State v. Evangelista

• Decision Date: 04 March 1987
• Docket Number: No. 441A84,441A84
• Citation: 353 S.E.2d 375,319 N.C. 152
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Navas Villabona EVANGELISTA.

Page 375

353 S.E.2d 375

319 N.C. 152

STATE of North Carolina v. Navas Villabona EVANGELISTA.

No. 441A84.

Supreme Court of North Carolina.

March 4, 1987.

Lacy H. Thornburg, Atty. Gen. by Steven F. Bryant, Asst. Atty. Gen., Raleigh, for State.

Gordon Widenhouse, Raleigh, for defendant-appellant.

MITCHELL, Justice.

The defendant brings forward numerous assignments of error. He contends: (1) the trial court erred by denying his motion to dismiss the charge of first degree murder of Juan Ramirez for insufficiency of the evidence to prove specific intent to kill; (2) the trial court erred in denying his motions to dismiss all charges for failure of the State to prove the identity of the victims; (3) the trial court lacked jurisdiction, because all pertinent acts were committed in a federal enclave; (4) the trial court erred in failing to direct verdicts of not guilty by reason of insanity; (5) the trial court violated the defendant's due process rights by instructing the jury that the defendant had the burden of proving his insanity to their satisfaction; (6) the trial court erred in allowing certain testimony based on psychopharmacology by a witness found to be an expert; (7) the trial court erred in finding as an aggravating factor to involuntary manslaughter that the defendant was armed with a deadly weapon, when that same evidence was necessary to prove an element of involuntary manslaughter; (8) the trial court erred in failing to find certain statutory mitigating factors supported by uncontradicted and credible evidence in sentencing the defendant for involuntary manslaughter; (9) the trial court erred in denying the defendant's request that the jury be instructed to consider the issue of his sanity before it considered his guilt; (10) the trial court erred in excusing for cause certain jurors who expressed an unwillingness to impose the death penalty, because the result was a jury prone to conviction.

We find no error in the defendant's trial for first degree murder or the resulting life sentence. We find merit, however, in the defendant's seventh assignment. Accordingly, we vacate his sentence for involuntary manslaughter and remand to the trial court for resentencing for that offense.

The State presented evidence which tended to show that on 8 October 1982, Amtrak train 82 which ran between Miami and New York arrived in Raleigh at 7:07 a.m. At that time, the baggage master went through the train to car 2475, a sleeper car, where he observed slivers of wood and a bullet on the floor. He saw bullet holes in the door to one of the compartments and heard someone inside speaking Spanish in a loud voice. He then summoned the conductor who had just come on duty. They went to the sleeper car where they heard a baby crying inside the compartment and the sound of breaking glass. Several passengers had also heard sounds from the compartment during the night, such as screaming, yelling, and the sound of shots being fired.

The police were called to the scene at 7:26 a.m. Railroad officials told the police that shots had been fired and that the compartment was occupied by a Spanish speaking man, his wife and two children. The occupants of the compartment were later identified as the defendant, his sister, and her children--an eight-month-old boy and three-year-old girl. Car 2475 and two adjacent cars were separated from the rest of the train. As a result of the cars being uncoupled, the electricity to them was cut off.

Police snipers and other law enforcement officers surrounded the car. After the remaining passengers had been removed, police searched the other compartments in the car including the compartment adjacent to the one occupied by the defendant. They were preparing to place a stethoscope against the partition dividing the two compartments in an attempt to hear any sounds emanating from the defendant's compartment when a shot was fired within. The officers immediately left the compartment as three more shots were fired in rapid succession. There were two other occasions in which gunfire in the defendant's compartment was heard.

For three days, until 10 October 1982, the defendant remained barricaded in the compartment as law enforcement officers attempted to negotiate with him. A Spanish speaking negotiator spoke with the defendant directly using a "bull horn," first from a corridor around the corner from the defendant's compartment, then from a post outside after a window was removed from the car. The defendant's voice was transmitted to the police command post from a microphone that had been placed outside his compartment. His statements were translated and relayed through a "walkie-talkie" to the negotiators working with the police. Negotiators told the defendant that they were with the police and asked him repeatedly to come out, or at least release the children. He was offered food and liquids for himself and the children, but he refused. The defendant was warned many times about the safety of the children and told that they could not survive without food and water.

