State v. Myers
| Decision Date | 16 December 2014 |
| Docket Number | No. COA14–504.,COA14–504. |
| Citation | 766 S.E.2d 690,238 N.C.App. 133 |
| Court | North Carolina Court of Appeals |
| Parties | STATE of North Carolina, v. Major Woody MYERS, Jr. |
Attorney General, Roy Cooper, by Special Deputy Attorney General, Kimberly D. Potter, for the State.
Linda B. Weisel, Raleigh, for Defendant.
Major Woody Myers, Jr. ("Defendant") was charged with the first-degree murder of his wife, Darlene Myers ("Ms. Myers"). During Defendant's trial, Defendant entered an Alford plea to second-degree murder, pursuant to a plea agreement. The plea agreement required that Defendant concede the existence of two aggravating factors in connection with Ms. Myers' homicide. The trial court accepted the plea agreement, found the existence of those aggravating factors, and sentenced Defendant for second-degree murder in the aggravated range. On appeal, Defendant contends there was an insufficient factual basis to support the aggravating factors. We agree with Defendant. Thus, the plea agreement must be set aside, and we remand for disposition on Defendant's original charge of first-degree murder.
Defendant and Ms. Myers lived together in rural Caswell County. Defendant regularly shot targets with firearms on their property. Defendant's neighbor, Danny Gregory ("Mr. Gregory"), disliked Defendant's target shooting and at times argued with Defendant over his practice of target shooting. Mr. Gregory's cousin, Tony Cook ("Mr. Cook"), was working on Mr. Gregory's property with other workers around 11:00 a.m. on 14 January 2008, when Mr. Cook heard gun shots coming from Defendant's property. Defendant was conducting target practice with his Taurus 9mm pistol ("the pistol"). Fearing that he or one of the other workers might be struck by a stray bullet, Mr. Cook confronted Defendant, and the two argued. Defendant eventually calmed down, apologized, went into his house, and Mr. Cook returned to his work.
Within the hour, at 11:37 a.m., Defendant called 911 and reported a shooting inside his home. Law enforcement and emergency medical personnel arrived at Defendant's home around 11:50 a.m. and found Ms. Myers lying unresponsive and face down on the kitchen floor with a fatal gunshot wound in the back of her head. Other than an overturned space heater, the kitchen appeared undisturbed. In spite of multiple attempts at resuscitation, Ms. Myers was pronounced dead at 1:07 p.m., ninety minutes after the 911 call.
Defendant was not at home when law enforcement arrived. After calling 911, Defendant left his house and went to his stepdaughter's house to tell her what had happened. However, Defendant eventually returned and peacefully surrendered to law enforcement. Defendant subsequently was indicted for first-degree murder.
At trial, Defendant testified that he had consumed two 22–ounce beers and had smoked some marijuana on the morning of 14 January 2008, before engaging in target practice. Defendant further testified that, after his confrontation with Mr. Cook, he went inside his house and had a heated conversation with Ms. Myers over his ongoing disputes with Mr. Gregory. Defendant stated that he was frustrated, was talking with his hands, and that he continued to hold the pistol while he spoke. However, the pistol reportedly had a "hair-pin trigger," and Defendant testified that it accidently discharged and shot Ms. Myers in the head. The State contends the shooting was intentional.
Medical Examiner Deborah Radisch ("Dr. Radisch") testified that the cause of Ms. Myers' death was one "very tangential ... almost a glancing" gunshot wound across the back of Ms. Myers' head. She testified that the gunshot was not made point-blank or in close range because there was no stippling about the wound. Dr. Radisch further testified that Ms. Myers likely lost consciousness shortly after being shot. She said that Ms. Myers had several bruises and abrasions on her face and hands, which "could be consistent with defens[ive] wounds." These injuries were visibly "faint" and not very large; although Dr. Radish testified that, if Ms. Myers sustained the injuries right before being shot, her subsequent, and significant, blood loss would have minimized the amount of bruising that otherwise might have developed. Dr. Radisch further testified that these injuries were also consistent with injuries "inflicted by being struck by a blunt force object or perhaps a fall onto a hard surface," and "more likely than not" were incurred before the gunshot wound.
