STATE v. MIXION
No. 9121SC1043
IN THE COURT OF APPEALS OF NORTH CAROLINA
Filed 18 May 1993
110 N.C. App. 138 (1993)
Our case law makes it clear that intoxication may affect one‘s ability to form the specific intent required to commit robbery with a firearm. State v. White, 322 N.C. 506, 515-16, 369 S.E.2d 813, 817-18 (1988). Nonetheless, evidence of intoxication should not automatically require an instruction on the lesser included offense of assault with a deadly weapon where an instruction on voluntary intoxication has been given. In the present case, the defendant requested and received the correct instruction on voluntary intoxication. The general instruction given on voluntary intoxication allowed the jury to consider the evidence of defendant‘s intoxication in its deliberations. The jury could have determined the intoxication negated an element of the armed robbery. The defendant should not now be heard to complain that he was entitled to more.
I vote no error on all counts and respectfully dissent.
STATE OF NORTH CAROLINA v. JESSE DWIGHT MIXION
No. 9121SC1043
(Filed 18 May 1993)
1. Homicide § 313 (NCI4th) - second degree murder - evidence of self-defense - sufficient evidence of malice
The State presented sufficient evidence of malice for submission to the jury of a charge against defendant for the second degree murder of his estranged wife, although defendant presented evidence that he acted in imperfect self-defense, where the State‘s evidence tended to show that defendant intentionally shot his wife and his sister-in-law with a .25 caliber pistol; defendant had threatened his wife on prior occasions,
Am Jur 2d, Homicide §§ 50, 51, 139-169, 274.
2. Evidence and Witnesses § 267 (NCI4th) - psychiatric testimony - opinion that victim not homicidal - admission as harmless error
A psychiatrist‘s opinion formed during an interview of a murder victim several months before the murder that the victim was not homicidal was inadmissible under Rule of Evidence 405(a) to show that the victim was not homicidal on the night in question and that defendant could not have been acting in self-defense when he shot the victim. However, the admission of this testimony was not prejudicial error where the psychiatrist testified on cross-examination that the interview lasted only thirty minutes and that she was not familiar with the victim‘s medical state on the date of the killing; the jury knew that the victim was armed with a pistol when she entered defendant‘s house the night of the killing and that she could have shot defendant if that was her intention rather than merely hitting him with her pistol; and a different result would not have been reached if the psychiatrist‘s opinion had been excluded.
Am Jur 2d, Expert and Opinion Evidence §§ 190, 193.
3. Evidence and Witnesses § 339 (NCI4th) - prior threats, assaults, damage to property - admissibility to show malice and intent
In a prosecution of defendant for the murder of his estranged wife, nonhearsay testimony that defendant had previously threatened and assaulted his wife and damaged her property and that she had taken legal action against him was admissible to prove defendant‘s malice and intent.
Am Jur 2d, Homicide §§ 280, 282, 283, 359, 360.
Hearsay testimony that a murder victim had told others that defendant had cut off her heat and electricity, threatened to kill her, harassed her, assaulted her several times, damaged her furniture, and tampered with her house, that he was crazy, and that the police had been unable to catch him for violating a restraining order was admissible under the state of mind exception to the hearsay rule set forth in Rule of Evidence 803(3).
Am Jur 2d, Evidence §§ 496, 497, 650.
5. Homicide § 629 (NCI4th) - self-defense in home - amount of force - instructions
The trial court in a prosecution for second degree murder and felonious assault did not err in failing to give defendant‘s requested instruction on defendant‘s right to increase the amount of force used in self-defense in his own home where defendant actually requested an instruction on defense of habitation; defendant did not shoot the victims to prevent entry into his home and was thus not entitled to an instruction on defense of habitation; and the court properly instructed the jury that if defendant was not the aggressor and was in his own home, he could stand his ground and repel force with force regardless of the character of the assault being made upon him, but that defendant would not be excused if he used excessive force.
Am Jur 2d, Homicide §§ 174 et seq., 496.
Accused‘s right, in homicide case, to have jury instructed as to both unintentional shooting and self-defense. 15 ALR4th 983.
6. Criminal Law § 1184 (NCI4th) - aggravating factor - prior convictions - insufficient record evidence
The trial court‘s finding of the statutory aggravating factor of prior convictions was not supported by competent record evidence where the State filed a notice to defendant of intent to use defendant‘s record of prior convictions at trial, a computer printout of defendant‘s record of prior convictions was attached to the notice, the prosecutor cross-examined defendant at trial about several of the listed convictions, defendant
Am Jur 2d, Homicide §§ 310-314.
