State v. Millsaps

• Decision Date: 20 December 2002
• Docket Number: No. 210A01.,210A01.
• Citation: 356 N.C. 556,572 S.E.2d 767
• Parties: STATE of North Carolina v. James Lewis MILLSAPS.
• Court: North Carolina Supreme Court

572 S.E.2d 767

356 N.C. 556

STATE of North Carolina v. James Lewis MILLSAPS.

No. 210A01.

Supreme Court of North Carolina.

December 20, 2002.

Roy Cooper, Attorney General by William B. Crumpler, Assistant Attorney General, for the State.

Staples Hughes, Appellate Defender by Anne M. Gomez, Assistant Appellate Defender, for defendant-appellant.

PARKER, Justice.

Defendant James Lewis Millsaps was indicted on 31 January 2000 for the first-degree murder of Rhoda Rousseau and of Lenna Lewis. He was tried capitally and was found guilty of first-degree murder on both counts based on premeditation and deliberation and felony murder of each victim, with the murder of the other victim as the underlying felony. Following a capital sentencing proceeding, the jury recommended that defendant be sentenced to death for each murder, and the trial court entered judgment accordingly.

The State's evidence tended to show that about 9:00 a.m. on 13 January 2000, Lenna Lewis and Rhoda Rousseau went to the home of their brother, Harold Harris, and his wife, Elizabeth, on Camp Joe Harris Road in Wilkes County. Harold, an elderly man with a history of debilitating health problems, had recently been discharged from the Veterans Administration Hospital and required substantial daily care from his family. With the help of Harold's sisters and defendant, Elizabeth tended to Harold's daily needs, such as bathing him, feeding him, transferring him from the bed to his wheelchair, changing his clothes, and administering his medications. However, as the demands of tending to Harold grew more taxing on the family, tension among family members became more palpable.

When defendant arrived at the Harris home shortly after the sisters had arrived, he helped move Harold from his bed to a wheelchair. Although defendant was Elizabeth's great-nephew, he had been raised by Harold and Elizabeth as a son since childhood.

At approximately 10:00 a.m., as members of the family started cleaning up from breakfast, defendant and Lenna went to her car for some trash bags. At the same time, Rhoda's daughter, Martenia Haley, who lived near the Harrises, heard Lenna exclaim in a frightened tone, "Don't. Please don't." Martenia then heard two gunshots. Elizabeth also heard a gunshot and went outside where she observed Lenna lying on the ground. When Elizabeth turned Lenna over, blood spewed onto Elizabeth's clothes. Elizabeth began screaming and ran to neighbors' homes seeking help. Martenia arrived at the Harris residence about two minutes after hearing the gunshots and observed Lenna lying on the ground in the yard. Defendant told Martenia that Rhoda was all right and that he had already called 911. As defendant stood three or four feet away from Martenia, he pointed the handgun at her and said, "I ought to shoot you too."

Martenia's granddaughter, Kimberly Gibbs, also arrived at the scene shortly thereafter and was told by Elizabeth to check on Rhoda. Kimberly went into the house where she saw Harold sitting in his wheelchair. Harold was crying, and he told Kimberly that Rhoda had been shot and was lying on the other side of the kitchen counter. Kimberly then saw Rhoda lying on the kitchen floor; she was suffering from injuries to her hand and chest. The telephone receiver was lying on the kitchen counter. Kimberly called 911, told the dispatcher to send an ambulance, and reported that defendant had shot her great-grandmother. In the emergency room at Wilkes County Regional Medical Center, Rhoda was conscious; and she stated that defendant was responsible for the shooting. Rhoda's injuries required that she be transported to Wake Forest University Baptist Medical Center, where she died from the gunshot wounds. An autopsy performed on 21 January 2000 revealed a wound track indicating that the bullet first entered Rhoda's right wrist, continued through her wrist, and then passed through her right breast before lodging in her left back under the skin.

Saundra Brooks, the first EMT responder at the scene, determined that Lenna was already dead when she arrived. An autopsy was performed on 14 January 2000 and revealed three bullet wound tracks. Two bullets entered Lenna's back on the left side and exited the front portion of her neck. The bullet for the third track entered the left side of the victim's chest near her breast, crossed her body, and lodged under the skin on her right side. Lenna's death resulted from these wounds. The State Bureau of Investigation laboratory concluded that the bullets retrieved from both autopsies were fired from defendant's nine-millimeter semiautomatic pistol.

