State v. Robinson

• Decision Date: 03 November 1995
• Docket Number: No. 411A94,411A94
• Citation: 463 S.E.2d 218,342 N.C. 74
• Court: North Carolina Supreme Court
• Parties: STATE of North Carolina v. Marcus Reymond ROBINSON.

Page 218

463 S.E.2d 218

342 N.C. 74

STATE of North Carolina v. Marcus Reymond ROBINSON.

No. 411A94.

Supreme Court of North Carolina.

Nov. 3, 1995.

Michael F. Easley, Attorney General by William N. Farrell, Jr., Senior Deputy Attorney General, for the State.

James R. Parish, Fayetteville, for defendant-appellant.

MITCHELL, Chief Justice.

Defendant was tried capitally upon an indictment charging him with the first-degree murder of Erik Tornblom, first-degree kidnapping, robbery with a dangerous weapon, felonious larceny, possession of a weapon of mass destruction, and possession of a stolen vehicle. Defendant pled guilty to all of the charges but the charge of first-degree murder. Prayer for judgment was continued as to the charges to which defendant had pled guilty, and defendant was tried for first-degree murder. The jury returned a verdict finding defendant guilty of first-degree murder on both the theory of felony murder and the theory of premeditation and deliberation. Following a separate capital sentencing proceeding pursuant to N.C.G.S. § 15A-2000, the jury recommended that defendant be sentenced to death. The trial court, as required by law in light of the jury's recommendation, sentenced defendant to death for the first-degree murder. At the conclusion of a sentencing hearing held pursuant to the Fair Sentencing Act, the trial court arrested judgment for the offense of possession of a stolen vehicle and entered judgments sentencing defendant to consecutive terms of imprisonment for the remaining offenses to which he had pled guilty.

Defendant appeals to this Court as a matter of right from the judgment and sentence of death imposed for first-degree murder. We allowed his motion to bypass the Court of Appeals on his appeal of the judgments entered for the other offenses. For the reasons set forth in this opinion, we conclude defendant received a fair trial, free of prejudicial error, and that the sentence of death for first-degree murder is not disproportionate in this case.

The State presented evidence at trial tending to show that on the morning of 21 July 1991, Erik Tornblom did not return home from Chi Chi's restaurant, where he was employed. Tornblom was discovered dead later that day, having died from a gunshot wound to his face. A witness testified at trial that he observed a black male drive Tornblom's gray four-door Honda to the location where it was later recovered, get out of the vehicle and wipe off the steering wheel and door handle. The black male, whom the witness identified as Roderick Williams, was thereafter arrested and named defendant as the person involved with him in the murder of Tornblom.

After initially denying any involvement in the murder, defendant admitted to police that he and Williams had watched Erik Tornblom enter a store. While Tornblom was inside, defendant pulled out a sawed-off shotgun he had concealed in his clothes and handed it to Williams. After Tornblom returned, Williams asked for a ride. As soon as defendant and Williams entered the car, Williams put the gun to the back of Tornblom's neck and forced him to drive in the direction that defendant and Williams demanded. In his statement to police, defendant stated that "[t]he boy kept begging and pleading for us not to hurt him, because he didn't have any money." Williams and defendant directed the victim to a side street, where he was told to lie down. Williams then shot Tornblom in the face. Before leaving the scene, defendant took Tornblom's wallet and split the twenty-seven dollars therein with Williams.

The State also presented evidence at trial that defendant told his aunt two days prior to the murder that "he was going to burn him a whitey." Defendant repeated this statement three times. Another witness testified that the day after the murder, defendant told the witness that he had robbed a white man the night before and had shot him in the head.

Additional evidence is discussed at other points in this opinion where it is helpful to an understanding of the issues presented.

By an assignment of error, defendant argues that the trial court committed error in refusing to instruct the jury on second-degree murder. Although defendant concedes the State presented sufficient evidence for the trial court to instruct the jury on first-degree murder, he argues that sufficient evidence was introduced tending to negate premeditation and deliberation to require the submission of second-degree murder as a lesser included offense.

