State v. Montgomery

• Citation: 417 S.E.2d 742,331 N.C. 559
• Decision Date: 25 June 1992
• Docket Number: No. 265A90,265A90
• Parties: STATE of North Carolina v. Rodney Lee MONTGOMERY.
• Court: United States State Supreme Court of North Carolina

Page 742

417 S.E.2d 742

331 N.C. 559

STATE of North Carolina v. Rodney Lee MONTGOMERY.

No. 265A90.

Supreme Court of North Carolina.

June 25, 1992.

Lacy H. Thornburg, Atty. Gen. by Joan Herre Byers, Sp. Deputy Atty. Gen., and Valerie B. Spalding, Asst. Atty. Gen., Raleigh, for State.

Kenneth J. Rose, Durham, for defendant-appellant.

MITCHELL, Justice.

The defendant was convicted of first-degree murder, robbery with a dangerous weapon, first-degree burglary, and attempted first-degree rape. The jury recommended a sentence of death for the conviction of first-degree murder. The defendant raised thirty-six assignments of error on appeal. We do not reach all these assignments of error because, for the reasons stated below, we grant the defendant a new trial.

Some of the State's evidence at trial tended to show the following. On Saturday, 21 January 1989, Kimberly Piccolo, a student at the University of North Carolina at Charlotte, and her roommates invited several friends to their apartment near the university campus for dinner. After dinner, Piccolo's roommates and their friends went to a party held at an adjoining apartment complex. Piccolo declined their invitation to attend. When Piccolo's roommates left, Piccolo was wearing a maroon sweatshirt, sweatpants, and socks and was sitting on the couch with her eyeglasses on reading the newspaper. Piccolo was unable to see well without her glasses. Piccolo was alone in the apartment when her friends left.

That same evening around 10:00 p.m., Christy Webb, a neighbor of Piccolo, drove up to her apartment with her boyfriend, Steve Aumer. As Webb was walking away from her car, she was stopped by a man who was wearing a green army jacket to which an identification badge was attached. The man asked Webb for change for a twenty-dollar bill. Webb stated that she did not have any change. The man then asked if she had any change upstairs in her apartment. At that point Aumer got out of the car, looked the man in the eye, and stated that Webb did not have any change. Aumer testified at trial that the defendant was the man he saw in the parking lot that evening.

At 11:00 p.m., Piccolo's roommates returned to the apartment. Upon entering, they noticed that the contents of a purse had been spilled on the floor. They went upstairs and found Piccolo's body on the bathroom floor. She had been stabbed many times. They immediately called the police. When Piccolo's body was found, she was dressed in a sweatshirt, sweatpants which were inside out, and socks, but she was not wearing panties.

An autopsy showed that Piccolo had received nine stab wounds that were clustered in her chest, arm, back, and abdomen and several defensive wounds on her hands. One stab wound went completely through her right hand. The cause of death was loss of blood.

The couch on which Piccolo had been sitting when her roommates had left her had been pushed apart. The panties Piccolo had been wearing earlier that evening were found on the couch. A butcher knife was missing from the kitchen. Piccolo's eyeglasses were found on the coffee table. A fingerprint was lifted from one of the lenses; this print matched a print of the defendant's left ring finger. Five pubic hairs were found on the couch; these hairs were consistent with those of the defendant. The police later found the missing butcher knife in a parking lot located between Piccolo's apartment and the house owned by the defendant's sister where the defendant was staying at the time of the murder. Blood and fibers consistent with fibers from Piccolo's sweatshirt were on the knife. The defendant's brother owned a green army jacket to which a University of North Carolina identification badge was attached.

The defendant at trial presented alibi evidence. Several of the defendant's relatives testified that he was with them the entire evening of 21 January 1989.

Other evidence introduced at trial is discussed at other points in this opinion where pertinent to the issues raised by the defendant.

The defendant assigns as error the trial court's denial of his motion to dismiss the first-degree murder charge for insufficiency of the evidence. The defendant contends that the State presented insufficient evidence to support a finding that he killed the victim with premeditation and deliberation or that he killed her while he was engaged in one of the underlying felonies of first-degree burglary, robbery with a dangerous weapon, or attempted first-degree rape.

In State v. Small, 328 N.C. 175, 400 S.E.2d 413 (1991), we described the appropriate standard of review as follows:

"On a motion to dismiss on the ground of insufficiency of the evidence, the question for the court is whether there is substantial evidence of each element of the crime charged and of the defendant's perpetration of such crime." State v. Bates, 309 N.C. 528, 533, 308 S.E.2d 258, 262 (1983).

