State v McMickle
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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-215 NORTH CAROLINA COURT OF APPEALS Filed: 1 November 2011 STATE OF NORTH CAROLINA v. Gaston County No. 09 CRS 58657 DOUGLAS HAROLD McMICKLE Appeal by Defendant from judgment entered 17 March 2010 by Judge Eric L. Levinson in Gaston County Superior Court. Heard in the Court of Appeals 31 August 2011. Attorney General Roy Cooper, by Special General Francis W. Crawley, for the State. Deputy Attorney Glover & Petersen, P.A., by James R. Glover, for Defendant. BEASLEY, Judge. Douglas Harold McMickle (Defendant) appeals from judgment entered based on his conviction for first-degree murder. For the reasons stated below, we find no error. Defendant was indicted on 6 July 2009 for the first-degree murder of Teresa Dickerson (the Decedent). As the State chose not to seek the death penalty, Defendant was tried non-capitally -2before a Gaston County jury. In December 2008, Defendant and the Decedent were engaged to be married. The Decedent s co- worker, Darlene Lindsey Clemmer (Ms. Clemmer), testified that Defendant frequently visited the Decedent employment, a Time Out convenience store. at her place of When Defendant and the Decedent began their relationship, they seemed very happy and in barring love. the After employees the store from manager having instituted long-term a visitors working, Defendant and the Decedent began to argue. policy while Defendant suspected that the Decedent had other men visiting her at the store, and that was the true reason he could not stay at work with her anymore. On 19 June 2009, the night before the Decedent was killed, Defendant came to the store and argued with the Decedent. the argument, Defendant left the store. After The Decedent told Ms. Clemmer that she just couldn t take it any more, and that the Defendant had gotten too controlling, too possessive. The Decedent stated that she was not going over to the Defendant s house after work as she usually did, and asked Ms. Clemmer to follow her home. The Decedent told Ms. Clemmer that the next day she was going to give Defendant back the rings he gave her, along with the gun he gave her for protection. -3On the afternoon of 20 June 2009, Deputy Sheriff Jason Long was dispatched to 2243 Old North Carolina Highway 27. Deputy Long walked into the kitchen area of the When Decedent s residence, he saw a white female lying face down on the counter, amidst a good amount of blood. He briefly checked the body for any signs of life, but found none. The autopsy showed the cause of death was a gunshot wound to the back of the head. On 16 March 2010, the jury guilty of first-degree murder. unanimously found Defendant For this crime, Defendant was sentenced to life imprisonment without parole. Defendant gave notice of appeal in open court. I. Defendant argues that the trial court erred in not granting his motion evidence. to dismiss on the basis of insufficiency of the We disagree. A defendant s motion to dismiss for insufficiency of the evidence cannot be granted if there is substantial evidence of each essential defendant being element the of the perpetrator offense charged of offense. the and of the State v. Vause, 328 N.C. 231, 236, 400 S.E.2d 57, 62 (1991) (citing State v. Earnhardt, 307 N.C. 62, 65-66, 296 S.E.2d 649, 651 (1982)). Substantial evidence is defined as such relevant evidence as a -4reasonable mind conclusion. might accept as there to support a State v. Smith, 300 N.C. 71, 78-79, 265 S.E.2d 164, 169 (1980)(citations omitted). that adequate is sufficient If the trial court finds evidence, whether direct, circumstantial, or both then 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, 383 (1988). Our Supreme Court has instructed that [w]hen ruling on a motion to dismiss for insufficient evidence, the trial court must consider the evidence in the light most favorable to the State, drawing all reasonable inferences in the State s favor. Any contradictions or conflicts in the evidence are resolved in favor of the State, and evidence unfavorable to the State is not considered[.] State v. Miller, 363 N.C. 96, 98, 678 S.E.2d 592, 594 (2009) (citations omitted). Defendant alleges that the evidence in this case was not sufficient to support a finding that he was guilty of firstdegree murder based on premeditation and deliberation. Defendant was charged with first-degree murder on the theory that the murder was a willful, deliberate, and premeditated killing[.] N.C. Gen. Stat. ยง 14-17 (2009). Because [p]remeditation and deliberation relate to mental processes, -5they ordinarily are not readily susceptible to proof by direct evidence. 