State v. Perdue, 447A86

• Decision Date: 07 July 1987
• Docket Number: No. 447A86,447A86
• Citation: 320 N.C. 51,357 S.E.2d 345
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Sheila Marie Burns PERDUE.

Page 345

357 S.E.2d 345

320 N.C. 51

STATE of North Carolina v. Sheila Marie Burns PERDUE.

No. 447A86.

Supreme Court of North Carolina.

July 7, 1987.

Lacy H. Thornburg, Atty. Gen. by William P. Hart, Asst. Atty. Gen., Raleigh, for State.

Malcolm Ray Hunter, Jr., Appellate Defender by Robin E. Hudson, Asst. Appellate Defender, Durham, for defendant-appellant.

MEYER, Justice.

In this appeal from her conviction of first-degree murder of her infant daughter, defendant argues: (1) that the evidence was insufficient to support a conviction of first-degree murder, (2) that the court erred in admitting her inculpatory statement into evidence, (3) that the court erred in overruling defendant's objections to the district attorney's closing argument, and (4) that the court erroneously instructed the jury on the element of malice. We find no error.

In March 1985, defendant, Sheila Perdue, lived in a mobile home with her husband, Homer Perdue, and their thirty-day-old infant daughter, Tammy Maranda Perdue. According to the testimony of Homer Perdue, on 11 March 1985 at approximately 2:10 p.m., he was working at Lott Steel and received a call from the defendant, who reported that there was something wrong with their daughter. He drove to their mobile home and there he saw the defendant holding Tammy, who appeared white and lifeless. Perdue rushed to his father's mobile home, just next to his, and called an ambulance. He then went back to his mobile home and tried to perform cardiopulmonary resuscitation on the child.

In response to Perdue's call, paramedics and Davidson County sheriff's deputies came to the Perdue mobile home. Harvey Blackwelder, a paramedic, testified that when he arrived at the mobile home, he was met by Jerry Sink of the rescue squad. Sink, who had Tammy in his arms, laid her on the ambulance cot. Blackwelder testified that when he observed the infant, she had no vital signs. Blackwelder also testified that the infant had blood on her face, lacerations on the bridge of her nose, and abrasions around her left eye. He testified that there was bruising on the chest, abdomen, and face of the infant.

Both defendant and Tammy were transported by ambulance to Lexington Memorial Hospital. While there, the defendant was observed by law enforcement personnel, as well as the emergency room physician, who testified that her behavior was erratic; she acted at times calm and at other times hysterical. Pursuant to a nontestimonial identification order, defendant's blood was drawn. ¹ Before being taken to the Sheriff's Department for questioning, she was injected with five milligrams of Haldol, a tranquilizer.

While at the Sheriff's Department, defendant waived her Miranda rights and gave the following statement, which was offered into evidence by the State:

About 6:30 a.m. my father-in-law (BOBBY EUGENE PERDUE) came to our trailer to awaken my husband so that he could go to work. I didn't get up at that time. Sometime later, my father-in-law came back to ask me if I was going to come over to his trailer, which is behind ours, and watch television. That was sometime around nine a[.]m. I'm not sure of the exact time because our clock broke the night before. Anyway, I went over to my father-in-law's and took Tammy with me. She was sleeping. Before I left I fed her two ounces of milk (my trailer). Tammy slept while I was at my father-in-law's. I watched TV with my father-in-law. I don't know what time I left there but we were watching an old movie and it wasn't over when I did leave. The baby was still asleep. When I got back to my trailer Tammy was awake so I fed her 1 1/2 ounces of milk. After she took the milk she burped and blood came out of her mouth all over me. I laid her down and went back to my father-in-law's and used his phone to call my husband (HOMER RAY PERDUE) at his job at Lott Steel. I didn't have a phone and that's why I had to leave my baby and go to the other trailer to call my husband. I went back to my trailer and about three seconds after I got there my father-in-law came in. The baby was okay but still bleeding from the mouth. The baby has been constipated and I've taken it to the doctor for that. The only marks I noticed were where it looked like she grabbed for her mouth and scratched her face. She slept well last night; she awakened about 4 a.m. and I got up. I changed her diaper, fed her, and then she went right back to sleep. I didn't hurt Tammy and I don't know who did.

The State's medical evidence was based on the testimony of Dr. Mark Bordou, the emergency room physician who examined the infant when she arrived at the hospital, and Dr. Page Hudson, the State's Chief Medical Examiner.