The defendant agreed to come out if police would contact his godfather in New York. As they awaited the arrival of the defendant's godfather, the defendant handed the little girl through the window of the train to Agent Romando Arras of the Federal Bureau of Investigation. Upon his godfather's arrival, the defendant came out of the train and was taken into custody.

When police entered the train, they found the bodies of a woman and an infant male. Expert testimony indicated that the woman had died from a bullet wound to the head, and the infant had died from dehydration.

The defendant relied upon a defense of insanity and presented evidence tending to show that during the entire siege, he suffered from paranoia. Several psychologists testified to the effect that the defendant was under the delusion that Columbian commandos were trying to kill him and his family. The defendant told them of his fear that these commandos had surrounded the train and had even infiltrated his compartment. The defendant also told them that he had remained on the top bunk in his compartment for days because he believed a commando was under the bottom bunk. He said that he refused food and water because he was afraid that it had been contaminated. He further claimed that the commandos killed his sister in the train compartment.

By his first assignment of error, the defendant contends that the trial court erred by denying his motion to dismiss the charge of first degree murder in the death of the infant, Juan Ramirez. He argues that the State failed to produce substantial evidence that the defendant deprived the infant victim of liquids with the specific intent to cause his death. We do not agree.

In State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984) we again emphasized:

[U]pon a motion to dismiss in a criminal action, all the evidence admitted, whether competent or incompetent, must be considered by the trial judge in the light most favorable to the State, giving the State the benefit of every reasonable inference that might be drawn therefrom. Any contradictions or discrepancies in the evidence are for resolution by the jury.... The trial judge must decide whether there is substantial evidence of each element of the offense charged. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

(citations omitted).

N.C.G.S. § 14-17 defines murder and provides in pertinent part that:

A murder which shall be perpetrated by means of poison, lying in wait, imprisonment, starving, torture, or by any other kind of willful, deliberate, and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape or sex offense, robbery, kidnapping, burglary or other felony committed or attempted with the use of a deadly weapon shall be deemed to be murder in the first degree.... All other kinds of murder ... shall be deemed murder in the second degree....

We have interpreted this statute as separating first degree murder into four distinct classes:

(1) murder perpetrated by means of poison, lying in wait, imprisonment, starving or torture; (2) murder perpetrated by any other kind of willful, deliberate and premeditated killing; (3) murder committed in the perpetration or attempted perpetration of certain enumerated felonies; and (4) murder committed in the perpetration or attempted perpetration of any other felony committed or attempted with the use of a deadly weapon.

State v. Johnson, 317 N.C. 193, 202, 344 S.E.2d 775, 781 (1986).

First degree murder most frequently has been defined as "the unlawful killing of a human being with malice and with premeditation and deliberation," and has included the element of a specific intent to kill. State v. Johnson, 317 N.C. at 202, 344 S.E.2d at 781. However, it is also well established that proof of the elements of premeditation, deliberation and specific intent to kill is not necessary to sustain a first degree murder conviction based on the theory that the homicide was committed during the perpetration or attempted perpetration of a felony. Id. Likewise, we recently held that when a homicide is perpetrated by means of poison, lying in wait, imprisonment, starving or torture, the presence or absence of premeditation, deliberation and specific intent to kill is irrelevant. State v. Johnson, 317 N.C. at 203, 344 S.E.2d at 781.

We note that the evidence in the present case would have supported conviction of the defendant for the first degree murder of the infant on the theory of murder perpetrated by means of starvation, specifically declared to be first degree murder by the statute. The evidence tended to show that the defendant deprived the infant male of liquids and thereby caused his death. Liquids are necessary in the nourishment of the human body, especially as here in the case of an infant....