7. Criminal Law § 1238 (NCI4th) - strong provocation - extenuating relationship - separate mitigating factors
Although strong provocation and an extenuating relationship are listed in the same statutory subsection,
Am Jur 2d, Homicide §§ 274, 290, 291, 575.
8. Criminal Law § 1245 (NCI4th) - mitigating factor - extenuating relationship - insufficient evidence to require finding
Evidence of past difficulties and a stormy relationship between defendant and his estranged wife for which both were at fault did not require the trial court to find an extenuating relationship as a mitigating factor for defendant‘s second degree murder of his wife.
Am Jur 2d, Homicide §§ 274, 290, 291, 575.
9. Criminal Law § 1216 (NCI4th) - mitigating factors - duress - strong provocation - failure to find duress not error
Although evidence that a murder victim was armed with a pistol and initiated the confrontation with defendant would support a finding of duress as a mitigating factor for defendant‘s second degree murder of the victim, the trial court did not err in failing to find duress where this same evidence was the basis for the trial court‘s finding of strong provocation as a mitigating factor.
Am Jur 2d, Homicide §§ 119, 274, 290, 291, 575.
Judge COZORT dissenting.
Attorney General Lacy H. Thornburg, by Associate Attorney General John G. Barnwell, for the State.
Appellate Defender Malcolm Ray Hunter, Jr., by Assistant Appellate Defender Daniel R. Pollitt, for defendant-appellant.
LEWIS, Judge.
A Forsyth County Grand Jury indicted defendant for the murder of his wife Sylvia Mixion and the assault with a deadly weapon with intent to kill inflicting serious injury (hereinafter “the assault“) upon his sister-in-law Toni Nelson. At trial the State pursued a second-degree murder conviction, and the jury found defendant guilty of second-degree murder and the assault. Judge Allen found aggravating and mitigating factors, and sentenced defendant to a total of 52 years imprisonment, 40 years for the murder and 12 years for the assault.
We begin with a recitation of the facts, including the discrepancies between the State‘s evidence and defendant‘s evidence. It is undisputed that Ms. Mixion and Ms. Nelson arrived at defendant‘s place of residence at about 10:30 p.m. on 5 July 1990. They entered the house and found defendant in the back bedroom. Ms. Mixion was angry with defendant, started to shout at him, and pulled out a pistol but never fired. The ensuing fight flowed to the front bedroom and then to the living room. At some point defendant picked up a gun. In the living room defendant fired two shots: one killed Ms. Mixion and the other injured Ms. Nelson.
Defendant‘s evidence tends to show that defendant may have acted in self-defense when he shot his wife and injured his sister-in-law. Several of defendant‘s friends were in the house that night when Ms. Mixion and Ms. Nelson arrived. They testified that Ms. Mixion stormed into the house and attacked defendant as he was sitting peacefully in his bedroom. Ms. Mixion repeatedly hit defendant with a pistol as the fight progressed to the front bedroom and the living room. Although one friend, Larry Wilson, was standing in the doorway to the living room when the shooting occurred, he testified that he could “not exactly” see the people in the room when the shot was fired, and that he “didn‘t know who had shot
Defendant himself testified that Ms. Mixion came into the bedroom, stuck her pistol in his face, cursed at him, and hit him with and without the pistol. According to defendant, they started fighting as he tried to leave the room. He picked up a gun. At one point Ms. Nelson jumped on top of him, hit him, and brought him to the floor. He alleges that when they got to the living room Ms. Mixion pushed him, raised her pistol, cocked it, pointed it at him and said “I am going to kill you.” When Ms. Nelson said “shoot,” defendant fired his gun twice.
The State‘s evidence, on the other hand, tends to show that defendant was not acting in self-defense. The State was permitted to introduce evidence of events which occurred prior to the night in question. This evidence indicated that defendant‘s wife and son had left him in October 1989. On a subsequent occasion defendant entered the family home, where his wife and son were living, and chopped up all of the furniture, and on another occasion he cut off their heat and electricity. In June 1990 he told his wife, and also his son, that he would kill his wife before he let her have the house. Defendant‘s son was permitted to testify that defendant had previously threatened his wife, fought with her, and cut her with a knife. Ms. Nelson testified that defendant had tried to run over his wife with his car in January 1990.