Dr. Bordou testified that he examined Tammy on 11 March 1985, in his capacity as emergency room physician and medical examiner. He testified that the child had a bruised and battered appearance and that there was general swelling about her face. He further testified that the most profound injuries were on the infant's head and that there was a "tremendous amount of swelling over the back of the skull and discoloration which indicated blood about the surface of the scalp."

Dr. Page Hudson, a forensic pathologist and the State's Chief Medical Examiner, performed an autopsy on Tammy Maranda Perdue on 12 March 1985. He observed extensive bruising to the chest, hand, and head. He observed a fresh fracture on the left arm, a fresh fracture of the left leg, and extensive fracturing of the skull. He opined that it would take a rather considerable amount of torsion or force to cause the leg and arm fractures and that these fractures occurred rather close to the time of death. He also testified that the skull fracture was likely the result of "considerable blunt force injury." He offered his opinion that Tammy Perdue died as a result of a blunt force injury to the head and could have lived for only a short time after sustaining such an injury.

Paramedics and Davidson County sheriff's deputies testified that in defendant's mobile home they observed bloodstains on a baby carrier, baby carrier cover, disposable diaper box cover, and blanket in the crib. In the bathroom, they observed reddish stains on the shower stall, under the sink, and on the carpet. They also observed reddish stains on a mattress on a bed in the end bedroom and on a pair of white shorts found on the floor in the kitchen. Paramedics who observed defendant outside her mobile home noticed that she wore a shirt and pants that appeared to have been bloodstained.

Jona Medlin, a chemist with the State Bureau of Investigation, testified that she examined the samples of blood of defendant and Tammy Perdue. After analysis of the baby carrier, defendant's shirt and pants, and the white shorts found on the floor of the kitchen, she offered her opinion that human blood was present on the items analyzed and that the blood was consistent with the blood of the infant.

Defendant offered the testimony of several witnesses who said they had observed her with her baby daughter prior to the death and that she had been a good parent. They testified that she had strict rules about not holding the baby too long or smoking around the baby.

I.

By her first argument, defendant contends that the trial court erred in entering judgment because the evidence was insufficient to support a conviction of first-degree murder. Specifically, defendant argues that the State proved neither the corpus delicti of the crime nor the requisite criminal intent necessary to support a conviction of first-degree murder. We disagree.

The corpus delicti of murder includes proof of death and proof that the death resulted from the criminal agency of another. State v. Johnson, 193 N.C. 701, 138 S.E. 19 (1927). Evidence of "criminal agency of another," as that phrase has been used in defining corpus delicti in homicide cases, means evidence which tends to show that the deceased died not as a result of natural or accidental causes, but by the hand of another. Jefferson v. State, 128 So.2d 132 (Fla.1961). See generally R. Perkins, The Corpus Delicti of Murder, 48 Va.L.Rev. 173 (1962).

Defendant argues that because the expert medical testimony did not expressly exclude an accidental cause of death, the State failed to prove that the death resulted from the criminal agency of another. We disagree.

Dr. Bordou testified that the victim sustained profound head injury indicating fracture of the skull bones. He opined that it is hard to fracture a child's bones, including the skull, and that "simple injury such as falling from a stand or [being] dropped accidentally is very uncommon to bruises and fractures." Dr. Hudson testified that it would take "a rather considerable amount of torsion or force" to cause the fractures he observed during the autopsy of the victim. We hold that this evidence was sufficient to permit a jury to find that the victim's injuries were not the result of accident and that the corpus delicti was established.

Defendant's reliance on State v. Byrd, 309 N.C. 132, 305 S.E.2d 724 (1983), is misplaced. There, defendants were convicted of second-degree murder of their infant son. The pathologist who performed the autopsy on the victim observed no external injury. After an order of exhumation, the victim's body was examined by a state medical examiner, who testified and offered an opinion that the child victim died as a result of a "blunt trauma" to the head. The medical examiner also offered his opinion that a twenty-five-day-old child could not sit up, crawl, or turn over. This Court held that while the testimony was some evidence that the child did not accidentally cause injuries to himself, it was not "tantamount to a statement that another person could not have, or was unlikely to have, accidentally inflicted the injuries." Id. at 138-39, 305 S.E.2d at 729.

Byrd is readily distinguishable from the present case. Here, paramedics, the emergency room doctor, and ...