudice defendant's rights to due process
under the Fourteenth Amendment to the United States Constitution.
We disagree.
“The judge's duty of impartiality extends to defense counsel.
He should refrain from remarks which tend to belittle or humiliate
counsel since a jury hearing such remarks may tend to disbelieve
evidence adduced in defendant's behalf.” State v. Coleman, 65 N.C.
App. 23, 29, 308 S.E.2d 742, 746 (1983) (citation omitted). A
totality of the circumstances test is used to ascertain whether a
judge's comments cross into the “realm of impermissible opinion.”
State v. Larrimore, 340 N.C. 119, 155, 456 S.E.2d 789, 808 (1995)
(citation omitted). A judge's broad discretionary power to
supervise and control the trial “will not be disturbed absent a
manifest abuse of discretion.” State v. Goldman, 311 N.C. 338,
350, 317 S.E.2d 361, 368 (1984) (citation omitted). “Whether the judge's comments, questions or actions constitute reversible error
is a question to be considered in light of the factors and
circumstances disclosed by the record, the burden of showing
prejudice being upon the defendant.” State v. Blackstock, 314 N.C.
232, 236, 333 S.E.2d 245, 248 (1985) (citation omitted)
It is generally within the discretion of the trial court to
regulate if and when evidentiary voir dire hearings take place.
See
State v. Holder, 331 N.C. 462, 477, 418 S.E.2d 197, 205
(1992)(defendant is unable to show either an abuse of discretion or
harm resulting from not having a voir dire hearing before tape
recording was authenticated).
In addition, the trial court has
wide discretion to ensure forward progress and proper decorum
during the trial. See State v. White, 340 N.C. 264, 299, 457
S.E.2d 841, 861 (1995) (trial court has “duty to control the
examination of witnesses, both for the purpose of conserving the
trial court's time and for the purpose of protecting the witness
from prolonged, needless, or abusive examination”).
In the present case, the trial court denied certain voir dire
hearings, prohibited defense counsel from asking repetitive
questions, and made certain comments to defense counsel that are
now noted on appeal. Before Kelly's testimony, for example,
defense counsel asked for a voir dire hearing which was denied by
the trial judge. During cross-examination of Kelly, the trial
judge stated, “Any other questions? . . . Let's move along and not
ask the same question half a dozen times.” The trial court also
informed defense counsel in regards to requesting a full copy of acase that, “I can't rule on headnotes, I need to rule on cases.
Kind of like you know, brown book and green book law.” In
addition, after defense counsel made an argument, the trial judge
stated, “[w]ouldn't that make a good jury argument for you?”
We have reviewed the complete record, and conclude that
defendant has not shown that the trial court's comments and/or
conduct prejudiced the outcome of the trial. The relevant
assignments of error are overruled.
In defendant's next argument on appeal, he contends that the
trial court erred by denying his motions to exclude his statements
and those of several other witnesses.
N.C.R. App. P. 10(c)(1) provides, in pertinent part, that
“[e]ach assignment of error shall, so far as practicable, be
confined to a single issue of law; and shall state plainly,
concisely and without argumentation the legal basis upon which
error is assigned.” “One purpose of this rule is to 'identify for
the appellee's benefit all the errors possibly to be urged on
appeal . . . so that the appellee may properly assess the
sufficiency of the proposed record on appeal to protect his
position.'” State v. Baggett & Penuel, 133 N.C. App. 47, 48, 514
S.E.2d 536, 537 (1999) (quoting Kimmel v. Brett, 92 N.C. App. 331,
335, 374 S.E.2d 435, 437 (1988)). “[A]ssignments of error [that
are]. . . broad, vague, and unspecific . . . do not comply with the
North Carolina Rules of Appellate Procedure[.]” In re Appeal of
Lane Co., 153 N.C. App. 119, 123, 571 S.E.2d 224, 226-27 (2002).
Defendant assigned as error the following: 19. The Court's improperly allowing the State
to introduce into evidence the statement of
Joe Noblitt, Exhibit 14, and thereafter
allowing Detective Carpenter to read the
statement to the jury over Defendant's
objection.
20. The Court's improperly allowing the State
to introduce into evidence the statement of
Rory Kelly, Exhibit 11, and thereafter
allowing Detective Carpenter to read the
statement to the jury over Defendant's
objection.
21. The Court's improperly allowing the State
to introduce into evidence the statement of
Kevin Frady, Exhibit 13, and thereafter
allowing Detective Carpenter to read the
statement to the jury over Defendant's
objection.
22. The Court's allowing purported statements
of the Defendant into evidence over
Defendant's objection.
