State v. Clark

752 S.E.2d 709, 231 N.C. App. 421, 2013 WL 6623340, 2013 N.C. App. LEXIS 1313
CourtCourt of Appeals of North Carolina
DecidedDecember 17, 2013
DocketNo. COA13-561
StatusPublished
Cited by4 cases

This text of 752 S.E.2d 709 (State v. Clark) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Clark, 752 S.E.2d 709, 231 N.C. App. 421, 2013 WL 6623340, 2013 N.C. App. LEXIS 1313 (N.C. Ct. App. 2013).

Opinion

ELMORE, Judge.

This appeal presents questions concerning the correctness of the trial judge’s jury instructions and his denial of defendant’s motion to dismiss the first degree murder charge for insufficient evidence of premeditation and deliberation. On 4 June 2011, Cornelius Jevon Clark (defendant) was charged in the stabbing death of Jakwan Esquire Pittman. After a jury trial, defendant was found guilty of first degree murder and sentenced to life imprisonment without parole. Defendant subsequently gave notice of appeal in open court on 16 January 2013. After careful consideration, we find no error.

The State’s evidence tended to show the following: Officer Robert Smith of the Rocky Mount Police Department testified that on 4 June 2011 he was at Club Rain working security detail when he was alerted [422]*422that there was going to be a fight. He and Officer Anthony Creech approached a growing crowd. He saw defendant “get into the face” of Pittman and then “strike [him] in the throat, almost like he pushed him with two hands in the throat area.” As Officer Smith removed Pittman from the club, he tasted blood in his mouth and felt a warm liquid spray in his eyes. He then saw Pittman lying on the ground “bleeding out.”

Mr. Russell Ray Rouse, Jr. testified that on 4 June 2011 he was working security when he heard a fight was about to break out between two black males over money. Mr. Rouse saw defendant and Pittman “face off’ for approximately 20 seconds before defendant made a swiping motion “towards [defendant’s] mouth and around the neck area of Pittman.” Defendant then struck Pittman in the throat, and Pittman was “holding his neck and when he moved his hand, blood shot out of his neck.”

Officer Creech of the Rocky Mount Police Department testified that he saw defendant and Pittman standing approximately three feet apart from each other, but he did not hear them arguing. To be safe, he told the men to “back up.” He noticed that Pittman started backing up when defendant “lunge [d] at him with his thumb and he pushed him with his left hand and jabbed it towards the throat section.” Dr. William Oliver performed an autopsy on Pittman and concluded that the cause of death was a single slit-like stab wound perforating inward near the trachea that cut the jugular vein and the carotid artery.

Defendant testified that he and Pittman had been acquaintances since the early 1990s, and had no troubles with one another. Defendant went to Club Rain around midnight; he admitted to sneaking a pocket knife through security, explaining that he carried one every day for protection. Defendant was drinking heavily. At some point, defendant felt himself get pushed; he turned and saw that Pittman was behind him. The men started fighting: defendant said, we “was face to face and we arguing and to me like it seemed like he was taking a step forward. So, that’s when I - I pushed him with both hands. And that’s when the incident occurred.” Defendant pulled out the knife because he “didn’t know what his intentions were[.]... I pulled it out for my protection.” In an alleged effort to defend himself, defendant pushed Pittman “just hard enough to get him off me. Like to get him from out of my - out of my arm reach.” At the close of the State’s evidence and after the defense rested, defendant moved to dismiss the charge of first degree murder based on a lack of premeditation and deliberation. The trial court denied both motions.

[423]*423II. Denial of Motion to Dismiss

Defendant argues that the trial court erred in denying his motion to dismiss the charge of first degree murder because the State presented insufficient evidence that he acted with premeditation and deliberation. We disagree.

“This Court reviews the trial court’s denial of a motion to dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650 S.E.2d 29, 33 (2007). On a motion to dismiss for insufficiency of evidence, “ ‘the question for the Court is whether there is substantial evidence (1) of each essential element of the offense charged, or of a lesser offense included therein, and (2) of defendant’s being the perpetrator of such offense. If so, the motion is properly denied.’ ” State v. Fritsch, 351 N.C. 373, 378, 526 S.E.2d 451, 455 (quoting State v. Barnes, 334 N.C. 67, 75, 430 S.E.2d 914, 918 (1993)), cert. denied, 531 U.S. 890, 148 L. Ed. 2d 150 (2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980). “In making its determination, the trial court must consider all evidence admitted, whether competent or incompetent, in the light most favorable to the State, giving the State the benefit of every reasonable inference and resolving any contradictions in its favor.” State v. Rose, 339 N.C. 172, 192, 451 S.E.2d 211, 223 (1994) (citation omitted), cert. denied, 515 U.S. 1135, 132 L. Ed. 2d 818 (1995).

First degree murder is the intentional and unlawful killing of another human being with malice and with premeditation and deliberation. See N.C. Gen. Stat. § 14-17 (2011).

“Premeditation” means that the defendant formed the specific intent to kill the victim some period of time, however short, before the actual killing. “Deliberation” means an intent to kill executed by the defendant in a cool state of blood, in furtherance of a fixed design for revenge or to accomplish an unlawful purpose and not under the influence of a violent passion, suddenly aroused by lawful or just cause or legal provocation.

State v. Bonney, 329 N.C. 61, 77, 405 S.E.2d 145, 154 (1991) (citations omitted).

“Generally, premeditation and deliberation must be proved by circumstantial evidence because they are not susceptible of proof by direct evidence.” State v. Misenheimer, 304 N.C. 108, 113, 282 S.E.2d 791, 795 [424]*424(1981) (quotation and citation omitted). “[A]lthough there may have been time for deliberation, if the purpose to Mil 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.” Id. (alteration in original).

Our courts have found the following circumstances to be instructive as to whether circumstantial evidence of premeditation and deliberation exists: (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the Mlling; (3) threats and declarations of the defendant before and during the course of the occurrence giving rise to the death of the deceased; (4) ill-will or previous difficulty between the parties; (5) the dealing of lethal blows after the deceased has been felled and rendered helpless; and (6) evidence that the Mlling was done in a brutal manner. State v. Joplin, 318 N.C.

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Cite This Page — Counsel Stack

Bluebook (online)
752 S.E.2d 709, 231 N.C. App. 421, 2013 WL 6623340, 2013 N.C. App. LEXIS 1313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-clark-ncctapp-2013.