The State was also allowed to introduce the expert testimony of a psychiatrist, Dr. Nancy Gaby. Dr. Gaby testified that she had met with Ms. Mixion for 30 minutes on 26 February 1990. She testified that Ms. Mixion told her that defendant had been harassing and threatening her in “numerous” and “vicious” ways, and that she had obtained a restraining order. Dr. Gaby testified that Ms. Mixion was neither suicidal nor homicidal. Ms. Mixion‘s divorce attorney, John Schramm, testified that she told him defendant had previously assaulted her and damaged her property.
Toni Nelson testified that on 5 July 1990 she and Ms. Mixion went to defendant‘s house and found defendant in the back bedroom. Ms. Mixion started shouting, cursing, and hitting defendant and became “real irate.” She pulled out a pistol, shook it at defendant, and then left the bedroom to go to the front bedroom. Ms. Nelson was still in the room with defendant when he produced a gun from under his mattress and followed Ms. Mixion. Ms. Nelson testified
On appeal, defendant claims the court should have granted his motion to dismiss, because the evidence of malice was insufficient and in fact showed that he acted in imperfect self-defense. Defendant argues the trial court erroneously allowed the State to introduce various types of evidence at trial. Defendant challenges the admission of the psychiatrist‘s expert testimony, evidence of prior wrongs and acts, and hearsay evidence of prior wrongs and acts. Defendant argues that the trial court should have given his requested jury instruction on his rights to self-defense in his own home. Finally, defendant challenges the trial court‘s finding of the aggravating factor of prior convictions, and its failure to find as a mitigating factor an extenuating relationship with his wife and that he acted under duress or threat thereby reducing his culpability.
I. Defendant‘s Motion to Dismiss
[1] Defendant first argues the trial court erred in denying his motion to dismiss at the close of all the evidence, because the evidence showed he acted in imperfect self-defense as a matter of law. He claims the evidence of malice was insufficient, and therefore he could only have been guilty of voluntary manslaughter and should not have been convicted of second degree murder.
On defendant‘s motion to dismiss in a criminal case, the evidence must be viewed in the light most favorable to the State, allowing the State the benefit of every reasonable inference. State v. Locklear, 322 N.C. 349, 358, 368 S.E.2d 377, 382 (1988). “Any contradictions or discrepancies in the evidence are for resolution by the jury.” State v. Brown, 310 N.C. 563, 566, 313 S.E.2d 585, 587 (1984).
To establish second-degree murder, the State must produce evidence that defendant committed “the unlawful killing of a human being with malice, but without premeditation and deliberation.”
After reviewing the evidence in the light most favorable to the State, we find sufficient evidence of malice to go to the jury. It was for the jury to resolve the discrepancies between the State‘s evidence of malice and defendant‘s evidence of imperfect self-defense. The trial court properly denied defendant‘s motion to dismiss.
II. Expert Character Testimony
[2] Defendant argues the trial court erroneously admitted the expert testimony of psychiatrist Nancy Gaby. Dr. Gaby was permitted to read from her notes, taken during a February 1990 interview with Ms. Mixion, her conclusion that in her opinion Sylvia Mixion was not homicidal. Defendant claims this evidence was introduced to show that Ms. Mixion was not homicidal on the night in question and therefore defendant could not have been acting in self-defense. Thus, according to defendant, Dr. Gaby‘s testimony amounted to an improper expert opinion of defendant‘s guilt. See State v. Kim, 318 N.C. 614, 621, 350 S.E.2d 347, 351 (1986). Defendant argues this evidence was extremely prejudicial.
In North Carolina an expert may not express an opinion regarding the guilt or innocence of a defendant. See State v. Keen, 309 N.C. 158, 163, 305 S.E.2d 535, 538 (1983). According to
The State argues the evidence was admissible under
We must conclude the trial court erred, under
III. Evidence of Prior Wrongs and Acts
A. Character Evidence
[3] Defendant contends the trial court erroneously allowed nonhearsay evidence of prior wrongs and acts in violation of
According to
B. Hearsay Evidence
[4] Defendant also objects to hearsay evidence of alleged prior wrongs and acts. He objects to testimony that Ms. Mixion told others that he had cut off the heat and electricity, that he had threatened to kill her, that he had been harassing her, that he was crazy, that the police had not been able to catch him for violating the restraining order, that he had assaulted her several times in the past, that he had damaged her furniture, and that he had tampered with the house. Defendant also argues that even if the evidence was admissible under the state of mind exception to the hearsay rules, it was not relevant to the case.
