State v. Misenheimer, 117

• Decision Date: 06 October 1981
• Docket Number: No. 117,117
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. John Elwin MISENHEIMER.

Page 791

282 S.E.2d 791

304 N.C. 108

STATE of North Carolina v. John Elwin MISENHEIMER.

No. 117.

Supreme Court of North Carolina.

Oct. 6, 1981.

Rufus L. Edmisten, Atty. Gen. by Charles M. Hensey, Asst. Atty. Gen., Raleigh, for the state.

Hasty, Waggoner, Hasty, Kratt & McDonnell by Robert D. McDonnell, Charlotte, for defendant-appellant.

EXUM, Justice.

In this appeal defendant brings forth assignments of error relating to the trial court's refusal to: dismiss the charge of first degree murder for insufficient evidence, suppress defendant's incriminating statements, permit cross-examination of several witnesses on their motivation for hiring a private prosecutor. He also presents assignments relating to portions of the trial judge's substantive instructions to the jury and his contention that he suffered from ineffective assistance of counsel. After careful examination of each assignment of error we conclude that defendant's trial was free from prejudicial error.

The state's evidence tends to show the following: In the Spring of 1980 defendant was a thirty-six-year-old man who had experienced psychiatric problems and treatment over a period of years. In 1976 he had been involved in a commitment proceeding for threatening to kill his father with a knife. He had expressed his belief that his father was trying to poison him a number of times over a span of four to five years. In May of 1980 he told his sister, Sylvia, that as long as his father was alive "he'd never have peace."

On 10 June 1980 defendant arrived at his father's residence about 8:00 a.m., while his father was cooking breakfast and his sister, Sharon, was preparing for work. Defendant, rather than enter the residence, went to a shed on the property and ate some food he had purchased at a local restaurant. While in the shed he took an old rifle with the stock removed, loaded it with a single cartridge, and tucked the gun under his belt in the front of his pants. A jacket covered the gun from view. He entered the trailer, remaining in a back bedroom where he was heard but not seen by Sharon before she left for work. He then went into the kitchen where his father was preparing breakfast and told his father he wished to speak with him. His father, sixty-seven years old, but somewhat larger than defendant, spotted the gun and "grabbed for it or grabbed at" defendant. Defendant pulled away. His father grabbed him again. Defendant then reached for the gun, turned, and shot his father in the forehead from a distance of one foot. Defendant left the residence and drove to his brother's home. Because his brother was not at home, he waited briefly, then decided to drive to South Carolina to help Sylvia, who was in the process of moving.

Sharon returned home shortly after 11:00 a.m. and discovered her father's body on the floor next to the kitchen table. The breakfast utensils were on the table and pans were still on the burners of the stove.

No one other than the deceased and defendant witnessed the shooting; thus the state relied on statements made by defendant to police officers and family members. Defendant met Sylvia in Dillon, South Carolina, and was subsequently detained by the Dillon County Sheriff's Department. About 7:30 p.m. defendant was questioned by two officers of the Mecklenburg County Police Department. After being informed of his Miranda rights, he waived his right to counsel, and gave a statement of his activities that day. During the course of questioning by the officers he told them that he had gotten the firearm from the shed because some communists, including his father, had been causing trouble in his father's trailer park, and because his father had previously attempted to poison him. He also complained to the officers that a laser light was coming through the window of the conference room where he was being questioned, but neither officer could see any light.

In a pre-trial psychiatric evaluation defendant was found competent to stand trial. He presented no evidence at trial.

I

Defendant assigns as error the submission of first degree murder to the jury, contending that the evidence, when viewed most favorably to the state, was insufficient to constitute first degree murder. We disagree.

