State v. Foster

• Decision Date: 18 December 1990
• Docket Number: No. 9027SC205,9027SC205
• Parties: STATE of North Carolina v. Cecil Franklin FOSTER, Jr.
• Court: North Carolina Court of Appeals

Page 664

398 S.E.2d 664

101 N.C.App. 153

STATE of North Carolina v. Cecil Franklin FOSTER, Jr.

No. 9027SC205.

Court of Appeals of North Carolina.

Dec. 18, 1990.

Lamb Law Offices, P.A. by William E. Lamb, Jr., Shelby, for defendant-appellant.

GREENE, Judge.

The defendant entered a plea of guilty to murder in the second degree on 2 December 1988. A sentencing hearing was held and judgment was entered the same day. The trial court sentenced the defendant to fifty years imprisonment. The defendant appeals.

The evidence from the sentencing hearing tends to show that on 26 July 1988, the defendant was interviewed by Detective Luckadoo of the Cleveland County Sheriff's office regarding allegations that the defendant had molested his own daughter. Later the same day, the defendant received information that his wife's brother-in-law, Howard Champion, was the one who had molested the defendant's daughter. The defendant's wife and other family members were aware that the defendant's daughter had been molested by Champion, but the defendant knew nothing of it until 26 July 1988.

The following morning, the defendant tried to call Detective Luckadoo but he was unavailable. A short time later, the defendant went to Champion's home, taking with him a .22-caliber pistol. When the defendant arrived at Champion's home, he found Champion's wife unloading groceries from her car. The defendant told her he wanted to talk to Champion. Mrs. Champion called her husband who was in the bedroom asleep. The defendant waited about five or ten minutes and Champion came out to the living room where the defendant was waiting and sat down on the couch.

In his statement to the police, the defendant stated that when Champion entered the living room, he confronted Champion about molesting his daughter and that Champion denied it. While the defendant was talking to Champion he saw a photograph of Champion holding the defendant's daughter in his lap. Suddenly, Champion jumped up from the couch and told the defendant he was getting tired of him. The defendant pulled his gun from his pocket and shot Champion in the chest. Champion's wife began screaming, asking the defendant not to shoot Champion because Champion did not mean to hurt the defendant's daughter. The defendant then fired the remaining five rounds in the pistol, shooting Champion in the head.

At the sentencing hearing, Champion's wife testified that she and Champion entered the living room together that morning and Champion sat down on the couch. Mrs. Champion turned and saw the defendant holding the gun in his hand. The defendant then told Champion to tell his wife what he had done to the defendant's daughter. Champion denied doing anything. Mrs. Champion started to leave the room, but the defendant pointed his gun at her and told her to sit down. The defendant then said, "I've been to Social Services and they ... and I just can't take anymore. Bad mother...." At that point, the defendant shot Champion. Mrs. Champion began screaming for the defendant to stop. She stated that every time the defendant pulled the trigger he said, "Bad boy. Bad boy." Just before the defendant fired the last shot, Mrs. Champion screamed for him to stop, telling the defendant that Champion was dead. The defendant said "he ain't either" and fired the last shot. The defendant then told Mrs. Champion she could go outside. Once outside, Mrs. Champion asked the defendant to "just let me go down there," referring to the home of one of her relatives. The defendant said, "No, come on, let's go back in and if he ain't dead we'll shoot him some more."

At the conclusion of the sentencing hearing, the trial court found as statutory mitigating factors (1) that the defendant had no criminal record; (2) that the defendant voluntarily acknowledged wrong-doing to a law enforcement officer at an early stage; (3) that the defendant had been honorably discharged from the armed services; and (4) that the defendant was a person of good reputation in his community. The trial court found as a nonstatutory mitigating factor that the defendant suffered from a mental or emotional condition that was insufficient to cause the offense but which may have contributed to the defendant's actions. The court found as the sole aggravating factor the nonstatutory factor that the defendant had specific intent to kill after premeditation and deliberation. The court then found that the aggravating factor outweighed the mitigating factors, and imposed the sentence from which the defendant appeals.

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The issues are: (I) whether the trial court's finding of premeditation and deliberation as an aggravating factor is supported by the evidence; (II) whether the court erred by failing to find as a mitigating factor that the defendant acted under strong provocation; and (III) whether the court erred by finding that the aggravating factor outweighed the mitigating factors.

We first note that the defendant has provided in the record only one assignment of error for his three arguments, and that the one assignment of error is defective in that it does not state the "legal basis upon which error is assigned." N.C.R.App.P. 10(c)(1). However, we choose to suspend the rules as provided by N.C.R.App.P. 2, and address the defendant's arguments.

I

The defendant first concedes that premeditation and deliberation is a proper nonstatutory aggravating factor where the defendant pleads guilty to murder in the second degree. See State v. Melton, 307 N.C. 370, 298 S.E.2d 673 (1983). However, the defendant contends that there was insufficient evidence to support such a finding in this case. We disagree.

The State has the burden of proving by a preponderance of the evidence the existence of an aggravating factor. State v. Thompson, 318 N.C. 395, 348 S.E.2d 798 (1986). Premeditation and deliberation must usually be established by circumstantial evidence. State v. Lloyd, 89 N.C.App. 630, 636, 366 S.E.2d 912, 916, disc. rev. denied, 322 N.C. 483, 370 S.E.2d 231 (1988). Our Supreme Court has found that the circumstances which tend to establish premeditation and deliberation include:

(1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the killing was done in a brutal manner.

Id. (quoting State v. Gladden, 315 N.C. 398, 430-31, 340 S.E.2d 673, 693 (1986)).

The Court has also held that the nature and number of the victim's wounds may infer premeditation and deliberation. State v. Carter, 318 N.C. 487, 491, 349 S.E.2d 580, 582 (1986).

In the present case, the defendant went to Champion's home, armed with a loaded .22-caliber pistol, on the morning after being told that Champion had molested the defendant's daughter. There was evidence that the defendant refused to allow Mrs. Champion to leave the living room. With her still in the room, the defendant shot Champion one time in the chest. He proceeded to fire the pistol five more times, shooting Champion in the head. Before firing the last shot, Mrs. Champion pleaded with the defendant to stop shooting because Champion was already dead. The defendant refused to believe her and fired the last shot into Champion's head. Once the defendant and Mrs. Champion were outside, the defendant said "let's go back inside and if he ain't dead we'll shoot him some more."

We conclude that the defendant's conduct and statements, as well as the number and nature of the wounds inflicted, establishes circumstances from which the trial court could find that the defendant committed the offense after premeditation and deliberation.

II

The defendant next argues that the court erred by failing to find as a statutory mitigating factor that the defendant acted under strong provocation. N.C.G.S. § 15A-1340.4(a)(2)i (1988) (providing as a mitigating factor that the "defendant acted under strong provocation ..."). The defendant contends he was provoked by receiving information that Champion had molested the defendant's daughter.

The State argues that in order to support a finding of provocation, there must be a showing that the defendant was threatened or challenged by the victim. See State v. Faison, 90 N.C.App. 237, 368 S.E.2d 28 (1988); State v. Braswell, 78 N.C.App. 498, 337 S.E.2d 637 (1985); State v. Bare, 77 N.C.App. 516, 335 S.E.2d 748 (1985), disc. rev. denied, 315 N.C. 392, 338 S.E.2d 881 (1986); State v. Benfield, 76 N.C.App. 453, 333 S.E.2d 753 (1985); State v. Puckett, 66 N.C.App. 600, 312 S.E.2d 207 (1984). The defendant concedes that he was never threatened or challenged by the victim in this case, but instead argues that "provo...