693 (1986). State v. Gladden, 315 N.C. 398, 430, 340 S.E.2d 673, Gladden and other cases list factors to be used in determining whether a murder was committed with premeditation and deliberation, including (1) want of provocation on the part of the deceased; (2) the conduct and statements of the defendant before and after the killing; (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 killing was done in a brutal manner. Id. at 430-31, 340 S.E.2d at 693. We conclude that in the case sub judice, there was sufficient evidence of premeditation and deliberation to submit the question of Defendant s guilt on the first-degree murder charge to the jury. The testimony of Ms. Clemmer shows that Defendant s relationship over as time, the fighting frequently. with couple the started Decedent out very was deteriorating happy but began Ms. Clemmer also testified that Defendant and the Decedent fought the day before her murder, and that night, the Decedent chose not to go to Defendant s house as she usually did after work but instead, to go straight home. This -6testimony establishes previous difficulties between the parties. Further, the Decedent asked Ms. Clemmer to follow her home that night which supports an inference that the Decedent wished to avoid a confrontation with Defendant. The State s Exhibit 41, a photograph of the Decedent s kitchen after she was killed, suggests that the Decedent was shot from counter. behind while she was unarmed and eating at the The photograph does not show any signs of a struggle, or anything else to suggest the killing occurred in the heat of passion, or that it was provoked by the Decedent. Finally, Defendant himself admitted that he called the Decedent on the day of the murder and told her that he wanted to see her, and that while he was there he went into her closet and took her gun off the top shelf. In light of the foregoing evidence, we find that there was sufficient evidence to submit the first-degree murder charge to the jury on a theory of premeditation and deliberation. II. Defendant next contends that the trial court erred by not submitting the lesser included offenses of second-degree murder and involuntary manslaughter to the jury. We disagree. -7When charging the jury, [t]he trial court should refrain from indiscriminately included offenses. or automatically instructing on lesser State v. Taylor, 362 N.C. 514, 530, 559 S.E.2d 239, 256 (2008) (internal quotation marks and citations omitted). This restraint channels the jury s discretion so that the defendant may only be convicted of those crimes fairly supported by omitted). the evidence. Id. (internal quotation marks It is well-established that where the evidence is sufficient to fully satisfy the State s burden of proving each and every element of the offense of murder in the first degree . . . and there is no evidence to negate these elements other than defendant s denial that he committed the offense , the defendant is not entitled to an instruction on a lesser included offense. State v. Locklear, 363 N.C. 438, 454-55, 681 S.E.2d 293, 306 (2009). See also State v. Smith, 351 N.C. 251, 268, 524 S.E.2d 28, 40 (2000) (finding where the State s evidence is sufficient to establish each element of first-degree murder, and there is no evidence denial, to negate defendant is these not elements entitled to other an than defendant s instruction on the evidence was lesser included offense of involuntary manslaughter). We have already found that the State s sufficient to satisfy its burden of proving first-degree murder -8by premeditation and deliberation. See Section I, supra. The only evidence Defendant offered to negate these elements was a contention that the shooting of Decedent was entirely accidental, a claim which amounts to a denial of guilt. The controlling case law is very clear in showing that a defendant s denial, without more, is not sufficient to negate the elements of first-degree murder if the State has sufficient evidence to prove those elements. at 454-55, 681 S.E.2d at 306. already put forth Locklear, 363 N.C. Accordingly, this argument is overruled. III. In addition instructions on to arguing lesser that included he was entitled offenses, to jury Defendant also contends that the statement made by his defense counsel that there were no grounds for submitting a lesser included offense to the jury amounts to ineffective assistance of counsel. In Section II, supra, we found no error in the jury instructions. Consequently, defendant s assertion of ineffective assistance of counsel with respect to that issue must also fail. See State v. Seagroves, 78 N.C. App. 49, 54, 336 S.E.2d 684, 688 (1985). No Error. Judges STEPHENS and ERVIN concur. -9Report per Rule 30(e).
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