State v. Stinnett , 129 N.C. App. 192 ( 1998 )

497 S.E.2d 696 (1998)

STATE of North Carolina
v.
Carlos Dwayne STINNETT, Jr.

No. COA97-528.

Court of Appeals of North Carolina.

April 7, 1998.

Attorney General Michael F. Easley by Special Deputy Attorney General Robert J. Blum, for the State.

Appellate Defender Malcolm Ray Hunter, Jr. by Assistant Appellate Defender Janine Crawley Fodor, Durham, for defendant-appellant.

EAGLES, Judge.

We first consider whether the trial court erred by failing to instruct the jury on the lesser included offenses of second degree murder and assault with a deadly weapon inflicting serious injury. Defendant argues that there was evidence of second degree murder and assault with a deadly weapon inflicting serious injury, and the trial court should have instructed on these lesser included offenses. Defendant argues that certain facts in evidence negate premeditation and deliberation. The facts relied on by the defendant are defendant's impulsiveness and inability to calculate the consequences of his actions because of his age and defendant's severe emotional turmoil about the circumstances surrounding his new living arrangements. We disagree.

A lesser included offense jury instruction must be given "when and only when there is evidence from which the jury could find that such included crime of lesser degree was committed." State v. Jones, 291 N.C. 681, 687, 231 S.E.2d 252, 255 (1977). "The test for determining whether the jury must be instructed on second-degree murder is whether there is any evidence in the record which would support a verdict of second-degree murder." State v. Bates, 343 N.C. 564, 579, 473 S.E.2d 269, 277 (1996) (quoting State v. Conaway, 339 N.C. 487, 514, 453 S.E.2d 824, 841, cert. denied, 516 U.S. 884, 116 S. Ct. 223, 133 L. Ed. 2d 153 (1995)), cert. denied, ___ U.S. ___, 117 S. Ct. 992, 136 L. Ed. 2d 873 (1997).

Second degree murder is an unlawful killing of a human being with malice but without premeditation and deliberation. State v. Watson, 338 N.C. 168, 176, 449 S.E.2d 694, 699 (1994), cert. denied, 514 U.S. 1071, 115 S. Ct. 1708, 131 L. Ed. 2d 569 (1995). In addition, before a judge is required to give an instruction on assault with a deadly weapon inflicting serious injury, there must be evidence that defendant had no intent to kill. State v. Cain, 79 N.C.App. 35, 46, 338 S.E.2d 898, 905 (1986), disc. review denied, 316 N.C. 380, 342 S.E.2d 899 (1986). It is well established that

[i]f 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, 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 [court] should properly exclude from jury consideration the possibility of a conviction of second degree murder.

State v. Frye, 341 N.C. 470, 501, 461 S.E.2d 664, 680 (1995) (quoting State v. Strickland, 307 N.C. 274, 293, 298 S.E.2d 645, 658 (1983), overruled in part on other grounds by State v. Johnson, 317 N.C. 193, 344 S.E.2d 775 (1986)), cert. denied, 517 U.S. 1123, 116 S. Ct. 1359, 134 L. Ed. 2d 526 (1996).

Here, there was sufficient evidence of premeditation and deliberation and defendant's intent to kill Maggie. Defendant's argument that he was in a state of "severe emotional turmoil" is only conjecture. The evidence showed that after defendant shot and fatally wounded his father, he said "I got you." Defendant had to reload his pistol after firing four shots into the closet where Maggie Stinnett was huddling in fear and then said "if you're in there, you'd better come out because I don't want to kill you, but if you don't come out I'm coming in." After reloading, when Maggie made no response, defendant started shooting again. Maggie then screamed after being wounded. Defendant never opened the closet door to check on Maggie. Finally, Carlos and Maggie Stinnett each suffered from three gunshot wounds. These facts are strong evidence of premeditation and deliberation and intent. There is no evidence that these shootings were done without premeditation and deliberation. Accordingly, the trial court was under no obligation to instruct on the lesser included offenses of second degree murder and assault with a deadly weapon inflicting serious injury. This assignment of error is overruled.

We next consider whether the trial court erred by admitting into evidence the stolen plastic-encased two dollar bill. Defendant argues that admission of this evidence was prohibited by Rule 404(b) and Rule 403 and that the evidence was introduced without a proper foundation. Defendant argues that the two dollar bill was improperly admitted to show defendant's propensity to commit a crime and not admitted to prove identity. We disagree.

Here, the two dollar bill was admissible to show identity. The two dollar bill established a probative link between the defendant and the murder weapon. The murder weapon was not recovered in the defendant's possession but was found instead adjacent to the store where the defendant was arrested. The same weapon had been stolen from Mr. Sokolowski's house in Virginia Beach, where defendant lived just prior to the crime. The two dollar bill, which was in defendant's possession at the time he was arrested, was stolen from the same home at the same time the murder weapon was taken. Accordingly, we hold that the two dollar bill was properly admitted to prove identity.