The trial court conducted a plea colloquy with Defendant, found factual bases for the above-listed aggravating factors, and accepted Defendant's plea. The trial court sentenced Defendant in the aggravated range for second-degree murder. Defendant did not enter a notice of appeal. However, Defendant filed a petition for a writ of certiorari with this Court on 7 October 2013 to review his sentence, which this Court granted.
The standard of review for a sentence imposed by the trial court is whether the sentence is supported by evidence introduced at the trial and at the sentencing hearing. See State v. Choppy, 141 N.C.App. 32, 43, 539 S.E.2d 44, 51 (2000).
On appeal, Defendant contends there was not a sufficient factual basis for the trial court to find the aggravating factors listed in Defendant's plea agreement. Defendant is correct.
There is not a sufficient factual basis in the record to support this finding.
All homicides are gruesome. However, to support a finding that a homicide was especially heinous, atrocious, or cruel, the defendant's acts must have been characterized by "excessive brutality, or physical pain, psychological suffering, or dehumanizing aspects not normally present " in the homicide charged. State v. Blackwelder, 309 N.C. 410, 414, 306 S.E.2d 783, 786 (1983).
Assuming arguendo that Defendant did cause the additional injuries found on Ms. Myers' hands and face before she was shot, although deplorable, those injuries alone do not rise to the level of extreme physical and psychological suffering that would support a finding that the circumstances surrounding Ms. Myers' death were especially atrocious, heinous, or cruel.
The State also argues that a finding of this aggravating factor is supported by the fact that Ms. Myers was killed within the "sanctuary" of her home. In support of this contention, the State cites several sources of authority, specifically State v. Garcell, 363 N.C. 10, 66, 678 S.E.2d 618, 653 (2009) ; State v. Cummings, 361 N.C. 438, 477, 648 S.E.2d 788, 811–12 (2007) ; and State v. Smith, 359 N.C. 199, 220, 607 S.E.2d 607, 622 (2005). While it is true that killing someone in his or her home can help support a finding that a homicide was especially heinous, atrocious, or cruel, the present case is distinguishable from the authority presented by the State. The defendants in Garcell, Cummings, and Smith did not live with their victims, and they either had no lawful right to be in the victims' homes when the homicides occurred or had tricked their way inside. See Garcell, 363 N.C. at 21, 678 S.E.2d at 626 ; Cummings, 361 N.C. at 443, 648 S.E.2d at 792 ; Smith, 359 N.C. at 203, 607 S.E.2d at 612. In the present case, Defendant was in the home that he lawfully shared with Ms. Myers when she was shot. As such, Defendant's mere presence in his own home did not make his actions especially atrocious, heinous, or cruel.
Finally, the State contends that a finding of this aggravating factor is supported by the fact that Ms. Myers did not die instantaneously; indeed, from the time Defendant called 911, it took Ms. Myers ninety minutes to die. In support of its contention, the State points only to State v. Stanley, 310 N.C. 332, 312 S.E.2d 393 (1984). However, in Stanley, this aggravating factor was found unsupported by the evidence where the victim was shot, "rendered ... unconscious within minutes," and died some time later. Id. at 340, 312 S.E.2d at 398. The Stanley Court expressly stated that even where "death is not instantaneous, ... [this] does not alone...
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...rev'd for reasons stated in the dissenting opinion , 366 N.C. 327, 734 S.E.2d 571 (2012) (per curiam); see State v. Myers , 238 N.C.App. 133, 139–40, 766 S.E.2d 690, 694 (2014) (citing Rico , 218 N.C.App. at 109, 110, 720 S.E.2d at 801, 802 ) (setting aside the defendant's plea agreement wh......