Appeal by defendant from judgment entered 1 November 1996 by Judge Knox V. Jenkins, Jr. in Johnston County Superior Court. Heard in the Court of Appeals 23 February 1998.
The opinion of the court was delivered by: Eagles, Judge.
Defendant was fifteen years old when he was charged with first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. Pursuant to G.S. 7A-608 his case was transferred to superior court. At trial in superior court, defendant was convicted of first degree murder and sentenced to life imprisonment without parole. Defendant was also convicted of assault with a deadly weapon with intent to kill inflicting serious injury and sentenced to a minimum sentence of 50 months and a maximum sentence of 69 months in prison.
At trial, the State's evidence tended to show that Maggie Stinnett was married to Carlos Stinnett, Sr. (Carlos). Defendant, Carlos Dwayne Stinnett (Dwayne) was Carlos Sr.'s son and Maggie Stinnett's stepson. Prior to November 1995, Carlos had very little contact with Dwayne. During Maggie Stinnett's first two years of marriage to Carlos, Carlos had never telephoned Dwayne nor received a call from Dwayne. Also, Maggie Stinnett had never met Dwayne. Dwayne lived with his mother Felicia Stinnett in Virginia Beach, Virginia.
In November 1995, Felicia Stinnett called Carlos and asked him to accept custody of Dwayne. She explained that Dwayne was having behavioral problems and she thought some time with his father might help. Carlos agreed to the arrangement and on 19 November 1995, Carlos and Maggie Stinnett drove to Virginia Beach and picked up Dwayne. The following day at Carlos and Maggie Stinnett's home, Dwayne told Ms. Stinnett that he wanted to go home to Virginia. When Carlos returned home from work, he called Dwayne's mother, Felicia. She refused to have Dwayne back at her home in Virginia.
Around 9:15 p.m. that evening, Carlos set the house alarm and the family retired for the evening. Their infant daughter was in the bedroom with Carlos and Maggie Stinnett. Around 10:00 p.m. Dwayne knocked on Carlos and Maggie's bedroom door. Carlos put on his clothes and went to the door while Maggie stepped into the closet to get her robe. From the closet, Maggie heard Carlos shout, "Dwayne no." Then she heard a gunshot, a fall, and about three more gunshots. Maggie then heard Dwayne say "I got you." Maggie closed the closet door and held it shut with her hands. Dwayne approached the closet door, and fired approximately four shots into the closet door. She testified that she then heard Dwayne leave the room and reload the gun. Dwayne came back to the closet door and said "If you are still in there, you'd better come out because I don't want to kill you." Maggie did not answer and Dwayne tried the closet door again. Dwayne fired four more shots into the closet and wounded Maggie. Maggie cried out when she was hit and stopped holding the closet door shut. Dwayne yelled "Oh shit" and stopped shooting. Maggie was still conscious and she heard Dwayne speak to the crying baby. She heard him open and close dresser drawers in the bedroom. Dwayne then left the house. After hearing a car engine start outside, Maggie left the closet and saw her husband lying on the bedroom floor. He appeared to be dead. The baby was no longer in her crib. Maggie locked the bedroom door, climbed out the bedroom window and sought help at a neighbor's house.
Defendant shot Maggie three times. Dr. Robert L. Thompson, a forensic pathologist at the chief medical examiner's office in Chapel Hill, testified that Maggie suffered a "through and through" wound to the abdomen, a "through and through" wound to the thigh, and a third wound which left a bullet embedded deep in the thigh. Carlos suffered three gunshot wounds: one to the right pelvis; one "through and through" wound to the left chest; and one "through and through" wound to the back. Dr. Thompson testified that the victim died from a gunshot wound to the back. Dr. Thompson observed no gunshot residue on the body or clothing, but the victim's clothes were never chemically tested for residue. The apparent absence of residue about the clothing and body suggests that the shots were fired at a range of more than two feet. A bullet was removed from the deceased victim's body and turned over to law enforcement officers.
During the early morning hours of 21 November 1995, defendant was arrested at a Pantry convenience store in Sanford. Defendant had a baby with him at the time of his arrest. Lee County Deputy Sheriff Ron Lerche searched defendant and recovered from him a two dollar bill enclosed in a plastic-sheath as well as twelve unfired .38 caliber bullets.
Rhett Jones testified that he lived next door to the Pantry convenience store in Sanford and on 17 December 1995 he found a .357 revolver in his backyard near the fence dividing his property from the convenience store. There were four empty casings and two live rounds in the revolver. Lee County Deputy Sheriff James Owle learned that the gun had been stolen from Virginia Beach. Steven Sokolowski from Virginia Beach testified that the .357 revolver, identified as the weapon used by defendant, had been stolen from his home on 18 November 1995. The serial number on the gun discovered near the fence in Mr. Jones' yard was the same as the serial number on the gun stolen from Mr. Sokolowski's home. Mr. Sokolowski also identified the plastic-enclosed two dollar bill as another item stolen in the burglary of his home on 18 November 1995.
The Johnston County Sheriff's Department investigated the shooting at the Stinnett residence around 11:00 p.m. on 20 November 1995. They found no evidence of forced entry. Six bullets were collected from the Stinnett's master bedroom, one was recovered from the deceased victim's body and one was recovered later by a builder doing repairs. Six of the bullets could be matched uniquely to the gun found in Mr. Jones' yard. The eight cartridge cases found in the Stinnett's residence and the four empty shell cases found in the weapon when it was seized all uniquely matched the revolver.
A jury found defendant guilty of first degree murder and assault with a deadly weapon with intent to kill inflicting serious injury. The trial court sentenced defendant to life imprisonment without parole for the first degree murder charge and a minimum of 50 months and a maximum of 69 months in prison for the assault with a deadly weapon with intent to kill inflicting serious injury. Defendant appeals.
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, ___ U.S. ___, 133 L.Ed.2d 153 (1995)), cert. denied, ___ U.S. ___, 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, 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 899, 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 ...