It is true that in many of the cases addressing this hearsay exception, the evidence allowed indicates that the declarant had actually expressed fear of the defendant. See State v. Meekins, 326 N.C. 689, 694, 392 S.E.2d 346, 349 (1990) (testimony of niece that victim told her she was afraid of defendant admissible under
We find that the hearsay evidence of threats and harassment by the defendant related directly to Ms. Mixion‘s state of mind and was therefore admissible under
IV. Jury Instructions
[5] Defendant argues he is entitled to a new trial because the trial judge did not charge the jury with his requested jury instruction on his right to increase the amount of force used in self-defense in his own home, and that he was not required to retreat in his own home. At trial, defendant actually requested an instruction on defense of habitation, which the judge refused since the two women had already entered the house at the time of the shooting. Although the judge did instruct that defendant had no duty to retreat in his own home, the judge did not instruct that defendant had the right to increase his force.
We find the trial court properly instructed the jury according to Pattern Instruction 308.10 as follows: “If the defendant was not the aggressor and he was in his own home... he could stand his ground and repel force with force regardless of the character of the assault being made upon him. However, the defendant would not be excused if he used excessive force....” This instruction is in accordance with State v. McCombs, 297 N.C. 151, 253 S.E.2d 906 (1979), wherein the Court stated,
V. Aggravating Factor: Prior Convictions
[6] Defendant argues that the trial court‘s finding of the statutory aggravating factor of prior convictions is not supported by any competent record evidence. Defendant claims the alleged prior convictions were not proven by any acceptable method under the Fair Sentencing Act,
The State relies on the fact that prior to trial and sentencing, it submitted a motion in which it referred to evidence of defendant‘s conviction for assaulting Ms. Mixion with a knife in 1985. With this motion the State filed a “Notice of Intent to Use Record of Prior Convictions,” attaching a list of convictions “obtained from official records.” The State points out that the trial court heard arguments on the pre-trial motions, and that at trial the prosecutor cross-examined defendant about several of the listed convictions. Thus, when the prosecutor referred to a prior conviction at the sentencing hearing, he was referring to competent evidence of record. The State therefore contends it met its burden of proving the prior convictions.
The State must prove by a preponderance of the evidence the existence of aggravating factors.
In the case at hand, defendant did admit that he had been convicted of assaulting Ms. Mixion in 1982. However, there was no evidence indicating whether this conviction was for a simple assault or some form of aggravated assault. To be admissible, the prior conviction must have been for an offense punishable by more than 60 days imprisonment.
We find there was insufficient evidence of defendant‘s prior convictions. The prior convictions were not proven by any acceptable methods, statutory or otherwise. The list of convictions submitted with the State‘s “Notice of Intent to Use Record of Prior Convictions” is a computer printout apparently obtained from the Winston-Salem police department. Although the prosecutor referred to the list during his cross-examination of defendant at trial, he never offered the list as evidence, and defendant never stipulated to it. We must remand for a new sentencing hearing, at which the State will have the opportunity to prove defendant‘s convictions by appropriate methods.
Finally, defendant contends the trial court erred in failing to find the statutory mitigating sentencing factors of an extenuating relationship between defendant and the victim,
b. The defendant committed the offense under duress, coercion, threat, or compulsion which was insufficient to constitute a defense but significantly reduced his culpability ....
i. The defendant acted under strong provocation, or the relationship between the defendant and the victim was otherwise extenuating.
A. Extenuating Relationship
An extenuating relationship should be found if circumstances show that part of the fault for a crime can be “morally shifted” from defendant to the victim. State v. Martin, 68 N.C. App. 272, 276, 314 S.E.2d 805, 807 (1984). Defendant claims his relationship with Ms. Mixion was “mutually stormy and difficult.” Their son testified that neither defendant nor his mother were free from fault. Defendant also points to uncontradicted evidence that Ms. Mixion apparently shot a gun at defendant during their marriage, falsely accused defendant of having venereal disease, and threatened to shoot defendant in January and July 1990. Also, on the night in question Ms. Mixion was the initial aggressor. Thus, defendant claims at least part of the moral fault should be shifted to Ms. Mixion.