First degree murder is the unlawful killing of a human being with malice, premeditation and deliberation. State v. Davis, 289 N.C. 500, 223 S.E.2d 296, death sentence vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed.2d 69 (1976); G.S. § 14-17 (Cum.Supp.1979). Generally, premeditation and deliberation must be proved by circumstantial evidence because they "are not susceptible of proof by direct evidence." State v. Love, 296 N.C. 194, 203, 250 S.E.2d 220, 226-27 (1978). Premeditation means that defendant formed the specific intent to kill the victim for some period of time, however short, before the actual killing. Deliberation means that the intent to kill was formed while defendant was in a cool state of blood and not under the influence of a violent passion suddenly aroused by sufficient provocation. State v. Biggs, 292 N.C. 328, 337, 233 S.E.2d 512, 517 (1977); State v. Hamby, 276 N.C. 674, 678, 174 S.E.2d 385, 387 (1970), death sentence vacated, 408 U.S. 937, 92 S.Ct. 2862, 33 L.Ed.2d 754 (1972). The term "cool state of blood" does not, in the context of determining the existence of deliberation, mean "an absence of passion and emotion.... '[A]lthough there may have been time for deliberation, if the purpose to kill was formed and immediately executed in a passion, especially if the passion was aroused by a recent provocation or by mutual combat, the murder is not deliberate and premeditated. However, passion does not always reduce the crime since a man may deliberate, may premeditate, and may intend to kill after premeditation and deliberation, although prompted and to a large extent controlled by passion at the time. If the design to kill was formed with deliberation and premeditation, it is immaterial that defendant was in a passion or excited when the design was carried into effect.' " State v. Faust, 254 N.C. 101, 108, 118 S.E.2d 769, 773, cert. denied, 368 U.S. 851, 82 S.Ct. 85, 7 L.Ed.2d 49 (1961), quoting 40 C.J.S., Homicide, s. 33(d), pp. 889, 890. Thus a killing committed during the course of a quarrel or scuffle may yet constitute first degree murder provided the defendant formed the intent to kill in a cool state of blood before the quarrel or scuffle began and the killing during the quarrel was the product of this earlier formed intent. See State v. French, 225 N.C. 276, 34 S.E.2d 157 (1945). If, however, the killing was the product of a specific intent to kill formed under the influence of the provocation of the quarrel or struggle itself, then there would be no deliberation and hence no murder in the first degree. Id.

The critical question for the jury in this case was whether "defendant did indeed deliberate, as distinguished from premeditate, the killing or did he form the intent to kill during a sudden passion provoked by the deceased [himself] which precluded any such deliberation." State v. Patterson, 288 N.C. 553, 575, 220 S.E.2d 600, 616 (1975) (Exum, J., dissenting), death sentence vacated, 428 U.S. 904, 96 S.Ct. 3211, 49 L.Ed.2d 1211 (1976). Factors the jury may consider in determining the existence of premeditation and deliberation include: "[C]onduct and statements of the defendant both before and after the killing, State v. Johnson, 294 N.C. 288, 239 S.E.2d 829 (1978), and ... [T]hreats made against the deceased by the defendant, State v. Stewart, 292 N.C. 219, 232 S.E.2d 443 (1977)." State v. Potter, 295 N.C. 126, 130-31, 244 S.E.2d 397, 401 (1978).

In the case at bar all the evidence showed that the killing occurred after defendant and his father had engaged in a struggle and his father had twice "grabbed" defendant. There was also, however, plenary evidence from which the jury could reasonably infer that defendant had formed in a cool state of blood, the specific intent to kill his father well before the struggle actually occurred, and that the killing itself was the product of this earlier formed specific intent to kill rather than an intent formed under the influence of the provocation of the struggle itself.

This evidence in the light most favorable to the state was: Defendant had repeatedly told his siblings that his father was trying to poison him. He had threatened to kill his father on at least one previous occasion. As recently as one month before the killing he told his sister "he'd never have peace" as long as his father was alive. On the day of the killing defendant entered a shed on his father's property, loaded a rifle, and tucked it under his belt where it was hidden by his jacket. He then entered his father's home, but did not confront his father until his sister had gone to work. His father was unarmed and aware of previous threats made by defendant against him. The only struggle resulted from the deceased's efforts to disarm defendant. After the shooting defendant acted dispassionately. He drove to his brother's home, but when he discovered his brother was not at home he decided to drive to South Carolina to help his sister move. When questioned by police officers in Dillon, South Carolina, later that day, defendant coherently and calmly related his actions of that day. He also told them that he carried a gun into his father's home because his father had attempted to poison him previously and because his father was involved in communist activity in the area.

There was, therefore, no error in denying defendant's motion to dismiss the charge of first degree murder for insufficiency of the evidence.

II

Defendant next assigns as error the refusal of the trial court to suppress his confession to police officers. Defendant argues he lacked sufficient mental capacity to competently and voluntarily confess at the time he was questioned by officers. He seeks to invoke the rule of ...