Appeal by Defendant from judgment entered 21 July 2006 by
Judge Carl R. Fox in Superior Court, Guilford County. Heard in the
Court of Appeals on 29 August 2007.
Attorney General Roy Cooper, by Assistant Attorney General
Philip A. Lehman, for the State.
Terry W. Alford for Defendant.
Joseph Clark Fleming (Defendant) was convicted on 21 July 2006
of first-degree murder. The trial court sentenced Defendant to
life imprisonment without parole. Defendant appeals.
The evidence presented at trial tended to show the following:
Defendant and Johnny Hanner (Mr. Hanner) had known each other for
over thirty years. The two men were friends and belonged to the
same social group. However, they had frequent disputes, including
a quarrel over rental property that resulted in Defendant
threatening physical violence against Mr. Hanner. That incident
led to a four-year estrangement in their relationship. Defendant
and Mr. Hanner reconciled in 2003, but in October 2004, their
tempers flared again. Numerous acquaintances of the two mentestified that while Defendant was on vacation in Arizona,
Defendant telephoned Mr. Hanner. During the telephone
conversation, Mr. Hanner made a disparaging remark about
Defendant's family. In response, Defendant threatened to kill Mr.
Nine days after this telephone conversation, on the afternoon
of 25 October 2004, Mr. Hanner was found dead on his couch by a
friend. The friend observed a large laceration across Mr. Hanner's
throat and called police.
Defendant's wife, Robin Fleming (Mrs. Fleming), returned home
from work at 5:00 p.m. on 25 October 2004 to find Defendant
behaving oddly. Mrs. Fleming took Defendant down the street to her
father's house. Defendant admitted to Mrs. Fleming and his father-
in-law that he had killed Mr. Hanner. Defendant's father-in-law
convinced Defendant to call the police. Sergeant Mozelle Stancil
(Sergeant Stancil) responded to the call and took Defendant to the
sheriff's office. Officers then obtained a search warrant for
Defendant's home. While executing the warrant, Sergeant Stancil
found a knife and a pair of Defendant's pants, both of which were
stained with blood. Police also found blood inside Defendant's
truck. Subsequent DNA tests determined that the blood in all three
locations belonged to Mr. Hanner.
A medical examiner performed an autopsy on Mr. Hanner the
following day. The medical examiner observed ten stab wounds on
Mr. Hanner's face, including a fatal eight-inch wound that ran from
Mr. Hanner's neck to his left ear. The nature of the woundssuggested the wounds were inflicted by a person standing over Mr.
Hanner while Mr. Hanner was lying down. The medical examiner found
no defensive wounds on Mr. Hanner.
At trial, Defendant admitted that he was guilty of second-
degree murder. The jury was instructed as to first-degree and
second-degree murder, and found Defendant guilty of first-degree
murder. Defendant appeals his conviction and argues that the trial
court should have dismissed the first-degree murder charge due to
insufficiency of the State's evidence against him. Defendant also
requests that his conviction be reversed and that he be granted a
new trial on the ground that he was denied effective assistance of
counsel at trial. We find no error.
Defendant first challenges the trial court's failure to
dismiss the first-degree murder charge due to insufficiency of the
evidence presented by the State against him. Defendant has not
properly preserved this argument for appellate review. At trial,
defense counsel moved to dismiss after the close of the State's
evidence. The trial court denied the motion. Defendant
subsequently presented evidence but did not renew his motion to
dismiss at the close of all the evidence. Under N.C.R. App. P.
If a defendant makes [a motion to dismiss]
after the State has presented all its evidence
and has rested its case and that motion is
denied and the defendant then introduces
evidence, his motion for dismissal . . . made
at the close of State's evidence is waived.
Such a waiver precludes the defendant from
urging the denial of such motion as a groundfor appeal.
Because Defendant did not renew his motion to dismiss at the close
of all the evidence, his challenge to the trial court's denial of
his motion to dismiss is not properly preserved for appellate
Defendant asserts, however, that the trial court's failure to
dismiss the charge against him was plain error that may be reviewed
by this Court. Defendant is incorrect. We have consistently held
that with regard to insufficiency challenges, a "[d]efendant's
attempt to invoke plain error review is inappropriate as this
assignment of error concerns the sufficiency of the evidence, not
an instructional error or an error concerning the admissibility of
evidence." State v. Bartley
, 156 N.C. App. 490, 494, 577 S.E.2d
319, 322 (2003) (plain error review unavailable where the
defendant's motion to dismiss was not properly preserved for
appellate review under N.C.R. App. P. 10(b)(3)). See also State v.
, 341 N.C. 658, 676-77, 462 S.E.2d 492, 504 (1995)
(declining plain error review where N.C.R. App. P. 10(b)(3)
precluded review); State v. Freeman
, 164 N.C. App. 673, 677, 596
S.E.2d 319, 322 (2004) (noting that "[p]lain error . . . only
applies to jury instructions and evidentiary matters in criminal
cases"). This assignment of error is overruled.
