State v. Alexander

• Citation: 337 N.C. 182,446 S.E.2d 83
• Decision Date: 29 July 1994
• Docket Number: No. 258A93,258A93
• Court: United States State Supreme Court of North Carolina
• Parties: STATE of North Carolina v. Odell Lamont ALEXANDER, & George Junior Cunningham.

Page 83

446 S.E.2d 83

337 N.C. 182

STATE of North Carolina v. Odell Lamont ALEXANDER, & George Junior Cunningham.

No. 258A93.

Supreme Court of North Carolina.

July 29, 1994.

Michael F. Easley, Atty. Gen. by Mary Jill Ledford, Asst. Atty. Gen., for the State.

Ann R. Goodman, for defendant-appellant Alexander.

Malcolm Ray Hunter, Jr., Appellate Defender by Constance H. Everhart, Asst. Appellate Defender, for defendant-appellant Cunningham.

MEYER, Justice.

On 26 August 1991, defendants Alexander and Cunningham were indicted for the first-degree murder of Darrin Karon Burch, for the assault with a deadly weapon with intent to kill inflicting serious injury of Corey Eugene Hill, and for discharging a firearm into occupied property, specifically, a vehicle occupied by the victims, Burch and Hill. The charges were consolidated for trial in a capital trial conducted at the 18 August 1992 Criminal Session of Superior Court, Catawba County, before Judge Robert M. Burroughs. Both defendants were found guilty by a jury of first-degree murder under the felony-murder theory, of discharging a firearm into occupied property, and of the assault with a deadly weapon with intent to kill inflicting serious injury charges. Following a capital sentencing proceeding conducted pursuant to N.C.G.S. § 15A-2000, the jury recommended sentences of life imprisonment for both defendants. Judge Burroughs sentenced defendant Alexander to a prison term of life for the conviction of first-degree murder and to a consecutive term of six years for the felony assault conviction. Defendant Cunningham was sentenced to a term of life for the conviction of first-degree murder and to a consecutive term of twenty years for the felony assault conviction.

The evidence presented at trial tended to show the following. On 27 June 1991, sometime between 11:00 p.m. and 1:00 a.m., Corey Hill drove to an area of Hickory known as "The Hill." After Hill parked the truck he was driving, he was approached by Darrin Burch, who told him that something was going on and that he was going to be in a fight. Hill walked around the corner and placed an order in a local restaurant. While waiting for his food to be prepared, Hill walked back to the truck. Hill noticed a commotion in the area of a nearby church and walked up the street toward it. As he approached the intersection near the church, he saw Burch on top of and fighting with defendant Alexander. There was a crowd of fifteen to twenty people gathered around, but Hill did not see defendant Cunningham. After the fight broke up, Hill returned to the restaurant to pick up his food.

As Hill walked back toward the restaurant, Burch came past and spoke to him. As Burch was passing, Hill told him he would pick him up down the street. Hill picked up his food from the restaurant, got in his truck, and went in search of Burch.

Hill circled the area until he heard Burch call out to him from behind some bushes. Hill stopped the truck and backed up, and Burch got in. Hill asked him which way to go, and Burch told him to keep going the same way.

Hill drove back past the restaurant and started to turn left at the next intersection. As he did so, he caught a "glimpse" of defendant Cunningham in the rear view mirror. Cunningham had a shotgun. Shots were fired, and Hill recognized the sounds of a shotgun and a pistol. One shot struck Burch in the head. Burch said, "Oh sh--," and fell over into Hill's lap. Burch did not speak anymore.

Hill drove away from the scene and took Burch directly to the emergency room at Frye Regional Hospital. Some time later, he drove through the area of the shooting in the patrol car of Officer Joe Frank of the Hickory Police Department and observed both defendants as they were being questioned by Hickory Police Officer Phillip Thorpe. Hill identified both defendants as the men who had fired the shots, and they were arrested.

Witness Michael Prysock testified that he had been in the area at the time of the shooting. He saw defendant Alexander and Rodney Cunningham, defendant Cunningham's brother who was handicapped and walked with the aid of crutches, walk past Burch while Burch was playing craps with a person named Stickman. Rodney Cunningham was drunk and waving a gun around, and Burch told him to put the gun away. Rodney started cursing at Burch, who then punched defendant Alexander. A fight between defendant Alexander and Burch ensued, and as a result, defendant Alexander was knocked unconscious. After the fight, Burch ran away from the scene, and Prysock did not see him again.