We must reject the State‘s argument that it is unnecessary to consider the existence of an extenuating relationship in addition to strong provocation. In State v. Crandall, 83 N.C. App. 37, 348 S.E.2d 826 (1986), disc. rev. denied, 319 N.C. 106, 353 S.E.2d 115 (1987), this Court stated that proof of both types of conduct set forth in the alternative in a subsection of statutory sentencing factors would support the finding of two separate mitigating factors “so as to reflect the defendant‘s lesser culpability.” 83 N.C. App. at 40-1, 348 S.E.2d at 829. See State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988) (Court found extenuating relationship and also discussed existence of strong provocation).
[8] Thus, we must determine if the defendant has shown uncontradicted, substantial evidence of an extenuating relationship. Past difficulties in a marital relationship are not sufficient to support a finding of an extenuating relationship. State v. Hudson, 331 N.C. 122, 158, 415 S.E.2d 732, 752 (1992), cert. denied, 113 S. Ct. 983, 122 L. Ed. 2d 136 (1993). In State v. Bullard, 79 N.C. App. 440, 339 S.E.2d 664 (1986), the Court stated that although the defendant and victim had been arguing over an extended period of time, this evidence did not compel a finding that they had an extenuating relationship, because this evidence did not “necessarily lessen the seriousness of the crime committed.” Id. at 443, 339 S.E.2d at 665-66 (quoting State v. Michael, 311 N.C. 214, 220, 316 S.E.2d 276, 280 (1984)).
In light of these principles, we cannot conclusively determine that this mitigating factor exists. The trial court could have considered the evidence and properly concluded that this factor was not supported by uncontradicted and substantial evidence.
B. Duress or Threat
[9] Defendant argues that since all of the evidence shows that Ms. Mixion initiated the fight and used “gross physical force” on defendant, the trial court should have found the defendant commit-
In State v. Canty, 321 N.C. 520, 364 S.E.2d 410 (1988), evidence that the victim had stabbed defendant 48 hours before defendant killed the victim was not sufficient to establish that defendant acted under duress. Id. at 524, 364 S.E.2d at 413-14. The Court noted that at the time of the shooting the victim did not display a weapon and did not initiate the confrontation. Id. at 524, 364 S.E.2d at 414. See also Bullard, 79 N.C. App. at 442-43, 339 S.E.2d at 665 (no duress where victim not armed and did not initiate confrontation).
Although the evidence in the case at hand would probably support a finding of duress since the victim was armed and had initiated the confrontation, we are constrained by the fact that the same evidence may not support more than one mitigating factor. Crandall, 83 N.C. App. at 41, 348 S.E.2d at 829. This evidence appears to be the basis for the trial judge‘s finding of strong provocation. The judge summarily stated the finding of strong provocation in response to defense attorney‘s plea for that factor because “[defendant] was in his home where, regardless of who it is, entered with a deadly weapon and an assault ensues...,” and because “of the method and manner of the attack upon [the defendant].” Since the same evidence may not support a finding of strong provocation and duress, we find no error in the judge‘s failure to find duress.
We must remand this case for a new sentencing hearing for proper documentation of defendant‘s prior convictions.
In the trial, no error.
Remanded for new sentencing.
Judge WELLS concurs.
Judge COZORT concurs in part and dissents in part.
Judge COZORT dissenting.
I concur with all of the majority opinion except that portion which concludes that the matter must be remanded for resentenc-
At the beginning of the trial, on 1 April 1991, the State filed with the court a notice to the defendant that the State intended to use defendant‘s record of prior convictions during cross-examination if the defendant took the stand, and in its case in chief if any prior conviction involved Sylvia Mixion. Attached to the notice was a printout of defendant‘s record. The printout showed that defendant was convicted on 21 January 1986 of assault with a deadly weapon, a knife, in violation of
I also observe that the defendant made no objection when the State offered and argued the prior convictions at the sentencing hearing. The State‘s attorney stated: “The State, I believe, may have tendered a copy of the record. I believe it‘s been recited in evidence for the court.” The State‘s attorney then made specific reference to the assault with a deadly weapon and the assault on a female, as well as a trespass conviction. Defendant should not now be permitted to argue that it is unclear whether the assault was simple or aggravated. See State v. Quick, 106 N.C. App. 548, 555-61, 418 S.E.2d 291, 296-99 (1992).
It would be a waste of our already overburdened judicial resources to remand this case for a resentencing hearing when all that would be produced is exactly the same information which was properly before the trial court two years ago.
I respectfully dissent.