Whether the trial court must instruct on second-degree murder when defendant is tried for the greater felony of first-degree murder on the theory of premeditation and deliberation is to be determined by a review of all of the evidence presented at trial. If the evidence is sufficient to fully satisfy the State's burden of proof as to each element of first-degree murder, including premeditation and deliberation, and "there is no evidence to negate these elements other than defendant's denial that he committed the offense, the trial judge should properly exclude from jury consideration the possibility of a conviction of second degree murder." State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), modified on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986). In other words, defendant must present some affirmative evidence to support a verdict of second-degree murder before the trial court is required to instruct the jury on that lesser included offense. State v. Hickey, 317 N.C. 457, 470, 346 S.E.2d 646, 655 (1986).

In the statement he gave to police, defendant maintained that Williams shot Tornblom. Defendant argues that his statement, which the State introduced at trial, sufficiently negated premeditation and deliberation to constitute evidence from which the jury could find him guilty of second-degree murder. We disagree.

The evidence presented at trial did not tend to negate premeditation and deliberation. It tended to show that defendant carried to the scene of the killing the sawed-off shotgun used to murder Tornblom. Defendant had stated on three occasions before the murder that "he was going to burn him a whitey." He told a friend the day after the murder that he had robbed a man the night before and shot him in the head. In addition, defendant admitted in his statement that Tornblom "kept begging and pleading for us not to hurt him, because he didn't have any money." When considered in light of such evidence, defendant's statement that he handed the gun to Williams just before the killing and did not pull the trigger himself is wholly insufficient to constitute affirmative evidence tending to negate premeditation and deliberation.

Even assuming arguendo that defendant did present evidence tending to negate premeditation and deliberation, defendant was not prejudiced by the trial court's failure to instruct on second-degree murder. The jury found defendant guilty of first-degree murder on the felony murder theory in addition to the theory of premeditation and deliberation. Therefore, any error the trial court may have committed in failing to instruct the jury on second-degree murder does not entitle defendant to a new trial. State v. Phipps, 331 N.C. 427, 459, 418 S.E.2d 178, 195 (1992). Defendant's assignment of error is without merit.

In his next assignment of error, defendant argues that the trial court erroneously instructed the jury on the elements of felony murder. The trial court read the instruction that defendant contends is error verbatim from the North Carolina Pattern Jury Instructions. See N.C.P.I.--Crim. 206.14 (1994). Defendant concedes that he did not object to the instruction at trial. Therefore, our review is limited to a review for plain error. State v. Odom, 307 N.C. 655, 659-60, 300 S.E.2d 375, 378 (1983). To constitute plain error, an error in the trial court's instruction must be "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." State v. Bagley, 321 N.C. 201, 213, 362 S.E.2d 244, 251 (1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1598, 99 L.Ed.2d 912 (1988).

Defendant specifically complains that in its instructions concerning felony murder, the trial court instructed in pertinent part as follows:

I further charge that for you to find the defendant guilty of first degree murder under the first degree felony murder rule, the State must prove three things beyond a reasonable doubt.

First, that the defendant committed or attempted to commit robbery with a firearm.

....

Second, that while committing or attempting to commit robbery with a firearm the defendant killed the victim with a deadly weapon.

And third, that the defendant's act was a proximate cause of the victim's death. A proximate cause is a real cause, a cause without which the victim's death would not have occurred.

Defendant argues in his brief before this Court that the trial court's instructions were erroneous because they

essentially merged the second and third instructions so that they were almost a redundancy. In the second element the jury was asked to find that while committing or attempting to commit the crime of robbery the defendant killed the victim with a deadly weapon. The third element instructed the jury to find that the killing of the victim was the proximate cause of his death. This merger of the essential elements created a redundancy that actually lessened the State's burden of proof.

We do not find defendant's reasoning persuasive in this regard. Instead, we conclude that to the extent the instructions may have erroneously required redundant findings by the jury before it rendered a guilty verdict, they amounted to error favorable to defendant or, at worst, harmless error. Certainly, requiring the jury to find the same fact twice before convicting defendant did not amount to plain error. This assignment of...