State v. Childress

• Decision Date: 02 December 1987
• Docket Number: No. 42A87,42A87
• Citation: 321 N.C. 226,362 S.E.2d 263
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Patricia McGee CHILDRESS.

Page 263

362 S.E.2d 263

321 N.C. 226

STATE of North Carolina v. Patricia McGee CHILDRESS.

No. 42A87.

Supreme Court of North Carolina.

Dec. 2, 1987.

Lacy H. Thornburg, Atty. Gen. by Isaac T. Avery, III, Sp. Deputy Atty. Gen. and Theodore A. Bruce, Associate Atty. Gen., Raleigh, for the State.

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

WEBB, Justice.

In her first assignment of error, the defendant contends it was error not to allow her motion to dismiss at the close of the evidence. She bases this argument on the premise that the State did not prove that Robert Vanhoy did not accidentally shoot himself. In this case the State relies on circumstantial evidence for the proof of a part of its case. In evaluating this evidence the State is entitled to every reasonable inference that may be drawn therefrom. State v. Byrd, 309 N.C. 132, 305 S.E.2d 724 (1983).

In order to survive a motion to dismiss the charge of first degree murder, there must be substantial evidence that the defendant intentionally killed Robert Vanhoy with malice and with premeditation and deliberation. State v. Davis, 289 N.C. 500, 223 S.E.2d 296 (1976). The question posed by this assignment of error is whether these elements may be inferred from the evidence which was introduced. The direct evidence upon which the State relies is that the deceased and the defendant were the only two persons in the home of the deceased. The deceased was shot in the back and either from a distance of approximately two feet or point blank through some object such as a sheet. There was testimony that the defendant could not have intentionally shot himself. It is difficult to conclude that Robert Vanhoy shot himself accidentally if the State's evidence is believed. He would have had to lose control of the pistol and have it move to his back and fire either two feet from him or point blank through the sheet, and this while he was lying on the bed with the sheet over him. It is much more likely that the defendant had control of the gun immediately before it was fired.

If the defendant had control of the gun immediately before it was fired, the question is whether the jury could conclude that she intentionally shot the deceased. We hold that the jury could do so. From the evidence it is difficult to conclude the shooting by the defendant was an accident. There was testimony that the pistol had to be cocked before it was fired and that it took thirteen pounds of pressure to pull the trigger. It is hard to imagine the pistol accidentally coming to a position pointed towards Robert Vanhoy's back while he was lying face down under a sheet. The much more likely inference from the evidence is that the defendant intentionally pointed the pistol at Robert Vanhoy and intentionally pulled the trigger.

The jury could infer malice from an intentional shooting of Robert Vanhoy which proximately caused his death. State v. Propst, 274 N.C. 62, 161 S.E.2d 560 (1968). Premeditation means thought beforehand for some length of time, however short. Deliberation means an intention to kill, executed by the defendant in a cool state of blood. "No fixed amount of time is required for the mental processes of premeditation and deliberation constituting an element of the offense of murder in the first degree, it being sufficient if these mental processes occur prior to, and not simultaneously with, the killing." State v. Sanders, 276 N.C. 598, 615-616, 174 S.E.2d 487, 499-500 (1970), rev'd on other grounds, 403 U.S. 948, 91 S.Ct. 2290, 29 L.Ed.2d 860 (1971). Having concluded that the defendant intentionally shot Robert Vanhoy, the jury could conclude from her action that she thought about it for some short time beforehand and that she executed her intention in a cool state of blood. The evidence introduced by the State was sufficient for the jury to find the defendant intentionally killed Robert Vanhoy with malice and with premeditation and deliberation. The charge of first degree murder was properly submitted to the jury.

The defendant presented evidence of accident and she contends the case should not have been submitted to the jury because the State did not prove the killing was not accidental. Her evidence of accident was that she was lying on the bed with her back to Robert Vanhoy. Robert Vanhoy put the gun in her back and she "flipped over." The gun then accidentally went off and shot Robert Vanhoy in the back. This was evidence of accident submitted to the jury which the jury did not believe. In rebutting this evidence the State was entitled to use the inferences which it contended were more probable from its evidence than the explanation of the shooting given by the defendant.