Defendant next contends that he was denied effective
assistance of counsel at trial, in violation of his state and
federal constitutional rights. The test for ineffective assistance of counsel is identical
under both the United States Constitution and the North Carolina
First, the defendant must show that counsel's
performance was deficient. This requires
showing that counsel made errors so serious
that counsel was not functioning as the
"counsel" guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced
the defense. This requires showing that
counsel's errors were so serious as to deprive
the defendant of a fair trial, a trial whose
result is reliable.
Strickland v. Washington
, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693,
, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984). See State v.
, 312 N.C. 553, 562-63, 324 S.E.2d 241, 248 (1985)
test in North Carolina).
prejudice, Defendant must show that "there is a reasonable
probability that, but for counsel's errors, there would have been
a different result in the proceedings." Id.
at 563, 324 S.E.2d at
Defendant asserts that his counsel's performance was deficient
because counsel did not renew Defendant's motion to dismiss at the
close of all the evidence, thus precluding appellate review of the
matter under N.C.R. App. P. 10(b)(3). Certainly, it would have
been proper for defense counsel to renew the motion to dismiss.
However, even were this an error "so serious that counsel was not
functioning as the 'counsel' guaranteed the defendant," Strickland
466 U.S. at 687, 80 L. Ed. 2d at 693, we find that Defendant did
not suffer prejudice as a result of this error. To have survived Defendant's motion to dismiss, had Defendant
made such a motion at the close of all the evidence, the State must
have presented "substantial evidence (1) of each essential element
of the offense charged, or of a lesser offense included therein,
and (2) of [D]efendant's being the perpetrator of such offense."
State v. Powell
, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980).
Considered in the light most favorable to the State, the evidence
must have "give[n] rise to a reasonable inference of guilt." State
, 303 N.C. 500, 504, 279 S.E.2d 835, 838 (1981). However,
"[i]f the evidence [was] sufficient only to raise a suspicion or
conjecture as to either the commission of the offense or the
identity of the defendant as the perpetrator of it," the trial
court would have been required to grant Defendant's motion to
, 299 N.C. at 98, 261 S.E.2d at 117.
The elements of first-degree murder under N.C. Gen. Stat. §
14-17 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).
defendant premeditates if he or she "form[s] the specific intent to
kill the victim for some length of time, however short, before the
actual killing." State v. Arrington
, 336 N.C. 592, 594, 444 S.E.2d
418, 419 (1994). A defendant deliberates if he or she "form[s] the
intent to kill in a cool state of blood and not as a result of a
violent passion due to sufficient provocation." State v.
, 340 N.C. 229, 234, 456 S.E.2d 299, 302 (1995).
Defendant argues that the State did not introduce sufficientevidence that he acted with premeditation and deliberation, thus
negating element (4) of the offense. Our Courts have identified
numerous circumstantial factors that a jury may consider when
determining whether a defendant premeditated and deliberated on a
(1) lack of provocation on the part of the
deceased, (2) the conduct and statements of
the defendant before and after the killing,
(3) threats and declarations of the defendant
before and during the occurrence giving rise
to the death of the deceased, (4) ill-will or
previous difficulty between the parties, (5)
the dealing of lethal blows after the deceased
has been felled and rendered helpless, (6)
evidence that the killing was done in a brutal
manner, and (7) the nature and number of the
State v. Vause
, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991). Many
of these factors are present in the case before us: (a) Defendant
and Mr. Hanner had a long relationship marred by disputes and
threats; (b) witnesses testified that Defendant had threatened to
kill Mr. Hanner during prior quarrels, and had renewed the threat
in the week prior to the killing; (c) while there was evidence that
Mr. Hanner had made a disparaging remark about Defendant's family
a week earlier, there was no evidence that Mr. Hanner had done
anything to provoke Defendant in the hours or days before the
killing; (d) the nature of Mr. Hanner's wounds suggested that at
the time of the killing, Mr. Hanner was lying on his couch and made
no effort to defend himself; and (e) in addition to the fatal
laceration across his neck, Mr. Hanner also suffered ten stab
wounds to his neck and face.
It is correct that Defendant offered some evidence that he didnot act with premeditation and deliberation. For example, one of
Defendant's expert witnesses, a forensic psychologist, expressed an
opinion that Defendant was not in a clear or cool state of mind
when he killed Mr. Hanner. Another expert witness in the same
field testified that during the killing Defendant was intoxicated
and suffered from psychiatric disorders. However, the physical and
circumstantial evidence presented by the State was sufficient to
permit the jury to determine the question of premeditation and
We find that the State presented substantial evidence that
Defendant committed each element of the crime of first-degree
murder. Therefore, we hold that there is no reasonable probability
that had defense counsel renewed the motion to dismiss at the close
of all the evidence, a different result would have been reached in
this case. Defendant's claim of ineffective assistance of counsel
at trial therefore fails.
Judges STEPHENS and SMITH concur.
Report per Rule 30(e).
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