In addition the defendant argues that the plastic-encased two dollar bill was admitted without a proper foundation. We disagree. Identification of evidence for the purpose of admission need not be unequivocal. State v. Bishop, 293 N.C. 84, 88, 235 S.E.2d 214, 217 (1977). The trial court exercises its discretion

in determining the standard of certainty that is required to show that an object offered is the same as the object involved in the incident and is in an unchanged condition. A detailed chain of custody need be established only when the evidence offered is not readily identifiable or is susceptible to alteration and there is reason to believe that it may have been altered. Further, any weak links in a chain of custody relate only to the weight to be given the evidence and not to its admissibility.

State v. Campbell, 311 N.C. 386, 388-89, 317 S.E.2d 391, 392 (1984). (Citations omitted). At trial, Deputy Ron Lerche, the officer who arrested and searched defendant, testified that he did not recognize the two dollar bill and did not remember finding the bill on the defendant's person. However, Deputy Van Holley testified that the white bag he received from Deputy Lerche at the time he transported defendant to the Lee County Sheriff's Department contained the plastic-encased two dollar bill. Detective James Hinton testified that the plastic-encased two dollar bill was in the white bag when he received it from Deputy Van Holley at the Sheriff's Department. Although the arresting officer does not remember the plastic-encased two dollar bill, any arguably weak links in the chain of custody go to the weight of the evidence and not to the issue of whether the evidence should be admitted. Accordingly, we hold there was circumstantial evidence produced at trial sufficient to establish the chain of custody. This assignment of error is overruled.

We next consider whether the mandatory language in G.S. 7A-608 coupled with the statutory provisions in G.S. 14-17 requiring the mandatory imposition of a life sentence without parole for first degree murder, taken together, violate the Eighth Amendment of the Constitution of the United States and the North Carolina Constitution.

G.S. 7A-608 states:

If the alleged felony constitutes a Class A felony and the court finds probable cause, the court shall transfer the case to the superior court for trial as in the case of adults. (Emphasis added).

G.S. 14-17 provides that punishment for first degree murder shall be death or imprisonment for life "except that any such person who was under 17 years of age at the time of the murder shall be punished with imprisonment in the State's prison for life without parole."

G.S. 15A-1380.5, enacted by the 1994 Extra Session of the General Assembly, provides that persons sentenced to life imprisonment without parole are entitled to review of their sentence by a resident superior court judge of the county where originally sentenced when they have served 25 years and at two year intervals thereafter. The reviewing judge, in his discretion, shall recommend whether or not the defendant's sentence shall be altered or commuted by the governor or the executive branch agency the governor designates. Thus a sentence of life imprisonment without parole may confine a defendant for his natural life or may amount to an active sentence of twenty-five years imprisonment.

The defendant argues that construing together G.S. 14-17 and G.S. 7A-608 does not allow the judge or fact finder an opportunity to consider defendant's age or rehabilitative potential. Defendant argues that of the several states he researched, only Louisiana combines a mandatory transfer or waiver provision for murder with a mandatory sentence of life imprisonment without parole. Defendant argues that this combination impermissibly precludes any possible consideration of the offender's youth and accordingly violates the Eighth Amendment of the United States Constitution and Art. I, Sec. 27 of the North Carolina Constitution. After careful examination of the authorities cited and G.S. 15A-1380.5, we disagree.

North Carolina courts have consistently held that when a punishment does not exceed the limits fixed by statute, the punishment cannot be classified as cruel and unusual in a constitutional sense. State v. Rogers, 275 N.C. 411, 421, 168 S.E.2d 345, 350 (1969), cert. denied, 396 U.S. 1024, 90 S. Ct. 599, 24 L. Ed. 2d 518 (1970); State v. Sweezy, 291 N.C. 366, 385, 230 S.E.2d 524, 536 (1976). It is within the province of the General Assembly to enact a process for dealing with serious offenses committed by juveniles. State v. Higginbottom, 312 N.C. 760, 764, 324 S.E.2d 834, 837, (1985); see Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 (1989). The General Assembly has chosen a process that excludes juveniles accused of Class A felonies who are thirteen years of age or older from the preferred treatment of juvenile court disposition. Legislative bodies are free to make exceptions to the statutory rules that children are entitled to special treatment. Thompson v. Oklahoma, 487 U.S. 815, 823, 108 S. Ct. 2687, 2692, 101 L. Ed. 2d 702, 711 (1988) (stating "[t]he experience of mankind, as well as the long history of our law, recognizes that there are differences which must be accommodated in determining the rights and duties of children as compared with those of adults."), (quoting Goss v. Lopez, 419 U.S. 565, 590-91, 95 S. Ct. 729, 744, 42 L. Ed. 2d 725 (1975)). The General Assembly has the constitutional authority to enact laws. Unless their enactments or the way they are applied offend our Constitution or the Constitution of the United States, we are bound by these enactments. Accordingly, this assignment of error is overruled.

No error.

HORTON and SMITH, JJ., concur.