The defendant relies on several cases which we find inapplicable. State v. Bates, 309 N.C. 528, 308 S.E.2d 258 (1983), involved a charge of felony murder. This Court held that felony murder should not have been submitted to the jury because the evidence did not support a verdict of the underlying felony of armed robbery. The Court said that on a motion to dismiss the court must consider the defendant's evidence which explains or clarifies the State's evidence. This does not mean that if the defendant's testimony contradicts the more probable inferences which may be drawn from the evidence, the State may not rely on these inferences.

In State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963), this Court held there was insufficient evidence of second degree murder to be submitted to the jury when the evidence showed the defendant and the deceased were in a room with no one else present and the deceased was killed by the firing of a shotgun. The defendant told the investigating officers and testified that he was holding the shotgun in his lap when his girlfriend grabbed it. He pulled the shotgun away from her and it went off. The defendant's explanation was consistent with the physical evidence and this Court held the evidence did not show an intentional killing. The defendant's testimony in this case is not consistent with the physical evidence.

State v. Hood, 77 N.C.App. 170, 334 S.E.2d 421 (1985), is a case in which the deceased was found in his home with a .25 caliber bullet wound in his head. The defendant had been seen leaving the area of the victim's home. The Court of Appeals said there was no evidence the defendant had been in the decedent's home. This distinguishes Hood from this case.

In State v. Edwards, 224 N.C. 577, 31 S.E.2d 762 (1944), there was no evidence of how the deceased died. This Court, in holding that judgment of nonsuit should have been entered, said the State had not proved the corpus delicti. In this case the evidence is undisputed that the decedent died of a gunshot wound. State v. Brown, 308 N.C. 181, 301 S.E.2d 89 (1983), involved the proof of a corpus delicti sufficiently to make a confession admissible. It has no application to this case.

The defendant also contends the evidence is not sufficient to convict her of murder because to do so requires an inference on an inference. State v. Holland, 318 N.C. 602, 350 S.E.2d 56 (1986), Byrd, 309 N.C. 132, 305 S.E.2d 724 and State v. LeDuc, 306 N.C. 62, 291 S.E.2d 607 (1982). She argues that if the circumstances are proved which allow the jury to infer that she intentionally shot Robert Vanhoy causing his death, the law does not allow an inference from this inferred fact that the killing was with malice and premeditation and deliberation. It is true that some of our cases say that in considering circumstantial evidence we will not make an inference on an inference. This is a rule that is much criticized by legal scholars. For instance it is stated at 1A Wigmore, Evidence § 41 (Tillers rev. 1983):

It was once suggested that an inference upon an inference will not be permitted, i.e., that a fact desired to be used circumstantially must itself be established by testimonial evidence, and this suggestion has been repeated by several courts and sometimes actually has been enforced. There is no such orthodox rule; nor can there be. If there were, hardly a single trial could be adequately prosecuted.

See also Louisell and Mueller, Federal Evidence § 94 (1977). There is no logical reason why an inference which naturally arises from a fact proven by circumstantial evidence may not be made. This is the way people often reason in everyday life. In this case the inferences on inferences dealt with proving the facts constituting the elements of the crime. We hold that the jury could properly do this. Insofar as Holland, Byrd, LeDuc and other cases hold that in considering circumstantial evidence an inference may not be made from an inference, they are overruled.

The defendant next contends the court committed prejudicial error in its rulings on the evidence. Sandra Burcham was the first witness to testify. She testified that she and her husband Randall Burcham went to the mobile home immediately after receiving the call from defendant that Robert Vanhoy had been shot. She testified that after Randall Burcham saw Robert Vanhoy with a bullet hole in his back Randall Burcham said to her, "The bitch killed my uncle." Randall Burcham was allowed to testify that he had accused the defendant of killing Robert Vanhoy.

The defendant contends these two statements were admitted for proving the truth of the assertions and are hearsay as defined in N.C.G.S. § 8C-1, Rule 802. Assuming the challenged testimony was inadmissible hearsay, we hold the defendant was not prejudiced by its admission. In order to show reversible error, the defendant must show there is a reasonable possibility that had the error not been committed a different result would have been reached at the...