in the Court of Appeals 10 August 2017.
by Defendant from judgment entered 28 September 2015 by Judge
Henry W. Hight, Jr., in Wake County No. 13CRS214536 Superior
Attorney General Joshua H. Stein, by Special Deputy Attorney
General Sandra Wallace-Smith, for the State.
B. Currin for the Defendant.
Roberta Madonna ("Defendant") appeals from judgment
entered upon a jury verdict finding her guilty of
and Jose Perez ("Mr. Perez") met in 2008 and were
married in 2009. In June 2013, Mr. Perez was killed during an
altercation with Defendant. At trial, Defendant proceeded on
a theory of self-defense.
Perez and Defendant were the only individuals at the scene of
the altercation. Because Mr. Perez did not live to tell his
version of events, Defendant's account of the altercation
was the only direct evidence available at trial. Defendant
testified to her version of events as follows: While driving
in a car with Mr. Perez, Defendant told Mr. Perez that she
wanted a divorce. Mr. Perez responded by saying that he would
kill himself if she left him. Mr. Perez then clutched his
chest, claimed that he was going to have a heart attack, and
asked Defendant to pull over. After Defendant pulled the car
over, she got out of the car to help Mr. Perez, but before
she was able to reach the passenger door of the car, she
heard a gunshot. Mr. Perez pointed the gun at Defendant and
himself, and when Defendant attempted to take the gun from
Mr. Perez, it went off and shot him in the face. Defendant
dropped the gun, got back in the car, and began driving
toward the VA hospital. Mr. Perez again started clutching his
chest and asking Defendant to pull over. When she again got
out of the car to check on him, Mr. Perez jumped out of the
car and knocked Defendant over, crushing her with his body
weight. Defendant became concerned that Mr. Perez was going
to choke her to death. Defendant saw a knife on the ground
and "started swinging at [Mr. Perez]" until he was
no longer holding her down. Defendant testified that at that
point, she thought Mr. Perez would still be able to get up,
so Defendant threw the knife in the woods, removed Mr.
Perez's shoes so he could not chase her, and left the
State presented considerable circumstantial evidence which
tended to contradict Defendant's version of events.
Following the trial, the jury convicted Defendant of
first-degree murder. Defendant timely appealed.
appeal, Defendant contends that the trial court erred in (1)
denying her motions to dismiss, (2) denying her motion for
mistrial and failing to intervene ex mero motu where
the prosecutor made grossly improper remarks during closing
argument, and (3) allowing inadmissible and prejudicial
witness testimony. We address each argument in turn.
Motions to Dismiss
first argues that the trial court erred in denying her
motions to dismiss at the close of the State's evidence
and the close of all evidence. On appeal, Defendant contends
that (1) the State failed to present substantial evidence of
premeditation and deliberation, and (2) the State failed to
present substantial evidence from which the jury could
reasonably conclude that Defendant did not act in
review the trial court's denial of a motion to dismiss
for insufficiency of the evidence de novo. State
v. Barnett, 368 N.C. 710, 713, 782 S.E.2d 885, 888
When considering a motion to dismiss for insufficiency of
evidence, the court is concerned only with the legal
sufficiency of the evidence to support a verdict, not its
weight, which is a matter for the jury. The evidence must be
considered in the light most favorable to the state; all
contradictions and discrepancies therein must be resolved in
the state's favor; and the state must be given the
benefit of every reasonable inference to be drawn in its
favor from the evidence. There must be substantial evidence
of all elements of the crime charged, and that the defendant
was the perpetrator of the crime.
Id. (citations omitted). Substantial evidence is
"relevant evidence that a reasonable mind might accept
as sufficient to support a conclusion." State v.
Allen, 346 N.C. 731, 739, 488 S.E.2d 188, 192 (1997).
Premeditation and Deliberation
establish the offense of first-degree murder, the State must
show that the defendant unlawfully killed the victim with
malice, premeditation, and deliberation. State v.
Vause, 328 N.C. 231, 238, 400 S.E.2d 57, 62 (1991).
Premeditation is defined as "thought  beforehand for
some length of time, however short[.]" State v.
Robbins, 275 N.C. 537, 542, 169 S.E.2d 858, 861-62
(1969). Deliberation means that the act is done "in a
cool state of the blood in furtherance of some fixed
design." State v. Buffkin, 209 N.C. 117, 125,
183 S.E. 543, 548 (1936). "The question as to whether or
not there has been deliberation is not ordinarily capable of
actual proof, but must be determined by the jury from the
circumstances." Id. at 125, 183 S.E. at 547.
Factors to be considered in determining whether the defendant
committed the crime after premeditation and deliberation
(1) [W]ant 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
State v. Hamlet, 312 N.C. 162, 170, 321 S.E.2d 837,
following evidence relevant to the issue of premeditation and
deliberation was presented at trial:
Perez suffered from a heart condition and other ailments. In
the months leading up to the June 2013 death of Mr. Perez,
Defendant and Mr. Perez began arguing, mostly about financial
issues. Defendant had begun a romantic relationship with her
therapist and planned to ask Mr. Perez for a divorce.
to a search of a home computer, law enforcement discovered
internet searches from March 2013 including "upon death
of a veteran, " "can tasers kill people, "
"can tasers kill people with a heart condition, "
"what is the best handgun for under $200, "
"death in absentia USA, " and "declare someone
dead if missing 3 years."
day Mr. Perez was killed, Defendant visited her nephew, who
was a gun enthusiast. While visiting, Defendant expressed
concerns about her personal safety due to break-ins in her
neighborhood, and her nephew gave her a gun and a knife.
Shortly after being given these weapons, Defendant returned
home and asked Mr. Perez to go on a drive with her so that
she could ask him for a divorce. Defendant took both the gun
and the knife with ...