State v. Brewer, No. 158A90

• Decision Date: 03 April 1991
• Docket Number: No. 158A90
• Citation: 328 N.C. 515,402 S.E.2d 380
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Jean Bullard BREWER.

Page 380

402 S.E.2d 380

328 N.C. 515

STATE of North Carolina v. Jean Bullard BREWER.

No. 158A90.

Supreme Court of North Carolina.

April 3, 1991.

On appeal from judgment entered 17 August 1989 by Farmer, J., at the 14 August 1989 Criminal session of Robeson County Superior Court. Appeal is pursuant to N.C.G.S. § 7A-27(a). Heard in the Supreme Court 13 November 1990.

Lacy H. Thornburg, Atty. Gen., by G. Lawrence Reeves, Jr., Asst. Atty. Gen., Raleigh, for the State.

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

MARTIN, Justice.

Defendant was convicted of murder in the first degree of her daughter, Sherry Bullard. From a judgment of life imprisonment, defendant appealed. She contends that the trial court erred in failing to grant her motion to dismiss at the close of the evidence and by failing to submit second-degree murder to the jury. We hold that there was no error in defendant's trial.

At approximately 9:00 p.m. on 20 October 1988, defendant was driving her 1988 Beretta automobile with her daughter sitting beside her in the passenger seat. Sherry, then sixteen years old, was mentally handicapped and was epileptic. At the time of her death, she had been taking medications for seizures. On the evening of 20 October, defendant drove the automobile onto a rural railroad crossing. She centered the automobile on the train tracks as the train approached, so that the passenger side was facing the train. The defendant then left the car before the train struck the automobile, killing Sherry.

The defendant argues in her first assignment of error that the trial court erred by denying defendant's motion to dismiss at the close of the evidence because, according to defendant, there was insufficient evidence presented at trial from which the jury could find defendant guilty of murder in the first degree beyond a reasonable doubt.

When ruling upon a motion to dismiss, the trial court must determine whether, when considered in the light most favorable to the State, there is substantial evidence of each element of the offense. E.g., State v. Forrest, 321 N.C. 186, 362 S.E.2d 252 (1987). " 'Substantial evidence' is that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Cox, 303 N.C. 75, 87, 277 S.E.2d 376, 384 (1981) (citations omitted).

Murder in the first degree is the unlawful killing of a human being with malice and with premeditation and deliberation. N.C.G.S. § 14-17 (1989); State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991). In the instant case, the State was required to produce evidence sufficient to establish beyond a reasonable doubt that the defendant unlawfully killed her daughter with malice and with the specific intent to kill, committed after premeditation and deliberation. E.g., State v. Bray, 321 N.C. 663, 365 S.E.2d 571 (1988).

Defendant argues that the State's proof was insufficient to survive defendant's motion to dismiss in three respects: (1) The testimony of witness James Caulder was inherently incredible and therefore of no "significant" probative value; (2) even if Caulder's testimony were taken as true, the evidence most favorable to the State still supported no more than a suspicion or conjecture that defendant acted with the required mental state for murder in the first degree; and (3) the State failed to meet its burden of producing substantial evidence to support a finding by the jury that the victim was so disabled as to be unable to protect herself or that the defendant had knowledge of that alleged level of disability.

We first examine the testimony of one of the State's witnesses, James Caulder, a pilot engineer of the train that struck the automobile. Defendant's contention is that particular details of Caulder's testimony concerning what he could see from the train as it approached the car were exaggerated and patently improbable. Defendant also argues that Caulder's testimony was the only evidence presented by the State establishing that defendant's failure to avoid the collision was by design rather than by accident. Therefore, defendant concludes that because Caulder's testimony was inherently incredible and because it was the only evidence justifying submission of the case to the jury, the case should have been dismissed. See, e.g., State v. Miller, 270 N.C. 726, 154 S.E.2d 902 (1967).

Caulder had been an employee of CSX Railroad for twenty-two years and a locomotive engineer for twelve years at the time of the collision. The train involved in this case was en route from Wilmington to Hamlet, North Carolina, a run which Caulder had made on the average of twice a week for approximately eleven years. He estimated that the train's headlight could pick up objects a mile away. Caulder testified that on the evening of the accident when the train was about forty-three hundred to forty-five hundred feet from the crossing at which the collision occurred, Caulder saw a white Beretta automobile stopped at the crossing. When the train was about twenty-five hundred to three thousand feet from the crossing, the automobile proceeded onto the crossing at an extremely slow rate of speed and in such a way that the backseat or the rear portion of the car was centered in the middle of the railroad track. When the train was about twenty-three hundred or twenty-four hundred feet from the crossing the car backed up and centered the front seat in the center of the track. Caulder went on to testify that at this point he thought the driver of the car was playing chicken with the train. That is, someone driving onto the tracks and waiting until the last moment to drive off. Caulder continued to watch the car. At about seven hundred or eight hundred feet from the crossing, Caulder observed the driver's side door open; he then applied the train's emergency brakes. As he got closer to the car, he could observe the car's occupant. He described the girl as very rigid, with her head tilted back. She looked forward and never looked at the train. The train struck the car about ten seconds after the car door opened. Caulder testified that the car was on the tracks for approximately fifty to sixty seconds before the driver's door opened.

Defendant contends that Caulder's testimony was so contrary to reason and common experience that the trial judge should not have submitted the case to the jury. State v. Miller, 270 N.C. 726, 154 S.E.2d 902. In Miller, a robbery victim got only a brief look at the perpetrator in a well-lit area at night from 286 feet away. The Court held that the distance was too great and the time too brief for a certain identification of a complete stranger so as to justify submission to the jury. However, "[w]here there is a reasonable possibility of observation," the credibility of the witness is for the jury. Id. at 732, 154 S.E.2d at 906. Here, defendant argues the description and detail given by Caulder is even more improbable, given the distances, brief amount of time, and lack of lighting. The most important of Caulder's statements bearing on the intent element was the centering of the front seat of the car when the train was nearly a half mile away. Defendant contends that while Caulder may have been able to see the car at this distance, it is implausible to assume that he could identify the minute degree of movement he described.

We disagree with defendant's contention that it was physically impossible for Caulder to see what he claimed he saw. There was evidence in the record that there were no curves in the tracks at the scene, and it was reasonable to infer from the evidence that the headlight provided sufficient illumination of the crossing. The precision of Caulder's description is consistent with his eleven-year familiarity with the route. Finally, defendant's own statements substantiate Caulder's testimony that the car backed up after stopping on the tracks. Defendant testified on direct, "In my mind, it seemed like I was going backwards and forth." She also testified on direct that Sherry looked straight ahead as the train approached. Therefore, we hold that Caulder's testimony was not so inherently incredible as to require the judge to take the case from the jury.

Defendant's next argument under her first assignment of error is that regardless of Caulder's credibility, the State's evidence was insufficient to prove premeditation and deliberation. Defendant argues that the evidence supports no more than a suspicion or conjecture that defendant's actions were due to anything more than fright or, at most, recklessness. Taking the evidence in the light most favorable to the State as we must in deciding whether there is substantial evidence of the crime charged, e.g., State v. Simpson, 303 N.C. 439, 279 S.E.2d 542 (1981), we hold that the evidence was sufficient to support a conviction of first-degree murder. The mental elements are normally proven by circumstantial evidence, including defendant's behavior before and after the killing and the manner of the killing. E.g., State v. Fisher, 318 N.C. 512, 350 S.E.2d 334 (1986).

It may be inferred from the evidence that the burdens of caring for a mentally handicapped daughter became too much for defendant. Sherry's school principal testified that the bus driver was sometimes unable to leave Sherry at...