Here, defendant's assignments of error corresponding to this
argument fail to comply with the requirements of Rule 10(c)(1) of
the North Carolina Rules of Appellate Procedure. The assignments
do not “state a legal basis upon which error is assigned.” The
assignments fail to articulate a rationale for why the trial
court's actions were in error. Accordingly, the relevant
assignments of error are dismissed. See Broderick v. Broderick,
175 N.C. App. 501, 503, 623 S.E.2d 806, 807 (2006) (dismissing
assignment of error which failed to set forth a legal issue for
determination). We have nonetheless reviewed the admission of the
statements and have not discerned error on the part of the trial
court. In defendant's next argument on appeal, he contends that the
trial court erred by denying his motion to dismiss the charge of
first degree murder at the close of all evidence. We disagree.
When ruling on a motion to dismiss, “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. Crawford, 344 N.C. 65,
73, 472 S.E.2d 920, 925 (1996).
Evidence is substantial if it is relevant and
adequate to convince a reasonable mind to
accept a conclusion. In considering a motion
to dismiss, the trial court must analyze the
evidence in the light most favorable to the
State and give the State the benefit of every
reasonable inference from the evidence. The
trial court must also resolve any
contradictions in the evidence in the State's
favor. The trial court does not weigh the
evidence, consider evidence unfavorable to the
State, or determine any witness' credibility.
State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255-56 (2002)
(internal citations and quotation marks omitted).
“The elements of [premeditated] first-degree murder are: (1)
the unlawful killing, (2) of another human being, (3) with malice,
and (4) with premeditation and deliberation.” State v. Coble, 351
N.C. 448, 449, 527 S.E.2d 45, 46 (2000) (citation omitted).
'Premeditation is defined as thought
beforehand for some length of time no matter
how short. Deliberation means an intention to
kill executed by the defendant in a cool state
of blood. Cool state of blood as used in
connection with premeditation and deliberation
does not mean absence of passion and emotion
but means that an unlawful killing is
deliberate and premeditated if executed with a
fixed design to kill notwithstanding defendantwas angry or in an emotional state at the
time.'
State v. Burgess, 345 N.C. 372, 386-87, 480 S.E.2d 638, 645-46
(1997) (quoting State v. Saunders, 317 N.C. 308, 312, 345 S.E.2d
212, 215 (1986)). “Malice is . . . a state of mind which prompts
one person to take the life of another without just cause, excuse
or justification.” State v. Hamilton, 77 N.C. App. 506, 511, 335
S.E.2d 506, 509-10 (1985)(citing State v. Love, 296 N.C. 194, 250
S.E.2d 220 (1978)).
The evidence in the light most favorable to the State shows
that defendant killed Rhom by thrusting a kitchen knife into his
stomach. After an initial confrontation, defendant left the Rhom
residence, stating, “it wasn't over.” Defendant told his mother
that “if they jumped on him [defendant] he would stop it.” Upon
defendant's return to Rhom's residence, he approached Rhom and
stated, “I'm sobered up now and [it's] f[-----] up you did me that
way.” Defendant retrieved the knife from behind his back and
stabbed Rhom in the stomach. Defendant and his mother then left
Rhom's residence. The evidence was sufficient to submit the charge
of first degree murder to the jury, and this assignment of error is
therefore rejected.
In a related argument, defendant contends that the trial court
erred by denying his motion made on 22 July 2005 pursuant to N.C.
Gen. Stat. § 15A-1227 (2005) to set aside the jury's guilty verdict
of first degree murder.
“The standard of review of a trial court's denial of a motion
to set aside a verdict for lack of substantial evidence is the sameas reviewing its denial of a motion to dismiss, i.e., whether there
is substantial evidence of each essential element of the crime.”
State v. Duncan, 136 N.C. App. 515, 520, 524 S.E.2d 808, 811 (2000)
(citing State v. Young, 120 N.C. App. 456, 462 S.E.2d 683 (1995)).
The same reasoning that supports the conclusion that substantial
evidence was presented as to each element of first degree murder
also supports the conclusion that the trial court did not err by
denying defendant's motion to set aside the verdict. This
assignment of error is overruled.
In defendant's final argument, he contends that the trial
court erred by failing to properly instruct the jury.
Specifically, defendant argues that the trial court committed
prejudicial error by overruling his objections to the State's
requests for pattern jury instructions 104.60 Admissions; 104.70
Confessions; and 105.21 False or Contradictory Statements.
However, we need not reach the merits of this issue, as defendant
has failed to comply with Rule 28 of the North Carolina Rules of
Appellate Procedure.
N.C.R. App. P. 28(b)(6) provides, in relevant part, that
“[a]ssignments of error not set out in appellant's brief, or in
support of which no reason or argument is stated or authority
cited, will be taken as abandoned.” In the instant case, defendant
neither cites legal authority nor presents any meaningful argument
in support of his contention that the trial court improperly
instructed the jury. Hence, this assignment of error is deemedabandoned. State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App.
630, 642, 624 S.E.2d 371, 379 (2005).
No error.
Judges McCULLOUGH and BRYANT concur.
Report per Rule 30(e).
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