Dr. George Corvin, a forensic psychiatrist, testified for defendant. Based on his interviews with and testing of defendant, Dr. Corvin was of the opinion that defendant suffered from delusions of a prosecutory nature. Dr. Corvin testified that defendant's psychosis would have grossly impaired his ability to plan purposefully and intentionally with a full understanding of the nature and consequences of his acts and that defendant's ability to form the specific intent to kill was absent on that day.

On appeal defendant contends that his constitutional rights under the Eighth and Fourteenth Amendments to the United States Constitution; Article I, Sections 19, 23, 24, and 27 of the North Carolina Constitution; and North Carolina common law were violated in that the trial court (i) erred in failing to submit second-degree murder as a possible verdict to the jury; (ii) erred in submitting two first-degree murder convictions for the jury's consideration at sentencing; and (iii) erred in submitting the (e)(5) aggravating circumstance, see N.C.G.S. § 15A-2000(e)(5) (2001) (that the murder was committed while the defendant was engaged in the commission of any homicide). Defendant notes that the testimony of Dr. Corvin supported the submission of second-degree murder and further notes that the trial court stated that if it were charging on premeditation and deliberation only, it would submit and instruct on the lesser-included offense of second-degree murder. Defendant also urges that as a consequence of the trial court's error in failing to submit second-degree murder, the first-degree murder convictions premised on premeditation and deliberation are invalid. Accordingly, defendant's convictions for first-degree murder are based solely on felony murder; hence, the murder providing the underlying felony in each case becomes an element of that murder and merges with that murder conviction, thereby entitling defendant to a new sentencing hearing at which he is sentenced for only one first-degree murder conviction based on felony murder, and the State is precluded from using the other murder conviction to support the (e)(5) aggravating circumstance.

The State acknowledges that if the trial court's failure to submit second-degree murder was error, then defendant's merger analysis under felony murder is correct. However, the State vigorously contends that the trial court's refusal to submit second-degree murder was not error. The State further urges that if this Court concludes that the failure to submit second-degree murder was error, then the remedy should be that defendant be given a new trial on first-degree premeditated and deliberate murder only at which the State would again have the opportunity to prove premeditation and deliberation, which if found by the jury would enable the State to have the (e)(5) aggravating circumstance submitted to the jury during the sentencing proceeding.

Based on these contentions, the issues before the Court as to these assignments of error are (i) whether the trial court committed error by failing to submit second-degree murder; and (ii) if so, what remedy is appropriate.

At the outset we note certain well-settled principles applicable to first-degree murder. The crime is first-degree murder. Premeditation and deliberation and felony murder are theories which the State may use, pursuant to N.C.G.S. § 14-17, to convict a defendant of first-degree murder. However, a defendant is convicted of the crime, not of the theory. State v. Thomas, 325 N.C. 583, 593, 386 S.E.2d 555, 561 (1989). When a defendant is convicted of felony murder only, the underlying felony constitutes an element of first-degree murder and merges into the murder conviction. State v. Silhan, 302 N.C. 223, 262, 275 S.E.2d 450, 477 (1981), overruled on other grounds by State v. Sanderson, 346 N.C. 669, 488 S.E.2d 133 (1997)

. Consequently, if a defendant is convicted only of first-degree felony murder, the underlying felony cannot be used as an aggravating circumstance at the sentencing proceeding, State v. Cherry, 298 N.C. 86, 113, 257 S.E.2d 551, 567-68 (1979),

cert. denied, 446 U.S. 941, 100 S.Ct. 2165, 64 L.Ed.2d 796 (1980); nor if convicted of the underlying felony can a defendant be sentenced separately for that felony, State v. Wilson, 345 N.C. 119, 122, 478 S.E.2d 507, 510 (1996). However, if a defendant is convicted of first-degree murder on the basis of both premeditation and deliberation and felony murder, then premeditated and deliberate murder alone supports the conviction; the underlying felony for felony murder can be used as an aggravating circumstance at sentencing, State v. Silhan, 302 N.C. at 262, 275 S.E.2d at 478 (relying on State v. Goodman, 298 N.C. 1, 257 S.E.2d 569 (1979)); and the defendant can receive separate sentences for both the first-degree murder conviction and the conviction, if any, for the underlying felony supporting felony murder. State v. Wilson, 345 N.C. at 122, 478 S.E.2d at 510.

The frequently quoted standard for deciding whether the trial court must instruct on and submit second-degree murder as a lesser-included offense of first-degree murder is as follows:

The determinative, factor is what the State's evidence tends to prove. If the evidence is sufficient to fully satisfy the State's burden of proving each and every element of the

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