[T]he trial court must view the evidence in the light most favorable to the State, giving the State the benefit of every reasonable inference to be drawn from it.... If there is substantial evidence--whether direct, circumstantial, or both--to support a finding that the offense charged has been committed and that the defendant committed it, the case is for the jury and the motion to dismiss should be denied.

State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382-83 (1988) (citations omitted). Further, "[t]he defendant's evidence, unless favorable to the State, is not to be taken into consideration." State v. Jones, 280 N.C. 60, 66, 184 S.E.2d 862, 866 (1971). The determination of the witnesses' credibility is for the jury. See Locklear, 322 N.C. at 358, 368 S.E.2d at 383. "[C]ontradictions and discrepancies do not warrant dismissal of the case--they are for the jury to resolve." State v. Earnhardt, 307 N.C. 62, 67, 296 S.E.2d 649, 653 (1982).

State v. Small, 328 N.C. at 180-81, 400 S.E.2d at 415-16, quoted in State v. Quick, 329 N.C. 1, 19, 405 S.E.2d 179, 190-91 (1991). " 'The trial court's function is to determine whether the evidence will permit a reasonable inference that the defendant is guilty of the crimes charged.' " Quick, 329 N.C. at 19, 405 S.E.2d at 191 (quoting State v. Vause, 328 N.C. 231, 237, 400 S.E.2d 57, 61 (1991)).

Under this standard, there was substantial evidence to support findings that the defendant killed the victim with premeditation and deliberation and that he killed her during the course of one of the underlying felonies. The State's evidence tended to show that a fingerprint lifted from a lens of the victim's eyeglasses found in the apartment matched one of the defendant's fingerprints. The victim did not know the defendant and the defendant had never been inside the apartment before the day of the murder. The victim cleaned her glasses on a regular basis and had cleaned them on the day she was murdered. About one hour before the victim's body was found, the defendant was in the parking lot next to the apartment in which the murder was committed. The police found pubic hairs consistent with those of the defendant in front of and on the sofa in the apartment. A butcher knife with human blood and fibers consistent with the fibers taken from the sweatshirt the victim was wearing at the time of her death was found in a location between the victim's apartment and the house where the defendant was residing at the time of the murder.

When determining whether there is sufficient evidence that a killing was done with premeditation and deliberation, the court may consider, inter alia, evidence tending to show the following: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (3) the dealing of lethal blows after the deceased has been felled and rendered helpless; (4) evidence that the killing was done in a brutal manner; and (5) the nature and number of the victim's wounds. See State v. Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991); State v. Bullock, 326 N.C. 253, 258, 388 S.E.2d 81, 84 (1990).

The State presented evidence of the brutal manner in which the victim was killed. The victim had nine different stab wounds and four cutting wounds on her arms. The repeated stabbing showed the brutality of the murder. Two wounds were inflicted on the victim's back, which permitted an inference that the victim was helpless or had been felled when the murderer inflicted some of the wounds. No evidence of provocation was presented. State v. Robbins, 319 N.C. 465, 356 S.E.2d 279, cert. denied, 484 U.S. 918, 108 S.Ct. 269, 98 L.Ed.2d 226 (1987). The murderer and the victim initially had contact in the living room based upon the physical evidence presented. The victim's body was found in the bathroom. The movement of the victim from the living room to the bathroom suggests premeditation on the part of the murderer. State v. Jackson, 317 N.C. 1, 343 S.E.2d 814 (1986), vacated on other grounds, 479 U.S. 1077, 107 S.Ct. 1271, 94 L.Ed.2d 133 (1987).

Substantial evidence was introduced from which the jury could find the defendant guilty under the felony-murder theory with robbery as the underlying felony. The pocketbook of Denise Robbins, one of the victim's roommates, had been rifled through at about the time of the murder, and the money it had contained had been stolen. The evidence also tended to show that the victim was murdered during an attempted rape. The victim was found with her sweatpants inside out and without panties on. The victim's roommates testified that the victim was wearing underwear earlier that evening and was generally meticulous about her appearance. The couch on which she had been sitting when her roommates left was in disarray after the murder. Five pubic hairs consistent with those of the defendant were found on the couch, which tended to show that the defendant had removed his pants while in the apartment.

The defendant argues that the evidence in the present case was...