Some time later, Prysock saw defendant Cunningham standing on South Center Street with a shotgun. Defendant Alexander walked over to him carrying a pistol. Prysock heard one of them say, "Where did they go?" At that point, Hill drove by in the truck, and someone yelled, "There they go." As the truck was turning, both defendants opened fire, standing side by side in the middle of South Center Street. Defendant Cunningham fired the shotgun at least four times; Prysock was unable to count the number of shots fired by defendant Alexander. After the shooting, the truck sped away.

An autopsy conducted on Burch's body showed that he died from a single bullet wound to the head. The bullet entered behind his left ear, passed through his brain, bounced off of the front of his skull, and remained lodged in the brain until recovered by the pathologist. The bullet was a Winchester 9-millimeter.

Other facts will be presented as necessary for the proper resolution of defendants' assignments of error.

In the first assignment of error, defendant Cunningham contends that, as to him, the evidence was insufficient to show that he had the intent to kill Corey Hill. Both defendants contend that the trial court erred when it refused to dismiss the charges of assault with a deadly weapon with intent to kill inflicting serious injury. As the basis for their contention, defendants claim that there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that Corey Hill suffered a serious injury.

In order to withstand a motion to dismiss the charge at issue, the State must present substantial evidence of the following elements: (1) an assault, (2) with a deadly weapon, (3) an intent to kill, and (4) infliction of a serious injury not resulting in death. State v. James, 321 N.C. 676, 687, 365 S.E.2d 579, 586 (1988). Substantial evidence is that amount of evidence that a reasonable mind might accept as adequate to support a conclusion. State v. Porter, 303 N.C. 680, 685, 281 S.E.2d 377, 381 (1981); State v. Fletcher, 301 N.C. 709, 712, 272 S.E.2d 859, 860-61 (1981). When considering a motion to dismiss, "[i]f the trial court determines that a reasonable inference of the defendant's guilt may be drawn from the evidence, it must deny the defendant's motion and send the case to the jury even though the evidence may also support reasonable inferences of the defendant's innocence." State v. Smith, 40 N.C.App. 72, 79, 252 S.E.2d 535, 540 (1979). In addition, it is well settled that the evidence is to be considered in the light most favorable to the State and that the State is entitled to every reasonable inference to be drawn therefrom. State v. Robbins, 309 N.C. 771, 774-75, 309 S.E.2d 188, 190 (1983).

With regard to defendant Cunningham's assertion that the evidence was insufficient to show that he had an intent to kill Corey Hill, he argues that the State presented no evidence of his motive to kill Corey Hill, that he knew who was in the car, or that he knew he had injured anyone during the shooting.

" 'An intent to kill is a mental attitude, and ordinarily it must be proved, if proven at all, by circumstantial evidence, that is, by proving facts from which the fact sought to be proven may be reasonably inferred.' " State v. Ferguson, 261 N.C. 558, 561, 135 S.E.2d 626, 629 (1964) (quoting State v. Cauley, 244 N.C. 701, 708, 94 S.E.2d 915, 921 (1956)). "[T]he nature of the assault, the manner in which it was made, the weapon, if any, used, and the surrounding circumstances are all matters from which an intent to kill may be inferred." State v. White, 307 N.C. 42, 49, 296 S.E.2d 267, 271 (1982).

Applying these principles to the present case, we note that the evidence showed that it was defendant Cunningham who was armed with the shotgun during the time of the shooting and that he fired the gun four times at Corey Hill's truck. Although it appears that defendant Cunningham was not present during the initial confrontation between Burch and defendant Alexander, his brother Rodney Cunningham, who walked with the aid of crutches, was present, and during the confrontation, Rodney Cunningham's gun was taken away from him. We further note that when a person fires a twelve-gauge shotgun into a moving vehicle four times while at the same time his accomplice is firing a pistol at the vehicle, it may fairly be inferred that the person intended to kill whoever was inside the vehicle.

Considering the nature of the assault, the weapon used, and the circumstances, we hold that the evidence of defendant Cunningham's intent to kill Corey Hill was sufficient to withstand his motion to dismiss. Accordingly, the trial judge properly denied the motion, and defendant Cunningham's assignment of error on these grounds is overruled.

Both defendants contend that the evidence of injuries sustained by Corey Hill was insufficient to allow the jury to determine whether he had sustained serious injury as a result of the assault. We disagree.

"The term 'inflicts serious injury,' under G.S. 14-32(b) ¹, means physical or bodily injury resulting from an assault with a deadly weapon." State v. Joyner, 295 N.C. 55, 65, 243 S.E.2d 367, 373 (1978) (quoting State v. Jones, 258 N.C. 89, 91, 128 S.E.2d 1, 3 (1962)). The Court in State v. Ferguson had earlier defined the term in this manner and noted that " '[f]urther definition seems neither...