Heard in the Court of Appeals March 4, 2015
New Hanover County. Nos. 13 CRS 3475-76.
Roy Cooper, Attorney General, by Steven M. Arbogast, Special Deputy Attorney General, for the State.
Parish & Cooke, by James R. Parish, for defendant-appellant.
TYSON, Judge. Judges STEPHENS and HUNTER, JR. concur.
Appeal by defendant from judgment entered 16 May 2014 by Judge Jay D. Hockenbury
in New Hanover County Superior Court.
Shannon Jerome Mitchell (" Defendant" ) appeals from judgment entered after a jury conviction of first-degree murder. We find no error in Defendant's conviction or the judgment entered thereon.
I. Factual Background
A grand jury indicted Defendant on one count of first-degree murder and one count of possessing a firearm while being a convicted felon on 20 May 2013. A jury trial was held on 28 April 2014 in New Hanover County Superior Court. Defendant pled guilty to possession of a firearm by a felon outside the presence of the jury. Judgment was continued on that charge until the conclusion of the trial. Defendant also stipulated to seven prior felony convictions within a twelve-year period, and prior conviction and record levels of III.
A. State's Evidence
Gilbert McClammy (" Gilbert" ) was renovating a house on Bladen Street in Wilmington, North Carolina for his stepson, Christopher James (" Christopher" ) and Christopher's girlfriend, Shiniqua Bunting (" Shiniqua" ). Christopher and Shiniqua were expecting their first child together. Shiniqua is also the daughter of Defendant's girlfriend, Catrina Bunting (" Catrina" ).
On 27 April 2013, Gilbert offered to show Moise Tabon (" Moise" ), his nephew, the house he was renovating. Moise and Gilbert stopped at Shiniqua's grandmother's house to pick up Shiniqua and Christopher and take them to the Bladen Street house.
Defendant and Catrina were also present at Shiniqua's grandmother's house. Defendant and Catrina asked Christopher to find out if Gilbert would give them a ride to a party. Gilbert agreed, so long as Defendant and Catrina contributed gas money. Shiniqua and Catrina rode in Gilbert's vehicle. Christopher and Defendant rode in Moise's vehicle. After stopping at a gas station, both vehicles were driven to a trailer park in Monkey Junction, North Carolina.
Christopher and Moise both testified as they pulled up to the trailer park, Defendant stated he " came to town on that day to shoot a guy so he could get the keys to his grandmother's vehicle."
Gilbert parked his vehicle in the driveway in front of one of the trailers. Moise pulled in behind Gilbert's vehicle. Christopher, Shiniqua, Catrina, and Defendant exited the vehicles. Gilbert and Moise remained in the driver's seats of their respective vehicles.
Defendant and Catrina wanted to attend a party taking place in Sea Breeze, North Carolina. Shiniqua testified Defendant stated he was going to ask Gilbert whether he was going to drive Catrina and Defendant to the party. Defendant walked over to Gilbert's vehicle and " got in the car." When Defendant got into Gilbert's vehicle, his right leg and foot remained outside the vehicle.
Shiniqua and Christopher both testified they saw Gilbert lift his hands up to his face in a gesture indicating to them, " I can't do it" or " I don't know." Almost immediately, Shiniqua, Christopher, and Catrina heard three gunshots in rapid succession. After the third gunshot, Defendant was entirely outside of Gilbert's vehicle. He walked toward the location where Shiniqua, Gilbert, and Catrina were standing.
Catrina testified she observed Defendant exit Gilbert's vehicle with a gun in his hand. She saw Defendant place the gun in his waistband. Catrina testified Defendant approached her and asked, " What happened?" Gilbert's body fell out of his vehicle and onto the ground. Defendant asked Christopher to assist him in putting Gilbert's lifeless body back into the vehicle. Christopher refused and Defendant ran off.
Shiniqua called the police. New Hanover County Sheriff's Deputy David Swan arrested Defendant near the scene of the shooting. Defendant was charged with murder and taken to the booking area of the New Hanover County jail. All telephone calls from this area are recorded. Both individuals placing a call and the person receiving the call are informed the calls are subject to monitoring and recording.
While in the booking area, Defendant placed a telephone call to his father. A segment of this recorded call was admitted into evidence over Defendant's objection. The jury heard a portion of the recorded call, which consisted of the following conversation between Defendant and his father:
Father: I told you. You wouldn't listen, Junior. You wouldn't listen. Now who you done shot now?
Defendant: Trina daughter baby daddy, daddy. Man, I was just trying to talk to him, man, but . . .
Father: That same gun, right?
Defendant: Yeah, man.
Father: See what I try to tell you. You don't do what God wants you to do. I told you from under up of safety. I told you, Junior.
Defendant: I know, man.
2. Defendant's Evidence
Dr. George Corvin (" Dr. Corvin" ), a general and forensic psychiatrist at North Raleigh Psychiatry, testified on Defendant's behalf as an expert witness in forensic psychiatry. Dr. Corvin interviewed Defendant for over two hours on 25 October 2013, reviewed discovery materials, and spoke with Defendant's family members. Dr. Corvin diagnosed Defendant with intermittent explosive disorder (" IED" ). Dr. Corvin testified IED is an impulse control disorder characterized by recurrent behavioral outbursts representing a failure to control aggressive impulses. Dr. Corvin explained IED may lead to frequent verbal, threatening, destructive, or physically assaultive acts. Dr. Corvin also testified " the magnitude of the aggressiveness expressed during recurrent outbursts is grossly out of proportion to the provocation or to any precipitating psychosocial stressors."
Dr. Linda Graham (" Dr. Graham" ), a psychiatrist at RHA Behavioral Health Services, also testified on Defendant's behalf as an expert witness in psychiatry. Dr. Graham evaluated Defendant as a walk-in patient in February 2013 for approximately one-half hour. Dr. Graham also diagnosed Defendant with IED.
On 16 May 2014, the jury returned a verdict finding Defendant guilty of first-degree murder. The jury found Defendant guilty both under the theory of premeditation and deliberation and under the ...